Antaki v. Saint Francis Medical Center

Filing 43

MEMORANDUM AND ORDER - The Defendant's Motion for Summary Judgment, ECF No. 23 , is granted. This action is dismissed, with prejudice. A separate judgment will be entered. Ordered by Chief Judge Laurie Smith Camp. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

GEORGE ANTAKI, M.D., an individual;
Plaintiff,

8:17CV146

vs.
MEMORANDUM AND ORDER
SAINT FRANCIS MEDICAL CENTER, a
Nebraska not-for-profit corporation;
Defendant.

This matter is before the Court on the Defendant’s Motion for Summary
Judgment, ECF No. 23. For the reasons stated below, the Motion will be granted and
this action will be dismissed, with prejudice.
BACKGROUND
The following facts are those stated in the parties’ briefs, supported by pinpoint
citations to evidence in the record, and admitted, or not properly resisted, by the
opposing party as required by NECivR 56.11 and Federal Rule of Civil Procedure 56.2

1

See NECivR 56.1(b)(1) (effective December 1, 2015):

The party opposing a summary judgment motion should include in its brief a concise
response to the moving party’s statement of material facts. The response should
address each numbered paragraph in the movant’s statement and, in the case of any
disagreement, contain pinpoint references to affidavits, pleadings, discovery responses,
deposition testimony (by page and line), or other materials upon which the opposing party
relies. Properly referenced material facts in the movant’s statement are considered
admitted unless controverted in the opposing party’s response.
2

Plaintiff George Antaki, M.D., submitted a broad denial of several of Defendant’s asserted facts.
He stated
Dr. Antaki contests no. 23, 25, 26, 27, 30,31, 32, 33, 34, 35, 36, 37, 38 40, 42, 45, 46, 47,
48, 49, 50, 51, 52, 53, 54, 55,56, 57, 58, 61, 62, 63, 64, 66, 67, 71, 72, 73, 75, 76, 83 as
the statements lack personal, first-hand knowledge, are generalizations, speculation,
conjecture, hearsay or multiple hearsay, and lacking foundation (who, when where, what,
why) for admissibility and not useable for summary judgment purposes.

Defendant Saint Francis Medical Center (Saint Francis) is a hospital in Grand
Island, Nebraska. Grand Island Radiology Associates, P.C. (GIRA) is a radiology
medical practice in Grand Island, and it conducts radiology services at Saint Francis.
GIRA hired Dr. Antaki as a radiologist in March 2008. As a radiologist for GIRA, Dr.
Antaki—and its other radiologists—worked at Saint Francis and at an off-site imaging
center in Grand Island. The group’s radiologists also read studies for other medical
providers in the region.
A. Radiology Services Agreement
Saint Francis and GIRA entered into an Exclusive Radiology Services Agreement
(the “Services Agreement”), dated September 29, 2006.3 See Services Agreement, ECF
No. 25-3, Page ID 203-29. Under the terms of the Services Agreement, GIRA was the
exclusive provider of radiology services and radiologists for Saint Francis at all times
relevant to this matter. GIRA agreed to provide a medical director for Saint Francis’s
radiology department, who would oversee and work with Saint Francis’s non-physician
radiology department staff. In turn, Saint Francis agreed to permit radiology staff to
assist and serve GIRA’s radiologists while working in the radiology department.
Under the Services Agreement, GIRA agreed to comply with the Catholic Health
Initiatives (CHI) Standards of Conduct and agreed that those standards were applicable
to each Covering Physician. Services Agreement at 8-9, § 2.8, ECF No. 25-3, Page ID
210-11. Each physician at GIRA, including Dr. Antaki, signed an Acknowledgement and

Dr. Antaki’s blanket denial fails to controvert any specific allegation. The Court has reviewed each of the
identified statements, the cited evidence in support, and has considered those statements that the Court
has found to be relevant, admissible, and supported by the record.
3

In the Services Agreement, Saint Francis is referred to as the “Hospital” and GIRA is the
“Contractor.”

