Full opinion text
COHEN, Senior District Judge: This complex, multi-issue case, which included claims and counterclaims among Dr. Suketu H. Nanavati, Dr. Robert J. Sorenson, the Burdette Tomlin Memorial Hospital (“BTMH” or “the Hospital”) and the Executive Committee of the Hospital’s Medical Staff (“the Executive Committee”) was tried before a jury for nine weeks. Sixty-five witnesses were presented, nine lawyers and their staffs participated in the case, and eleven separate opinions, 4 before trial and 7 during trial, were filed by this Court. Forty-five special interrogatories were submitted to the jury. The jurors deliberated for 4 days, and, during this time, communicated with the Court on 8 occasions. Presently before the Court are post-trial motions by plaintiff/counterclaim — defendant, Dr. Nanavati, defendant/counterclaim — plaintiff, Burdette Tomlin Memorial Hospital, and defendant, the Executive Committee. Dr. Nanavati moves for a judgment notwithstanding the verdict (“j.n. 0. v.”) pursuant to Fed.R.Civ.P. 50(b), and, in the alternative, for a new trial pursuant to Fed.R.Civ.P. 59(a). BTMH and the Executive Committee also move herein for j.n.o.v. and, alternatively, for a new trial. 1. BACKGROUND The factual predicate for this case is somewhat difficult to summarize, as it consists of events taking place over a number of years. Without purporting to illuminate every nuance of the matter, we shall set forth a brief account of the facts. Dr. Nanavati, who speaks English with an Indian accent, is a dark-skinned native of Ahmedabad, India. He was educated in India and, in 1970, came to this country to continue his medical education. He was eventually naturalized as a United States citizen, and was Board Certified in Cardiology in 1977. Thereafter, he served as Chief of Cardiology in a hospital at Debois, Pennsylvania, for about a year and a half, at which time he sought to move his practice to New Jersey. In March of 1979 Dr. Nanavati began working at BTMH, having gained admission to the medical staff without difficulty. Prior to his admission and shortly after his arrival at BTMH, Dr. Nanavati discussed the opportunities for reading Electrocardiograms (EKG’s) — a privilege which earns the reading physician $5.00 for each EKG — with the Chief of Cardiology at BTMH, Dr. Robert Sorenson. Dr. Sorenson, who is Board Certified in Internal Medicine, but not in the subspecialty of Cardiology, had exclusive control over allocating these reading privileges. Approximately three weeks after his arrival at BTMH, Dr. Nanavati, having encountered resistance to his attempts to share immediately in the reading of EKGs sought assistance in attaining the privilege from the Executive Committee of the Medical Staff. A few days later, evidently angered upon being told that he must await Dr. Sorenson’s decision regarding the date he could expect to begin reading EKGs, Dr. Nanavati verbally inquired, at a meeting of the entire medical staff, why an “inferiorly qualified” physician controlled the EKG readings. Trial transcript of June 2, 1986 at pp. 81-84. Thus was fired the opening shot of an economic battle — a competitive fight — between these two doctors for the control of medical care of cardiac patients in Cape May County. Subsequent to this incident, with the apparent achievement of a complete alienation of Dr. Sorenson, Dr. Nanavati proceeded to challenge a variety of matters concerning hospital practices and patient care within Cape May County. These challenges included public accusations that Dr. Sorenson was incorrectly interpreting EKGs, quarrels with nursing personnel, and confrontations with members of BTMH’s Medical Staff. Eventually, purportedly because the Hospital determined that he was disruptive, overly aggressive, and incapable of working harmoniously with others, attempts were made to revoke Dr. Nanavati’s staff privileges. A brief litany of some of the key occurrences follows. In June of 1982, Dr. Nanavati filed a charge against BTMH with the Equal Employment Opportunity Commission (“EEOC”) alleging national origin discrimination. In August of 1982, charges were filed with the Executive Committee seeking Dr. Nanavati’s termination from the medical staff. On September 9,1982, Dr. Nanavati filed a second charge against BTMH with the EEOC alleging unlawful retaliation. On November 12, 1982, Dr. Nanavati’s staff privileges at BTMH were deemed terminated. Five days later, on November 17, 1982, pursuant to a complaint filed in the Chancery Division of the Superior Court of New Jersey, a temporary restraining order was issued which reinstated Dr. Nanavati to the BTMH staff. On March 8, 1983, Dr. Nanavati filed his complaint in the instant case. On March 17, 1985, pursuant to its holding, on January 14, 1985, that the Hospital and the Executive Committee violated the medical staff bylaws by the manner in which they handled the disposition of the charges against Dr. Nanavati, the Chancery Division of the New Jersey Superior Court entered a judgment permanently enjoining BTMH and the Executive Committee from attempting to terminate Dr. Nanavati’s staff privileges based upon the earlier charges. The legal claims advanced by the parties in the present case included a claim by Dr. Nanavati against the Hospital and the Executive Committee for an alleged violation of the 1870 Civil Rights Act, 42 U.S.C. § 1981; a claim by Dr. Nanavati against the Hospital, the Executive Committee and Dr. Sorenson pursuant to the Sherman Antitrust Act, 15 U.S.C. § 1 et seq., and the New Jersey Antitrust Act, N.J.S.A. 56:9-1 et seq.; claims under New Jersey law for tortious interference with prospective economic business advantage by Dr. Nanavati and by Dr. Sorenson, each against the other; and defamation claims by the Hospital and Dr. Sorenson against Dr. Nanavati. These claims were presented to the jury for decision by use of a set of 45 special interrogatories, which were drafted by the parties and the Court and submitted with the consent of all counsel. The jury’s determination, as molded by this Court, was as follows: A verdict of “No Cause for Action” on Dr. Nanavati’s § 1981 claim, see special interrogatory questions A1-A7; a verdict of “No Cause for Action” in favor of Dr. Sorenson on Dr. Nanavati’s antitrust claim, but against the Hospital and its Executive Committee, in the amount of $350,000.00, which, tripled pursuant to the Sherman Act totalled $1,050,000.00, (Bl-Bll); a verdict of “No Cause for Action” in favor of Dr. Sorenson on Dr. Nanavati’s claim against him for tortious interference with prospective economic advantage, (C1-C5); a verdict in favor of Dr. Sorenson and against Dr. Nanavati on Dr. Sorenson’s claim for tortious interference with prospective economic advantage in the amounts of $100,-000.00 as compensatory damages and $300,000.00 as punitive damages, (P1-F5); and, on the defamation claims by the Hospital and Dr. Sorenson against Dr. Nanavati, verdicts in favor of the Hospital in the amounts of $100,000.00 as compensatory damages and $50,000.00 as punitive damages, and in favor of Dr. Sorenson against Dr. Nanavati in the amounts of $100,000.00 as compensatory damages and $500,000.00 as punitive damages. (Dl-D7[2d] & El-E8). II. DISCUSSION Motions for a judgment notwithstanding the verdict are governed by Federal Rule of Civil Procedure 50(b), which