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Franchini v. Bangor Publishing Co. Inc.

United States District Court, D. Maine

March 29, 2019

BANGOR PUBLISHING CO. INC. et al., Defendants.



         Before the Court are a number of Motions filed by the various Defendants in this case including: Investor's Business Daily, Inc.'s Motion to Dismiss for Failure to State a Claim and Special Motion to Dismiss (ECF No. 17); MTM Acquisition, Inc. and Edward Murphy's Motion to Dismiss for Failure to State a Claim (ECF No. 18); Gannett Company, Inc. and Donovan Slack's Motion for Judgment on the Pleadings (ECF No. 24); and Bangor Publishing Company, Inc. and Meg Haskell's Motion for Judgment on the Pleadings (ECF No. 26). As explained herein, the Court GRANTS IN PART and DENIES IN PART all of these Motions.


         “To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In making this determination, the Court must accept as true all well-pleaded factual allegations in the complaint and draw all reasonable inferences in the nonmovant's favor. Gargano v. Liberty Int'l Underwriters, Inc., 572 F.3d 45, 48 (1st Cir. 2009). “If the factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal.” Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (internal quotation marks omitted) (quoting SEC v. Tambone, 597 F.3d 436, 442 (1st Cir. 2010)); see also Iqbal, 556 U.S. at 678 (stating that courts need not accept “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements”). The moving party bears the burden of demonstrating that the complaint fails to state a claim. Lamprey v. Wells Fargo Home Mortg., No. 2:16-cv-00570-JDL, 2017 WL 3470570, at *2 (D. Me. Aug. 11, 2017) (citing 5B Charles Alan Wright & Arthur R. Miller et al., Federal Practice and Procedure § 1357 (3d ed. 2017 Update)).

         The standard for a motion for judgment on the pleadings is the same as a motion to dismiss under Rule 12(b)(6). Grajales v. Puerto Rico Ports Auth., 682 F.3d 40, 44 (1st Cir. 2012). In ruling on both types of motions, the Court may “consider ‘documents the authenticity of which are not disputed by the parties; . . . documents central to plaintiffs' claim; [and] documents sufficiently referred to in the complaint.'” Curran v. Cousins, 509 F.3d 36, 44 (1st Cir. 2007) (quoting Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993)). The Court may give similar consideration to “documents . . . incorporated into the movant's pleadings.” Id. (citing Beddall v. State St. Bank & Tr. Co., 137 F.3d 12, 17 (1st Cir. 1998)).


         Plaintiff Thomas Franchini (“Franchini”) is a board-certified podiatrist living in East Greenwhich, Rhode Island, who has been practicing medicine for twenty-seven years. This case arises from four news articles discussing Franchini's work as a podiatrist with the Department of Veterans Affairs at the VA Maine Healthcare System at Togus, in Augusta, Maine (“VA Togus”).[1]Franchini worked at VA Togus between 2004 and 2010. Franchini began his career as a surgical podiatrist with the United States Navy in 1992.[2] From 2002 to 2003, Franchini worked as a clinical professor at the Fletcher Allen Medical Center in Burlington, Vermont. Franchini conducted or participated in approximately 4, 900 surgeries prior to 2004 “without any tort claim or claim of sub-standard care or performance against him.” (Am. Compl. ¶¶ 14, 16.)

         After joining the medical staff at VA Togus, Franchini performed approximately 580 surgeries as part of that employment. Simultaneous to his association with VA Togus, Franchini worked at Maine Medical Center and Mercy Hospital in Portland, Maine. For these latter two employers, Franchini performed approximately ninety-five surgeries “without any tort claim or claim of sub-standard care or performance against him.” (Id. ¶ 20.) Around April 2010, VA Togus reviewed Franchini's note-taking and preparation of medical records, criticized him for “the brevity of his procedure notes, ” and asked him to cease performing surgeries. (Id. ¶ 21.) Franchini later resigned from VA Togus on November 8, 2010. At that time, the only investigation pending against Franchini was related to his notes. Then, between 2010 and 2011, VA Togus “raised issues” with twenty-five procedures Franchini performed or participated in. (Id. ¶ 24.) However, a group of independent podiatrists reviewed these procedures and found them to be appropriate. Since 2012, VA Togus and its representatives have accused Franchini of numerous instances of sub-standard performance from his time there. Franchini, an experienced physician, claims that all such allegations are “false” and “baseless.” (Id. ¶ 27.)

         Beginning in October 2017, a number of media outlets and journalists published articles discussing the VA's allegations about Franchini “without conducting appropriate inquiry or investigation.” (Id. ¶ 28.) First, on October 1, 2017, MTM Acquisition, Inc. and Edward Murphy (together, “MTM Defendants”) published an article in the Portland Press Herald entitled “Maine Veterans Given Substandard Care are Told It's Too Late to Sue.” (Id. ¶ 38.) The article begins by discussing a number of lawsuits against the VA in which veterans describe alleged ailments they have suffered from since being treated by Franchini. (MTM Defendants' Ex. A (ECF No. 18-1), PageID # 149-150.) It then notes that “Franchini is still a licensed podiatrist, even though he resigned from the VA after the agency told him to step down or he would be fired in early 2010, according to . . . a spokesman for the VA.” (Id. PageID # 151.)

