NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 20-2525 ____________ MICHAEL WEINIK, D.O.

v.

TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION; TEMPLE UNIVERSITY'S LEWIS KATZ SCHOOL OF MEDICINE; TEMPLE UNIVERSITY HOSPITAL; SHIVANI DUA; PHILLIP ACEVEDO,

Shivani Dua, Appellant

____________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2:19-cv-03503) District Judge: Honorable Mitchell S. Goldberg ____________

Argued on September 23, 2021

Before: CHAGARES, HARDIMAN, and MATEY, Circuit Judges.

(Filed: December 13, 2021)

Danielle Banks [Argued] Chelsea Biemiller Adam D. Brown Stradley Ronon Stevens & Young 2005 Market Street Suite 2600 Philadelphia, PA 19103

Counsel for Appellant Bruce L. Castor, Jr. van der Veen O'Neill Hartshorn & Levin 1219 Spruce Street Philadelphia, PA 19107

Joseph R. Heffern [Argued] Lance Rogers Rogers Counsel 26 East Athens Avenue Ardmore, PA 19003

Counsel for Appellee

____________

OPINION* ____________

HARDIMAN, Circuit Judge.

Shivani Dua, M.D. appeals an order denying her motion to dismiss. For the

reasons that follow, we will dismiss for lack of appellate jurisdiction.

I

Plaintiff Michael Weinik, D.O. is a physician and former professor at Temple

University Lewis Katz School of Medicine, who worked at Temple University Hospital.

Temple terminated Weinik’s employment after an investigation into reports of sexual

misconduct. Weinik sued Dua for defamation for making one of those reports. Dua

moved to dismiss, claiming Pennsylvania’s judicial proceeding privilege shielded her

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

2 from liability for defamation. The District Court denied the motion, holding that a factual

inquiry into Dua’s intent is necessary to determine whether the judicial proceeding

privilege applies to her report.

Dua seeks review here under the collateral order doctrine, claiming she is entitled

to absolute immunity. Because the District Court properly held that a factual inquiry is

necessary to determine whether the judicial proceeding privilege applies, we lack

appellate jurisdiction to consider Dua’s appeal.

A

We begin with Dua’s assertion that Pennsylvania law does not mandate a factual

inquiry into a speaker’s subjective intent before affording her protection under the

judicial proceeding privilege for statements that initiated quasi-judicial proceedings. Dua

maintains the District Court misread Schanne v. Addis, where the Pennsylvania Supreme

Court held on certification of the issue from this Court that “the judicial privilege does

not apply to an allegation made by an adult before commencement of any quasi-judicial

proceeding and without an intent that it lead to a quasi-judicial proceeding.”

, 952 (Pa. 2015) (emphasis added). The Court explained that “the resolution of legal

issues in specific cases may depend on the facts involved.” Id. at 951.

This case, like Schanne, involves sexual misconduct allegations by a former

student who claims judicial proceeding immunity from a defamation suit related to that

allegation. Dua, a former medical resident at the Hospital, sent an email to the graduate

medical education program administrator alleging unwanted touching and sexually

inappropriate comments by her attending physician, Dr. Weinik, several years earlier. In

3 her email, Dua expressed a desire to remain anonymous and explained: “I don[’]t want

sympathy, I just don[’]t want this to happen to others.” App. 224. Dua’s email helped

spur Temple to conduct a quasi-judicial proceeding—in which Dua did not participate—

that resulted in Weinik’s termination. Weinik continues to deny Dua’s sexual misconduct

allegations. Weinik claims Dua’s email was part of a malicious, orchestrated campaign

by a professional rival to weaponize relationships with former residency students to

discredit Weinik.

We are unpersuaded by Dua’s argument that the District Court committed legal

error by interpreting Schanne to require a factual inquiry into her subjective intent.

