USCA1 Opinion
June 3, 1992 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 91-1763
TAREK H. ELGABRI, M.D.,
Plaintiff, Appellant,
v.
MARY D. LEKAS, M.D., ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Cyr, Circuit Judge,
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and Stahl,* District Judge.
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Cornelius J. Moynihan, Jr. with whom Sue Zanne Worrell and
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Peabody & Brown were on brief for appellant.
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W. James McKay (for appellee Robinson) and John J. Barton (for
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appellee Duva) with whom Adler Pollock & Sheehan Incorporated, Taylor,
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Anderson & Travers, Dennis J. McCarten, Hanson, Curran, Parks &
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Whitman, David W. Carroll, Roberts, Carroll, Feldstein & Peirce,
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Christopher H. Little, Judith Kapuscinski, Tillinghast, Collins &
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Graham, William Jestings, and Carroll, Kelly & Murphy were on joint
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brief for appellees.
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*Of the District of New Hampshire, sitting by designation.
STAHL, District Judge. This is an appeal from a
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nineteen-day jury trial. Plaintiff-appellant Dr. Tarek H.
Elgabri alleged various violations of state and federal
antitrust laws, as well as a common law claim of tortious
interference with prospective business relationships, against
various doctors affiliated at four Rhode Island hospitals.
The jury found for defendants on all counts. On appeal, Dr.
Elgabri challenges the jury instructions, the order of
examination of witnesses, and various evidentiary rulings.
We affirm.
Background
Background
Dr. Elgabri is an otolaryngologist practicing in Rhode
Island. Otolaryngology is commonly referred to as "ear, nose
and throat" (ENT) medicine. He began his residency in
otolaryngology at the University of Minnesota. While there,
however, he encountered difficulties and was terminated for
cause after his first year. He finished his residency at
Rhode Island Hospital.
In 1984, after concluding his residency, Dr. Elgabri
opened his own practice in Rhode Island. He submitted
applications for privileges at various hospitals throughout
the state. Hospital privileges allow a doctor to treat and
admit patients at a given institution. He received
privileges at Notre Dame Hospital, Cranston Hospital, Kent
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County Memorial Hospital, and Memorial Hospital. Despite
numerous attempts over the course of several years, however,
he failed to receive privileges at Miriam Hospital, Roger
Williams Hospital, Rhode Island Hospital, and St. Joseph
Hospital.
On November 9, 1989, Dr. Elgabri brought suit against
six doctors: Dr. Mary Lekas, surgeon-in-chief of the
otolaryngology department at Rhode Island Hospital; Dr.
Steven Issenberg, director of the division of otolaryngology
at Roger Williams General Hospital; Dr. Hani Zaki, a medical
doctor specializing in otolaryngology who has privileges at
the four hospitals that denied Dr. Elgabri privileges; Dr.
Mendell Duva, the chief of the otolaryngology department at
St. Joseph Hospital; Dr. Mendell Robinson, director of the
division of otolaryngology at Miriam Hospital; and Dr.
Wexler, the present director of the division of
otolaryngology at Roger Williams Hospital.1 Each of the
above-named defendant doctors is affiliated at the four
hospitals which denied plaintiff privileges.
Dr. Elgabri alleged: 1) defendants violated 1 of the
Sherman Act by agreeing not to deal with him and encouraging
others not to deal with him, thereby constituting a group
boycott; 2) defendants violated 2 of the Sherman Act by
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1. The case against Dr. Wexler was dismissed with prejudice
after day twelve of the jury trial.
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conspiring to monopolize the provision of ENT medical and
surgical services in the relevant market; 3) defendants
monopolized the referral of patients to ENT doctors and have
maintained their monopoly by denying plaintiff privileges, an
essential facility to his practice of medicine; 4) defendants
wilfully contracted, combined, and conspired in restraint of
trade in violation of Rhode Island antitrust law; and 5)
defendants tortiously interfered with plaintiff's prospective
business relationships by preventing him from obtaining staff
privileges.
On May 29, 1991, the jury found in favor of defendants
on all claims. Plaintiff appealed.
Discussion
Discussion
Plaintiff raises five issues on appeal: 1) whether the
district court erred in instructing the jury as to
defendants' motivations; 2) whether the district court erred
in its instructions regarding the "essential facilities"
claim; 3) whether the court erred in instructing the jury to
utilize a "rule of reason" analysis regarding the group
boycott claim; 4) whether the district court erred in
preventing plaintiff from examining defendants on direct as
part of his case-in-chief; and 5) whether the district court
erred in various evidentiary rulings made throughout the
trial.