2

Certification (Acknowledgement), attached as Exhibit 1 to the Services Agreement. As
part of the Acknowledgement, each physician agreed to the CHI Standards of Conduct.
See ECF No. 25-3, Page ID 231. The CHI Standards of Conduct were identical to the
Saint Francis Medical Center Medical Staff Professional Conduct Standards (Conduct
Standards). Each radiologist with privileges at Saint Francis, including Dr. Antaki,
agreed to uphold those standards. Under the Conduct Standards, Dr. Antaki and the
other radiologists agreed to “[t]reat colleagues, consultants, nurses, clinical and other
support staff with respect as team members working to care for our mutual patients.
Handle disagreements civilly, professionally and through established mechanisms.
Seek to understand where processes may have failed.” ECF No. 25-3, Page ID 284.
Under § 2.8 of the Agreement, if Saint Francis determined that those standards
were violated by GIRA or any of its physicians, Saint Francis had the right to terminate
the Services Agreement for cause. ECF No. 25-3, Page ID 211. The Services
Agreement stated that if Saint Francis, in good faith, determined that a physician
breached his obligations to comply with the Standards of Conduct, then GIRA “shall,
upon notice from Hospital, immediately exclude the Covering Physician from the
performance of any services required by this Agreement.” Id.
B. Dr. Antaki’s Behavior at Saint Francis
Shortly after Dr. Antaki was hired, his behavior became a concern for GIRA. Dr.
Daniel Novinski, shareholder and president of GIRA, stated that Dr. Antaki did well
during his first year, but “had several incidents where he had problems with some of the
techs, and complaints. And so after six months, we sat down with him and explained
that he’s got to work on how he interacts with techs and clinicians.” Novinski Dep.

3

23:21-24:1, ECF No. 25-1.4 Because of Dr. Antaki’s issues, the other radiologists at
GIRA required him to undergo anger management therapy in Grand Island, which he
completed along with online programming for anger management. Antaki Dep. 131:1221, 132:19- 25, 138:23-25, 143:1-6, ECF No. 25-7.
After Dr. Antaki completed anger management, some of his behavior problems
continued. For example, one of GIRA’s radiologists, Dr. David Hadford, stated “[I]f
George [Antaki] was on rotation and I was on the other one, all the techs would be
coming to me . . . . they didn’t want to interact with Dr. Antaki.” Hadford Dep. 13:7-15,
ECF No. 25-15. Dr. Hadford explained this was because “Dr. Antaki would yell at them.”
Id. 13:17, 26:24). Another radiologist, Dr. Cody Evans, testified that he “was told, from
technologists, [that Dr. Antaki] was difficult to work with; that he was – not all of them,
but he was sometimes rude, and I had heard of two potential, I guess, physical touching
of female technologists.” Evans Dep. 13:18-22, Page ID 25-16.
Jenna Coe, an x-ray student and, after graduation, a technologist at Saint
Francis, had several interactions with Dr. Antaki. For example, as an x-ray student at
Saint Francis, she presented information about a patient to Dr. Antaki. Dr. Antaki yelled
at her because she did not tell him one of the patient’s lab values. She stated in her
affidavit that she was just starting and learning and did not know that would have been
important to Dr. Antaki. She was thereafter wary of interacting with him. Coe Aff. ¶ 7,
25-17. Coe asserted that her interactions with Dr. Antaki were always negative. Id. ¶ 8.
During one occasion, as Coe was leaving Saint Francis after a shift, Dr. Antaki

4

Because the headings of the deposition pages and the CM/ECF Page ID header overlap, the
Page ID number is difficult to identify. Accordingly, the Court’s references to depositions refer solely to the
deposition page and line number.

4

confronted her in the hallway about a study she had done. Id. ¶ 10. She apologized but
he followed her, continuing to belittle and criticize her. Id. Coe reported the incident to
Ron Neseth, Saint Francis’s radiology department imaging manager. Id.
In addition to verbal complaints to Neseth about Dr. Antaki’s behavior, Coe also
reported the abuse to her direct supervisor in the CT/MRI department, Jodi Nielsen. Coe
Aff. ¶¶ 10, 14. Nielsen pe rson ally observed Dr. Antaki’s conduct and was also
subjected to it herself. Nielsen Dep. 24:20-25, 25:12-20, 26:2-24, ECF No. 25-18. Other
staff supervisors, such as Ultrasound Supervisor Sheri Hitchler, also received
complaints about Dr. Antaki’s behavior. Hitchler Dep. 21:2-5, ECF No. 25-20. Hitchler
recalled frequent complaints from her staff of Dr. Antaki yelling at them. Id. 15:1-16:1.
Based on his treatment of Coe, Nielsen, and others, GIRA radiologists instructed Dr.
Antaki not to communicate directly with Coe or Nielsen but instead to take any of his
concerns to Neseth. Antaki Dep. 148:21-25, ECF No. 25-7.
The radiology group and Neseth frequently discussed the staff’s complaints
about Dr. Antaki, often at group meetings where Dr. Antaki was present. Neseth Dep.
57:15-58:13, ECF No. 25-19. Dr. Antaki reacted to those issues at the meetings by
becoming “very loud.” Id. 58:14-23. Neseth testified that he could not schedule Dr.
Antaki for Mondays if he had worked all weekend on call because he would have such a
bad temper. Id. 51:8-13. Dr. Antaki’s interactions with staff were not typical of other
physicians’ interactions. Id. 50:12-14. Neseth had to make special scheduling
accommodations to limit staff exposure to Dr. Antaki. Id. 95:9-14.