provides: Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Not later than 10 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned such party, within 10 days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict. The standard for granting a motion for j.n.o.v. is the same as for a directed verdict. Skill v. Martinez, 91 F.R.D. 498, 503 (D.N.J.1981). Such a motion is to be granted only when the evidence, exposed to the light which most strongly favors the party against whom the motion is directed, supports but one reasonable conclusion, and that conclusion contradicts the jury’s verdict. E.g., Hild v. Bruner, 496 F.Supp. 93, 97 (D.N.J.1980). Motions for a new trial are governed by Federal Rule of Civil Procedure 59(a). This rule provides, in relevant part: A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States ... A district court may grant a new trial if doing so would prevent injustice or would correct a verdict which is palpably contrary to the clear weight of the evidence. American Bearing Co., Inc. v. Litton Industries, 729 F.2d 943, 948 (3d Cir.), cert. denied, 469 U.S. 854, 105 S.Ct. 178, 83 L.Ed.2d 112 (1984); 6A J. Moore, Moore’s Federal Practice ¶ 59.08[5], at 59-140, 59-152 (2d ed. 1982). In deciding whether the jury’s verdict was against the weight of the evidence, a court should be careful not to substitute its judgment for that of the jury. A court is not free to reweigh evidence and set aside a jury verdict merely because it thinks another result is more reasonable. E.g., Litman v. Massachusetts Mutual Life Ins. Co., 739 F.2d 1549 (11th Cir.1984); Lanza v. Poretti, 537 F.Supp. 777 (E.D.Pa.1982). To do so would usurp the jury’s prime function, Borbely v. Nationwide Mutual Ins. Co., 547 F.Supp. 959, 980 (D.N.J.1981), thereby eroding the party’s Seventh Amendment and common law right to a trial by a jury of his peers. Shushereba v. R.B. Industries, Inc., 104 F.R.D. 524, 527 (W.D.Pa.1985). The authority to grant a new trial, however, is within the broad discretion of the trial court. Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980) (per curiam); American Bearing, supra, at 948. A. Dr. Nanavati’s Motions for a Judgment Notwithstanding the Verdict or a New Trial Dr. Nanavati contends that certain legal errors, and a record which shows that the jury’s verdicts were against the weight of the evidence, require either entry of a j.n. o.v. or granting of a new trial on the defamation claims against him, Dr. Sorenson’s tortious interference claim against him, and his own claim for race discrimination. We shall address each of these contentions in turn. 1. Defamation claims Before delving into the specifics of Dr. Nanavati’s contentions regarding the defamation verdicts, it is important to present some chronicle of the procedural history of the defamation claims against him. On May 10, 1984, Dr. Sorenson filed a complaint against Dr. Nanavati alleging, inter alia, that Dr. Nanavati had defamed him. On April 8, 1986, this Court granted Dr. Nanavati’s motion for summary judgment with respect to Dr. Sorenson’s defamation claim on the ground that Dr. Sorenson had not pled his defamation claim with sufficient particularity, despite the passage of a significant period of time and the concurrent opportunity to supplement or amend his original complaint. Slip op. of April 8, 1986 at pp. 7-10. Shortly thereafter, Dr. Sorenson moved this Court to reconsider that decision to grant summary judgment. In so doing, he specifically requested that the defamation count be restored so that he might pursue a claim based on the allegedly defamatory statements contained in an article entitled “Nanavati: diagnosis led to death,” which had been published in The Sun, an Atlantic County Newspaper, on May 11, 1983. See Dr. Sorenson’s memorandum in support of motion for reconsideration at p. 4. We granted Dr. Sorenson’s motion, ordering that the summary judgment granted in favor of Dr. Nanavati on Dr. Sorenson’s claim be vacated insofar as it precluded Dr. Sorenson’s action based on statements contained in the article entitled “Nanavati: diagnosis led to death.” Slip op. of May 12, 1986. The alleged defamatory statements in the article, attributed to Dr. Nanavati, were as follows: I was concerned about everyone’s life after that, I saw that man (the patient’s husband) and I had to cover up for this doctor (Sorenson). [T]he “conservative interpretation” (referring to Dr. Sorenson) probably cost the patient her life. How can Dr. Meister (the expert who reviewed Dr. Sorenson’s reading of the EKGs) be right when the patient is dead[?] The correct interpretation (of the EKGs) would have saved her life because a pulmonary embolism is fully treatable if it is diagnosed and quickly handled. In addition to allowing an action on the above statements, this Court permitted Dr. Sorenson to supplement his pleadings, at trial, to assert an additional defamation claim. The statement upon which the additional claim was based was allegedly made in November of 1985 by Dr. Nanavati to a nurse, Anne O’Neil. Ms. O’Neil testified, on June 30, 1986, that Dr. Nanavati had referred to Dr. Sorenson as a “senile old doctor that had been there [at the Hospital] for twenty years killing patients.” Trial Transcript of June 30, 1986 at p. 160, lines 14 & 15. BTMH filed a defamation claim against Dr. Nanavati on May 10,1983 as a counterclaim to Dr. Nanavati’s complaint against it. This defamation claim, as it went to the jury, was based on the following statements allegedly made by Dr. Nanavati: The correct interpretation of EKGs would have saved her life because pulmonary embolism is fully treatable if it is diagnosed and quickly handled. I never knew medicine could be so shallow (referring to the practice of medicine at BTMH). Evidence was presented at trial that, with the exception of the statement allegedly made to Anne O’Neil and the alleged “so shallow” statement, which was apparently made only to Mr. Watson, Dr. Nanavati made all of the above statements both to William Watson, a reporter for the Atlantic City Press, and to Don Russell, a reporter for The Sun. The articles which ensued from the conversations between Dr. Nanavati and these reporters were admitted into evidence in this case without objection. The article by Mr. Watson, published on May 10, 1983 in the Atlantic City Press, entitled “Nanavati: Faces $1M. Countersuit,” was admitted as Defendants’ Exhibit 1297, and the article by Mr. Russell, published May 11, 1983 in The Sun, entitled “Nanavati: Diagnosis led to death,” was admitted as Defendants’ Exhibit 2153. In addition, the jury heard the testimony of William Watson, the recipient of the alleged slanderous statements and the author of the May 10, 1983 Press article. As previously stated, after four days of deliberation, the jury found that Dr. Nanavati had, in fact, defamed both Dr. Sorenson and the Hospital. The jury’s verdict in favor of Dr. Sorenson awarded him $100,-000.00 as compensatory damages and $500,000.00 as punitive damages. See special interrogatory questions E7 & E8. With respect to the Hospital, the jury awarded $100,000.00 as compensatory damages and $50,000.00 as punitive damages. (D7 & D7[2d]). a. Listener’s Understanding On his post-trial motions, Dr. Nanavati first contends that the defamation plaintiffs, Dr. Sorenson and BTMH, failed to prove