United States Court of Appeals

For the Eighth Circuit 

___________________________

No. 19-3272

___________________________ 

Dr. Gregory Sherr

 Plaintiff - Appellant

v.

HealthEast Care System; Dr. Margaret Wallenfriedman; Dr. Mary Beth Dunn; Dr. 

Richard Gregory; Dr. Stephen Kolar

 Defendants - Appellees

Dr. Jerone D. Kennedy; Archie Defillo; CentraCare Health System

 Defendants 

____________ 

Appeal from United States District Court 

for the District of Minnesota

____________ 

Submitted: October 21, 2020

 Filed: June 2, 2021

____________ 

Before BENTON, SHEPHERD, and KELLY, Circuit Judges. 

____________

KELLY, Circuit Judge. 

In September 2016, Dr. Gregory Sherr filed suit against HealthEast Care 

System (HealthEast), CentraCare Health, Dr. Margaret Wallenfriedman, Dr. Mary 
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Beth Dunn, Dr. Richard Gregory, Dr. Stephen Kolar, Dr. Jerone D. Kennedy, and 

Archie Defillo, asserting multiple causes of action. After the district court1 granted 

the defendants’ motions for judgment on the pleadings, three claims remained 

against HealthEast and Drs. Wallenfriedman, Dunn, Gregory, and Kolar 

(collectively, the Appellees): defamation, tortious interference with prospective 

economic relationship, and tortious interference with contract. 

 The Appellees moved for summary judgment on all of Dr. Sherr’s remaining 

claims. The district court granted their motion, and Dr. Sherr now appeals that 

decision. We affirm. 

I. 

Dr. Sherr is a neurosurgeon who practiced medicine in Minnesota from 2010 

to 2016. In November 2014, he entered into a one-year employment contract with 

Midwest Spine and Brain Institute (MSBI). In January of the following year, Dr. 

Sherr applied for clinical privileges to perform surgery at hospitals owned by 

HealthEast, a regional healthcare provider and hospital management company. 

HealthEast granted Dr. Sherr temporary privileges on February 3, 2015, and full 

privileges on April 30, 2015. Dr. Sherr also maintained clinical privileges with 

several other Minnesota hospitals during this time. 

Two years before Dr. Sherr began his relationship with HealthEast, Drs. 

Wallenfriedman, Dunn, and Gregory (collectively, the Neuro Group) entered into 

contracts with HealthEast to become in-house neurosurgeons. Under the terms of 

these contracts, the doctors’ compensation structures were linked to the number of 

procedures they performed. The contracts also stated that HealthEast patients who 

required specialized services would be referred to specialists within the HealthEast 

1

The Honorable Ann D. Montgomery, United States District Judge for the 

District of Minnesota. 
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network. All three members of the Neuro Group were working under these contracts 

when Dr. Sherr began at HealthEast. 

In September 2014, Dr. Wallenfriedman was elected the Chair of HealthEast’s 

Spine Council, beginning a three-year term. The Spine Council was one of at least a 

dozen clinical councils established at HealthEast. Composed of practitioners with 

clinical privileges in designated specialty areas, the councils were responsible for 

setting policies for and evaluating the performances of HealthEast members who 

worked in those areas. As part of their duties, the Spine Council members held 

monthly meetings to review issues related to HealthEast’s spine care practice. The 

Spine Council also began generating regular Spine Quality Reports. These reports

tracked the number of spine surgery patients at HealthEast hospitals who were 

readmitted for surgical site infections within thirty days after surgery and provided 

anonymized information on the doctors associated with those readmissions. 

The Spine Council was also responsible for conducting peer review of spine 

surgeries performed at HealthEast hospitals. During the period in question, this 

review process was dictated by HealthEast’s Practitioner Peer Review Policy (the 

Policy). Under the Policy, designated HealthEast staff members, including those 

serving on the clinical councils, identified cases for potential peer review from a 

number of sources, among them electronic reports and referrals from physicians, 

nurses, and other HealthEast employees. Once identified, peer review cases were 

assigned to practitioner reviewers, who reviewed the cases and documented their 

findings on a Peer Review Form. Based on the reviewer’s recommendation, the 

relevant clinical council might then hold a peer review committee meeting to discuss 

the cases. The Policy indicated that the Chair of that council “must facilitate the 

practitioner peer review committee meetings to ensure a fair and objective 

evaluation of individual practitioner performance and to ensure reasonable actions 

are taken based on assessment findings.” However, the Policy gave the Chair 

discretion for how to ensure a fair process, including whether competitors of the 

physician under review could participate in the process, whom to invite to the 
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meetings, and whether to request a written or in-person response from the physician

under review. 

At the close of a peer review process, the reviewers made a final determination 

on next steps, decided by consensus. One option was to refer the case to 

HealthEast’s Medical Executive Committee (MEC) for consideration of corrective 

action. In its consideration, the MEC was guided by HealthEast’s bylaws, which 

stated, in relevant part: “Whenever a practitioner’s conduct requires that immediate 

action be taken to . . . reduce the substantial likelihood of immediate injury or 

damage to the health or safety of any patient . . . the Chief Executive Officer, or 

designee . . . shall have the authority to summarily suspend the . . . clinical privileges 

of such practitioner.”