5

Neseth also noticed that although Dr. Antaki would frequently complain about
staff work product, other radiologists found no bases for the complaints. For example,
Neseth testified:
Usually after Dr. Antaki would make the complaint [about a technologist’s
image], we would pull up the images on the computers and start going
through them.
. . . . Dr. Stevens . . . was in charge of CT/MR [and] I would usually go to
him and say, would you pull up the study and tell me what you think, and
leave it at that. Then he could come back and say, I think it’s fine. I think it
was the right call and that. And I would ask him about image quality, and
he’d say, no, it’s fine.
Id. 45:6-17. Neseth testified that this happened “beyond occasionally.” Id. 45:6-46:24.
Neseth recounted that “typically, after the weekend, I would get calls from the
radiology directors from the other towns that Dr. Antaki was upset about one thing or
another, maybe not following protocol, maybe image quality, but, typically, it involved
him raising his voice and yelling.” Id. 51:19-25. Neseth recalled specific incidents of Dr.
Antaki becoming “verbally abusive” and raising his voice enough that multiple people
would have heard. Id. 51:19-52:14. Neseth testified that “Dr. Antaki routinely was upset,
yelling, would come to me and say, you need to fire these people, and/or threaten that
he would fire these people, and that’s not normal behavior.” Id. 67:18-68:7.
In October 2013, Neseth became aware of a call from Dr. Antaki to a nurse on
the floor of the radiology department. Neseth testified that Dr. Antaki yelled at the nurse
over the phone, “and that the nurse took the opportunity to hold the phone out, away
from her ear, so other people could witness his yelling at her, for, basically,
inappropriately ordering an exam that did not need to be done during the weekend.” Id.
70:13-19. The incident was reported to Dr. Michael Hein, Saint Francis’s chief medical

6

officer, and some of the other radiologists at GIRA. Antaki Dep. 179:3-12, ECF No. 25-7;
Novinski Dep. 120:6-7, ECF No. 25-1.
On January 7, 2014, Louise Burson, an employee in the scheduling/patient
access department at Saint Francis, received a phone call from Dr. Antaki who was
upset about how a procedure was scheduled and he demanded that a scheduler be
written up for what Dr. Antaki perceived as an error. Burson Aff. ¶¶ 7-8; ECF No. 25-21.
Burson recalled that Dr. Antaki yelled and cursed during the call, and accused the
schedulers of being “incompetent and dumb.” Id. ¶ 6. Dr. Antaki yelled so loudly that
Burson had to pull the phone from her ear and other schedulers in the room with her
could hear Dr. Antaki’s yelling. Id. ¶ 9. Burson discussed the call with her supervisor,
Anna Novotny, and then emailed a description of the encounter to Novotny. Id. ¶ 10; Ex.
A, ECF No. 25-21, Page ID 526. Novotny forwarded Burson’s email to Dale Hartwig,
Saint Francis’s Vice President of Ancillary Services; Jackie Huldt, director of radiology;
Kara Urkoski, Novotny’s direct supervisor; Neseth; and Dr. Novinski. Novotny Aff. ¶ 5,
ECF No. 25-22, Page ID 530-31.
C. The McElligott Letter
Following Burson’s encounter and Novotny’s report of it, on approximately
January 8, 2014, Saint Francis’s leadership called a meeting with GIRA’s leaders to
discuss Dr. Antaki’s conduct. Novinski Dep. 50:15-20, 51:3-8, 67:24-68:7, ECF No. 251. Dr. Novinski and Dr. Marsh, another shareholder at GIRA, attended the meeting with
the hospital’s president, Daniel McElligott. Id. 50:15-20, 51:3-8, 67:24-68:7. Hartwig and
Dr. Hein also attended the meeting. Id. 61:5-7; Hartwig Dep. 32:17-33:7, ECF No. 25-2.
During the meeting, Dr. Hein expressed concern about Dr. Antaki’s anger, opining that

