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American Academy of Orthopaedic Surgeons and v. Mark J. Cerciello

November 10, 2012


The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:


The American Academy of Orthopaedic Surgeons and the American Association of Orthopaedic Surgeons (collectively AAOS) have filed a complaint against Mark Cerciello seeking a declaratory judgment that AAOS legally suspended Cerciello's membership in AAOS, properly adhered to its internal grievance procedure in doing so, and lawfully and accurately reported the suspension to its membership and to the National Practitioner Data Bank (NPDB). Cerciello has moved to dismiss the complaint based on improper venue, failure to join an indispensable party, and lack of subject matter jurisdiction. Alternatively, Cerciello has moved to transfer the case to the Eastern District of Pennsylvania. For the reasons stated below, the Court denies Cerciello's motion to dismiss but stays part of this action due to ongoing administrative proceedings.


AAOS is a non-profit, voluntary organization for orthopaedic surgeons based in Rosemont, Illinois. Cerciello is an orthopaedic surgeon from Pennsylvania who has been a member of AAOS for approximately forty years.

The dispute that led to this action arose from AAOS's suspension of Cerciello's membership. AAOS maintains a Professional Compliance Program in which it adjudicates its members' grievances based on alleged violations of its Standards of Professionalism (SOPs). A provision of the SOPs governs orthopaedic expert witness testimony and applies to AAOS members when providing expert opinions. These standards require any AAOS expert witness testifying in a medical malpractice action to provide fair and impartial testimony and to evaluate the medical care given by the defendant against generally accepted standards.

In July 2010, Menachem Meller, another AAOS member who also resides in Pennsylvania, filed a grievance with the Professional Compliance Program alleging that Cerciello had violated AAOS's SOPs on orthopaedic expert witness testimony when he submitted an expert report on behalf of a plaintiff who had sued Meller for medical malpractice in Pennsylvania. Pursuant to its bylaws, AAOS notified Cerciello that a grievance had been filed, provided him a copy of the grievance procedures, and advised him of his deadline to submit a response. Cerciello did not respond. The grievance process culminated in a merits hearing. Cerciello was notified of the hearing but did not attend. In September 2011, the AAOS found that Cerciello had violated certain SOPs regarding orthopaedic expert witness testimony and suspended him for two years. AAOS subsequently reported Cerciello's suspension to its membership and to the NPDB.

On April 19, 2012, a lawyer representing Cerciello sent AAOS a letter threatening litigation. The lawyer stated that AAOS had used a flawed process to suspend Cerciello and contended that AAOS or Meller had publicized the suspension. He demanded that AAOS rescind the suspension and notify everyone to whom it had reported the suspension that the report was erroneous. The attorney said that unless AAOS complied within ten days, he would file suit asserting claims for libel, slander, and false light. Compl., Ex. A. After responding, AAOS received a second letter from Cerciello's attorney, dated May 2, 2012. The attorney referred to recent litigation involving Meller and AAOS and again demanded that AAOS take immediate steps to remove Cerciello's name from the NPDB. Id., Ex. B. AAOS received the second letter on May 7, 2012. See id. (date stamp). AAOS filed this action eleven days later, on May 18, 2012.


1. Subject matter jurisdiction

Cerciello contends that AAOS is seeking an "advisory opinion" and that this action does not present a case or controversy within the meaning of the Declaratory Judgment Act, 28 U.S.C. § 2201.

Section 2201 permits a district court to issue a declaratory judgment "In a case of actual controversy within its jurisdiction." 28 U.S.C. § 2201(a). The Supreme Court has ruled that this standard is met if "under all the circumstances, . . . there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941).

AAOS alleges that it filed suit against Cerciello due to, among other things, his threats of litigation and his attacks on AAOS's grievance procedures. Given this context, AAOS meets the section 2201 standard if it can show that Cerciello's threat of litigation was "immediate and real, rather than merely speculative." Hyatt Int'l Corp. v. Coco, 302 F.3d 707, 712 (7th Cir. 2002); see also Koch Refining v. Farmers Union Central Exchange, Inc., 831 F.2d 1339, 1353 (7th Cir. 1987). Apprehension of litigation alone does not make a threat immediate and real, but it can do so if the apprehension is caused by the defendant's conduct. Int'l Harvester Co. v. Deere & Co., 623 F.2d 1207, 1211 (7th Cir. 1980); Underwriters Labs. Inc. v. Hydrofilm L.P., No. 05 C 5509, 2006 WL 2494748, at *2 (N.D. Ill. Aug. 23, 2006).

AAOS's allegations are sufficient to show that there is an actual controversy within the meaning of section 2201. The letters from Cerciello's attorney, in which he specifically said that he would file suit unless AAOS immediately rescinded Cerciello's suspension and took other steps, amounted to an "immediate and real" threat of litigation, not a speculative one. See Hyatt Int'l Corp., 302 F.3d at 712.

When a case presents an actual controversy, a court nonetheless may exercise its discretion to decline to issue a declaratory judgment. Int'l Harvester Co., 623 F.2d 1207, 1217 (7th Cir. 1980); see also Medical Assur. Co. v. Hellman, 610 F.3d 371, 378 (7th Cir. 2010). "In the declaratory judgment context, the normal principle that federal courts should adjudicate claims within their jurisdiction yields to ...

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