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DOE v. KOHN NAST & GRAF

October 5, 1994

JOHN DOE, ESQUIRE, (pseudonym for an attorney), Plaintiff and EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Intervenor
v.
KOHN NAST & GRAF, P.C. d/b/a KOHN KLEIN NAST & GRAF, P.C. and KOHN SAVETT KLEIN & GRAF, P.C., HAROLD E. KOHN, and STEVEN ASHER, Defendants.



The opinion of the court was delivered by: ROBERT S. GAWTHROP, III

 Gawthrop, J.

 October 5, 1994

 This case today before the court on defendants' motion for partial summary judgment, involves a lawyer infected with the Human Immunodeficiency Virus ["HIV"] who claims that his law firm fired him because of his infection.

 The defendants seek summary judgment on the portions of the defamation and invasion of privacy claims that plaintiff added to his second amended complaint; on the defamation and invasion of privacy claims against Harold Kohn individually; and on the claims that defendants violated sections of the Americans with Disabilities Act, 42 U.S.C. ยงยง 12112, et seq. (ADA), which prohibit employers from making improper medical inquiries and from interfering, coercing or intimidating employees who exercise their rights under the ADA.

 Standard of Review

 Under Federal Rule of Civil Procedure 56(c), summary judgment is proper if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." The inquiry for the court is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, 477 U.S. 242, 251-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A party opposing summary judgment must marshal sufficient facts to show that there is a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 Defamation

 The defendants advance several legal and factual arguments in support of their motion for judgment on the defamation claim added to the second amended complaint. I need not address all of these arguments. Upon the following reasoning, I find that, as a matter of law, these statements were fair comment upon judicial proceedings. As such, they were conditionally privileged against defamation suits, and defendants did not abuse this privilege.

 The statements at issue appear at PP 53-56 of the Second Amended Complaint:

 
"53. On October 5, 1993, following the filing of this lawsuit, defendants, through their counsel Drinker Biddle & Reath, issued false press statements to members of the Philadelphia media for publication which stated that Attorney Doe:
 
. . . engaged in improper conduct with regard to the firm, and left when this was called to his attention.
 
54. In early December of 1993, defendants told the National Law Journal for publication that Attorney Doe had 'erratic attendance and lack of commitment.'
 
55. In mid-December of 1993, defendants told members of the AIDS health care advocacy group ACT-UP that Attorney Doe 'was erratic and inconsistent' and had 'recent performance problems.'

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