7

Dr. Antaki was a disruptive physician, and that he might be a good radiologist but a bad
physician if he was not working well with staff. Novinski Dep. 62:11-17, ECF No. 25-1.
Although the hospital’s leadership expressed their concerns and demanded
improvement in his behavior, no one demanded that Dr. Antaki be fired. Id. 63:1-13.
Hartwig explained at the meeting that he “didn’t want [Dr. Antaki] subjecting the staff,
patients, and our organization to his behavior anymore.” Hartwig Dep. 35:19-21, ECF
No. 25-2. Saint Francis’s leaders noted previous incidents of Dr. Antaki’s conflicts with
staff.

Marsh Dep. 19:2-7, ECF No. 25-14.

McElligott informed Dr. Marsh and Dr.

Novinski that the hospital could not have disruptive physicians. Id. 19:20-22. Dr. Marsh
and Dr. Novinski asked Dr. Hein and McElligott for more details about the hospital’s
concerns. Id. 21:14-20. Saint Francis’s leaders informed the radiologists they would
send a letter with additional information. Id.
On January 15, 2014, McElligott sent a letter to Dr. Novinski (the “McElligott
Letter”) setting forth the hospital’s concerns. ECF No. 25-11, Page ID 429-30. The letter
stated, in pertinent part:
This letter is a formal request for you and your partners to immediately
address ongoing behavioral and professional issues by Dr. George Antaki
that have created a hostile work environment for some employees of Saint
Francis Medical Center. These behaviors are a breach of the Catholic
Health Initiatives Standards of Conduct, which under provision of Section
2.8 of our Exclusive Radiology Services Agreement, every provider in the
group has agreed to abide by.
We are aware that there have been several attempts to address these
behaviors in the past, but our perspective, based upon recent feedback
and inquiry, is that the desired modifications of behavior and
professionalism have failed to rectify the underlying issues and the hostile
work environment persists.
...

8

This letter should serve as notice that we are prepared to initiate the
clauses in the [Services Agreement] that would rectify the situation, should
any modifications fail to result in marked, immediate, and persistent
improvement in the perceived culture of safety by our staff.
Id. Attached to the letter was an addendum (the “Addendum”) with several examples to
substantiate Saint Francis’s concerns, such as:


Dr. Antaki accused staff of being ‘back-stabbers’ and this done in a
public setting so that others hear such comments.



He targets specific technologists for criticism of the quality of
exams, while, when unaware of such, reads the same examinations
as adequate when he believes those technologists he favors
performed them.



Staff do not raise questions or ask for direction for fear of
retaliation, thus introducing opportunity for error.



He resists establishing standardized protocols, which have been
demonstrated to be evidence-based, effective tools for reducing
variation and harm.



The majority of staff do not like to address him because they are
afraid of getting yelled at, belittled or blamed for something if they
approach him. Staff will seek out other radiologists to help them.



Staff get yelled at or ignored when they ask him to read right away,
have a patient waiting, or need him for a procedure.



He is quick to react negatively if things are not to his liking.



He becomes argumentative when staff or management is trying to
explain situations.



If he does not like a situation or comment he becomes very
defensive and rude.

ECF No. 25-11, Page ID 431. The information in the Addendum was based on an e-mail
sent to Hartwig by Jackie Huldt, director of radiology, at Hartwig’s request. Huldt Dep.
65:10-18, ECF No. 25-4; Hartwig Dep. 21:11-24, ECF No. 25-2.

9

After receiving the Letter, Dr. Novinski called a meeting of GIRA shareholders,
excluding Dr. Antaki, to make a decision about how to respond. Novinski Dep. 75:2376:3, ECF No. 25-1. Those in the group considered three options. One, they could do
nothing and let the hospital take action, knowing Saint Francis might choose not to
renew the Services Agreement when it was due for renewal later in 2014. Marsh Dep.
32:19-24, ECF No. 25-14. Two, they could let Saint Francis discipline Dr. Antaki, which
they believed would put his medical license and ability to get a future job at risk. Id.
32:25-33:2.