that the actionable defamatory words were understood in their defamatory sense by the listeners. He urges that the evidence in this case with respect to the listeners’ understanding is so deficient that no rational jury could have inferred that the statements were understood in their defamatory meaning. After reviewing the evidence presented to the jury, we must reject Dr. Nanavati’s contention. The jurors were clearly presented with the requisite minimum quantum of evidence from which they could infer that the listeners understood the statements made to them as defamatory. With regard to the statements made to the newspaper reporters, Mr. Watson and Mr. Russell, we hold that there was sufficient evidence in the record to support an inference regarding the reporters’ understanding of the defamatory nature of the words used by Dr. Nanavati. Mr. Watson was called as a witness in this case, and his testimony presented the jury with a reasonable basis for inferring his understanding of Dr. Nanavati’s statements. Similarly, although Mr. Russell did not testify at the trial, his article published in The Sun on May 11, 1983, quoting Dr. Nanavati’s allegedly slanderous statements, which was admitted into evidence, displayed his understanding of the alleged slanderous statements in their defamatory sense. The jury’s findings as to the meanings of the slander uttered to the reporters thus had sufficient support in the evidence. With respect to the statement allegedly made by Dr. Nanavati to Ms. O’Neil, we also find ample support in the record for the jury’s inference that the statement was understood to be defamatory. Although Ms. O’Neil’s testimony with respect to this statement reveals that, upon hearing the statement, she verbally objected thereto, and even protested to Dr. Nanavati that such a view was only his opinion, see trial transcript of June 30, 1986 at p. 159, this evidence does not render unreasonable the jury’s inference that Ms. O’Neil understood the words to be defamatory. Indeed, this evidence can clearly be said to support an inference that Ms. O’Neil fully understood the statement made to be defamatory, since she apparently felt that some protestation was appropriate. At the very least, a jury question was presented regarding Ms. O’Neil’s understanding of the statements. b. Expression of Opinion Dr. Nanavati has argued extensively that the statements made to reporters Watson and Russell are protected expressions of opinion. With respect to the statements made which resulted in the articles published on May 10, 1983 in the Press, and on May 11, 1983 in The Sun, we reject Dr. Nanavati’s argument without further discussion. In our ad litem opinion filed July 10, 1986, we held that these statements were not protected expressions of pure opinion, see op. of July 10, 1986, infra, at p. 1249, and we have not been persuaded that this holding was erroneous. With regard to the allegedly defamatory statement made to Mr. Watson to the effect that Dr. Nanavati “never knew medicine could be so shallow,” Dr. Nanavati urges this Court to hold that this statement was improperly submitted to the jury, both because it was not asserted in the Joint Final Pretrial Order and because it is a protected expression of pure opinion. Although we recognize that this statement, in contrast to the other statements made to reporters which were submitted to the jury, was not asserted as a ground for defamation until the trial was underway — and therefore was not included within the Joint Final Pretrial Order and was not considered by the Court in our ad litem ruling regarding the actionable nature of the statements — we nonetheless cannot accept Dr. Nanavati’s contention that a j.n.o.v. or a new trial is therefore required. Assuming, without deciding, that the statement at issue here would have been held to have been a protected expression of opinion, had it been submitted to this Court for ruling, we shall not set aside the jury’s verdict in favor of the Hospital on this basis. Dr. Nanavati’s failure to timely raise this defense with respect to the “so shallow” statement, after having been on notice that the Hospital intended to assert a defamation claim based thereon, see transcript of July 15, 1986 at p. 66-67, can be said to constitute a waiver of this defense. Moreover, after a thorough search of the record, we are convinced that no prejudice accrued to Dr. Nanavati by virtue of the submission of this statement to the jury. The evidence in this case is sufficient, without regard to the “so shallow” statement, to support the jury’s verdict in favor of the Hospital on the defamation claim. c. Constitutional Malice Dr. Nanavati next argues that there was insufficient evidence in the record to establish that he had the requisite constitutional malice at the time he made the statements found by the jury to be defamatory. Because such a state of mind was lacking, he argues, the award of punitive damages was improper. It is hornbook law that in a defamation action a jury must find by clear and convincing evidence that the defamation defendant made an allegedly defamatory statement with knowledge of its falsity or in reckless disregard of its truth or falsity before it may award punitive damages, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 348-50, 94 S.Ct. 2997, 3011-12, 41 L.Ed.2d 789 (1974), and this Court so instructed the jury. It was then the re-sponsibility of the jury, having heard the testimony and observed the manner and demeanor of the witnesses in order to assess credibility, to weigh the evidence and ultimately to reach a determination regarding whether Dr. Nanavati possessed the requisite state of mind to be held responsible in punitive damages. The jury clearly found that he did, awarding the defamation plaintiffs a total of $550,000.00 in punitive damages. See special interrogatory questions D7[2d] & E8. We are now called upon to review the record to assure that sufficient evidence exists to support that finding. Having done so, we hold that there was ample evidence presented from which the jury could rationally find that Dr. Nanavati’s statements were made in reckless disregard of the truth or falsity thereof. Accordingly, we reject Dr. Nanavati’s argument that he is entitled to have the punitive damage awards set aside. d. Falsity and Abuse of Privilege Dr. Nanavati also urges that the record lacks the minimum quantum of proof to support the jury’s findings that the alleged defamatory statements contained in the May 11, 1983 Sun article (which were orally conveyed to reporters Russell and Watson by Dr. Nanavati) were false, see special interrogatory questions D1 & El, and that he abused his qualified privilege in making said statements. (D5, D6, E5 & E6). Again, our review of the record leads us to disagree. We conclude that there is sufficient basis in the record for the jury to find that the alleged defamatory statements were false and that Dr. Nanavati, in making the statements, abused his qualified privilege. e. Entire Controversy Doctrine Dr. Nanavati next contends that the Hospital’s defamation claim against him should not have been heard in this federal action by virtue of the New Jersey state court “entire controversy” doctrine, which provides that all matters in controversy between parties are to be disposed of in a ■single action. E.g., New Jersey Highway Authority v. Renner, 18 N.J. 485, 492, 114 A.2d 555 (1955). In support of this argument, however, Dr. Nanavati cites no authority for the proposition that this Court is required to apply that New Jersey doctrine, and nothing has been presented which suggests that a federal court is precluded from hearing a pendant state law claim by operation of such a doctrine. Although of course it is true that there is a federal policy in favor of judicial economy and against claim splitting, we have determined that such judicial economy was best served in this case by disposing of all outstanding claims by the parties in this federal forum. Nothing presented upon these motions persuades us that some other treatment of the state law claims was more appropriate. 