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A. Jury Instructions
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Dr. Elgabri challenges three aspects of the jury
instructions. He first objects to the court's instruction as
to motivation under his 2 Sherman Act claim involving the
denial of essential facilities. The court gave this
instruction:
If the Defendants in this case acted,
even in part, with an intention to
promote good patient care to protect the
patients and the hospitals from the
actions of physicians who are not
unquestionably qualified under all
professional standards, their actions are
lawful under the antitrust laws. If,
however, the Defendants used the peer
review process for the sole purpose of
promoting their own self-interest as
competitors, then their actions are not
immune from liability.
Plaintiff argues that the instruction improperly required the
jury to find for the defendants unless their sole motivation
was anti-competitive. Dr. Elgabri also objects to the
court's refusal to give a "per se" instruction regarding his
"group boycott" claim and challenges the court's refusal to
instruct regarding his claim that defendants interfered with
his own patients' utilization of various essential hospital
facilities. We need not tarry over the adequacy of the
jury instructions in this case because plaintiff failed to
preserve properly his objections. Rule 51 of the Federal
Rules of Civil Procedure states in pertinent part:
No party may assign as error the giving
or the failure to give an instruction
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unless that party objects thereto before
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the jury retires to consider its verdict,
stating distinctly the matter objected to
and the grounds of the objection.
Opportunity shall be given to make the
objection out of the hearing of the jury.
(Emphasis added). "We have consistently and emphatically
held that failure to follow the letter of the rule
constitutes a waiver of the objection." Cordero v. De
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Jesus-Mendez, 867 F.2d 1, 5 (1st Cir. 1989); see also Lash v.
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Cutts, 943 F.2d 147, 152 (1st Cir 1991); Smith v.
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Massachusetts Instit. of Technology, 877 F.2d 1106, 1109 (1st
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Cir.), cert. denied, 493 U.S. 965 (1989).
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After the judge charged the jury, the following
exchange took place:
THE COURT: Would you please deliver to
the Marshal the instruction I read to the
jury, the verdict form and the exhibits?
Draw the alternate jurors
THE CLERK: Alternate No. 1, Susan Dome.
Alternate No. 2, Luther Wechestein.
THE COURT: The Court will designate Miss
Gramaldi as Foreperson
Counsel, come to the bench, please.
(COLLOQUY AT BENCH)
THE COURT: Any grievous omissions or
corrections right now before the jury
goes out, anything that's egregious. Is
there anything misleading or something
like that?
MR. CARROLL (attorney for defendant Dr.
Lekas): No, your honor.
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THE COURT: All right, okay, I'm going to send them
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out and then take exceptions.
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I'm going to ask Mr. Wechestein, Miss
Dome to remain. The other members of the
jury may retire now to commence your
deliberations.
Take them out, Marshal.
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(DELIBERATING JURY EXITS COURTROOM)
(Emphasis added).
After the court dismissed the jury to commence
deliberations and briefly conversed with the alternate
jurors, the following discussion occurred:
THE COURT: I know that I do not have to
remind Counsel of the rule in the First
Circuit that you don't talk to jurors
before or after verdicts without an order
of the Court. You're aware of that I am
sure.
Now, how about the instructions, what's
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the objections? Let me get my set of
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instructions.
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MR. MEDEIROS (attorney for plaintiff Dr.
Elgabri): Your Honor, I would just make
the comments in the order that they are
in the instructions, rather than in any
particular order of priority.
(Emphasis added). Plaintiff then proceeded to object to the
jury instructions at issue on this appeal.
"We have warned trial attorneys countless times `that
Rule 51 means what it says . . . .'" Linn v. Andover Newton
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Theological Sch., Inc., 874 F.2d 1, 5 (1st Cir. 1989)
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(quoting Jordan v. United States Lines, Inc., 738 F.2d 48, 51
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(1st Cir. 1984)). Appellant's trial counsel voiced no
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objection to the court's instructions "before the jury
retire[d]" as required by Rule 51 in an unbroken line of
decisions in this Court. Although the phrasing of the
district court's inquiry may have contributed to a belief
that little might be gained by asserting objections before
the jury retired, trial counsel was obligated to object in
the manner required by Rule 51. It is the obligation of
trial counsel, as well as the trial court, to comply with the
strict requirements of the Rule.2
In the absence of compliance with the dictates of Rule
51, we review for plain error. "However, the plain error
rule `should be applied sparingly and only in exceptional
cases or under peculiar circumstances to prevent a clear
miscarriage of justice.'" Wells Real Estate, Inc. v. Greater
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Lowell Bd. of Realtors, 850 F.2d 803, 809 (1st Cir.) (quoting
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Nimrod v. Sylvester, 369 F.2d 870, 873 (1st Cir. 1966)),
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cert. denied, 488 U.S. 955 (1988). In reviewing the
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instructions given by the district court using this standard,
we find no "miscarriage of justice."