Dr. Sherr began operating at HealthEast hospitals in early 2015. At that time, 

Dr. Daniel Sipple was the director of HealthEast’s Spine Center. In this role, Dr. 

Sipple referred HealthEast patients to neurosurgeons within the HealthEast network. 

Dr. Sipple preferred to refer more complex cases to doctors not in the Neuro 

Group—and specifically referred a number of patients to Dr. Sherr. The Neuro 

Group was unhappy with Dr. Sipple’s approach and complained to him frequently. 

They also made comments about Dr. Sherr specifically, allegedly calling him a 

“hack,” “not a good surgeon,” an “asshole,” and “the worst goddamn surgeon.” In 

his deposition testimony, Dr. Sherr said that members of the operating room staff at 

HealthEast told him that the Neuro Group had made similar comments to them, 

calling Dr. Sherr “not a good doctor” and a “dangerous surgeon” and suggesting that 

he put patients at risk by operating too quickly, losing excessive amounts of blood 

during surgery, and having high infection rates. Dr. Sherr claims these comments 

were driven by professional jealousy and anticompetitive motives. 

At her deposition, Dr. Wallenfriedman explained that at some point in the first 

half of 2015 an operating room nurse approached her to discuss the nurse’s concerns 

about Dr. Sherr. The nurse told Dr. Wallenfriedman that the operating room staff 

had “filled out multiple safety event reports” concerning Dr. Sherr’s surgeries and 
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wanted to ensure that the HealthEast administration was aware of these reports. In 

response, Dr. Wallenfriedman sent an email to HealthEast’s head of surgery, Dr. 

Andrew Fink, containing a list of cases the nurse identified. The list consisted of six 

of Dr. Sherr’s patients from April and May who had suffered post-operative 

infections. Between June and early August, Dr. Wallenfriedman sent Dr. Fink four 

additional emails, identifying other cases of Dr. Sherr’s in which complications had 

arisen. Dr. Fink forwarded all of these emails to Dr. John Kvasnicka, who worked 

in HealthEast’s Quality Department, and Nurse Ellen Fletcher, a peer review 

specialist. 

Similar concerns about Dr. Sherr’s surgeries emerged from two additional 

sources that summer. First, on June 11, Nurse Annette Lund, an infection prevention 

specialist, emailed Dr. Peter Bornstein, who worked in the Infection Prevention and 

Control department. She detailed concerns from members of the operating room 

staff about the number of Dr. Sherr’s patients who had developed infections, suffered 

blood loss, and required redo procedures. Second, the Spine Quality Report for 

February to April 2015 indicated that four out of eighty of Dr. Sherr’s spinal fusion 

patients over that period had “deep surgical site infections,” as compared to seven 

surgical site infections for spinal fusion at all of HealthEast in 2014. Dr. Bornstein 

sent Dr. Sherr a letter with this information on June 18, 2015, though no additional 

action was taken at that time. 

In light of this information, HealthEast initiated peer review of Dr. Sherr in 

August 2015. On August 7, Dr. Wallenfriedman sent Dr. Sherr an email notifying 

him that the Spine Council had selected one case for peer review—a case initially 

identified in one of Dr. Wallenfriedman’s emails to Dr. Fink. On September 21, Dr. 

Wallenfriedman sent another email, informing Dr. Sherr of a second case being sent 

to peer review. This case had been identified by a safety event report, as well as 

from a referral by HealthEast’s Peer Review and Medical Director, Dr. Peter 

Tanghe, and from Dr. Wallenfriedman’s emails to Dr. Fink. Both of Dr. 

Wallenfriedman’s emails advised Dr. Sherr that the cases would be discussed at a 

peer review meeting on October 6, notified him that his attendance was required at 
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that meeting, and requested that he send documents related to the cases to the peer 

reviewers. 

Meanwhile, on September 1, between the first and second emails Dr. 

Wallenfriedman sent to Dr. Sherr, the Spine Council held its regular monthly 

meeting. Drs. Dunn and Gregory, who were not members of the Spine Council, also 

attended, as did two additional guests. Dr. Sherr (also not a member of the Spine 

Council) did not attend. Dr. Wallenfriedman presented a summary of the data from 

the Spine Quality Report covering January to June 2015. The data showed that one 

of fourteen surgeons tracked over this period, whose identities were anonymized, 

had six surgical site infections, while no other surgeon had more than two. The 

Spine Council requested further review for this particular surgeon. The surgeon was

later identified as Dr. Sherr. 

At some point around this time, and prior to the October 6 peer review

meeting, Dr. Wallenfriedman shared data from the Spine Quality Report with 

Kathryn Correia, the Chief Executive Officer of HealthEast. Afterward, Correia 

asked Dr. Kolar, the Senior Vice President and Chief Medical Officer of HealthEast, 

to be involved in the peer review process for Dr. Sherr. 

