PAMELA G. ARGEREOW
VERNE M. WEISBERG, M.D., et al.
Argued: July 18, 2018
W. Kline, Esq. (orally), Kline Law Offices LLC, Portland, for
appellant Pamela G. Argereow
I. Simonelli, Esq. (orally), and Frederick B. Finberg, Esq.,
The Bennett Law Firm, PA, Portland, for appellee Verne M.
B. Zmistowski, Esq. (orally), and Ryan P. Dumais, Esq., Eaton
Peabody, Bangor, for appellee Mercy Hospital
ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
Pamela G. Argereow commenced this action against Dr. Verne M.
Weisberg and Mercy Hospital, alleging that Weisberg
communicated with someone at Mercy about Argereow's
professional background and that, as a result, Mercy did not
follow through with its decision to employ her. Argereow-a
former employee at one of Weisberg's medical
offices-alleges that Weisberg's statements to Mercy were
retaliatory because, in an administrative proceeding, she had
testified adversely to the interests of another of
Weisberg's clinics. The Superior Court (Cumberland
County, L. Walker, J.) granted Weisberg's and
Mercy's separate motions to dismiss the complaint for
failure to state claims on which relief could be granted,
see M.R. Civ. P. 12(b)(6), because some counts were
legally insufficient and other counts failed due to the
absolute immunity provisions of the Maine Health Security
Act, 24 M.R.S. §§ 2501-2988 (2017). Argereow
challenges these determinations on this appeal. We correct
one aspect of the judgment and affirm.
Because this appeal is based on a facial review of the
complaint, we consider only the alleged facts, which we take
as true, see Lalonde v. Cent. Me. Med. Ctr., 2017 ME
22, ¶ 2, 155 A.3d 426, and "examine the complaint
in the light most favorable to the plaintiff to determine
whether it sets forth elements of a cause of action or
alleges facts that would entitle the plaintiff to relief
pursuant to some legal theory." Moody v. State
Liquor & Lottery Comm'n, 2004 ME 20,
¶¶ 7-8, 843 A.2d 43 (quotation marks omitted).
Between February of 2012 and October of 2014, Argereow worked
as a nurse practitioner at a medical practice that Weisberg
owns and operates. Argereow began seeking other employment,
including at Mercy, in the summer of 2014. She disclosed in
an online application for Mercy that she had consented to a
professional reprimand in 2005 because in 2003 she falsely
indicated on a checklist that during a medical procedure a
surgical team had completed a step that it had not taken.
On September 23, 2014, Argereow testified under subpoena at a
hearing concerning an unemployment claim brought by a former
employee of another clinic owned and operated by Weisberg. On
October 1, the Unemployment Commission administrative hearing
officer, citing Argereow's testimony, issued an order
favorable to the former employee and allowed benefits, which
were "chargeable" to Weisberg's clinic.
On the same day as the unemployment hearing, Mercy sent
Argereow a written offer for her to work as a nurse
practitioner at one of its clinics. On October 6, Argereow
underwent a pre-placement screening, resulting in her
approval for employment at Mercy without restrictions, and
received Mercy's employee handbook. Her projected start
date was November 10, 2014.
On October 15, Argereow informed Weisberg that she was
leaving her job at his practice and that her last day there
would be October 29. Weisberg learned from Argereow on
October 31 that she would be working for Mercy. Sometime,
"likely" during the ensuing week, Weisberg "or
someone on his behalf" "made a phone call [to
someone at Mercy] and cost [Argereow] her job at Mercy"
because of her testimony at the unemployment claim hearing.
The information conveyed by Weisberg during the phone call
concerned Argereow's "professional background"
and her "employment qualifications or performance,"
and suggested that she was "incompetent in her
professional practice." Argereow's complaint
contains no further allegations about what the caller
allegedly said during the phone call, who made the call,
whom the call was made, or when the call was made.
Weisberg's statements had "the effect of
discouraging Mercy from employing [Argereow]."
On November 7, a human resources employee at Mercy advised
Argereow that her "projected start date was being pushed
back on the basis that there were potential issues associated
with her medical credentialing." Although Mercy had not
concluded the hiring process, Argereow "had already been
introduced to the ... team as a new employee and understood
that there were no remaining contingencies regarding her
employment by Mercy and that all interviews had already taken
place." At Mercy's request, however, Argereow met
with its Chief of Surgery on November 7. After they discussed
the reprimand on her nursing license, the physician expressed
his appreciation for Argereow's candor concerning the
incident and said he would "present this information to
the Mercy Board the following week." During the meeting,
the physician noted to Argereow that "a Dr. Weisberg,
which could refer to Dr. Tracey Weisberg, [Dr. Verne M.]
Weisberg's spouse, was a member of Mercy's Board or
held a significant administration role."
On November 10, 2014, a Mercy representative called Argereow
to suggest that she withdraw her credentialing application.
