Patrick Brandner v. American Academy of Orthopaedi, et al
Filing
Filed opinion of the court by Judge Easterbrook. AFFIRMED. Richard D. Cudahy, Circuit Judge; Frank H. Easterbrook, Circuit Judge and William T. Lawrence, District Court Judge*. *Of the Southern District of Indiana, sitting by designation. [6592814-1] [6592814] [12-3426]
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Case: 12-3426
Document: 37
Filed: 07/24/2014
Pages: 7
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12-‐‑3426
PATRICK J. BRANDNER,
Plaintiff-‐‑Appellant,
v.
AMERICAN ACADEMY OF ORTHOPAEDIC SURGEONS and
AMERICAN ASSOCIATION OF ORTHOPAEDIC SURGEONS,
Defendants-‐‑Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 C 8161 — Ronald A. Guzmán, Judge.
____________________
ARGUED APRIL 10, 2014 — DECIDED JULY 24, 2014
____________________
Before CUDAHY and EASTERBROOK, Circuit Judges, and
LAWRENCE, District Judge.*
EASTERBROOK, Circuit Judge. Patrick Brandner, an ortho-‐‑
pedic surgeon, belongs to many professional groups, among
them the American Academy of Orthopaedic Surgeons and
* Of the Southern District of Indiana, sitting by designation.
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No. 12-‐‑3426
the American Association of Orthopaedic Surgeons (collec-‐‑
tively “the Academy”). He is no longer able to perform sur-‐‑
gery, so he specializes in consultations and other medical
endeavors that do not require fine motor control. He devotes
most of his time to providing expert advice and testimony in
litigation.
The Academy has ethical standards to which its members
must adhere when providing expert testimony. It concluded
that Brandner violated these standards by professing greater
confidence in one case than the evidence warranted. (We
omit details, which do not affect the appeal’s disposition.)
The Academy decided to suspend him for one year. Before
that suspension could take effect he filed this suit under the
diversity jurisdiction, contending that the Academy violated
Illinois law and its own governing documents. The Academy
has deferred the start of the suspension until final resolution
of the litigation.
The Academy is a private group, and Illinois (whose law
the parties agree controls) does not allow judicial review of a
private group’s membership decisions unless membership is
an “economic necessity” or affects “important economic in-‐‑
terests.” See Van Daele v. Vinci, 51 Ill. 2d 389 (1972); Treister v.
American Academy of Orthopaedic Surgeons, 78 Ill. App. 3d 746,
755–56 (1979); Austin v. American Association of Neurological
Surgeons, 253 F.3d 967 (7th Cir. 2001) (Illinois law). (Judges
sometimes use these phrases as equivalent, though they
have different meanings.) The district court concluded that a
one-‐‑year suspension would devastate Brandner’s income
and thus asked whether the Academy had followed its own
rules. After answering in the affirmative, the court granted
summary judgment for the Academy. 2012 U.S. Dist. LEXIS
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138833 (N.D. Ill. Sept. 27, 2012). The first and last question
we address is whether Brandner has established that the
suspension would affect his important economic interests.
Brandner does not contend that membership in the
Academy is necessary to any of his activities; the suspension
does not affect his license to practice medicine, and no one
needs a license or membership of any kind to furnish litiga-‐‑
tion-‐‑support services (or testify as an expert). Instead he ar-‐‑
gues that suspension will be financially costly. The district
court found that between 2008 and 2010 approximately 73%
of Brandner’s net income came from his litigation-‐‑support
services (both his testimony and his assistance to lawyers or
testimonial experts). The judge thought that this income
would vanish if the Academy were to suspend Brandner for
a single year. The judge recognized that Brandner’s income
from non-‐‑litigation work exceeds $200,000 a year but
thought it likely that this would dwindle as well. The judge
understood that Austin had held that a 65% decline in litiga-‐‑
tion-‐‑related income, from $220,000 to $77,000 a year, did not
demonstrate the economic necessity of membership or injure
important economic interests. 253 F.3d at 971–72. But the
judge concluded that Brandner had surmounted that thresh-‐‑
old by alleging that the suspension would drive his litiga-‐‑
tion-‐‑related income to zero and “end his medical career.”
The nub of Brandner’s position is his assertion that, once
suspended, he would be damaged goods whom no litigant
would want to hire, even for advice. That he retains his right
to practice medicine, his active membership in other organi-‐‑
zations, and his good standing in the Academy itself (after a
year) would be irrelevant if one black mark ends a physi-‐‑
cian’s career as both a witness and a consultant, taking a big
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No. 12-‐‑3426
bite out of other income as well. A career-‐‑killing effect
would show that continuous membership is an economic
necessity.