On October 2, the Spine Council held a conference call to discuss Dr. Sherr’s

upcoming peer review meeting. The participants on the call were Nurse Fletcher 

and Drs. Wallenfriedman, Tanghe, Kvasnicka, Kolar, and Fink. Dr. Wallenfriedman 

brought up the six cases from the Spine Quality Report (four of which Dr. 

Wallenfriedman had also identified in her previous emails to Dr. Fink) and asked the 

other participants for their thoughts on whether they met the criteria for peer review. 

Dr. Wallenfriedman advocated for adding the six cases to the October 6 peer review

meeting. While most of the other participants agreed that the six cases should be 

addressed soon, some wondered whether October 6 was too early. After further 

discussion, the group decided to assign the six cases to reviewers and discuss them 

at the October 6 meeting. 
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Later in the day on October 2, Dr. Tanghe sent Dr. Sherr an email notifying 

him of the six additional cases to be discussed at the October 6 meeting. Guided by 

the Peer Review Policy, the Spine Council distributed the cases to different 

practitioner reviewers, and the completed Peer Review Forms were consolidated into 

case abstracts prior to the October 6 meeting. Dr. Sherr submitted his own written 

responses addressing all eight cases—the initial two and the additional six—on 

October 5. 

On October 6, the Spine Council held its peer review meeting for Dr. Sherr. 

Dr. Sherr attended, as did two of his MSBI colleagues on the Spine Council, Drs. 

Stefano Sinicropi and Glenn Buttermann. Drs. Dunn and Gregory were also present. 

At the meeting, Dr. Wallenfriedman gave a PowerPoint presentation summarizing 

the data from the Spine Quality Report and identifying other areas of concern with 

Dr. Sherr’s surgeries. Dr. Sinicropi responded, explaining that Dr. Sherr’s infection 

rate should be considered in relation to the high-risk population Dr. Sherr treated. 

Dr. Sinicropi added that he was willing to work with Dr. Sherr to develop a plan to 

reduce the risk of infections for his patients in the future. The Spine Council agreed 

to a set of proposed solutions, including mentoring and monitoring Dr. Sherr, and 

scheduled a follow-up meeting for October 20. 

On October 12, Dr. Tanghe asked Nurse Fletcher to send an invitation to the 

October 20 meeting to all attendees of the October 6 meeting except Dr. Sherr. 

Nurse Fletcher sent the email, but used a different—and incorrect—email address 

for Dr. Sinicropi than the one used for the October 6 meeting. As a result, Dr. 

Sinicropi did not receive the invitation (though the meeting minutes list him as 

“invited”) and did not attend the meeting. Because Dr. Buttermann, who did receive 

the invitation, was unable to attend, no one from MSBI was present during the

October 20 meeting. 

On October 20, the Spine Council held their follow-up meeting on Dr. Sherr’s 

cases. A number of Spine Council members were in attendance, as were Drs. Kolar, 

Dunn, and Gregory. The members discussed the peer review cases and voted by 
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secret ballot on whether to suspend Dr. Sherr’s privileges at HealthEast. All of the 

Spine Council members present, in addition to one absent member who voted by 

email, decided to do so. 

Immediately after the meeting, Dr. Kolar imposed a summary suspension of 

Dr. Sherr’s privileges and notified Dr. Sherr of his suspension. When Dr. Sinicropi 

learned of the meeting and the suspension, he emailed HealthEast, saying “[MSBI] 

was never notified of the meeting this morning. This is unacceptable and needs to 

be remedied immediately.” Meanwhile, within the local neurosurgery community, 

word of Dr. Sherr’s suspension spread quickly. 

On October 22, the MEC met to discuss Dr. Sherr’s summary suspension, in 

accordance with HealthEast’s bylaws. Dr. Sherr was invited to this meeting but was 

asked to remain outside of the room for the beginning. Dr. Kolar explained to the 

MEC the reasons behind his decision to impose summary suspension, citing Dr. 

Sherr’s “significant outlier status with respect to surgical site infection rate,” 

“excessive blood loss during surgery,” and questionable patient selection process. 

Dr. Kolar told the MEC that MSBI had proposed a mentoring program to remedy 

the issues, but that the Spine Council concluded that such a program would have 

been insufficient. Dr. Tanghe then discussed the Spine Quality Report and the 

information about Dr. Sherr’s infection rates that it reflected. Finally, Dr. 

Wallenfriedman offered a PowerPoint presentation with information on Dr. Sherr’s 

peer review cases and a summary of the October 20 meeting. The PowerPoint 

indicated that MSBI members were invited to participate in the October 20 meeting 

but were not present. The MEC meeting minutes state that Dr. Sinicropi’s absence 

was due to a “miscommunication with his email.” After Dr. Wallenfriedman’s 

presentation, Dr. Sherr was invited to join the meeting. He explained that his higher 

infection rate was due to the fact that his cases and patients were more complex than 

those of other surgeons at HealthEast. He also objected to Dr. Wallenfriedman’s 

involvement in the peer review process, considering her status as his direct 

competitor. 
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At the close of all of the presentations, the MEC deliberated and voted twelve 

to one in favor of upholding Dr. Sherr’s suspension. Dr. Kolar notified Dr. Sherr of 

the decision and filed a public report of the suspension with the National Practitioner 

Databank. 

