The opinion of the court was delivered by: Dalzell, J.
Plaintiff Jack Gorman, a doctor of podiatric medicine, sued defendants Allen Jacobs, DPM, John Levin, DPM, and Richard Benjamin, DPM, for defamation and related state law torts based on the comments each of them wrote on the Podiatry Management Online's news forum, PM News, "The Voice of Podiatrists" ("PM News"). Dr. Gorman initially filed three separate but related suits. See Gorman v. Levin, C.A. No. 08-2098; Gorman v. Benjamin, C.A. No. 08-2099. We consolidated the three cases under C.A. No. 08-2097, originally filed only against Dr. Jacobs.
The defendants have moved to dismiss the claims against them under Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction and 12(b)(6) for failure to state a claim. Because we find that we do not have personal jurisdiction over the defendants, we do not reach the question of whether Dr. Gorman has stated a claim upon which relief can be granted.
On August 27, 2007, the online publication Phillyburbs.com published an article that included an interview with Dr. Gorman. A portion of that article (herein, "the article") was republished on August 30, 2007 in the Malpractice News section of PM News. We reproduce the article as it was republished on PM News:
PA Podiatrists Get Some From High Malpractice Premiums A leading Pennsylvania malpractice insurance carrier says it plans to lower its rates by an average of 11 percent next year. Podiatrist Jack Gorman, of the Bux-Mont Foot & Ankle Care Center in Warminster, said, "Everything helps, but we're really in a deep hole here." For years, Pennsylvania doctors have been fighting for relief from the high cost of medical malpractice insurance.
Gorman said competition between the insurance companies is less likely to drive down premiums since the carriers often insure some specialties but not others. "If you can get that insurance, it'll help," he said. "It's always nice to get some relief, but not everyone's getting it." He said it is still simply too expensive for some doctors to afford insurance and, with a growing population of elderly adults, the problem is likely here to stay. "It's not as bad as it was, but it's certainly not a good situation," said Gorman.
It is also one that could make it harder for some doctors to make sure their treatment decisions are based solely on what is best for the patient, he admitted. "Most (doctors) I talk to try to avoid doing surgery with a passion," said Gorman, who added many prefer to have other doctors perform the procedures.
"Sometimes, they over-order tests to make sure they cover everything."
Source: John Anastasi, PhillyBurbs.com [8/27/07]
PM News, http://www.podiatrym.com/search3.cfm?id=15434 (last visited Feb. 5, 2009); Levin Mem. at 3.
On August 31, 2007,*fn1 Dr. Benjamin posted a comment on PM News about the article:
I had to laugh at the comments by Dr. Gorman with respect to rising malpractice costs in PA. As a well known plaintiff's expert, he is one of the reasons for the rising cost in malpractice for podiatrists. His willingness to travel anywhere and say anything to support frivolous claims is proof enough that plaintiff's experts need to answer for their actions when the defense wins or a claim is thrown out.
PM News, http://www.podiatrym.com/search3.cfm?id=15452; Compl. against Benjamin Ex. A at 6-7 (C.A. No. 08-2099).
On September 1, 2007, Dr. Levin wrote this comment on
I have to echo Dr. Benjamin's comments regarding Dr. Gorman. I too was involved in a case in which he testified, under oath that an amputation of a lesser digit, with osetomyelitis/septic joint, confirmed by biopsy was below the standard of care. His affidavit was filled with inaccuracies and totally lacked any reasonable scientific rationale for his conclusions.
Even after being furnished with MRI reports, plain film x-rays and definitive bone biopsy results, and in spite of failure of six weeks of antibiotic therapy, Dr. Gorman chose to give false testimony regarding the true standard of care. I was dragged into this case which took over two years to resolve.
While I was finally dropped from the suit, at what cost to PICA? The case settled against one of our colleagues who did nothing wrong medically but just happened to have a post-operative complication from a hammertoe surgery that lead to osteomyelitis of the digit and adjacent metatarsal head. Once conservative therapy failed the definitive procedure was performed, (a digital amputation ...