Three, they could offer Dr. Antaki the choice to resign, which would

preserve the group’s contract with Saint Francis and not harm Dr. Antaki’s future job
prospects. Id. 33: 3-5, 31:13-23. The shareholders chose the third option, and gave Dr.
Antaki the option to resign from GIRA rather than be terminated. Novinski Dep. 101:10,
107:18-20, ECF No. 25-1.
Dr. Antaki submitted a letter of resignation from employment at GIRA, dated
February 8, 2014. He ceased working for the group and the hospital immediately upon
his resignation. Soon after his resignation, he moved back to Florida, where his family
resided, and started a new job in Florida on July 10, 2014.
Dr. Antaki filed his Complaint on April 26, 2017. Compl., ECF No. 1. Dr. Antaki
asserts that Saint Francis’s action in sending the McElligott Letter tortiously interfered
with Dr. Antaki’s business relationship with GIRA. Saint Francis moved for summary
judgment on Dr. Antaki’s claim.
STANDARD OF REVIEW
“Summary judgment is appropriate when the evidence, viewed in the light most
favorable to the nonmoving party, presents no genuine issue of material fact and the

10

moving party is entitled to judgment as a matter of law.” Garrison v. ConAgra Foods
Packaged Foods, LLC, 833 F.3d 881, 884 (8th Cir. 2016) (citing Fed. R. Civ. P. 56(c)).
“Summary judgment is not disfavored and is designed for every action.” Briscoe v. Cty.
of St. Louis, 690 F.3d 1004, 1011 n.2 (8th Cir. 2012) (quoting Torgerson v. City of
Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc)). In reviewing a motion for
summary judgment, the Court will view “the record in the light most favorable to the
nonmoving party . . . drawing all reasonable inferences in that party’s favor.” Whitney v.
Guys, Inc., 826 F.3d 1074, 1076 (8th Cir. 2016) (citing Hitt v. Harsco Corp., 356 F.3d
920, 923–24 (8th Cir. 2004)). Where the nonmoving party will bear the burden of proof
at trial on a dispositive issue, “Rule 56(e) permits a proper summary judgment motion to
be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the
mere pleadings themselves.” Se. Mo. Hosp. v. C.R. Bard, Inc., 642 F.3d 608, 618 (8th
Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The moving
party need not produce evidence showing “the absence of a genuine issue of material
fact.” Johnson v. Wheeling Mach. Prods., 779 F.3d 514, 517 (8th Cir. 2015) (quoting
Celotex, 477 U.S. at 325). Instead, “the burden on the moving party may be discharged
by ‘showing’ . . . that there is an absence of evidence to support the nonmoving party’s
case.” St. Jude Med., Inc. v. Lifecare Int’l, Inc., 250 F.3d 587, 596 (8th Cir. 2001)
(quoting Celotex, 477 U.S. at 325).
In response to the moving party’s showing, the nonmoving party’s burden is to
produce “specific facts sufficient to raise a genuine issue for trial.” Haggenmiller v. ABM
Parking Servs., Inc., 837 F.3d 879, 884 (8th Cir. 2016) (quoting Gibson v. Am.
Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012)). The nonmoving party “must do

11

more than simply show that there is some metaphysical doubt as to the material facts,
and must come forward with specific facts showing that there is a genuine issue for
trial.” Wagner v. Gallup, Inc., 788 F.3d 877, 882 (8th Cir. 2015) (quoting Torgerson, 643
F.3d at 1042). “[T]here must be more than the mere existence of some alleged factual
dispute” between the parties in order to overcome summary judgment.

Dick v.

Dickinson State Univ., 826 F.3d 1054, 1061 (8th Cir. 2016) (quoting Vacca v. Viacom
Broad. of Mo., Inc., 875 F.2d 1337, 1339 (8th Cir. 1989)).
In other words, in deciding “a motion for summary judgment, facts must be
viewed in the light most favorable to the nonmoving party only if there is a genuine
dispute as to those facts.” Wagner, 788 F.3d at 882 (quoting Torgerson, 643 F.3d at
1042). Otherwise, where the Court finds that “the record taken as a whole could not
lead a rational trier of fact to find for the non-moving party,” there is no “genuine issue of
material fact” for trial and summary judgment is appropriate. Whitney, 826 F.3d at 1076
(quoting Grage v. N. States Power Co.-Minn., 813 F.3d 1051, 1052 (8th Cir. 2015)).
DISCUSSION
Under Nebraska law,5 to succeed on a claim for tortious interference with a
business relationship or expectancy, Dr. Antaki must prove (1) the existence of a valid
business relationship or expectancy, (2) knowledge by the interferer of the relationship
or expectancy, (3) an unjustified intentional act of interference on the part of the
interferer, (4) proof that the interference caused the harm sustained, and (5) damage to
the party whose relationship or expectancy was disrupted.