2. Dr. Sorenson’s Tortious Interference Claim Dr. Nanavati also seeks a judgment notwithstanding the verdict on Dr. Sorenson’s tortious interference claim. He urges that the jury’s verdict, as to both liability and damages, is legally insufficient and should be set aside. The elements for the tort of tortious interference, discussed in Zippertubing Company v. Teleflex, Inc., 757 F.2d 1401, 1409-12 (3d Cir.1985), were set forth in the jury charge as follows: In order for ... Dr. Sorensen [sic] to recover damages on this claim, first, he must prove existence of a reasonable expectation of economic advantage or benefit belonging to him. Second, that the other doctor had knowledge of that expectation of economic advantage. Third, that the other doctor wrongfully and without justification interfered with his reasonable expectation of economic advantage or benefits. Fourth, that in the absence of the alleged wrongful act of the other doctor it is reasonably probable that he would have realized his economic advantage or benefit, and fifth, that he sustained damages as a result of this activity. Transcript of July 15, 1986, at pp. 38-39, lines 18-7. Although Dr. Nanavati contends that there was no evidence of a causal connection between his actions and the subsequent harm to Dr. Sorenson’s business, our review of the record reveals that this argument is without merit. It was well within the province of the jury to conclude that, despite other possible reasons for Dr. Sorenson’s business decline, Dr. Nanavati’s conduct was a proximate cause thereof. Sufficient evidence was presented from which such an inference could be drawn, and we shall not usurp the jury’s function by concluding otherwise. Dr. Nanavati also contests the jury’s award of $100,000.00 as compensatory damages on Dr. Sorenson’s tortious interference claim. Specifically, he urges that the record lacked the minimum quantum of evidence from which the jury could have found that Dr. Nanavati’s tortious behavior caused Dr. Sorenson $100,000.00 in actual damages. The law is quite clear, however, that when a party has been damaged by the legal wrong of another, he shall not be denied recompense merely because the exact amount of damage is uncertain. E.g., Kyriazi v. Western Electric Co., 465 F.Supp. 1141, 1146 (D.N.J.1979). A jury’s damage award will be sustained if, though not mathematically precise, it constitutes a reasonable estimate without speculation or conjecture. E.g., First National Bank of Chicago v. Jefferson Mortgage Co., 576 F.2d 479, 494-95 (3d Cir.1978). Despite Dr. Nanavati’s protestations to the contrary, we are convinced that the jury’s award of $100,000.00 in compensatory damages to Dr. Sorenson on his tortious interference claim was not the product of guesswork, but was a reasonable estimate of damages based on the evidence presented. 3. Dr. Nanavati’s § 1981 Discrimination Claim Dr. Nanavati urges that a new trial is mandated on his § 1981 claim because the jury’s finding that no racial discrimination occurred is against the clear weight of the evidence. This assertion is wholly without merit. Having reviewed the record, we hold that there was substantial evidence from which the jury could have reasonably concluded that Dr. Nanavati was not treated differently because of his race. It is not our function, on these motions, to substitute our judgment for that of the jury, and we decline to do so. 4. Evidentiary Ruling on Rebuttal Testimony Dr. Nanavati contends that it was prejudicial error to preclude Dr. David Vol-pi, a former emergency room physician and a rebuttal witness, from testifying as to his conversations with Dr. Gus Engstrom, the director of the emergency room. The offer of proof made by Dr. Nanavati was that Dr. Volpi would testify essentially as follows: In or about August 1983, Dr. Volpi was told by Dr. Engstrom that he was referring too many patients to Dr. Nanavati, and that Dr. Sorenson had discussed this with Dr. Engstrom. Dr. Nanavati’s attorney, during his direct examination of Dr. Volpi, tried to elicit that testimony in the following manner: Q: And let me direct your attention to in or about August of 1983. Did you have a conversation with Dr. Engstrom about your referral of cases to Dr. Nanavati? A: Yes, I did. Trial transcript of July 9, 1986 at p. 107 lines 19-23. Upon objection, this Court ruled that the witness’ recitation of Dr. Engstrom’s comments would constitute inadmissible hearsay testimony. Counsel, as a result of the Court’s ruling, pursued the following line of questioning without objection: Q: As a result of this conversation with Dr. Engstrom, did you change your referral patterns to Dr. Nanavati? A: Yes, I did. Q: What did you do? A: I decreased the amount of patients I referred to him. Trial transcript of July 9, 1986 at p. 108, lines 7-14. For the first time, Dr. Nanavati contends that our ruling sustaining the hearsay objection was “erroneous and prejudicial to [his] ability to tie Dr. Sorenson in to the group boycott which the jury found involved the Hospital and the Executive Committee.” Dr. Nanavati’s amended brief at p. 26. Upon review of the ruling we conclude that Dr. Volpi’s proffered testimony regarding Dr. Engstrom’s conversation was properly excluded. While it is possible that Dr. Engstrom may be an agent of the Hospital for some purposes, and as such his statements would be admissible under Fed.R.Evid. 801(d)(2)(D), relaying messages from non-emergency room physicians to emergency room physicians about emergency room referrals was not an .activity within the scope of Dr. Engstrom’s agency. Further, the record did not demonstrate a sufficient nexus between Dr. Sorenson and the “conspiracy” to permit the introduction of Dr. Volpi’s hearsay testimony pursuant to Fed.R.Evid. 801(d)(2)(E) (admissibility of statements by co-conspirators). Finally, to the extent that Dr. Sorenson’s alleged statement was merely cumulative of evidence presented in the direct case, we find that no possible prejudicial harm could have accrued to Dr. Nanavati. B. BTMH and the Executive Committee’s Motions for Judgment Notwithstanding the Verdict or a New Trial BTMH and the Executive Committee have moved for judgment notwithstanding the verdict with respect to Dr. Nanavati’s antitrust claims, alleging prejudicial legal error by this Court and proofs insufficient, as a matter of law, to support the jury’s verdict. For the reasons which follow, this Court, cognizant of our obligation not to substitute our judgment for that of the jury, feels constrained to agree with the antitrust defendants that a