On November 19, Dr. Sherr requested a hearing on his suspension before 

HealthEast’s Judicial Review Committee (JRC). The JRC held its hearing on 

February 1, 2016. Finding that Dr. Sherr had proven that “the evidence as relied on 

cannot justify imposition of summary suspension as endorsed by the MEC,” the JRC 

elected to overturn Dr. Sherr’s suspension on February 4. It added, however, that its 

decision was “not an endorsement of the medical care Dr. Sherr provided or his 

surgical competence.” 

In December 2015, while Dr. Sherr’s summary suspension was still in effect, 

Dr. Sherr and MSBI renewed his employment contract for another year. But Dr. 

Sherr ultimately determined that his “referral sources had been devastated, and his 

ability to continue to be a top revenue producer for MSBI had been destroyed.” He 

therefore resigned from MSBI in March 2016 and relocated his practice to Florida.

II. 

Dr. Sherr claims that HealthEast and the Neuro Group made a number of 

defamatory comments about him over the course of his relationship with HealthEast. 

At the district court, Dr. Sherr identified 18 statements in particular that he argues

constitute defamation. He also argues that the Appellees tortiously interfered with

his prospective economic advantage and tortiously interfered with his contracts 

under Minnesota law. 

After reviewing Dr. Sherr’s arguments, the district court granted summary 

judgment for the Appellees. First, it concluded that both federal and state peer 

review immunity cover the review process Dr. Sherr experienced at HealthEast. As 

such, it found that the Appellees were not liable for defamation or tortious 
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interference for anything that occurred during Dr. Sherr’s peer review.

2

 As to the 

statements made outside of peer review, the district court found that they did not 

constitute actionable defamation for several reasons. The court rejected some of the 

allegedly defamatory statements because Dr. Sherr did not allege them in his

amended complaint. Others, the district court concluded, relied on inadmissible 

hearsay. Finally, the district court found that, even if they had been alleged in the 

complaint, some of the statements were not actionable because they were opinions, 

rather than assertions of fact. Dr. Sherr appeals the district court’s decision. 

III. 

We review the district court’s grant of summary judgment de novo. Togerson 

v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). When deciding 

a motion for summary judgment, a court is required to view disputed facts in the 

light most favorable to the nonmoving party, drawing all reasonable inferences in its 

favor. Scott v. Harris, 550 U.S. 372, 378 (2007). A court at this stage “does not 

weigh the evidence, make credibility determinations, or attempt to discern the truth 

of any factual issue.” Morris v. City of Chillicothe, 512 F.3d 1013, 1018 (8th Cir. 

2008). Rather, the focus is on whether there are genuine issues of material fact for 

trial. Id. Substantive law in the relevant area dictates which facts are material, as 

“[o]nly disputes over facts that might affect the outcome of the suit under the 

governing law will properly preclude the entry of summary judgment.” Anderson 

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

A. 

Appellees contend that most of the 18 potentially defamatory statements at 

issue are not identified in Dr. Sherr’s amended complaint and therefore cannot 

provide a factual basis for his defamation claim against them. Dr. Sherr responds 

2

The district court also found that Dr. Sherr had not established a genuine 

dispute of material fact on the merits of his tortious interference claims and granted 

summary judgment on that basis as well. 
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that Appellees’ argument relies on a “tortured and overly restrictive view of 

applicable precedent” and advocates that we consider all of the identified statements, 

even though he did not include them in his amended complaint. 

Under Minnesota law, defamation claims must be pleaded with “a certain

degree of specificity.” Thompson v. Campbell, 845 F. Supp. 665, 679 (D. Minn. 

1994); see also Stead-Bowers v. Langley, 636 N.W.2d 334, 342 (Minn. Ct. App. 

2001) (noting that plaintiffs must “specifically plead the alleged defamatory 

statements”). This requirement exists to ensure that complaints “provide sufficient 

specificity in order to evaluate whether a privilege applies, as well as to put 

defendants on notice of the scope of the defamation claim.” Walker v. Wanner 

Eng’g, Inc., 867 F. Supp. 2d 1050, 1056 (D. Minn. 2012) (cleaned up). While 

plaintiffs may not have to directly quote the allegedly defamatory words, see

Thompson, 845 F. Supp. at 679 (noting that plaintiff’s failure “to recite the exact 

language spoken is not fatal to her defamation claim”); but see Moreno v. Crookston 

Times Printing Co., 610 N.W.2d 321, 326 (Minn. 2000) (“Minnesota law has 

generally required that in defamation suits, the defamatory matter be set out 

verbatim.”), their complaints generally must identify “who made the allegedly 

[defamatory] statements, to whom they were made, and where.” Pinto v. 

