defamation claim in the two tortious interference claims and summary judgment now we have presented very very detailed briefs with legal arguments citations to the record that outline all of our arguments in support of why these three require trial why they can't be dismissed as a matter of law i want to focus my comments to the court now on the defamation claim and i won't i want to focus more specifically on the defamation claim and the testimony of dr dre and said poll in support of that claim dr sure plant a detailed defamation claim in it he specifically described false statements he was aware of at the time then in addition to these specific allegations he pled and i quote upon information and belief the physicians in the healthiest nurul group have made other false and defamatory statements about one friedman done in gregory told him that my client doctor sure was a quote act for the worst goddamned surgeon ever and quote dangerous among other statements that were conveyed that were devastating to dr sure there's competence as a surgeon the statement is standing alone could establish defamation liability defamation per se actual liability and require trial to result the district court however dismissed the statements by placing a pleading burden on dr sure that cannot be supported by any reasonable interpretation of the rules a civil procedure or applicable precedent in let me turn to that now now there is nothing in the federal rules the c of so procedure that requires privileges that can apply to defamation so courts in this circuit and elsewhere have developed rules that require plaintiffs to plead that defamation with some specificity given however the pleading that i described at the outset of these comments dr sure has satisfied that burton and there's no basis to require him to amend the complaint when dr simple testified in his deposition in the way that he d cases are for the purpose of determining if any kind of privilege may apply to the alleged definitional let me interrupt you before you go to the federal district courts and i respect them but doesn't the minnesota supreme court as long as or e two for what we're saying defamation cases the brief and and what those cases say is is the exact language does not have to be clad in the breach and in fact the judge and i also want to point out excepting the defendant's ruling in the rationale for it here would exempt defamation claims from from the general rule that claims conform to the evidence developed in discovery and it would actually go further face of federal rule of so procedure eight eat which requires readings to be construed so as to do justice i also want to talk a little bit about the court's on the merits analysis which i think is dicta but in any event it's a it's not disputed by the parties that it's a question of what whether the lead flanders statement is capable of implying false facts here we've pointed out and with a supporting case law how a jury could readily find that describing a surgeon to another doctor as a hat as dangerous as the worst goddamn surgeon in st fact people who are being proven false this is especially so when this statement is made to a principal referral source in order to get him to change his ways for all patterns now the cases that have been presented and argue with to the court on this issue issue of as a matter of law determinations of statements talk about two things that matter the content of the statement and the cop and the context in which it was uttered now the court dismissed this looking at the content alone and didn't even consider the context of this statement made to simple to turn his referral patterns that's an error and i want to talk also in the time i have remaining about about the errors committing committed below that go beyond and i want to talk about the errors that were committed in relation to granting immunity on both the federal and state courtlandt because that error is critical that if that immunity stands to tortious interference claims cannot go forward because the summary suspension is the basis for claiming the harm in those claims now it's clear what the immunity is governed by under state law statute under federal law it's the health care quality munity act the minnesota statute says that immunity plies in last mouth is proven and the health care quality immunity act has set up a what's what's been developed by the courts as a rebuttal presumption there are four safe harbor that we've cited both both parties have cited in the briefs and cited all the case law on that is basically presume to have met in week dr sure has the burden of proving that those that any one of those safe harbors haven't been yet met here the standard this court applies is an objective one and we recognize that and what that means is it doesn't matter that the doctors in the peer review may have been sure it's competitors and may have been on a witch hunt to get him out of the hospital none of that standing alone can allow a mallet finding defeating munity but let me talk about the evidence that we have that goes far beyond that i want to highlight in particular what happened between august th or excuse me address the issue of these infections ever had arisen for sure which he doesn't dispute occurred these involved initially two cases and then six more were added but on october to president of them as the i as well as his partner glen butterman and dr sure were present at the spine council meeting to discuss every one of these cases to talk about this infection issue and what was the best way for the spine council to croaky has testified and the record fully supports this that there was a agreement that the best way to approach the issue of these infections was a proctor ropey was specifically tasked along with his group to develop this proctoring plan there's actually voting recommendations that are in the record that we've cited that show the support for this proctoring plan and there is not a mention at all in those voting recommendations about immediate terminations now what happens dr won't freak who's the chair of the coun the fact that he wasn't there meant none of that happened i'm getting close to my rebuttal time and i think what i'm going to do your honors is really well of the preserve of the rest of my time so that i can address some of these you should thank you officer for health east and was involved in the determination with respect to dr shears privileges at the core the central premise of dr sheers case that there was some sort of concerted effort to oust dr sheerin through the process and is not otherwise supported by the law dr shear in asking you to reverse the district court's well reasoned opinion in this case is asking that the court ignore what immunity is designed to protect and it's a very important immunity that is set forth both in the minnesota statute as well as the federal statute it recognizes that it is not the pro courts to look at whether or not positioned are appropriate only monitoring their peers through the peer review process there is simply no support for a finding of malice in this case so i want to go back a little bit just to remind the court about the facts that led to the decision to make a gauge and a peer review process dr shear st arrived was st granted privileges and health and february of two thousand and fifteen on an emergency basis he was granted full privileges i believe in april of two thousand and fifteen and the record it is undisputed shows that in the course of several weeks over april may and june in rapid succession there are a number of piecing complications with respect to dr shears surgeries significant serious complication s those complications were not as dr fear argues without any support in the record it simply is undisputed that those keys his team to the spine council which is the operative reports and a blind study of post surgical site infections and complications healthy speaking very concerned about the infection rate and the incidences for a physician in such a short period of time and that the study was on wanted ultimately