Steinhausen v.

HomeServices of Neb., Inc., 857 N.W.2d 816, 831 (Neb. 2015). Saint Francis argues

5

The parties agree that Dr. Antaki’s claim is governed by Nebraska law.

12

that Dr. Antaki cannot prove the third element because Saint Francis’s actions were
proper and justified under the circumstances.
“In order to be actionable, interference with a business relationship must be both
intentional and unjustified.

An intentional, but justified, act of interference will not

subject the interferer to liability.” Recio v. Evers, 771 N.W.2d 121, 132 (Neb. 2009)
(emphasis in original).6 The Nebraska Supreme Court has held that, as a matter of
law, an actor does not improperly interfere with a business relationship by providing
“(a) truthful information, or (b) honest advice within the scope of a request for the
advice.” Sulu, 879 N.W.2d at 682. The parties agree that the McElligott Letter is the
alleged tortious action in this case. See Pl. Br. at 33, ECF No. 34, Page ID 72 (“As
recognized by both parties, the Hospital's sending GIRA the McElligott Letter was
the conduct that interfered with Dr. Antaki's employment and got him terminated.”).
Viewing the evidence in a light most favorable to Dr. Antaki, the undisputed
evidence shows that the McElligott Letter was justified.7 First, the information in the

6

The Nebraska Supreme Court has adopted the seven-factor balancing test of the Restatement
(Second) of Torts § 767 (1979) to determine whether interference is “improper” or “unjustified” under
Nebraska law. Recio, 771 N.W.2d at 132. The factors include, but are not limited to:
(1) the nature of the actor's conduct, (2) the actor's motive, (3) the interests of the other
with which the actor's conduct interferes, (4) the interests sought to be advanced by the
actor, (5) the social interests in protecting the freedom of action of the actor and the
contractual interests of the other, (6) the proximity or remoteness of the actor's conduct to
the interference, and (7) the relations between the parties.
Id. The issue in each case is “whether, upon a consideration of the relative significance of the factors
involved, the conduct should be permitted without liability, despite its effect of harm to another. The
decision depends upon a judgment and choice of values in each situation.” Id. at 419 (internal citations
omitted). Thus, Nebraska courts do not rigidly apply the factor test to determine whether an alleged
interference was improper. See, e.g., See, e.g., Sulu v. Magana, 879 N.W.2d 674, 682 (Neb. 2016);
Recio, 771 N.W.2d at 133; Huff v. Swartz, 606 N.W.2d 461, 470 (Neb. 2000); DeLay First Nat. Bank & Tr.
Co. v. Jacobson Appliance Co., 243 N.W.2d 745, 752 (Neb. 1976). In this case, following the reasoning
in Sulu and Recio, the Court does not discuss each factor individually.
7

This Court has previously stated that “[s]uch a fact-intensive, comparative appraisal is not
suitable for resolution on a motion for summary judgment.” Trimble v. BNSF Ry. Co., 636 F. Supp. 2d

13

McElligott Letter was substantially truthful. Second, Saint Francis provided the
information in the Letter in good faith and within its rights under the Services
Agreement.
I. Truthfulness of the McElligott Letter
“[A] person does not incur liability for interfering with a business relationship
by giving truthful information to another.” Recio, 771 N.W.2d at 133. To survive
summary judgment, a nonmoving party must demonstrate that information provided
“was demonstrably false.” Id. at 134. This cannot be accomplished solely by
identifying inconsistencies in the record. Id. In opposing summary judgment, the
plaintiff in Recio set forth “at length, supposed factual inconsistencies and improper
behavior” and described “a narrative in which [the defendant’s] sexual harassment
complaint [was] only part of a larger campaign of persecution directed at” the plaintiff.
Id. at 133-34. The court held that neither the supposed inconsistencies nor the fact that
the plaintiff remembered or interpreted events differently were sufficient to create a
genuine issue of material fact. Id. at 134. The court concluded that although the plaintiff
generally denied the substance of the sexual harassment claim, the defendant’s “brief,
and the record as a whole, [were] notably short on instances in which [the defendant’s]
complaint was demonstrably false.” Id.
Here, as in Recio, Dr. Antaki’s assertions and the record as a whole do not show
that the content of the McElligott Letter and the Addendum was demonstrably false.
Saint Francis’s Index contains ample evidence of the behavior described in the
McElligott Letter and its Addendum. Therefore, the burden shifted to Dr. Antaki to
916, 925 (D. Neb. 2009). However, Nebraska courts have regularly granted and affirmed summary
judgment in tortious interference cases where evidence is uncontroverted. See, e.g., Sulu, 879 N.W.2d at
682; Recio, 771 N.W.2d at 133; Huff, 606 N.W.2d at 470.