judgment of “No Cause for Action” must be entered against Dr. Nanavati on the antitrust claims, notwithstanding the jury’s verdict. After hearing 8 weeks of testimony, deliberating 4 full days, and requesting and receiving a complete recharge on antitrust law, the jury found that Dr. Sorenson, the sole individual charged with an antitrust violation, had not participated in any antitrust violation. Notwithstanding this finding, the jury also found that a contract, combination or conspiracy in restraint of commerce existed, special interrogatory question B-l, and that the two remaining antitrust defendants, BTMH and the Executive Committee, were participants therein. (B2 & B3). Despite a thorough review of the record, we are unable to find evidence in this case to support a finding that the Hospital and the Executive Committee, the defendants who were not exonerated by the jury, committed a violation of the antitrust laws. Specifically, in light of the jury’s exoneration of Dr. Sorenson, the record is devoid of evidence to support a finding that either the Hospital or the Executive Committee participated in any conspiracy designed to stifle competition. or engaged in any unlawful restraint of trade which had an anticompetitive effect. Because we were extremely reluctant to set aside any portion of the verdict in this enormously complicated case, we have made every effort to preserve the jury’s findings and decision. We have carefully searched the voluminous record of this case in an effort to locate evidence to support a finding that BTMH and the Executive Committee participated in a conspiracy violative of the antitrust laws, and we have attempted to discern, in the absence of more explicit jury findings, the basis for the jury’s apparent conclusion that a contract, combination or conspiracy in restraint of interstate commerce existed. Our attempts to locate evidence from which a rational fact-finder could conclude that the Hospital and the Executive Committee participated in such a conspiracy, while Dr. Sorenson did not, have been futile. We are convinced that judgment must be entered in favor of BTMH and the Executive Committee on the antitrust claim. There is simply no evidence in this case which supports the imposition of liability for an antitrust violation against BTMH or the Executive Committee, in light of the jury’s rejection of Dr. Nanavati’s original theory that Dr. Sorenson influenced or masterminded the alleged anticompetitive activities. In our effort to preserve the jury’s verdict, we have considered a number of alternative legal theories which might support the imposition of liability against the defendants herein, but have found that our attempts to locate factual bases for these theories in the record have been unavailing. We shall discuss each theory in turn. The most obvious interpretation of the jury’s responses to the antitrust special interrogatories, and the one which the defendants urge upon the Court, is the finding that BTMH conspired with the Executive Committee. Such a factual finding, defendants contend, would result in the need for this Court to “mold” the jury’s verdict to reach a verdict of “No Cause for Action.” Defendants rely, in making this argument, on Weiss v. York Hospital, 745 F.2d 786 (3d Cir.1984), cert. denied, 470 U.S. 1060, 105 S.Ct. 1777, 84 L.Ed.2d 836 (1985), in which the Third Circuit held that the medical staff of the hospital and the hospital itself could not, as a matter of law, “conspire” with one another. 745 F.2d at 817. The medical staff involved in the Weiss case had been empowered to make staff privilege decisions on behalf of the hospital, and in making such decisions, the Third Circuit explained, the medical staff therefore acted as an officer of the corporate hospital. 745 F.2d at 817. Since the medical staff, as an entity, had no “interest in competition with the hospital,” id., there could not be, as a matter of law, a conspiracy between the medical staff and the hospital with respect to staff privilege decisions. In keeping with the reasoning in Weiss, the jury in the present case was charged that BTMH and the Executive Committee could not, as a matter of law, conspire with one another. Not having been persuaded that this charge was incorrect, we hold that the jury’s verdict with respect to the antitrust claim, if indeed it is based upon a finding that the Executive Committee and the Hospital conspired, cannot stand. Particularly in light of the fact that the jury was instructed twice on this point, however, we are unwilling to assume that the jurors’ intent was to find a conspiracy between these two defendants regarding the termination of Dr. Nanavati’s staff privileges. Instead, on this motion, we have attempted to discern alternative interpretations for the jury’s interrogatory answers, including considering the possibility that the jury found separate or distinct antitrust violations for each defendant. With respect to the Executive Committee, the single ground asserted by Dr. Nanavati which presents even a colorable antitrust claim is the Executive Committee’s decision to recommend that Dr. Nanavati’s staff privileges be terminated. This decision, made as it was by a “combination” of individual competitors, could, under Weiss, supra, at 814, support antitrust liability, without regard to the involvement of any other entity. In order to impose antitrust liability, however, more is required than just proof of some action taken by the group. The action taken must have been one which was anticompetitive. If this were not so, every action taken by the “combination” would be violative of the antitrust laws. Such a result could not be countenanced, of course where, as here, there are legitimate reasons for the existence of the organized group of competitors. In order for the action taken by an antitrust defendant to be considered one which constitutes a violation of the antitrust laws, that action must be anticompetitive in purpose or effect. E.g., McLain v. Real Estate Board of New Orleans, 444 U.S. 232, 243, 100 S.Ct. 502, 509, 62 L.Ed.2d 441 (1980). See also Tose v. Pennsylvania Bank, 648 F.2d 879, 892 n. 17 (3d Cir.), cert. denied, 454 U.S. 893, 102 S.Ct. 390, 70 L.Ed.2d 208 (1981). Thus, the Executive Committee’s recommendation that Dr. Nanavati’s staff privileges be revoked would conceivably be an acceptable predicate for antitrust liability if it were anticompetitive in purpose or effect. Nothing in the record of this case, however, supports a finding that the Executive Committee’s action, irrespective of how unreasonable the jury might have believed it to be, was motivated by an anticompetitive purpose or had an anticompetitive effect, as these terms are defined in antitrust law. There is a complete dearth of evidence to support an inference that the Executive Committee, as an entity, had any anticompetitive motive or purpose with respect to its recommendation concerning Dr. Nanavati’s staff privileges. Furthermore, there is no evidence that any of the individuals who served as members of the Executive Committee were, as individual physicians, motivated in any respect by any desire for personal economic gain. On such a record there is obviously no rational basis for concluding that the Executive Committee acted with an anticompetitive animus. Dr. Nanavati has argued, in opposition