Internationale Set Inc., 650 F. Supp. 306, 309 (D. Minn. 1986). Any statements not 

so identified in the complaint are beyond the scope of a plaintiff’s defamation claim. 

See Thompson, 845 F. Supp. at 680 (“The scope of [plaintiff’s] defamation claim is 

limited to the allegations of the complaint.”); see also Benson v. Nw. Airlines, Inc., 

561 N.W.2d 530, 538 (Minn. Ct. App. 1997). 

Dr. Sherr cites Walker v. Wanner Engineering to argue that statements he

identified through discovery but did not incorporate into his complaint may be 

considered part of his defamation claim. In Walker, the plaintiff’s complaint 

identified the specific statements at issue and the parties who said them, but did not 

specify where the statements were made. The court explained that “[a]lthough the 

‘where’ is not expressly stated for either defamation claim, the context of both 

allegations put [defendant] on notice that the defamatory statements were both made 
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within [defendant’s] facility.” Walker, 867 F. Supp. 2d at 1056-57. Walker is thus 

better understood as establishing that, in some circumstances, a defamation 

complaint need not specify the precise location of the defamatory comments, so long 

as the defendant has sufficient notice of the general locale to be able to identify the 

statement. We do not read it as upending the general requirements that defamation 

must be pleaded with specificity and that defamation claims are limited to what is 

identified in the complaint. 

Here, though Dr. Sherr’s amended complaintstatesthat members of the Neuro 

Group “have made many . . . false and defamatory statements about Plaintiff,” it 

specifically describes only three statements. Namely, the complaint alleges (1) that 

the Neuro Group “would disparage Dr. Sherr [to operating room nurses] for how 

quickly he would complete his surgeries,” claiming that “Dr. Sherr’s speed in 

surgery was putting his patients at risk”; (2) that, at the October 6 peer review 

meeting, the Neuro Group accused Dr. Sherr of “fail[ing] to order some basic and 

necessary imaging in connection with the treatment” of eight patients; and (3) that 

Dr. Dunn professed at that same meeting “that Dr. Sherr was known by the operating 

room staff to have his patients ‘lose a liter of blood for every level of fusion surgery 

Dr. Sherr performed.’” Dr. Sherr could have amended his complaint to incorporate 

the additional allegedly defamatory statements identified during discovery, but he 

did not do so.3

 And given the requirement that defamation claims be pleaded with 

specificity, only the statements included in the amended complaint can form the 

basis of Dr. Sherr’s claim. Therefore, these are the only three statements before us 

on appeal.4

 

3

On April 16, 2019, the same day that Dr. Sherr filed his response to 

Appellees’ motion for summary judgment, he also moved to amend his complaint

once again. The magistrate judge denied his motion, reasoning that Dr. Sherr did 

not act diligently in seeking leave to amend and that his motion came after the 

February 1, 2019 deadline for filing non-dispositive motions. 

4

In the list of 18 statements that Dr. Sherr provided, statements seven and nine 

are both statements by members of the Neuro Group to operating room physicians 

about the speed of Dr. Sherr’s surgeries. Both are properly within the amended 
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B. 

As to the first remaining statement—the Neuro Group’s alleged comments 

about the speed of Dr. Sherr’s surgeries—the district court properly found that this 

allegation relied exclusively on inadmissible hearsay and thus cannot provide a 

factual basis for a defamation claim. See Firemen’s Fund Ins. Co. v. Thien, 8 F.3d 

1307, 1310 (8th Cir. 1993) (“Inadmissible hearsay evidence alone may not defeat a 

summary judgment motion.”). Dr. Sherr’s opening brief does not address this aspect 

of the district court’s decision. Because “[c]laims not raised in an opening brief are 

deemed waived,” Jenkins v. Winter, 540 F.3d 742, 751 (8th Cir. 2008), we will not 

review the district court’s rejection of this first statement. 

C. 

We are thus left with two allegedly defamatory statements, both made by 

members of the Neuro Group at the October 6 peer review meeting. Appellees argue 

that they are immune from liability for these statements under both federal and state 

peer review immunity statutes, while Dr. Sherr claims that neither statute applies. 

Minnesota’s peer review immunity statute provides:

[N]o . . . person who is a member . . . of . . . a review organization shall be 

liable for damages or other relief in any action brought by a person or persons 

whose activities have been or are being scrutinized or reviewed by a review 

organization, by reason of the performance by the person of any duty, 

function, or activity of such review organization . . . . 

Minn. Stat. § 145.63, subdiv. 1. “The clear import of this statute is to encourage the 

medical profession to police its own activities with a minimum of judicial 

complaint’s claim that “[t]he HealthEast Neuro Group said that Dr. Sherr’s speed in 

surgery was putting his patients at risk,” but we will refer to them as a single 

“statement” for ease of reference. 
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interference.” Campbell v. St. Mary’s Hosp., 252 N.W.2d 581, 587 (Minn. 1977). 