14

“produce admissible contradictory evidence showing the existence of a material issue of
fact that prevents judgment as a matter of law.” Sulu, 879 N.W.2d at 683. Dr. Antaki
filed a lengthy brief, setting forth numerous supposed factual inconsistencies. However,
like the defendant in Recio, Dr. Antaki failed to show that the allegations in the
McElligott Letter were demonstrably false. Dr. Antaki argued that he has a “different
recollection” of certain events, but provided no evidentiary support for his position.8 See,
e.g., Pl. Br. at 13, ECF No. 34, Page ID 703.

As stated in Recio, a difference in

recollection or interpretation of events is insufficient to defeat summary judgment.
Although Dr. Antaki attacks the foundational basis for the assertions in the Addendum,
“there is nothing in the record that substantially contradicts the factual basis” of the
McElligott Letter. See Recio, 771 N.W.2d at 134. Accordingly, Dr. Antaki has not shown
that the allegations were demonstrably false.
II. Actions Taken in Good Faith, Within the Scope of the Services Agreement
Even if there were some dispute about the particulars of the McElligott Letter,
Saint Francis had a right to provide feedback regarding its perception of Dr. Antaki’s
performance.

A communication is not improper if it is made pursuant to a legal

obligation or lawful right. See Wiekhorst Bros. Excavating & Equip. Co. v. Ludewig, 529
N.W.2d 33, 40 (1995). In Wiekhorst Bros., the Nebraska Supreme Court held that,
absent a showing of bad faith or malice, “design professionals acting within the scope of
their contractual obligations are privileged to give the owner advice which may lead to
the termination of a contractor.” 529 N.W.2d at 40. The Nebraska Supreme Court has
8

For example, Dr. Antaki claims that allegations that he was condescending and difficult were
“opinion” and lacked specific examples. Pl. Br. at 22, ECF No. 34, Page ID 712. Dr. Antaki also asserted
that fear of retaliation was unjustified because he lacked the ability to fire or hire radiology technicians. Pl.
Br. at 12, ECF No. 34, Page ID 702. These statements do not refute the truthfulness of the assertions in
the Letter.

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recognized that this holding goes beyond the design professional/contractor
relationship. Recio, 771 N.W.2d at 132 (citing Wiekhorst, 529 N.W.2d at 40). Dr. Antaki
has not demonstrated any bad faith or malice on the part of Saint Francis. Further,
Saint Francis’s action in sending the McElligott Letter was within the scope of the
Services Agreement.
A. Absence of Bad Faith or Malice
Where the nature of a third party communication is to avoid potential injury rather
than interfere with a business expectancy, such a communication is not improper.
Macke v. Pierce,

661 N.W.2d 313, 320 (Neb. 2003) (holding that a physician’s

telephone call to the plaintiff’s employer “was in the ‘nature’ of ensuring that [the
plaintiff] avoided subsequent injury, rather than an intentional act to deprive [the plaintiff]
of employment.”).

Further, where an actor validly relays information about an

employee’s job performance, such communication is not improper. See Huff v. Swartz,
606 N.W.2d 461, 468 (Neb. 2000). For example, in Huff, the defendant, plaintiff’s
manager and co-employee, contacted personnel at their employer’s facility in Louisiana,
where the plaintiff had recently worked, to discuss the plaintiff’s performance
deficiencies at the Omaha facility. Huff, 606 N.W.2d at 464-65. The plaintiff sued the
defendant manager, alleging that his contact with personnel at their employer’s
Louisiana facility interfered with the plaintiff’s business relationship with their employer.
Id. The court concluded that, as a matter of law, the defendant manager had authority
to discuss the plaintiff’s job performance and potential transfers to other facilities. Id. at
469. The court reasoned that “there [was] no evidence that [the defendant manager]