Schanne held that application of the judicial proceeding privilege depends on the

speaker’s subjective intent and reasoned that a factual inquiry into that intent may be

necessary to apply the privilege. See 121 A.3d at 951. Because Dua’s intent to initiate a

quasi-judicial proceeding is not plain from the face of her email, the District Court did

not err by requiring a factual inquiry. Indeed, Weinik alleges that Dua intended to aid

Weinik’s rival in an internal power struggle, not to initiate a quasi-judicial proceeding.

Although Dua lodged her complaint with a program official, this fact alone is not,

contrary to Dua’s argument, dispositive of intent.

B

Dua’s appeal is ineligible for review under the collateral order doctrine, which is a

“narrow” exception to the final order requirement with “stringent” conditions. Digit.

Equip. Corp. v. Desktop Direct, Inc.,

(1994). The exception requires

that an order: “[1] conclusively determine the disputed question, [2] resolve an important

4 issue completely separate from the merits of the action, and [3] be effectively

unreviewable on appeal from a final judgment.” Bank of Hope v. Miye Chon,

(3d Cir. 2019) (quoting Will v. Hallock,

(2006)). Because the

District Court’s order denying Dua’s motion to dismiss satisfies none of these conditions,

we lack appellate jurisdiction.

The first two of these factors are not satisfied because the District Court’s denial is

grounded on an unresolved question of fact. While an order denying qualified or absolute

immunity is immediately reviewable under the collateral order doctrine “to the extent that

the order turns on an issue of law,” Giuffre v. Bissell,

(3d Cir. 1994),

review is “premature when there are unresolved disputes of historical fact relevant to the

immunity analysis.” Curley v. Klem,

(3d Cir. 2002). Dua’s appeal is

framed as a question of law—whether the District Court correctly interpreted Schanne—

but the Court’s ruling turns on an unresolved question of fact: whether Dua subjectively

intended her email to the graduate medical education program administrator to initiate a

quasi-judicial proceeding. Because this question remains unresolved, the District Court’s

order neither “conclusively determine[d] the disputed question” nor “resolve[d] an

important issue completely separate from the merits of the action.” Bank of Hope,

.

Dua’s appeal also fails to satisfy the third factor of the collateral order doctrine,

which requires that an order “be effectively unreviewable on appeal from a final

judgment.”

(quoting Will,

). For an order to be unreviewable, an

appellant must demonstrate that “deferring review until final judgment so imperils the

5 interest as to justify the cost of allowing immediate appeal of the entire class of relevant

orders.” Mohawk Indus., Inc. v. Carpenter,

(2009).

Dua describes the judicial proceeding privilege as an “absolute immunity” that

would be irretrievably lost if we required her to await final judgment on the merits before

challenging the District Court’s order. Dua Br. 11 (quoting Bochetto v. Gibson,

(Pa. 2004)). But Dua mischaracterizes the judicial proceeding privilege. Under

Pennsylvania law, it is an affirmative defense, not a broad grant of immunity. Schanne,

121 A.3d at 951. And Dua bears the burden of proving it. See Rosenbloom v.

Metromedia, Inc.

(1971) (“Pennsylvania has also enacted verbatim the

Restatement’s provisions on burden of proof, which place the burden of proof for the

affirmative defenses of truth and privilege upon the defendant.”).

Dua contends that requiring her to endure discovery to establish subjective intent

cannot be the holding of Schanne. But the Pennsylvania Supreme Court considered this

very concern when it reasoned that the judicial proceeding privilege may turn on facts

requiring discovery. Schanne, 121 A.3d at 951 (“It can hardly be the law that a plaintiff is

prohibited from challenging a defense raised by the defendant because there are costs to

litigating its merits.”). Because the District Court’s order denying Dua’s motion to

dismiss can be effectively reviewed after trial, the District Court’s order also does not

satisfy the third prong of the collateral order doctrine.

* * *

For the reasons stated, we will dismiss this appeal for lack of jurisdiction.

6