“Whether a party is entitled to statutory immunity is a question of law.” In re Peer 

Review Action, 749 N.W.2d 822, 827 (Minn. Ct. App. 2008). 

In keeping with the purpose of Minnesota’s peer review statute, a peer 

reviewer loses immunity only if that reviewer was motivated by malice toward the 

subject of the review. Minn. Stat. § 145.63, subdiv. 1. In “the context of statutory 

immunity,” malice means “nothing more than the intentional doing of a wrongful 

act without legal justification or excuse, or, otherwise stated, the willful violation of 

a known right.” In re Peer Review, 749 N.W.2d at 827 (cleaned up). The question 

of whether a peer review inquiry was motivated by malice is an objective one, 

focused not on what the reviewers personally believed, but rather on how the process 

was conducted. See id. at 828 (affirming finding of malice where the defendant 

“intentionally, and repeatedly, violated its own established procedural safeguards”); 

see also Campbell, 252 N.W.2d at 587 (rejecting claims of malice premised on 

“unsubstantiated speculation as to the reasons for the revocation of [a doctor’s] 

surgical privileges”). Accordingly, in Minnesota, “[j]udicial review of peer-review 

actions is properly limited . . . to only whether peer reviewers abided by their own 

established procedures.” In re Peer Review, 749 N.W.2d at 829. We will infer 

malice only if the peer reviewers did not follow those procedures. 

At the time of the investigation into Dr. Sherr’s surgeries, HealthEast’s peer 

review process was dictated by its Practitioner Peer Review Policy. The Policy laid 

out specific procedures and guidelines for HealthEast employees to follow while 

conducting peer review, “to ensure a fair and objective evaluation of individual 

practitioner performance and reasonable actions based on assessment findings.” Dr. 

Sherr points to a number of features of his peer review process that he claims 

deviated from the Policy and support a finding of malice. 

First, Dr. Sherr argues that Dr. Wallenfriedman was the “catalyst” behind the 

decision to initiate peer review inquiries into all eight of the cases the reviewers 

ultimately considered. However, this contention is unsupported by the record, which 
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demonstrates that concerns about Dr. Sherr’s surgeries came from a number of 

different sources, including the Spine Quality Report and Nurse Lund. In any event, 

the Policy makes clear that “[c]ases potentially needing peer review” could be 

received from “[r]eferrals from internal sources, such as physicians.” Even if Dr. 

Wallenfriedman had been the sole catalyst, Dr. Sherr fails to explain how this would 

have violated applicable procedures.

5

 Dr. Sherr also takes issue with Dr. 

Wallenfriedman’s involvement in the peer review process at all, given her status as 

his competitor for patient referrals. However, as Chair of the Spine Council, the 

body tasked with conducting the peer review, Dr. Wallenfriedman was permitted but 

not required to “limit medical staff attendance for particular case discussions” where 

“[c]linical peers may have discriminatory or anti-competitive motives in evaluating 

the individual being reviewed.” Dr. Wallenfriedman could have abstained due to a 

potential conflict as a competitor of Dr. Sherr’s, but the policy is permissive, not 

mandatory. Her choice to participate was thus in compliance with the Policy’s 

discretionary approach. 

Next, Dr. Sherr claims that Dr. Wallenfriedman “notified [Correia] of Sherr’s

infection rate issues before the peer review process was completed,” in violation of 

the Policy’s requirement that all peer review procedures “be held in the strictest 

5

Dr. Sherr makes the related claim that HealthEast should have addressed his 

cases through the organization’s Focused Professional Practice Evaluation Policy 

and Procedure (FPPE), which provides for evaluation of all physicians six months 

after they have been granted a new privilege, rather than through formal peer review. 

Dr. Sherr argues that HealthEast’s failure to complete the FPPE process provides 

evidence of objective malice. Even assuming that the procedures we consider in our 

malice inquiry should include ones separate from the peer review process at issue 

here, which we are not convinced of, we do not see the procedural irregularity that 

Dr. Sherr does. The FPPE policy indicates that an “FPPE will be initiated 6 months 

after [a new] privilege was granted” and that “the Clinical Council Chair will be 

notified if at any time during a review period, there are concerns regarding a 

practitioner’s competency to perform specific clinical privilege(s).” Once notified, 

the Chair may refer the practitioner’s cases to peer review, where HealthEast’s 

normal peer review processes apply. Here, Dr. Sherr’s cases were elevated to formal 

peer review before the FPPE process would even have begun. 
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confidence.” Even assuming that Correia, the Chief Executive Officer of 

HealthEast, was not properly part of the confidential peer review process, the record 

indicates that Dr. Wallenfriedman showed Correia the Spine Quality Report, not any 

information from the peer review process itself. The Spine Council generated the 

Spine Quality Report in the ordinary course of its work as a clinical council, separate 

and distinct from its review of Dr. Sherr. Additionally, the Policy makes clear that 

Dr. Wallenfriedman had the discretion to include “any other individuals” in the peer 

review meetings. Dr. Sherr also argues that Dr. Wallenfriedman violated applicable 

notice policies by adding six additional cases to the October 6 meeting only four 

days before that meeting and by not informing Dr. Sinicropi of the October 20 

follow-up meeting. However, the Policy contains no such notice requirements, and 

Dr. Sherr points to no rules that would have required notice in this situation. Finally, 

Dr. Sherr points to a number of “willfully false statements” that he claims Dr. 

