PAMELA G. ARGEREOW, Plaintiff,
VERNE E. WEISBERG, M.D., Defendant.
Robert Kline, Esq.
Frederick Fineberg, Esq.
ORDER ON DEFENDANT'S MOTION TO DISMISS AMENDED
E. Walker Justice
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.
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.)
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. ¶
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.
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.)
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.)
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.
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. ¶¶
STANDARD OF REVIEW
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
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
Defamation and Slander Per Se
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.)
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
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.
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 ...