there were eight cases eight cases with serious complications that were submitted to the peer review process at every step of the way it is undisputed objective plea and the standard is objective that the process was followed and it was fair the key is were reviewed by individual physicians other neurosurgeons  i know i know it's called malice but that's what they say and the key is about following the procedures so how close is that the following the procedures are so your honor i would submit that that clear clear is  actually a violation of the procedure the procedure is that there is to be a meeting whether or not all the physicians are able to attend that meeting or not the process requires that it be fair there were eight voting members on october t meeting say how many were invited you gave me your get the number how many were invited i don't recall off the top of my head how many were invited i know however that on october th there were eleven physicians present at the st meeting and there were at least eight who had been invited to review each of the eight cases one of them by the way one was dr sheers colleague at amherst b i got a better than and he didn't appear in any event the basis for shears claims is actually ect fonder reasonable for a firm derby found here that the chairperson of the of the committee had an anti competitive motive it's very clear both in the palace heat as well as the law that the fact that another member of the committee is a competitor is not in and of itself a basis to find that immunity is not met and in fact that not really it's not a that's a that's not really answering my question couldn't a fact finder found that the chairperson of the committee had a name a competitive motive based on statements that were were made complaining about doctor share or getting referrals that the referral should go to the hospital's staff doctors another  other statements that the chairperson made and just the fact that they were they were competitors no yours and that does it does it couldn't that be if i am to be a know you disagree with that you would argue otherwise but couldn't it be found that there's an anti competitive motive there your honor i would submit that that's actually the wrong question the question here with respect to malice and whether or not so  competitive motives it does it does state that and it's discretionary so she may well i didn't why didn't she exercise that discretion here what's the evidence on that there there when she didn't have to it wasn't required by the policy and there's there is evidence in the record that despite dr sheers suggestions otherwise that none of the three doctors here are motivated by any sort of for a system and it's undisputed that that that was not an issue moving on to to the defamation claim i do want to rate i do want to go back to something that dr excuse me that mr schieffer raised at the outset which is the scope of his defamation claim i just find his arguments about the basis for the number of defamatory statements that should be submitted to a jury in this case she ignores very clear precedents in both minnesota and this circuit that with respect to defamation under minnesota law you must set forth with specificity the defamatory statements that are at issue it is just spewed it that the only it does not require specificity but it does for choir that you identify who the speakers are and most importantly the content of the state it the content of the statements the statements that she was a hack or that she was a bad doctor or that she was dangerous appear nowhere in the complaint that is undisputed he did and despite what what mr shafer argues to this court there was no good cause for his failure to identify those statements yes he may have learned them in discovery they were not identified in interactive taurine answers he never sought we'd leave to come to amend his complaint until healthiest and the individual a the exact language but what was said is what you know the facts of that case enough to answer that i do your honor and the what was said in that case was that they knew she was a terrible nurse right so it's  actually exactly like this case here the statement that she has a band doctor appears nowhere in the complaint the content of the statement the doctors here now wants to submit to a jury appear nowhere in the complaint there's only three and all of those  three we would submit don't support a defamation claim for other reasons but with respect to the statements about being a bad doctor tactics that are none of them here please i like to also address very briefly  the the fact that many of these statements and again the ones that dr she would like to submit to a jury here are absolutely under well at the context of those statements i think and i think that the sort of the the line is trying to draw here is that these statements are made to a very in a very specific content context about a very specific activity which is disability it as a doctor from one doctor to another and that those have factual contagions in that context why isn't that enough because i think that ignores the other factors that the court supposed to consider which is whether or not the statements are precise and precise enough to actually be submitted to a jury to determine if they're true or false there's actually an opinion out of the th circuit sullivan and that's really context with respect to a lawyer right so if you say that someone is a bad lawyer that's very imprecise that's i'm verifiable now if the statement were different if you said that the lawyer always lost all his or her  then that's a fact that's a fact that can be verified that can be proven false whether or not someone is a bad doctor by its very nature regardless of the context is something that cannot be proven true or false so we can't disregard the other factors that the court as a matter of law under thomas and other precedent is supposed to look at well in discovery he made one of those statements come from you made those statements your honor those were statements that were made at deposition as mr shafer said by dr simple and again i would point your honour's to the fact that they really never made it into the complaint some of them they submitted are not actions or another grounds process and poisoned decision makers particularly color we have a site on page fifteen footnote ten of our brief where we talk about wall in friedman bringing to koehler's attention a medical malpractise case that had been dismissed but claiming that dr sure should have disclosed that on his initial privileges falsely claiming that and have a generally generally medical practitioners have to disclose even charges against the right to some national database even  actually testified he thought of it you know led in part to summary suspension the islami decision which is the one decision we site on we cite repeatedly quote and we are relying on it's a decision out of the northern how the hospital leadership reacted after things were brought to their attention during the process that they were doing wrong your honor you pointed out correctly that not inviting sin across to that meeting was a violation of policy regardless of why it happened but what happened after that when sit across be said just that this is crazy i'm the one who's doing a proctoring plan for this guy you have to rescind this you've got to reschedule this meeting you've got to give me a voice and let me convinced his folks that the proctoring plan as we agreed on the meeting of the six is the right way to go they ignored that completely they instead pulled forward with the medical executive committee two days later failing to follow procedures and that each cause standards which above all else require fairness and a reasonable belief that you're doing things in the interests of patient health those cannot be satisfied as a matter of law on this record thank you thank you both for your arguments case number nineteen dash three thousand two hundred and seventy two is a method for decision by the court your of course excused and