before this morning is harm done against indiana university health north hospital incorporated honor and he made please the court of the single issue of that said before this court on appeal or perhaps it's right to say the constellation of issues is whether the district court committed error in allowing the jury to hear repeated references to negative material about the plaintive in this cat's paw the civil civil rights case even though it was protected by the peer review statutes of three different states now peer review protection comes in two modes it can either be privileged with a capital p or confidentiality but because time short for purposes of this appeal i want to put privilege with a capital p on one side and deal with confidentiality only and in that regard i want to start with the argument that we are not making did not make in the district court i'm not making to this court and that is we are not claiming and never did claim that material that is protected confidential protect confidentiality protected under the pure use statute is always inadmissible for any reason that is not our claim it is certainly not our claim that once a piece of information has made it into the peer review process it's become part of the records was presented to a peer review committee that it sends suddenly falls irretrievably into a black hole never to see the light of day no matter how it was presented to the court that was not our argument it was not the basis by the way that the district court a law on which the court the district court allowed to in that store a man human is an argument that the district court used later in denying our motion for a new trial in the one this aspect of it and said that that that th that argument that that version of confidentiality goes too far and we agree our argument is instead that as the district court at trial had said which is that even though this material may be protected by by peer review protection i will allow it for the two theories that i'm going to the hospital wanted to use it for and this is the for its ruling on the very day before trial began evidence that is presented in court still has to comply with the federal rules of evidence and so let me point out in this one thousand nine hundred one case right it's a case that arises under federal law correct and under the federal rules of evidence five align cases that arise under federal law or under the pressure the privilege rules  the like are federal rules there is there is no obligations to follow what the state does although of course federal laws often informed by that what state law provides but i think you know that that's a gap you need and you need to get over and i would say you know the other thing is the district court decides that the really this purpose of these peer review statutes isn't really implicated by this evidence that he's complaining about you know it's at that the proceedings the reports are are protected from disclosure but these factual accounting since i think you can see are not privileged just because somebody later looks at them and a peer review process i agree with it certainly at least the second part of what your honor said but that i think that brings us well as to how they came into this court we are not we are precisely because we are not making the argument that was trivial to us we have always said that yes if the hospital had brought live witnesses in  to talk about these underlying facts those would not be protected by this way the way overblown view that that's just a hearsay argument though that doesn't have anything to do with whether came out of the peer review process or  else they they they flow together your honor it is true and certainly the second half of what i was going to say that almost everything because we were dealing with records inevitably snowballed into argument it it is still an evidentiary question under the federal rules of evidence because our argument was all along and the district court recognized that it was the district court that kept on holding the hospitals feet to the fire and said well how does this connect up how how can this evidence that's out there in a protected status how could it ever get to houston or minneapolis or d c or whatever hospital if it is protected and we had conceded all along if they had a whit if the hospital had a witness who had said  people this statute sure we care about hipaa but we don't care about this statute that you know people just just hand that information they violate the statute all the time what is that what is different is counts for privilege purposes what a privilege or confidential for protective purposes if it comes to some kind of exchange counseling the interchange  thing that every u s doctor and some point has to go through just to update to see how they're doing no i would say so there's no there may be but but but in the kind of thing we're talking about here in this context we're talking about complaint and then there's a process and you're saying this is process protected for nobody can know about it or if you pull someone out who is part of the peer review and then they come in to testify is that make a difference well that i think that's the distinction that i would that judge would not we're getting at before yes if they pull them out and they testify about their own experiences not what they told the it's just like attorney client privilege you can't say did you tell your lawyer but you can ask them what happened you give the underlying information it is available and the full how what what's the mechanism how would a hiring committee down the road ever know about this and the best that the that the council would say is not a well people talk but potentially they would i don't know this is chief count this is a lead counsel only other side that you know may very well be able to find out you may very well be able to find out that the thing is the way this really happens is dr hamdan steps to find direct examination about his unblemished reputation and the district judge agrees with the hospital th now open for impeachment testimony we have also you on the impeachment testimony is based on incidents you know people could observe was he in the clinic that day or was he not in the clinic that day was he late was he not late i mean these are just facts out there in the world and i'm having trouble seeing why this really gets into too much into the peer review and course the hospital was trying to say you're seeking damages for ruined to the that particular incident that became almost one hundred percent a significant hearsay question because the document that you're referring to dr hamdan confronted with it said i any objection raised in closing no and of course that's a tricky tactical point it's it was tricky tactics one thing saying we should reverse the civil verdict based on an objection not made you know in closing argument use very rare can you point us to some examples just not off the top of my head but i would say it's not an off the top of your head kind of question you know that's what you're asking us to do here right yes but a but not because of not because of that that was just icing on the cake our argument is so we don't need to worry about the closer them not in and of itself but  it nearly added to the our view of the sort of inevitable train sliding down the hill that the documents that you're complaining about where they actually introduced into evidence were they simply being used to question dr hometown they were not at least the one that judge would refer to was not introduced it was a read from a paraphrase from i think that is true of the the court my name is lisa tillman on behalf of indiana university health north hospital the district court's order denying doctor in his motion for a new trial should be affirmed and the jury verdict finding no liability on the part of the hospital should stand the standard of review for all issues on appeal is an abuse of discretion standard for at least three independently dispositive reasons the district court's order should be affirmed first dr hamdan did not object on the basis of peer review protection in the lower court second even if he had he never approved the peer review protection attached on a document by document basis as is required third these were not peer review materials that were used during the impeachment of dr hamdan appellant concedes on page fifteen of his opening brief that he did not formally raise the privilege and your honor struck on a good