B. Establishment of Mode and Order of Examination of
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Witnesses
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2. Plaintiff's counsel subsequent to argument has cited the
court to Bouley v. Continental Casualty Co., 454 F.2d 85 (1st
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Cir. 1972). However, our unbroken line of cases make it
clear that insufficient compliance with Rule 51 will be
overlooked only in exceptional cases or under peculiar
circumstances to prevent a clear miscarriage of justice. Coy
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v. Simpson Marine Safety Equip., Inc., 787 F.2d 19, 26 (1st
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Cir. 1986). This is not such a case.
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Dr. Elgabri argues that his ability to call defendants
during his case-in-chief was improperly limited by the trial
court. He contends that he has an "unfettered right to call
the adverse party on direct examination as part of his case-
in-chief and to interrogate by leading questions without
restrictions."
As part of his case-in-chief, Dr. Elgabri called
defendant Dr. Lekas. After some examination of the witness,
the court informed plaintiff during a recess that "it's
unfair sometimes for a Plaintiff to prove his case through
the mouth of the Defendant." Dr. Elgabri then continued his
examination of Dr. Lekas.
After the day's testimony, the court decided to limit
plaintiff's examination of defendants in his case-in-chief to
subject matter that could not be obtained in any other
fashion. The court suggested that plaintiff could prove the
essential nature of a defendant's testimony in a proffer
prior to the examination of each defendant. Defendants
promised that they would take the stand as part of their
case-in-chief and the court indicated that plaintiff would
have ample opportunity to cross-examine them at that time.
The court further indicated that no limits would be placed on
the scope of cross-examination. Plaintiff thereafter made no
further proffers and vigorously cross-examined the other
defendants during their presentations.
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We find that plaintiff did not have an "unfettered
right" to call defendants during his case-in-chief. Rule
611(a) of the Federal Rules of Evidence states in pertinent
part:
The court shall exercise reasonable
control over the mode and order of
interrogating witnesses and presenting
evidence so as to (1) make the
interrogation and presentation effective
for the ascertainment of the truth, [and]
(2) avoid needless consumption of time .
. . [.]
The mode and order of questioning thus lies in the trial
court's discretion. See United States v. Nivica, 887 F.2d
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1110, 1120 (1st Cir. 1989), cert. denied, 494 U.S. 1005
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(1990). We do not disturb decisions regarding courtroom
management unless these decisions amount to an abuse of
discretion that prejudices appellant's case. Loinaz v. EG&G,
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Inc., 910 F.2d 1, 6 (1st Cir. 1990); see also 3 Jack B.
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Weinberg & Margaret A. Berger, Weinstein's Evidence 611[01]
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at 611-17 (1991) ("Once the judge exercises his power, his
decision is virtually immune to attack and will be overturned
only in the rare case where the appellate court finds a clear
abuse of discretion that seriously damaged a party's right to
a fair trial.").
Dr. Elgabri argues that Fed. R. Evid. 611(c), which
allows for leading questions of adverse parties on direct
examination, requires the court to allow direct examination
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of defendants in his case-in-chief.3 Rule 611(c) does not,
however, impose such a requirement. Rather, Rule 611(c) only
requires that the court allow a plaintiff who calls an
adverse party on direct to use leading questions in his
examination because the witness is presumed hostile. See
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Fed. R. Evid. 611(c), advisory committee's note; see also 3
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Weinstein's Evidence 611[05] at 611-82 to 611-83.
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In this case, the court reasonably held that plaintiff's
examination of defendants should be limited in the described
manner in order to make the presentation of evidence
effective and to avoid needless consumption of time.
Further, plaintiff does not argue that he failed to obtain
evidence as a result of the district court's limiting of his
presentation of his case; he only objects to the order of
presentation. We therefore find no reversible error.
C. Evidentiary Errors
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Dr. Elgabri challenges four evidentiary rulings of the
district court. He contends that the court erred in refusing
to admit evidence that defendant Dr. Issenberg was unable to
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3. Fed. R. Evid. 611(c) states in pertinent part:
Leading questions should not be used on the direct
examination of a witness except as may be necessary
to develop the witness' testimony. Ordinarily
leading questions should be permitted on cross-
examination. When a party calls . . . an adverse
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party, . . . interrogation may be by leading
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questions.
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(Emphasis added).
