## Facts

- An Ohio neurosurgeon sued two Pennsylvania neurosurgeons in federal court for defamation and tortious interference, alleging their communications led to denial or restriction of his hospital privileges in Ohio and West Virginia.
- The suit proceeded in the Western District of Pennsylvania under diversity jurisdiction.
- During discovery, the plaintiff sought to depose physicians and administrators at Ohio hospitals involved in restricting or denying his privileges.
- The proposed Ohio deponents sought protective orders, invoking Ohio’s peer-review confidentiality statute, Ohio Rev. Code § 2305.251.
- The statute protects peer-review committee “proceedings and records” and bars testimony about evidence presented to the committee and the committee’s findings and recommendations, while permitting discovery from “original sources” and testimony about matters within a witness’s personal knowledge (so long as questioning does not probe committee testimony or committee-formed opinions).
- The district court granted protective orders limiting the depositions and certified an interlocutory appeal under 28 U.S.C. § 1292(b) addressing the statute’s scope, retroactivity, and constitutionality.

## Issues

1. In a diversity case under Federal Rule of Evidence 501, must the federal court apply only the forum state’s privilege law, or the privilege law selected by the forum state’s choice-of-law rules?
2. Does Ohio Rev. Code § 2305.251 bar all deposition discovery from Ohio hospital witnesses, or only inquiry into peer-review committee proceedings and deliberations (as distinct from underlying facts from original sources)?
3. May § 2305.251 be applied in pending litigation when some alleged events predated the statute’s effective date, consistent with retroactivity limits and constitutional constraints?

## Decision

- The court held that Rule 501 requires application of the privilege law that the forum state’s courts would apply using their choice-of-law rules; it does not mandate automatic use of the forum’s own privilege statute.
- Applying Pennsylvania’s conflicts analysis, the court concluded Ohio privilege law governed discovery aimed at Ohio hospitals and Ohio peer-review activity.
- The court construed § 2305.251 as a limited privilege: it protects peer-review committee proceedings, records, and testimony about committee deliberations and actions, but it does not bar discovery of underlying facts available from original sources or testimony based on personal knowledge outside the committee process.
- The court concluded the district court’s protective orders were overbroad to the extent they prevented discovery of non-privileged, original-source information.
- The court upheld application of § 2305.251 to the pending action, treating the privilege as an evidentiary rule applicable to ongoing litigation and not an unconstitutional impairment of substantive rights.
- The court affirmed in part, reversed in part, and remanded for narrowing of the protective orders consistent with the statute’s limited scope.

## Legal Principles

- In diversity cases, Federal Rule of Evidence 501 directs federal courts to apply state privilege law as determined by the forum state’s choice-of-law doctrine.
- A medical peer-review privilege protects committee proceedings and records and bars testimony about what occurred within the committee and the committee’s conclusions.
- Peer-review privilege does not immunize facts, documents, or records obtainable from original sources, and it permits witnesses to testify to matters within their personal knowledge if questioning avoids committee testimony and committee-formed opinions.
- Applying a privilege statute to pending litigation is generally permissible where it regulates methods of proof and does not eliminate substantive causes of action or vested rights.

## Conclusion

The Third Circuit required the federal court to use Pennsylvania’s conflicts rules to select Ohio’s peer-review privilege for Ohio hospital discovery, but limited that privilege to committee proceedings and deliberations, allowing discovery of underlying original-source facts and non-committee personal knowledge, and remanded to narrow the protective orders accordingly.


Samuelson v. Susen, 576 F.2d 546 (3d Cir. 1978)