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pursued the topic of transferring [the plaintiff] for any reason other than perceived
deficiencies in [the plaintiff’s] job performance at the Omaha facility.” Id.
Here, the McElligott Letter was not “in the nature of” an intentional act to
deprive Dr. Antaki of employment. The Letter was a specific response to a request for
information from GIRA shareholders regarding Dr. Antaki’s problem behavior. Further,
while the Letter requested that GIRA take action to improve Dr. Antaki’s behavior, it did
not suggest that GIRA terminate his employment. The Letter contemplated his
continued presence at Saint Francis, specifically referencing an opportunity for
immediate and persistent improvement. The stated purpose of the Letter was to
improve cohesion, communication, and effectiveness within the radiology department.
There is no evidence that Saint Francis contacted GIRA for any reason other
than to discuss deficiencies in Dr. Antaki’s demeanor with hospital staff. Like the
manager’s communications in Huff, the McElligott Letter was not motivated by anyone’s
desire for personal gain, but was intended to improve St. Francis employees’ working
environment. Dr. Antaki provided no evidence that Saint Francis acted for any reason
other than the lawful purpose of protecting its patients and employees.
Dr. Antaki argues that, due to conflicts in testimony about administrative
procedures and allegations, a jury must decide what motivated the McElligott Letter. He
broadly disputes whether the allegations against him were true, and suggests that Saint
Francis failed to follow procedure when meeting with GIRA and subsequently sending
the McElligott Letter.9 Yet Dr. Antaki fails to identify any potential improper motive that

9

Dr. Antaki suggests that Saint Francis violated his right to a hearing based on the complaints of
his behavior. However, in signing the Services Agreement, Dr. Antaki expressly waived any hearing rights

17

could be inferred from the nature and circumstances of the letter.

In a tortious

interference case, mere assertion of improper motive is insufficient to defeat summary
judgment. Jensen v. Insur, Inc., No. A-02-1411, 2004 WL 2216486, at *9 (Neb. Ct. App.
Oct. 5, 2004) (citing Darrah v. Bryan Memorial Hosp., 571 N.W.2d 783, 787 (Neb.
1998)). Such assertions of personal benefit without evidence “amount to mere
conjecture or speculation” and “do not create a material issue of fact precluding
summary judgment.” Id. at *8-*9.
B. Saint Francis’s Contractual Right to Send the Letter
Under the express terms of the Services Agreement, Saint Francis had a right
and, in some circumstances, a contractual obligation to provide notice to GIRA of Dr.
Antaki’s potential violations. As noted above, “professionals acting within the scope of
their contractual obligations are privileged to give the owner advice which may lead to
the termination of a contractor.” 529 N.W.2d at 40. Under the terms of the Services
Agreement, GIRA and its physicians agreed to comply with the CHI Standards of
Conduct and the identical Saint Francis Conduct Standards. Agreement at 8, ECF No.
25-3, Page ID 210. The Standards of Conduct included a requirement that physicians
“[t]reat colleagues, consultants, nurses, clinical and other support staff with respect as
team members . . . . Handle disagreements civilly, professionally and through
established mechanisms. Seek to understand where processes may have failed.” ECF
No. 25-3, Page ID 284. Under the express terms of the Services Agreement, if Saint
Francis “determines in good faith that a Covering Physician has breached his or her
obligations pursuant to [the Standards of Conduct], Contractor shall, upon notice from

available to him under any other contractual arrangement. See Services Agreement, ECF No. 25-3,
Page ID 258-59.

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Hospital, immediately exclude the Covering Physician from the performance of any
services required by this Agreement.” ECF No. 25-3, Page ID 211 (emphasis added).
The record establishes Saint Francis’s good faith belief that Dr. Antaki may
have violated the Standards of Conduct. Dr. Antaki has not refuted Saint Francis’s
good faith belief. The Services Agreement permitted and, in some circumstances,
obligated Saint Francis to provide notice to GIRA of such violations. The McElligott
Letter served as that notice and was within the scope of Saint Francis’s rights under
the Services Agreement.
CONCLUSION
No evidence demonstrates that the content of the McElligott Letter was
demonstrably false, and no evidence shows that Saint Francis sent the Letter for
any reason other than to address Dr. Antaki’s behavior. Saint Francis acted in good
faith and within its contractual rights when it sent the McElligott Letter. Accordingly,
St. Francis is entitled to summary judgment on Dr. Antaki’s claim for tortious
interference.
IT IS ORDERED:
1.

The Defendant’s Motion for Summary Judgment, ECF No. 23, is granted;

2.

This action is dismissed, with prejudice; and

3.

A separate judgment will be entered.

Dated this 21st day of March, 2018.

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BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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