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perform a tracheotomy. Plaintiff also challenges the court's
exclusion of a letter from the New England Otolaryngological
Society notifying Dr. Elgabri that his presentation was "the
winner among those presented by residents from the other New
England teaching hospitals." He further contests the court's
refusal to admit a letter of recommendation written by Mrs.
Eleanor Edmonds, an operating room nurse at Rhode Island
Hospital and director of operating room services. Finally
Dr. Elgabri argues that the court improperly admitted into
evidence segments of testimony from a Minnesota state case he
had previously instituted.
1. Dr. Issenberg's "Inability" to Perform
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Tracheotomy
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Plaintiff attempted to ask defendant Dr. Robinson on
cross-examination whether he was aware that Dr. Issenberg was
unable to perform a tracheotomy.4 In a conference at the
bench, the parties disputed the circumstances surrounding Dr.
Issenberg's "refusal" to perform a tracheotomy in the
emergency room. Dr. Issenberg's counsel explained that his
client had not refused or been unable to perform the
procedure, but rather that he had considered it appropriate
that a general surgeon perform the procedure. Counsel for
Dr. Elgabri argued that there was no general surgeon on duty
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4. During Dr. Robinson's testimony, he stated that, in
writing a negative letter about plaintiff which was placed in
plaintiff's file at Miriam Hospital, he had relied to some
extent on information received from Dr. Issenberg.
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at the time and that Dr. Issenberg's "refusal" constituted
negligence. The court observed that Dr. Issenberg's alleged
negligence during the incident in the emergency room had
little to do with the issues at trial. The court then
decided that the testimony would be "getting a long way from
wherewe're going,"andthereforesustained defendants'objection.
Rule 403 of the Federal Rules of Evidence requires a
court to balance the relevance of evidence against the
substantial risk of prejudice and the cumulative nature of
the evidence. Miller v. Town of Hull, 878 F.2d 523, 529 (1st
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Cir. 1989). A decision to exclude evidence under Rule 403 is
within the discretion of the trial court. We will review
such a ruling only for abuse of discretion. United States v.
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Rodriguez Cortes, 949 F.2d 532, 541 (1st Cir. 1991).
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We find no abuse of discretion. The court reasonably
found that the evidence, though marginally relevant, was only
tangentially related to the issue at hand. The court
determined that the evidence would only confuse the issues
which were at the heart of the litigation. It was well
within the court's discretion to exclude the evidence for
that reason.
2. Exclusion of Prize Notification Letter
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As noted above, Dr. Elgabri attempted to admit a letter
from the New England Otolaryngological Society notifying him
that his case presentation was the winner among presentations
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made by residents from New England teaching hospitals. The
court excluded it as hearsay. Plaintiff argues that it
should have been admitted under the business record exception
to the hearsay rule.5 Fed. R. Evid. 803(6).
Rulings of the district court under Rule 803(6) are
reversed only for abuse of discretion. Belber v. Lipson, 905
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F.2d 549, 552 (1st Cir. 1990). "Admission as a business
record requires `the testimony of the custodian or other
qualified witness.' This testimony is essential. Without
such a witness the writing must be excluded." Id. (citation
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omitted). Dr. Elgabri never offered the testimony of a
custodian or other qualified witness. We, therefore, find
that the court properly excluded the letter.6
3. Other Evidentiary Objections
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We briefly address Dr. Elgabri's remaining claims. Dr.
Elgabri argues that the court improperly excluded Nurse
Edmond's letter. He claims that the letter had been
authenticated as part of his application file at Roger
Williams Hospital. The letter, however, was properly
excluded as inadmissible hearsay not within any exception.
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5. Plaintiff also argues that the court should have admitted
the letter under the "catch-all exception." Fed. R. Evid.
803(24). Because plaintiff failed to offer proof in the
court below that the requirements of Rule 803(24) were met,
we deem this claim waived. See Fed. R. Evid. 103(a)(2).
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6. We also note that the letter's substance did find its way
into evidence through plaintiff's uncontradicted testimony.
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Fed. R. Evid. 802. Even if we assume that the letter was
part of his application file, Dr. Elgabri failed to produce a
qualified witness or custodian of records to authenticate the
letter as a business record. See Belber, 905 F.2d at 552.
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Finally, Dr. Elgabri states without elaboration that
testimony from a Minnesota state court litigation instituted
by him was improperly admitted. It is a settled appellate
rule, however, "that issues adverted to in a perfunctory
manner, unaccompanied by some effort at developed
argumentation, are deemed waived." United States v. Zannino,
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895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S. 1082
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(1990). Finding that Dr. Elgabri failed to develop any
argument after raising this issue, we deem this claim waived.
Conclusion
Conclusion
For all of the above reasons, we affirm the district
court's challenged rulings. Affirmed.
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