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Brandner v. American Academy of Orthopaedic Surgeons

United States Court of Appeals, Seventh Circuit

July 24, 2014

PATRICK J. BRANDNER, Plaintiff-Appellant,

Argued April 10, 2014

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10 C 8161 -- Ronald A. Guzmá n, Judge.

For PATRICK J. BRANDNER, Doctor, Plaintiff - Appellant: Aaron R. Maurice, Attorney, Kolesar & Leatham, Las Vegas, NV.

For American Academy of Orthopaedic Surgeons, American Association of Orthopaedic Surgeons, Defendants - Appellees: Michael A. Chabraja, Attorney, Vedder Price P.C., Chicago, IL.

Before CUDAHY and EASTERBROOK, Circuit Judges, and LAWRENCE, District Judge.[*]


Page 628

Easterbrook, Circuit Judge.

Patrick Brandner, an orthopedic surgeon, belongs to many professional groups, among them the American Academy of Orthopaedic Surgeons and the American Association of Orthopaedic Surgeons (collectively " the Academy" ). He is no longer able to perform surgery, 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 interests." See Van Daele v. Vinci, 51 Ill.2d 389, 282 N.E.2d 728 (1972); Treister v. American Academy of Orthopaedic Surgeons, 78 Ill.App.3d 746, 755-56, 396 N.E.2d 1225, 33 Ill.Dec. 501 (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. (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,

Page 629

and no one needs a license or membership of any kind to furnish litigation-support services (or testify as an expert). Instead he argues 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 litigation-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 threshold by alleging that the suspension would drive his litigation-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 organizations, and his good standing in the Academy itself (after a year) would be irrelevant if one black mark ends a physician's career as both a witness and a consultant, taking a big bite out of ...

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