to defendants’ present motion, that proof of an anticompetitive effect is sufficient to support the imposition of liability under the Sherman Act even without a showing of anticompetitive purpose. Dr. Nanavati’s amended brief in opposition to defendants’ motions at p. 18. Accepting as true the proposition that the antitrust law requires proof only of either anticompetitive purpose or effect, but cf., Borger v. Yamaha International Corp., 625 F.2d 390, 397 & n. 4 (2d Cir.1980) (expressing doubt whether the “purpose or effect” requirement “is a disjunctive rule”), we are nonetheless unable to find evidence in this case which supports the imposition of liability against either the Hospital or the Executive Committee for an antitrust violation arising out of the revocation of Dr. Nanavati’s staff privileges. The record simply does not permit a finding that the decision to revoke Dr. Nanavati’s staff privileges produced anticompetitive effects. Although it is of course true that the termination of Dr. Nanavati’s staff privileges would have had a deleterious effect on his ability to treat cardiac patients within Cape May County who required hospitalization, it is equally true that this effect alone, in the absence of an anticompetitive intent, cannot support a verdict against the entities causing the effect. The antitrust laws are designed to protect competition, not competitors. E.g., Brown Shoe Co. v. United States, 370 U.S. 294, 320, 82 S.Ct. 1502, 1521, 8 L.Ed.2d 510 (1962). Nothing in this case supports a finding that the revocation of Dr. Nanavati’s privileges was either motivated by a desire to stifle competition or that it substantially impaired competition. It is uncontroverted that, with the possible exception of Dr. Sorenson, see trial transcript of June 2,1986 at p. 73, lines 19-21; trial transcript of June 4, 1986 at p. 16, lines 18-21, but cf, trial transcript of June 5, 1986 at pp. 97-98, lines 17-5 (Dr. Sorenson sent Dr. Nanavati flowers as a welcoming gift), all of the persons involved in this matter believed in the need for and/or desired to have an additional cardiologist engaged in practice within Cape May County. Dr. Nanavati’s own testimony was that he was welcomed with open arms by the other physicians. See trial transcript of June 4, 1986 at p. 16, lines 22-24. The proofs do not support an inference, unless such is drawn solely from the fact that the Hospital and the Executive Committee acted to revoke Dr. Nanavati’s staff privileges, that the Hospital and the Executive Committee’s activities substantially impaired competition or unreasonably restrained trade. Indeed, the evidence adduced at trial belies any such inference. With respect to Dr. Nanavati’s own practice, it is uncontested that the number of patients he treats rose from approximately 1200 at the time of the filing of the original complaint in this action to 4,000 at the time of the trial. Trial transcript of June 13, 1986, pp. 82-85. Furthermore, the proofs showed that a new cardiologist, Dr. Mark Sorenson, entered the “market” during the time period critical to this case. With respect to the potential liability of the Hospital, we have considered the possibility that an entity other than the Executive Committee, such as an individual physician, might have been found by the jury to have engaged in a conspiracy with the Hospital. Our review of the record of this case, however, again leaves us convinced that no evidence supports the conclusion that the Hospital committed any violation of the antitrust laws, even under this theory. In keeping with the current state of the law regarding intracorporate conspiracy, see e.g., Weiss, supra, at 813 n. 43 (citing Johnston v. Baker, 445 F.2d 424, 426-27 (3d Cir.1971) (corporate officers or employees, if they act for their own interests, and outside the interests of the corporation, are legally capable of conspiring with their employer for purposes of § 1 of Sherman Act)), this Court charged the jury, in relevant part, that: As heretofore stated, in order for you to find that a conspiracy existed under the Sherman Act, you must determine that at least two independent persons or entities took part in the alleged conspiracy. A corporation cannot conspire with itself any more than a private individual can. And it is the general rule that the acts of the agent are the acts of the corporation. Therefore, the Sherman Act does not prohibit an agreement combination or conspiracy, which consists merely in the fact that the officers and other agents of the hospital did their day-to-day jobs of formulating and carrying out its policies. Burdette Tomlin is a corporation. And as such it can act only through its officers and representatives. It does not violate the Sherman Act when it exercises its rights through its officers and agents, which is the only medium through which it can possibly act. However, if you find that one or more of the individual physicians at the hospital acted in regard to Dr. Nanavati in whole or in part for private economic motives, then you may find that a conspiracy existed. Trial transcript of July 15, 1986, pp. 32-33, lines 18-15; tr. of July 16, 1986, pp. 9-10, lines 22-21. The jury’s responses to the special interrogatories indicated their finding that the antitrust violation took the form of a group boycott, special interrogatory question B6, and that this boycott was motivated by Dr. Nanavati’s “unprofessional behavior or violations of public service or other ethical norms.” (B-7). These findings, which were elicited by the special interrogatories in order to discern whether the “rule of reason” approach to analyzing the alleged anticompetitive activity should be implemented, see slip op. of July 8, 1986 {ad litem ), might suggest that the jury found that a group boycott existed with respect to the referral of patients to Dr. Nanavati. A significant amount of testimony was elicited during the trial regarding the alleged decrease in the number of patient referrals Dr. Nanavati was receiving. This evidence, taken in the light most favorable to Dr. Nanavati, might, of course, support at least a preliminary inference that this decrease in referrals was the result of anti-competitive activity. Any such boycott involving referrals, however, would obviously have to have been shown to implicate one of the named defendants in this case in order to support the imposition of antitrust liability. Because we have been unable to locate evidence in the record which constitutes such a showing, and we note that Dr. Nanavati has not even argued, on this motion, that the Hospital (or its Executive Committee) was implicated in any such conspiracy regarding referrals, we find no basis for a verdict on the antitrust claim against the Hospital or the Executive Committee arising from any decrease in patient referrals. Moreover, there was considerable testimony by several members of the Medical Staff, some of whom were his friends and neighbors who had for some time referred hundreds of patients to Dr. Nanavati for cardiac consultation and care, and had ceased to do so. Their reasons advanced for so doing were his failure to report his findings to them, his costly fees, his subjecting the patients to numerous unnecessary and expensive tests, his treatment of them for non-cardiac conditions and then failure to return for general