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Argereow v. Weisberg

Superior Court of Maine, Cumberland

May 10, 2016

VERNE E. WEISBERG, M.D., Defendant.

          PL: Robert Kline, Esq.

          DEF: Frederick Fineberg, Esq.


          Lance E. Walker Justice

          Before the court is Defendant Verne E. Weisberg, M.D.'s motion to dismiss the amended complaint for failure to state a claim upon which relief can be granted. Based on the following, the motion to dismiss is granted in part and denied in part.

         I. BACKGROUND

         The following allegations are set forth in the amended complaint. Defendant Verne E. Weisberg, M.D. is the owner and operator of the Center for Weight Management & Wellness, LLC ("CWMW"). (Am. Compl. 3.) Plaintiff Pamela G. Argereow was employed as a registered nurse and a nurse practitioner at CWMW from February 1, 2012, until October 29, 2014. (Id. ¶¶ 7, 20.)

         On September 23, 2014, Plaintiff testified under subpoena as a witness at an Unemployment Commission hearing on an unemployment claim brought by Bonnie Fusco arising from the termination of Ms. Fusco's employment the Plastic Surgery Center P.A., an entity related to CWMW, and also owned and operated by Defendant. (Id. ¶¶ 13-14.) Citing testimony from Plaintiff, the administrative hearing officer found Plastic Surgery Center's assertion that Ms. Fusco was terminated for misconduct and discourteous behavior to be unfounded and charged Ms. Fusco's unemployment benefits to the Plastic Surgery Center. (Id. ¶ 14.)

         According to Plaintiff, by a letter dated September 23, 2014, she was offered a job as a nurse practitioner at Mercy Hospital's Wound Healing Center. (Id. ¶ 15.) Plaintiff completed Mercy Hospital's pre-employment procedures and was given a prospective start date of November 10, 2014. (Id. ¶¶ 16-19, 24.) Plaintiff gave CWMW her two-weeks notice on October 15, 2014. (Id. ¶ 20.) Plaintiffs final day of work at CWMW was October 29, 2015. (Id.) On October 31, 2014, Plaintiff disclosed to Defendant that she was leaving CWMW to work at Mercy Hospital's Wound Healing Center. (Id. ¶ 23.)

         On November 7, 2014, a representative from Mercy Hospital's human resources informed Plaintiff that there was an issue with her medical credentialing. (Id. ¶ 25.) That same day, Plaintiff met with Dr. Russell, Mercy Hospital's Chief of Surgery. (Id. ¶ 27.) Dr. Russell informed Plaintiff that Defendant was a member of Mercy Hospital's Board. (Id. ¶ 30.) On November 10, 2014, Plaintiff received a phone call from a Mercy Hospital representative suggesting Plaintiff withdrawal her application. (Id. ¶ 31.) On November 11, 2014, Plaintiff spoke with Dr. Rusk, who warned Plaintiff that if she pursued her application, it would be denied on the basis that she did not qualify for credentialing, which would be reported to the Maine State Board of Nursing. (Id. ¶¶ 34-36.) Plaintiff withdrew her application. (Id. ¶ 39.)

         On or about June 1, 2015, Joan Lorenson, CWMW's Chief Operating Officer, received a notice from the Maine Unemployment Commission, indicating that CWMW was being charged by the State for Plaintiffs unemployment benefits. (Id. ¶¶ 44, 47.) When Lorenson questioned Defendant about the charge, Defendant allegedly told Lorenson that, when he found out where Plaintiff was going to be employed, he made a phone call and cost Plaintiff her job at Mercy Hospital because she had testified against Defendant at Fusco's unemployment claim hearing. (7d¶49.)

         Plaintiff filed a complaint against Defendant on November 10, 2015. Defendant filed his initial motion to dismiss for failure to state a claim on December 1, 2015. On December 22, 2015, Plaintiff filed her opposition to the motion to dismiss and her amended her complaint. Defendant filed a motion to dismiss the amended complaint on December 30, 2015. Defendant filed an opposition to the motion to dismiss the amended complaint, which incorporated by reference her initial opposition to the motion to dismiss, on January 20, 2016. Defendant timely replied.