         On October 11, 2017, Gannett Company, Inc. and Donovan Slack (together, “Gannett Defendants”) published an article in USA Today entitled “VA Conceals Shoddy Care and Health Workers' Mistakes.” (Id. ¶ 44.) In that article, Slack wrote that “[i]n 88 cases, the VA concluded that Franchini made mistakes that harmed veterans” and that “[a]gency leaders didn't fire Franchini or report him . . . they let him quietly resign.” (Gannett Defendants' Ex. A (ECF No. 24-1), PageID # 177.) Slack also wrote that “Franchini had resigned while under investigation . . . and VA officials had been examining hundreds of his former patients' cases” as well as that “the VA placed Franchini on leave after finding problems with a small sample of his cases.” (Id. PageID # 178.) Then, on October 27, 2017, Bangor Publishing Company, Inc. and Meg Haskell (together, “Bangor Defendants”) published an article entitled “Vet Harmed at Togus.” (Am. Compl. ¶ 32.) Therein, according to the Amended Complaint, Haskell wrote that the VA “forced” Franchini out, “88 vets . . . suffered under the care of . . . Franchini, ” Franchini had “botched” certain procedures performed on Jim Barrows, and that Franchini had subsequently “realized” that he made an error/errors. (Id. ¶ 33.)

         Lastly, on December 22, 2017, Investor's Business Daily, Inc. (“IBD”) and Sally Pipes published an article entitled “VA Negligence is Killing Veterans” in the Investor's Business Daily. (Id. ¶ 50.) In the article, Pipes wrote that “Franchini botched 88 procedures” and “severed a patient's tendon during one surgery and failed to successfully fuse one woman's ankle in another.” (IBD's Ex. 2 (ECF No. 17-2), PageID # 122). She continued that “Franchini wasn't fired for any of these errors. Instead, the VA allowed him to resign and return to private practice.” (Id.)

         In his Amended Complaint, Franchini alleges that all the just-quoted statements “expressly and implicitly misstated the content” of the “reportage” upon which they were purportedly based, and that they are all false. (Am. Compl. ¶¶ 34, 40, 46, 52.) He claims both presumed damages and actual damages.


         All Defendants join in raising multiple arguments for the dismissal of Plaintiff's defamation claims (Counts I, II, III, and IV) and negligent infliction of emotional distress claims (Count VI). The Gannett Defendants have also raised arguments for dismissal of Plaintiff's negligent and fraudulent misrepresentation claims (Count V). Lastly, IBD moves to dismiss pursuant to Maine's Anti-SLAPP statute, 14 M.R.S.A. § 556. The Court addresses each of these bases for dismissal in turn.

         A. Defamation (Counts I-IV)

         In Maine, the basic elements of a defamation claim are: “(a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.” Cole v. Chandler, 752 A.2d 1189, 1193 (Me. 2000). Defendants' arguments for dismissal of Plaintiff's defamation claims fall into three basic categories: (1) Plaintiff is constitutionally required to plausibly allege actual malice but has failed to do so; (2) Plaintiff fails to isolate actionable statements by Defendants because the statements he claims to be defamatory are either substantially true or opinions; (3) various privileges protect Defendants' publications. The Court considers each of these arguments in turn.

         1. Actual malice

         Due to the inherent free speech implications of defamation actions, the federal constitution imposes various “requirements . . . independent of those established by the state's own law.” Veilleux v. Nat'l Broadcasting Co., 206 F.3d 92, 108 (1st Cir. 2000). For example, where a court determines that the plaintiff is a public official or public figure, or that the speech at issue addresses a matter of public concern, the constitutional actual malice standard comes into play.[3] To establish actual malice, the plaintiff must show that the speaker made the allegedly defamatory statement “with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964). Defendants first assert that the actual malice standard applies here because Plaintiff is a public official or limited public figure.

         In general, public officials are those individuals who hold the kind of public office “with ‘substantial responsibility for or control over the conduct of governmental affairs.'” Mandel v. Boston Phoenix, Inc., 456 F.3d 198, 202 (1st Cir. 2006) (quoting Rosenblatt v. Baer, 383 U.S. 75, 85 (1966)). In determining public official status, courts take into account: “(i) the extent to which the inherent attributes of a position define it as one of influence over issues of public importance; (ii) the position's special access to the media as a means of self-help; and (iii) the risk of diminished privacy assumed upon taking the position.” Id. at 204. Limited public figures, on the other hand, need not be public employees. Id. at 202. This status attaches where “an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 345, 351 (1974) (noting also that “instances of truly involuntary public figures must be exceedingly ...

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