Argereow then called the human resources department and was
told to expect a call from another Mercy physician. That
physician called Argereow the next day to warn her that if
she "pursued her application, it would be denied on the
basis that she did not qualify for credentialing and that
this would constitute an event which would have to be
reported to the Maine State Board of Nursing and which would
impair her ability to find work elsewhere." Shortly
thereafter, Argereow requested a copy of her employment
application with Mercy and confirmed that she had
"truthfully responded to all questions asked in
conjunction with her initial online application."
Nevertheless, Argereow withdrew her application for
employment and credentialing with Mercy on November 13. On
December 1, 2014, Argereow reviewed her Mercy credentialing
file, "which did not contain any adverse information
except a notation, without explanation, from [the Chief of
Surgery] recommending against credentialing." As a
result of Weisberg's and Mercy's conduct, she
underwent marriage counseling because of stress and lost
eight months of wages, which was a significant financial
In November of 2015, Argereow commenced this action, naming
Weisberg as the sole defendant. In her complaint as amended,
Argereow asserted claims for tortious interference with a
prospective economic advantage, intentional infliction of
emotional distress, defamation, negligent infliction of
emotional distress, slander per se, and violation of the
Whistleblower Protection Act (WPA), see 26 M.R.S.
§ 833(1)(C) (2017). Weisberg moved for the court to
dismiss each count for failure to state a claim. The court
granted the motion in part, dismissing without prejudice the
claims for defamation, slander per se, and negligent
infliction of emotional distress, but allowing Argereow to
proceed on the other claims.
During pretrial proceedings, Argereow served Mercy with a
subpoena to obtain certain credentialing-related documents.
After resulting motion practice involving Argereow and Mercy,
the court issued an order protecting Mercy from producing
some of that material. Argereow then filed a second amended
complaint, which included all of the counts she had asserted
against Weisberg, including the ones the court had dismissed,
and added Mercy as a defendant and asserted claims against
Mercy for intentional infliction of emotional distress and
whistleblower retaliation, and a count seeking access to
credentialing records in Mercy's possession.
Weisberg and Mercy filed separate motions to dismiss
Argereow's second amended complaint. The court granted
Dr. Weisberg's motion to dismiss the remaining counts
against him based on its determination that he is entitled to
immunity pursuant to 24 M.R.S. § 2511. The court granted
Mercy's motion to dismiss, which was based on assertions
that Mercy was statutorily immune, also pursuant to section
2511, and that Argereow's claims did not state a basis
for relief The court "determined that Mercy is not
unquestionably entitled to immunity" but granted the
motion because the claims against Mercy did not state claims
for relief. Argereow filed a notice of appeal,  and Mercy filed a
cross-appeal to preserve the argument that its motion to
dismiss should have been granted based on section 2511
immunity. See M.R. App. P. 2B(c), 2C(a).
When we review an order dismissing a complaint, we consider
only the facts alleged in the complaint and "examine the
complaint in the light most favorable to the plaintiff to
determine whether it sets forth elements of a cause of action
or alleges facts that would entitle the plaintiff to relief
pursuant to some legal theory." Moody, 2004 ME
20, ¶¶ 7-8, 843 A.2d 43 (quotation marks omitted).
This is a process that "tests the legal sufficiency of
the allegations in a complaint, not the sufficiency of the
evidence the plaintiffs are able to present." Barnes
v. McGough, 623 A.2d 144, 145 (Me. 1993) (citation
omitted). Dismissal of a complaint "should only occur
when it appears beyond doubt that a plaintiff is entitled to
no relief under any set of facts that he might prove in
support of his claim." Potter, Prescott, Jamieson
& Nelson, PA. v. Campbell, 1998 ME 70, ¶ 5, 708
A.2d 283 (quotation marks omitted).
We first address Weisberg's immunity from Argereow's
claims against him, and we then address the sufficiency of
the allegations in Argereow's two remaining counts
The claims that Argereow continues to pursue against Weisberg
are for tortious interference with an economic advantage,
intentional infliction of emotional distress, and violation
of the Whistleblower Protection Act.
Immunity is an affirmative defense because it is a legal
doctrine of avoidance of liability. See M.R. Civ. P.
8(c). A defendant may raise immunity as the ground for
dismissal of a claim for failure to state a basis for
relief. Lalonde, 2017 ME 22, ¶ 11,
155 A.3d 426. When a party seeks dismissal of a claim based
on an affirmative defense, the relevant inquiry is whether
the "facts giving rise to the defense appear on the face
of the complaint." Shaw v. S. Aroostook Cmty.
Sch. Dist, 683 A.2d 502, 504 (Me. 1996);
see M.R. Civ. P. 12.
Section 2511 of the Maine Health Security Act (MHSA) grants
immunity from civil liability as follows:
Any person acting without malice, any physician, podiatrist,
health care provider, health care entity or professional
society, any member of a professional competence committee or
professional review committee, any board or appropriate
authority and any entity required to report under this
chapter are immune from civil liability:
1. Reporting. For making
any report or other information available to any board,
appropriate authority, professional competence committee or
professional review committee pursuant to law;
2. Assisting in preparation. For assisting
in the origination, investigation or preparation of the
report or information ...