Wallenfriedman made about him over the course of the peer review process. But 

assessing this claim necessarily requires an inquiry into Dr. Wallenfriedman’s 

mental state: both what she knew at the time and what her intentions were in making 

the statements. This is exactly the sort of subjective analysis foreclosed by 

Minnesota’s peer review immunity standards, and we will not consider it as evidence 

of malice. 

We are sympathetic to Dr. Sherr, who may genuinely have perceived the peer 

review process at HealthEast to be unfair or biased against him. However, under 

Minnesota law, our focus is not on the perception of the person under peer review 

or on the individual motivations of the reviewers. Rather, we are “limited . . . to 

only whether peer reviewers abided by their own established procedures.” In re Peer 

Review, 749 N.W.2d at 829. Because the record offers no indication that the 

reviewers did not so abide, the Appellees are entitled to peer review immunity on 

the remaining two statements, and the district court properly dismissed Dr. Sherr’s 

defamation claim. 
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IV. 

Dr. Sherr’s amended complaint also includes claims for tortious interference 

with prospective economic advantage and tortious interference with contract. To the 

extent these alleged interferences occurred solely through the peer review process 

itself, Appellees are entitled to peer review immunity. But in the event peer review 

immunity does not fully shield Appellees, we will address each claim. 

A. 

Under Minnesota law, a plaintiff must prove five elements to establish tortious 

interference with prospective economic advantage: 

1) The existence of a reasonable expectation of economic advantage;

2) Defendant’s knowledge of that expectation of economic advantage;

3) That defendant intentionally interfered with plaintiff’s reasonable expectation 

of economic advantage, and the intentional interference is either 

independently tortious or in violation of a state or federal statute or regulation;

4) That in the absence of the wrongful act of defendant, it is reasonably probable 

that plaintiff would have realized his economic advantage or benefit; and

5) That plaintiff sustained damages.

Gieseke ex rel. Diversified Water Diversion, Inc. v. IDCA, Inc., 844 N.W.2d 210, 

219 (Minn. 2014). 

Dr. Sherr identifies two sources of prospective economic advantage that he 

claims Appellees interfered with: a referral relationship with Allina Health, another

regional healthcare provider, and his ability to successfully continue on the track to 

become a partner at MSBI. As to the Allina relationship, the only evidence Dr. Sherr 

provides that Appellees intentionally interfered is a claim that they told Allina about 
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his suspension and referred to him as a “dangerous surgeon.” As the district court 

correctly pointed out, this claim relies on inadmissible hearsay. Because Dr. Sherr 

did not provide admissible evidence in support, Appellees were entitled to summary 

judgment on this claim. See Firemen’s Fund Ins. Co., 8 F.3d at 1310.

Regarding his relationship with MSBI, Dr. Sherr cannot meet all of the 

elements required for a tortious interference claim. Specifically, he would have to 

demonstrate that Appellees’ alleged interference with his expectation of economic 

advantage was either independently tortious or in violation of a state or federal 

statute. Gieseke, 844 N.W.2d at 219. As we understand it, Dr. Sherr’s argument is 

that his relationship with MSBI was ruined because the news of his HealthEast 

suspension traveled around the medical community. But HealthEast’s decision to 

suspend Dr. Sherr was not itself tortious, and the Appellees were not legally 

responsible for the secondary effects of his suspension. Without offering some 

evidence that the Appellees independently acted tortiously or illegally as required 

by Minnesota law, Dr. Sherr cannot show the district court erred in granting 

Appellees’ motion for summary judgment. 

 

B. 

Dr. Sherr also alleges that Appellees interfered with two of his contractual 

relationships: his clinical privileges with HealthEast and his employment contract 

with MSBI. 

To prevail on a claim of tortious interference with contract, Dr. Sherr must 

establish five elements: “(1) the existence of a contract; (2) the alleged wrongdoer’s 

knowledge of the contract; (3) intentional procurement of its breach; (4) without 

justification; and (5) damages.” Sysdyne Corp. v. Rousslang, 860 N.W.2d 347, 351 

(Minn. 2015) (cleaned up). Additionally, he must “provide evidence that 

[defendants’] acts legally caused [him] to lose any contractual rights.” Lee v. Metro. 

Airport Comm’n, 428 N.W.2d 815, 822 (Minn. Ct. App. 1988). 
-19-

Against this legal standard, there is no genuine issue of material fact as to Dr. 