practice care resulting in their loss of patients. See e.g., trial transcripts of June 24, 1986 at pp. 40-43, 57-62, of June 25, 1986 at pp. 5-19, 24-27, and of June 30, 1986 at pp. 88-92. Dr. Nanavati relies heavily, in support of his argument that liability under the antitrust laws can properly be imposed against the Hospital in this case, on the fact that the Hospital contracted with a pulmonary specialist, Dr. Henry J. Komansky, for the exclusive official reading and interpretation of stress tests and echocardiograms. See Dr. Nanavati’s amended brief in opposition to defendants’ motions at p. 9. For reasons substantially similar to those just expressed with regard to the termination of staff privileges, this exclusive contract cannot, on the record of this case, support a verdict against the Hospital. In the absence of evidence of an anticompetitive intent with respect to entry into the contract, antitrust liability might be imposed against the Hospital only if its activity had an anticompetitive effect. The touchstone for antitrust liability is the ultimate effect on competition, not that on individual competitors, and the record is devoid of factual bases on which to ground liability against the Hospital. Mere proof of the fact that a hospital entered into an exclusive contract for certain professional services is not, in itself, proof of an unreasonable anticompetitive effect. See, e.g., Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2, 29 n. 48 & 30 n. 51, 104 S.Ct. 1551, 1567 n. 48 & 1568 n. 51 (1984). Exclusive service contracts are not illegal, nor are they uncommon in a hospital setting. It is uncontroverted that the Hospital was not legally required to put such contracts out for open bid, and there was, in this case, absolutely no proof that the decision to award an exclusive contract to Dr. Komansky and his medical group was either motivated by an anticompetitive purpose or that the award of that contract had an anticompetitive effect. In short, there is no evidence here to support the imposition of antitrust liability against the Hospital based on its decision to award an exclusive contract to Dr. Komansky’s medical group nor against the Hospital or the Executive Committee for any other valid reason. Accordingly, we are of the belief that all we have here is an unfortunate personal feud between Drs. Nanavati and Sorenson. III. CONCLUSION For the reasons expressed in this opinion, our rulings on the present motions are as follows: the motion for j.n.o.v. and new trial made by Dr. Nanavati shall be denied. The motion for j.n.o.v. by the Hospital and the Executive Committee shall be granted. The judgment previously entered in favor of Dr. Nanavati against said defendants, in the amount of $1,050,000.00, shall be vacated, and a judgment of No Cause for Action shall be entered in lieu thereof. The Court shall enter an appropriate order. APPENDIX A SPECIAL INTERROGATORIES SECTION A: Dr. Nanavati's Racial Discrimination Claim A1. Was racial discrimination a substantial factor in the process of revocation of Dr. Nanavati's medical staff privileges at the Hospital? Yes __ No \/ IF YOUR ANSWER TO QUESTION A1 IS YES. ANSWER QUESTION A2. OTHERWISE GO ON TO QUESTION A3 A2. (a) Did the Hospital participate in such racial discrimination? Yes _ No _ (b) Did the Executive Committee participate in such racial discrimination? Yes _ No _ (c) Did Dr. Sorensen participate in such racial discrimination? Yes _ No _ A3. Was racial discrimination against Dr. Nanavati a substantial factor in the decision by the Hospital to enter into an exclusive contract with Dr. Komansky's group for the reading and interpreting of echocardiograms and stress tests? Yes _ No v/ IF YOUR ANSWER TO QUESTION A3 IS YES. ANSWER QUESTION A4, OTHERWISE GO ON TO QUESTION A5 A4. (a) Did the Hospital participate in such racial discrimination? Yes No (b) Did the Executive Committee participate in such racial discrimination? Yes _ No */ (c) Did Dr. Sorensen participate in such racial discrimination? Yes No 1EYOUR ANSWER TO EITHER QUESTION A1 OR A3 IS YES^ANSWER QUESTION A5. OTHERWISE GO ON TO SECTION B A5. Was Dr. Nanavati damaged by such racial discrimination? Yes _ No J IF YOUR ANSWER TO QUESTION A5 IS YES. ANSWER QUESTION A6. OTHERWISE GO ON TO SECTION B A6. What is the amount of damages you award for the harm caused to Dr. Nanavati by the racial discrimination? $_ A7. If you find that punitive damages should be awarded by reason of such discrimination, set forth the amount of such punitive damages you find as to each defendant (only if you have answered yes as to that defendant in either Question A2 or A4): Hospital $_ Executive Committee $_ SECTION B: Dr. Nanavati’s Antitrust Claims B1. Was there a contract, combination, or conspiracy in restraint of interstate commerce? No _ IF YOUR ANSWER TO QUESTION B1 IS YES. ANSWER QUESTION B2. OTHERWISE. GO ON TO SECTION C B2. Was the Hospital part of the contract, combination, or conspiracy? Yes No B3. Was the Executive Committee part of the contract, combination, or conspiracy? Yes No B4. Was Dr. Sorensen part of the contract, combination, or conspiracy? Yes _ No J IF_YOUR ANSWER TO ANY OF QUESTIONS B2 OR B3 OR B4 IS YES, ANSWER QUESTION B5. OTHERWISE GO ON ICLSECTIQM.C B5. Did any of the participants perform any act in furtherance of the contract, combination, or conspiracy? Yes J No _ IF YOUR ANSWER TO QUESTION B5 IS YES. ANSWER QUESTION B6. OTHERWISE GO ON TO SECTION C B6. Did the contract, combination, or conspiracy take the form of a group boycott? Yes No 1E-YQUR ANSWER.....TO QUEST1QMJB.6 ÜL.YES. -ANSWER QUESTION B7. OTHERWISE GO ON TO QUESTION B8 B7. Was Dr. Nanavati boycotted because of unprofessional behavior or violations of public service or other ethical norms? No _ IF YOUR ANSWER TO QUESTION B7 IS YES._ANSWEB QUESTION B8. OTHERWISE GO ON TO QUESTION B9 B8. Did the contract, combination, or conspiracy constitute an unreasonable restraint on interstate commerce? Yes ^ No _ B9. Did the contract, combination, or conspiracy injure Dr. Nanavati in his business or property? Yes No IF YOUR ANSWER TO QUESTION B9 IS YES. ANSWER QUESTION B10, OTHERWISE GO TO SECTION C B10. Did Dr. Nanavati first sustain injury before June 5, 1980? Yes _ No ......aZ_ B11. What is the amount of damages which Dr. Nanavati sustained because of the contract, combination, or conspiracy? %3S0} tnrí), to SECTION Qi Dr. Nanavati’s Interference With Business Claim C1. Did Dr. Sorensen interfere with Dr. Nanavati's existing or future business relations? Yes _ No / HL-YQUR ANSWER TO QUESTION C1 IS YES. ANSWER QUESTION C2. OTHERWISE GO ON TO SECTION D C2. Was Dr. Sorensen's conduct privileged? Yes _ No _ IF. YOUR ANSWER TO QUESTION C2 IS YES. ANSWER QUESTION C3. IF YOUR ANSWER IS NO. GO ON TO QUESTION C4 C3. Was Dr. Sorensen motivated by ill will or malicious intent to harm Dr. Nanavati? Yes _ No _ C4. What is the amount of damages caused to Dr. Nanavati by such interference? IF YOU ANSWERED QUESTION C4. ANSWER QUESTION.. C5. OTHERWISE GO ON TO SECTION P C5. If you find that punitive damages should be awarded by reason of such interference, what is the amount of such punitive damages? $__ SECTION D: The Hospital's Slander Claims D1. Were any of Dr. Nanavati's statements, which the Hospital claims are defamatory, false? Yes No IF YOUR ANSWER TO QUESTION P1 IS YES. ANSWER