But talk is cheap. Has suspension by the Academy ended
the career of other members found to have performed uneth-‐‑
ically in a single case? The names of suspended members are
public knowledge. (That’s essential if suspension is to blot a
member’s reputation.) What has happened to the income of
other members who have been suspended? Is that effect
(whatever it is) life-‐‑long, or does it diminish as the years
pass? Does the effect vary with the length of the suspension?
Many lawyers suspended from the bar for a year—and who
therefore cannot practice at all—return to practice after the
suspension ends; some of them earn substantial incomes.
Reputation is important to a lawyer in attracting clients, just
as it is important to a physician. If lawyers can survive a
suspension from practice, can’t physicians survive suspen-‐‑
sion from a single voluntary organization?
These are empirical questions, on which the record
shows—nothing. Nor has Brandner pointed us in the direc-‐‑
tion of any published study of this subject (for the Academy
or any other professional organization). That leaves no basis
for a conclusion that Brandner’s income from expert services
(testimony and consulting) would fall to zero for life. His
own say-‐‑so is no substitute for evidence. The district court
decided this case on motions for summary judgment, and a
motion for summary judgment requires the litigant who op-‐‑
posed it to provide evidence, not just assertions or argu-‐‑
ment. To get anywhere, a litigant must back up allegations
with evidence that create a material dispute requiring trial;
for Brandner, all we have are allegations.
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Brandner says that he is different from many other mem-‐‑
bers of the Academy because he does not perform surgery.
We appreciate that this makes litigation assistance a larger
portion of his income than it is for most of the Academy’s
members. But the question on which the record is empty—
what happens to a suspended member’s income from litiga-‐‑
tion-‐‑related services?—is no less pertinent for Brandner than
for others. If a one-‐‑year suspension reduces other members’
litigation-‐‑linked income by, say, 50%, that would be the ex-‐‑
pected outcome for Brandner too. We know from Austin that
even a 65% fall in litigation-‐‑related income would not allow
judicial review of the Academy’s decision, if it left Brandner
with a healthy remainder. (If his litigation-‐‑related income
fell by the same proportion as Austin’s did, he would earn
about $194,000 a year from that specialty and another
$200,000 or so from orthopedic services; the total is nothing
to sneeze at.)
Aggregate data are not the only way to show that sus-‐‑
pension would impair a member’s important economic in-‐‑
terests. The plaintiff could show what happened to him, just
as Austin did. Perhaps Brandner was hit worse than Austin;
he may be uniquely vulnerable, a financial form of an egg-‐‑
shell skull. Austin provided numbers about his own situa-‐‑
tion; Brandner did not. Yet numbers should be readily avail-‐‑
able and could verify or refute Brandner’s contentions.
Brandner testified by deposition in August 2005 and at
trial in April 2008. A member of the Academy complained in
October 2008 that Brandner’s testimony had violated the
Academy’s code. The Academy’s Committee on Profession-‐‑
alism concluded in May 2009 that the complaint established
a prima facie case of unprofessional conduct. The Academy
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held a formal hearing late that year and sustained the
charge; Brandner took an internal appeal, which led to more
hearings and a decision in April 2010 that Brandner had vio-‐‑
lated the Academy’s rules. He asked for that decision to be
reviewed by the Academy’s Board of Directors. It did so and
in December 2010 made the final decision, once again con-‐‑
cluding that Brandner’s testimony violated the Academy’s
requirements. The Academy did not make an immediate
public announcement—but Brandner himself, by filing suit
earlier in 2010, ensured that the details became public
knowledge. The Academy’s extended process involved
many physicians; some leakage was inevitable.
So what happened between the charge (October 2008)
and the district court’s decision (September 2012)? If Brand-‐‑
ner is right that a single blot on his record would make him a
pariah, the decline of his litigation-‐‑related income should
have begun no later than the month he filed suit: once the
Academy’s decision came to the public’s attention potential
clients would flee, because even if they still valued his ad-‐‑
vice and testimony they would fear that the issue would be
the subject of cross-‐‑examination and turn juries against
Brandner and anyone he supported. Yet the record is as si-‐‑
lent about what happened to Brandner’s income as it is
about what happened to the income of other physicians the
Academy suspended.
Austin offered evidence. We thought it inadequate, but it
shows that a decline in litigation-‐‑related income can be doc-‐‑
umented. Brandner has offered only hot air. In other words,
he has expressed his opinion with greater confidence than
the evidence warrants. He has not established that a one-‐‑
year suspension from the Academy would end his profes-‐‑
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Document: 37
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Pages: 7
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sional career. We therefore affirm the district court’s judg-‐‑
ment without reaching any of the parties’ arguments about
the procedure the Academy used.
AFFIRMED
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