Sherr’s claim. First, Dr. Sherr has provided no evidence that he had a contract with 

HealthEast at all or that his privileges should be interpreted as a contract. Second, 

Dr. Sherr has not established that Appellees caused a breach of the MSBI contract 

in place at the time of his suspension or any loss of his related contractual rights. 

Indeed, after his initial contract expired—and months after the suspension—Dr. 

Sherr and MSBI renewed their contractual relationship. Appellees are entitled to 

summary judgment on this claim, as well. 

 

V. 

Considering the applicable substantive law, Dr. Sherr has not demonstrated 

that the record reflects any genuine issue of material fact that might change the 

outcome of his suit. The district court properly concluded that Appellees were 

entitled to summary judgment on all of Dr. Sherr’s claims, and we affirm its 

judgment. 

SHEPHERD, Circuit Judge, concurring in part and dissenting in part.

I dissent from Parts III.C and IV.A of the Court’s opinion because I believe 

genuine issues of material fact preclude granting summary judgment on Dr. Sherr’s 

defamation and tortious interference with a prospective economic advantage claims 

arising out of the peer review process. I concur in the Court’s opinion with respect 

to Dr. Sherr’s other claims.

I agree with the Court that Dr. Sherr pled the Appellees’ statements made in 

the course of the Neuro Group’s October 6 peer review meeting with sufficient 

specificity. See Walker v. Wanner Eng’g, Inc., 867 F. Supp. 2d 1050, 1056 (D. 

Minn. 2012). However, I would find that there are genuine issues of material fact 

concerning whether those statements are entitled to state or federal immunity. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Peer review actions do 

not enjoy state statutory immunity if they are motivated by malice, which may be 
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inferred when peer reviewers willfully violate their own established procedures. See

In re Peer Review Action, 749 N.W.2d 822, 828-29 (Minn. Ct. App. 2008).6 

HealthEast’s Policy required “a fair and objective evaluation” of Dr. Sherr’s 

performance. While the peer review organization chair had discretionary authority 

to limit review attendance based on “discriminatory or anti-competitive motives,” 

the individual empowered with that discretion, Dr. Wallenfriedman, was one of the 

individuals allegedly harboring anti-competitive motives. It is axiomatic that a 

neutral decisionmaker is a quintessential pillar of a fair and objective process. See

Bracy v. Gramley, 520 U.S. 899, 904-05 (1997) (discussing the presence of a neutral 

arbiter as a constitutional floor of due process). Therefore, I would find that whether 

this high-level conflict of interest deprived Dr. Sherr of the “fair and objective 

evaluation” the Policy required, which in turn would infer malice, is a genuine issue 

of material fact.

Further, federal immunity requires “adequate notice and hearing procedures,” 

42 U.S.C. § 11112(a)(3), which includes a process conducted by “a hearing 

officer . . . who is not in direct competition with the physician involved,” id.

§ 11112(b)(3). Because of Dr. Wallenfriedman’s position as the peer review 

organization chair, I would find that whether the review process included “adequate 

notice and hearing procedures” is a genuine issue of material fact.

6

The Court contends that a jury determination on this issue is improper 

because “[w]hether a party is entitled to statutory immunity is a question of law.” 

Id. at 827. However, “[t]he conclusion of malice,” a necessary showing to defeat 

statutory immunity, “depends on found facts.” Id.; cf. Brooks v. Doherty, Rumble 

& Butler, 481 N.W.2d 120, 126 (Minn. Ct. App. 1992) (explaining that whether an 

employer abused its qualified privilege by acting with actual malice is “a question 

for the jury”). Notably, in In re Peer Review, the appellant “d[id] not challenge the 

district court’s factual findings,” but instead argued that the facts, as a matter of law, 

did not give rise to malice. Id. Here, Dr. Sherr does challenge the facts, that is, 

whether the Neuro Group violated its own procedures by failing to conduct “a fair 

and objective evaluation.” In doing so, Dr. Sherr has presented sufficient evidence 

for a reasonable jury to infer that the Neuro Group acted with malice; therefore, 

whether the Neuro Group is entitled to statutory immunity must be reserved for the 

jury’s determination.
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Assuming that Dr. Wallenfriedman’s involvement does bar statutory 

immunity, I would find that these “objectively verifiable facts” are actionable 

defamatory statements, the truthfulness thereof being a question for the jury. 

Thomas v. United Steelworkers Loc. 1938, 743 F.3d 1134, 1142 (8th Cir. 2014) 

(citation omitted); see McKee v. Laurion, 825 N.W.2d 725, 730 (Minn. 2013). I 

would also find that because this arguably biased review process rendered 

Dr. Sherr’s future partnership with MBSI impracticable, there exist genuine issues 

of material fact regarding Dr. Sherr’s claim for tortious interference with a 

prospective economic advantage. See Gieseke ex rel. Diversified Water Diversion, 

Inc. v. IDCA, Inc., 844 N.W.2d 210, 219 (Minn. 2014). Thus, I would find that 

Dr. Sherr has demonstrated genuine disputes throughout his claim that should be 

resolved by the jury and that make summary judgment inappropriate. 

______________________________