QUESTION D2. OTHERWISE GO ON TO SECT101LE D2. Did those false statements defame the Hospital? IF_YOUR ANSWER TO QUESTION P2 IS YES. ANSWER ■QUESTION- 03,- OTHER WISE G.Q-QN Jfl-SECHQN E D3. Was Dr. Nanavati at least negligent in making those false statements? Yes No IF YOUR ANSWER TO QUESTION D3 IS YES. ANSWER QUESTION D4. OTHERWISE GO ON TO SECTION E D4. Was the Hospital harmed by those statements? Yes No D5. Were those statements privileged? Yes No _ IF YOUR ANSWER TO QUESTION P5 IS YES. ANSWER QUESTION 06, IF YOUR ANSWER IS NO. GO ON TO QUESTION D7 D6. Was.Dr. Nanavati motivated by ill will or malicious intent to harm the Hospital? Yes No D7. What is the amount of damages you award for the harm caused to the Hospital by the defamation? $ /¿Tj . SD __ IF YOU ANSWERED QUESTION D6. ANSWER QUESTION D7. OTHERWISE GO ON TO SECTION E D7. If you find that punitive damages should be awarded because of the defamation, what is the amount of those punitive damages? SECTION E; Dr. Sorensen’s Slander Claims E1. Were any of Dr. Nanavati’s statements, which Dr. Sorensen claims defamed him, false? Yes ^ No _ IF YOUR ANSWER TO QUESTION El IS YES. ANSWER QUESTION E2, OTHERWISE 00 ON TO SECTI0N_f E2. Did those false statements defame Dr. Sorensen? Yes ^ No _ IF YOUR ANSWER TO QUESTION E2 IS YES, ANSWER QUESTION E3. OTHERWISE GO ON TO SECTION F E3. Was Dr. Nanavati at least negligent in making those false statements? Yes No IF YOUR ANSWER TO QUESTION E3 IS YES. ANSWER QUESTION E4. OTHERWISE GO ON TO SECTION S E4. Was Dr. Sorensen harmed by those statements? iarrr)€ Yes No E5. Were those statements privileged? Yes No IF YOUR ANSWER TO QUESTION E5 IS YES. ANSWER QUESTION E6. IF YOUR ANSWER IS NO. GO ON TO QUESTION E7 E6. Was Dr. Nanavati motivated by ill will or malicious intent to harm the Dr. Sorensen? Yes No E7. What is the amount of damages you award for the harm caused to Dr. Sorensen by the defamation? $ J dD} &v~o. o-o IF YOU ANSWERED QUESTION E7. ANSWER QUESTION E8. OTHERWISE GO ON TO SECTION F E8. If you find that punitive damages should be awarded because of the defamation, what is the amount of those punitive damages? % ¿L±£íJt82L-£Q. SECTION F: Dr. Sorensen's Interference With Buslne.S3_glfllm F1. Did Dr. Nanavati interfere with Dr. Sorensen's existing or future business relations? Yes No IF YOUR ANSWER TO QUESTION F1 IS YES, ANSWER QUESTION F2. OTHERWISE GO ON TO SECTIONJa F2. Was Dr. Nanavati's conduct privileged? No _ IF YOUR ANSWER TO QUESTION F2 IS YES, ANSWER QUESTION F3. OTHERWISE GO ON TO QUESTIONS F3. Was Dr. Nanavati motivated by ill will or malicious intent to harm Dr. Sorensen? Yes "S No _ F4. What is the amount of damages caused to Dr. Sorensen by the interference? $ ¿Mho. PD IF YOU ANSWERED QUESTION F4. ANSWER QUESTION F5. OTHERWISE GO ON TO SECTION G F5. If you find that punitive damages should be awarded by reason of the interference, what is the amount of the punitive damages? $-3 fr-o. /f7r-8. /Mi SECTION Q; Total Recoveries G1. If you have awarded damages to Dr. Nanavati in two or more of Questions A6, B11, and C4, what is the actual amount you award for those combined damages so as not to duplicate them? $_ G2. If you have awarded damages to Dr. Sorensen in Questions E7 and F4, what is the actual amount you award for those combined damages so as not to duplicate them? % XI frD, &7TQ’ G3. If you have awarded punitive damages to Dr. Sorensen in Questions E8 and F5, what is the actual amount you award for those combined punitive damages so as not to duplicate them? $ %/h). Crfr-o, /fr> APPENDIX B NOT FOR PUBLICATION Civil Action Nos. 83-0794, 84-1790 OPINION July 10, 1986 COHEN, Senior District Judge: Presently before the Court are requests for rulings on four issues relating to the defamation claims against Suketu H. Nanavati. The first issue is whether we should grant Dr. Sorenson’s motion ad litem to amend his pleadings pursuant to Fed.R. Civ.P. 15, to state a new defamation claim against Dr. Suketu H. Nanavati. The second issue is whether the statements which form the basis of the defamation claims are actionable. The third issue is whether Burdette Tomlin Memorial Hospital (BTMH), as an incorporated entity, and a defamation plaintiff herein, must prove special damages in order to have a viable defamation claim. The fourth is whether either Dr. Robert J. Sorenson or BTMH is a “public figure” for purposes of their respective defamation claims. These issues will be discussed in turn. THE NEW CLAIM FOR DEFAMATION On June 30, 1986 Anne O’Neil testified, in response to questioning by Dr. Sorenson’s co-counsel Robert E. Paarz, to a statement made to her by Dr. Nanavati. She testified that sometime in November, 1985 Dr. Nanavati referred to Dr. Sorenson as “a senile old doctor that had been there for twenty years killing patients.” (Transcript of June 30, 1986, p. 160, lines 14 and 15). This testimony was elicited in the following manner: Mr. Paarz: Other than making that statement to you or those statements you just told us about, was there anything else specifically that he mentioned that you can recall? Ms. O’Neil: Just, you know, the main thing was about Dr. Sorenson, you know, saying that he had been there for 20 years killing patients, he was a senile old doctor. Mr. Paarz: What was that? Ms. O’Neil: Senile old doctor that has been there for 20 years killing patients. That kind of upset me. The next, day Dr. Sorenson, by written motion, requested this Court to allow amendment of the pleadings to assert a new defamation claim against Dr. Nanavati based on Dr. Nanavati’s remark to Anne O’Neil. In support of his motion, Dr. Sorenson relies on this Court’s Opinion filed June 24, 1986. Dr. Nanavati opposes the motion, claiming that such an amendment is improper under Fed.R.Civ.P. 15(d). He urges that Dr. Sorenson has not sustained his burden of establishing significant prejudice if the motion were denied. Dr. Nanavati argues that, on balance, he, not Dr. Sorenson, would be severely prejudiced by an adverse ruling. We note at the outset that Dr. Sorenson’s motion, which seeks to add a claim based upon events which occurred after the date of the pleading to be supplemented, falls within the purview of Fed.R.Civ.P. 15(d). Unlike Rules 15(a) and (b), however, Rule 15(d) does not so freely permit the amendment pleadings. It provides in relevant part: Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading to be supplemented. Fed.R.Civ.P. 15(d). Nevertheless, it is within our discretion to either permit or deny such an amendment. See Owens-Illinois Inc. v. Lake Shore Land Co., Inc., 610 F.2d 1185, 1188-89 (3d Cir.1979); Bates v. Western Electric, 420 F.Supp. 521, 525 (E.D.Pa.1976). In exercising our discretion, we are mindful of the possible prejudice which may accrue to each of the parties as a result of an adverse ruling. We find, however, that Dr. Nanavati’s contentions of severe prejudice are without merit. He, through his counsel, cross-examined Ms. O’Neil at trial, at which time he had the opportunity to inquire into her possible bias or prejudice. Further, Dr. Nanavati had the opportunity during the past week (after Ms. O’Neil’s testimony) to investigate Ms. O’Neil’s background, evaluate her contention, and present appropriate rebuttal witnesses. Ms. O’Neil, who was listed as a witness in the Joint Final Pretrial Order, was not a surprise