ON APPEAL FROM the UNITED STATES DISTRICT COURT for the WESTERN DISTRICT OF PENNSYLVANIA.
Seitz, Chief Judge, Rosenn and Garth, Circuit Judges.
This is an approved appeal in a diversity action from an order of the district court limiting discovery. 28 U.S.C. § 1292(b).
Plaintiff, Dr. Gene H. Samuelson, a resident of Steubenville, Ohio, and a neurosurgeon, asserted a claim based upon defamation and tortious interference with business and professional relationships. He alleged that defendants, Drs. Anthony F. Susen and Peter J. Jannetta, published defamatory statements, either by mail, orally or both, to certain physicians at Ohio Valley Hospital, and other persons, including physicians at St. John Medical Center and Harrison Community Hospital (all in the Steubenville area) and at Weirton General Hospital, Weirton, West Virginia. He seeks damages based on his claim that defendants' conduct has resulted in his being refused privileges at two Ohio hospitals and his staff privileges severely limited at the remaining hospitals.
During the course of discovery, plaintiff sought to depose six physicians and administrators of two Steubenville, Ohio hospitals. All of the proposed deponents (appellees) filed motions for protective orders, which were granted by the district court on the basis of Ohio Revised Code § 2305.251, which provides:
Proceedings and records of all review committees described in section 2305.25 of the Revised Code*fn1 shall be held in confidence and shall not be subject to discovery or introduction in evidence in any civil action against a health care professional or institution arising out of matters which are the subject of evaluation and review by such committee. No person within attendance at a meeting of such committee shall be permitted or required to testify in any civil action as to any evidence or other matters produced or presented during the proceedings of such committee or as to any finding, recommendation, evaluation, opinion or other action of such committee or member thereof. Information, documents, or records otherwise available from original sources are not to be construed as being unavailable for discovery or for use in any civil action merely because they were presented during proceedings of such committee nor should any person testifying before such committee or who is a member of such committee be prevented from testifying as to matters within his knowledge, but the witness cannot be asked about his testimony before such committee or opinion formed by him as a result of such committee hearing.
The district court, on April 18, 1977 entered an order designating the following as controlling questions of law pursuant to 28 U.S.C. § 1292(b):
(1) Do conflicts of law principles require the application of Ohio law to the instant matter?
(2) Are §§ 2305.25 and 2305.251 of the Ohio Revised Code retrospective in application?
(3) Do those Ohio statutory provisions prohibit discovery of the publication of allegedly defamatory statements made within the context of committee review of an application for hospital staff privileges?
(4) If the Ohio statutory provisions do prohibit discovery with regard to alleged defamation occurring in the context of committee review of an application for staff ...