privileges we still believe that the press that the peer review protection was never never proven in order to prove that even under the state law you have to show that the complaint implicates the conduct a health care provider of a doctor just because a complaint is generated does not then mean peer review has begun it has to that complaint also has to impact patient care because the purpose of peer review statutes are to evaluate patient care even then if the complaint involves a health care provider and implicates patient care it's still not peer review material unless and until a peer review committee is convened for the purpose of reviewing the conduct as it impacts patient care so the problem in the court below is we have no record showing that these peer review committees work were convenes to review skandha and all of these other places that he worked without that showing there the protection can't attach to who's burden in your view is it to make that showing stuff to hand and burden if you want to the protection of the statute and not not allow the hospital to use material he must prove it up and what are your senses when we say peer review we really are kind of undermining it or something we're we're referring to a very specific process number one and very particular protection that goes along with it and i guess you're also relying on the general rule that we try to construe privileges in a way that doesn't deprive the court of the ability to find the truth that's right your honor i it is a formal process to your honor's question just because a catholic nurse complains about a doctor's procedures even if it is about how he treats that patient in that cath lab it's still not peer review intil the committees convened and and some of this material that was produced all of this material was produced from non parties from the various institutions where dr hamdan had worked previously none of the material was produced with an objection by those institutions or or asserting any peer review confidentiality or peer review protection themselves and i think all the parties agree that the peer review protection does belong to and benefit the institution that has convened the peer review committee so there is no third party beneficiary idea that the doctor who is the subject of the proceedings can also object well the doctor who's the subject of the proceedings you could have objected and could have raised the privilege he didn't and even if he would have raised it he would have gotten these materials at the time they were produced a soon he did all parties got the materials the materials like i said were produced by non parties without resistance they were producing rather a protective order correct and that protective order not only gave dr hinton the ability to implicate or or designate certain things confidential but it also permitted the folks that produce those documents in that protective order permitted disclosure to the jury so the we have to assume at some point that if it if a hospital has material that it's ready to hand over without resistance besides the protective order that permits use in front of the jury then it's going to assert its purity privilege and if it doesn't then the other person who needs who but what complicates the matter just a little bit is we have four different institutions four different non parties that produce material so the one that comes the closest to your example is the material received from st elizabeth hospital from lafayette that had nurse complaints in it about inability or difficulty to work with dr hamdan because of unprofessional behavior in that document production however as trial counsel explained on the record she found material from a prior hospital where dr hamdan service residency so this material did flow freely through the medical community what makes what makes the question even more hard is placed on six month probation arguably the university who produced an academic record is not even anywhere close to implicating a peer review privilege so this is a matter he was placed on probation according to this letter placed on probation for lying to his faculty colleagues for his reason for missing a clinic shift that does not that's it doesn't placate health care provider conduct but not implicate patient care no peer review convened to review it and arguably when the university produces it it's not even under the peer review framework council i have maybe i'm over simplifying this but i had thought these peer review privileges were aimed primarily at production of evidence in disputes with outsiders to the institution in the concern was that for example concerns about you know practice liability would discourage effective monitoring of care potential mistakes and so on within the hospital   we are doing something wrong in the catholic for instance the nurses should feel free to speak up other other workers should be feel free to speak up we can then in private talk about the problems for the express purpose of improving in the future without worrying about ramifications from that that their purpose is also been implicated to protect people who do report these incidents from defamation suits for instance  but certainly not in this context to to basically put a gag order on these materials to protect reputation and when you when you step back even further from that and you look at other professionals who work at various places if i work at three law firms before i come to my present place of them clment and i'm very difficult to work with and i have a condescending i feel to collaborate and they dropped notes in my employee file that's not ever going to be protected with with a cloak of privilege and that's the that's the type of material that we were talking about here we we were talking about if dr hand in it here to his fifty eight million dollar reputational damages claim we certainly had a right to show that his reputation might not have all been that unblemished along the way if he was claiming that the hospital caused all of his reputational damage we certainly had a right to show how he interacted with coworkers along the way one one point that i do want to make is there is some question or or an argument by dr hamdan that there were enough indications in the record that the district court was aware that a privilege or a peer review protection argument was being made i want to point out that before trial began in the district courts order on various pretrial motions that the court was struggling with this issue and was trying very very diligently to get its hands around it and the district court said and i believe it's in footnote two on its entry in various motions and the district court said please submit those materials to me so that i may review them if you have a problem with them i see my time is  all right thank you very much mr hodes your time also expired but if you have about a minute forty five seconds worth i want you to quickly respond to see if it points for first of all  we agree with the last argument that counsel made yes the hospital was perfectly entitled to make arguments that hamdan reputation was already tarnished they just couldn't use documents or material that had vet had was part of a peer review that leads to the main point that i was going to make is that the argument which appeared for the first time in their brief to this court that peer review somehow requires proof or a foundation that is simply not correct there's nothing they cited nothing for that it is extremely broad as to what counts for the protection whether it's privilege or confidentiality know their their counsel at trial she said counseling is a nuff when when a supervisor and in addition it is correct that patient care patient safety is the touchstone but that doesn't explain why in michigan a security guard materials about a security guard who threw some family members out was covered a staff member who messed with a fan cord that material was considered to be privileged finally one question  response to what judge hamilton it said about the protective water council said that the protective order allowed disclosure to the jury and those third applicable privilege or protection that's in there and secondly it's just simply unrealistic for a hospital in michigan having responded to a federal court subpoena in indianapolis months ago years ago to be able to come in and say today is the trial today's the day we want to assert or thank you very much mr hodes thanks as well to ms stillman will take