         Plaintiffs six-count amended complaint contains claims for tortious interference with a prospective economic advantage (Count I), intentional infliction of emotional distress (Count II), defamation (Count III), negligent infliction of emotional distress (Count IV), slander per se (Count V), and a claim for relief under the Maine Whistleblower's Protection Act ("MWPA") (Count VI). (Am. Compl. ¶¶ 58-95.)


         The court grants a dismissal when the complaint fails "to state a claim upon which relief can be granted." M.R. Civ. P. 12(b)(6). A motion to dismiss for failure to state a claim tests the legal sufficiency of a complaint. State v. Weinschenk, 2005 ME 28, ¶ 10, 868 A.2d 200. The sufficiency of a complaint is a question of law. Bean v. Cummings, 2008 ME 18, ¶ 7, 939 A.2d 676. On a motion to dismiss for failure to state a claim, the facts are not adjudicated. Marshall v. Town of Dexter, 2015 ME 135, ¶ 2, 125 A.3d 1141. The court reviews the material allegations in the complaint in the light most favorable to the plaintiff to determine whether the plaintiff would be entitled to relief pursuant to some legal theory. Bean, 2008 ME 18, ¶ 7, 939 A.2d 676. Dismissal is warranted when it appears beyond a doubt that the plaintiff is not entitled to relief under any set of facts that the plaintiff might prove in support of his or her claim. Id.

         Most civil actions must merely meet the notice pleading standard, which requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." M.R. Civ. P. 8(a); Bean, 2008 ME 18, ¶ 8, 939 A.2d 676. "The allegations need to give the defendant.'fair notice' of the claim and the ground on which it rests, and demonstrate that the claimant has more than a speculative right to relief." Pascoe v. Johnson Controls, Inc., 2010 Me. Super. LEXIS 131, at *4 (Dec. 2, 2010) (citing Bell Atl. Corp. v. Twombfy, 550 U.S. 544, 555 (2007)). However, all averments of fraud or circumstances constituting fraud must be plead "with particularity." M.R. Civ. P. 9(b). Knowledge and other conditions of a person's state of mind may be averred generally. Id. I

         II. ANALYSIS

         A. Defamation and Slander Per Se

         Defendant asserts that Plaintiffs defamation (Count III) and slander per se (Count V) claims are the foundation upon which all of Plaintiffs other claims are based. (Def. Mot. Dismiss Am. Compl. 7.) Defendant argues that Plaintiff has failed to identify a single false statement made by Defendant about Plaintiff. (Id. at 10.) Accordingly, Defendant argues that Plaintiffs defamation, slander per se, and all other claims must be dismissed for failure to state a claim. (Id. at 1-2, 10.)

         A claim for defamation consist of the following: (1) an unprivileged publication by the defendant to a third-party; (2) consisting of a false and defamatory statement of or concerning the plaintiff; (3) fault amounting to at least negligence by the defendant; and (4) the existence of special damages caused by the publication. Lester v. Powers, 596 A.2d 65, 69 (Me. 1991) (citing Restatement (Second) of Torts § 558 (1977)). In order to be actionable, the false and defamatory statement must be an explicit or implied assertion of fact, not a mere opinion. Id. However, an opinion that implies the existence of an undisclosed fact may be actionable. Id.

         A defamatory statement constitutes slander per se if the words "on their face without further proof or explanation injure the plaintiff in his business or occupation." Ramirez v. Rogers, 540 A.2d 475, 478 (Me. 1988). If a defamatory statement constitutes slander per se, the plaintiff may recover on their defamation claim without the need to prove special damages. Id.

         Because proof that a statement is true is always an affirmative defense to defamation, the defendant is "entitled to know precisely what statement is attributed to him." Picard v. Brennan,307 A.2d 833, 834-35 (Me. 1973). Thus, in order to recovery for defamation, the "material words, those essential to the charge made, must be [strictly] proved as alleged." Id. However, the plaintiff need not strictly prove as alleged any "unimportant, connecting or descriptive words." Id. The court may allow some latitude with respect ...

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