from the Judgment Entered July 23, 2014 In the Court of
Common Pleas of Montgomery County Civil Division at No:
BEFORE: BENDER, P.J.E., BOWES, PANELLA, LAZARUS, OTT,
STABILE, DUBOW, MOULTON, RANSOM, JJ.
an action for defamation commenced by a private-figure
plaintiff against a media defendant involving an issue of
public interest. Elliot Menkowitz, M.D., appeals from the
July 23, 2014 judgment entered in his favor and against
Peerless Publications, Inc. and Eric Engquist (collectively
the "Newspaper"), and challenges the trial
court's grant of judgment non obstante verdict
(judgment n.o.v.) on a punitive damage award rendered by a
jury.The Newspaper cross-appeals contesting the
trial court's denial of judgment n.o.v. or a new trial on
the jury award of compensatory damages on the defamation
claim. After careful review, we vacate the judgment in favor
of Dr. Menkowitz in its entirety and remand for entry of
judgment in favor of Peerless Publications, Inc. and Eric
facts giving rise to the within action are as follows. Dr.
Menkowitz is a board-certified orthopedic surgeon. In 1971,
he was granted staff privileges at the Pottstown Memorial
Medical Center ("PMMC"). In April 1996, Mr. John
Buckley, the President and CEO of PMMC, told Dr. Menkowitz
that his behavior of yelling at staff and other doctors was
unacceptable. Mr. Buckley conveyed the Medical Executive
Committee's ("MEC") decision "to suspend
[Dr. Menkowitz's] privileges or allow him to take a
voluntary leave in an attempt to address his behavioral
concerns which had been ongoing for some time." N.T.
Jury Trial Vol. II, 3/17/14, at 115, see Ex. P-3;
N.T. Jury Trial Vol. III, 3/18/14, at 609, see Ex.
P-3. At that time, Dr. Menkowitz informed Mr. Buckley that he
had been diagnosed with attention deficit disorder
("ADD") in 1995, he was under the care of a
psychiatrist and psychologist, and that Ritalin had been
prescribed for the condition. Consequently, in lieu of
suspension, the MEC imposed certain conditions described in a
May 9, 1996 letter to Dr. Menkowitz:
This is to inform you that [PMMC] will not tolerate conduct
by you which violates the Bylaws and Policies
("Bylaws") of [PMMC]. Specifically, this includes,
but is not limited to, the following conduct: verbal
harassment of other physicians or employees of [PMMC]; use of
unprofessional language to other physicians or employees of
[PMMC]; inappropriate behavior in the presence of [PMMC]
patients; or physical intimidation of [PMMC] employees.
Jury Trial Vol. III, 3/18/14, at 609, see Ex. P-4.
The letter continued that, after Dr. Menkowitz's meeting
with Mr. Buckley and others, his disclosure of previously
unknown circumstances, and "his agreement to refrain
from providing services to patients in [PMMC] through and
including May 8, 1996, it was determined that no suspension
of your clinical privileges would take place at that
time." Id. The letter concluded:
Nevertheless, you should know that any future failure by you
to abide by the above restrictions, or any similar related
violation by you of the Bylaws of [PMMC] will be considered a
willful disregard of the Bylaws of [PMMC] and will result in
the summary suspension of your full clinical privileges.
than one year later, on March 18, 1997, Dr. Menkowitz's
privileges were suspended by PMMC for six months. The
suspension was confirmed in a formal letter dated March 25,
Since the issuance of the Caution letter, [PMMC]
Administration has informed you of your continuing
unacceptable conduct . . . This disruptive and unacceptable
conduct has been and continues to be a grave concern to
[PMMC] and staff because a significant portion of it occurs
in operating room suites, patient floors and the transitional
Consequently, on March 18, 1997, after hearing reports of
your conduct, the MEC voted unanimously to reaffirm its
decision of April 26, 1996 to implement section 6.5(b) of the
Bylaws and summarily suspend your medical staff privileges on
the basis that your conduct described in the Caution letter
continues and therefore constitutes a willful disregard of
the Bylaws or other policies of [PMMC] and also constitutes
conduct which affects or could affect, adversely the health
or welfare of a patient(s). On March 24, 1997, during a
meeting at which [PMMC] staff members appeared and described
instances of disruptive behavior by you in the operating room
suites and transitional care unit, the Board of Directors
reached the conclusion that your conduct poses an immediate
threat to the health and welfare of patients. Accordingly,
the Board of Directors voted at the March 24, 1997, meeting
to unanimously approve the MEC's decision to summarily
suspend your medical staff privileges. This summary
suspension shall be for a period of six (6) months commencing
midnight, March 25, 1997 ("Suspension Period").
N.T. Jury Trial Vol. II., 3/17/14, at 130, see Ex.
P.-16; N.T. Jury Trial Vol. III, 3/18/14, at 609,
see Ex. P-16.
April 18, 1997, the first of four articles written by Eric
Engquist, at the time a reporter at the Pottstown Mercury
Newspaper, about Dr. Menkowitz's suspension appeared in
the Pottstown Mercury Newspaper:
A prominent physician has been suspended by Pottstown
Memorial Medical Center after 25 years on the hospital staff.
Orthopedic surgeon Dr. Elliot Menkowitz, a partner at
Orthopedic Specialists of Pottstown, 1603 High St., was
banned in late March from seeing patients at the hospital.
The reported six-month suspension was handed down after a
"peer review" of Dr. Menkowitz by the
hospital's medical executive committee and its board of
Dr. Menkowitz's sudden absence from the hospital has
spawned rampant rumors of professional misconduct regarding
his treatment of an older female patient. Yet hospital
spokesperson Debra L. Bennis has declined numerous requests
from The Mercury for comment.
"It's an internal peer review issue, and we're
not at liberty to discuss the details, " said Bennis.
Asked to define the peer review process, she would only say
it concerned medical staff privileges.
Dr. Menkowitz has retained prominent Philadelphia attorney,
Alan Epstein, but as of Thursday had not legally challenged
his suspension. Epstein declined to comment Thursday . . .
. . . .
Colleagues of the doctor lamented his recent fate and said
they have never hesitated to refer patients to him.
"I just feel bad, " said Dr. Michael Pawlowski.
"I know him to be a nice person. I have sent him
patients before and he has taken care of them suitably."
"I use him for orthopedic cases, " said Dr. Keith
Harrison. "In fact, my son fractured his foot and Dr.
Menkowitz took care of him."
The two physicians, both former members of the hospital's
medical executive committee, said they were unaware of the
reason for Dr. Menkowitz's suspension. "You hear
rumors, but I'm not aware of any details, " said Dr.
Pawlowski. I know what you know: that he's not there to
4/14/98 at ¶ 10 (quoting The Pottstown Mercury Article,
April 18, 1997).
article listed Dr. Menkowitz's professional credentials,
civic involvement and contributions, and concluded:
Three unrelated lawsuits, including two for wrongful death,
have been filed against Dr. Menkowitz in Montgomery County in
the last five years. The outcome of those suits could not be
No formal action against Dr. Menkowitz's medical license
has been taken by the state Board of Medicine, according to
State Department spokesman Kevin Shivers.
Id. (quoting The Pottstown Mercury Article, April
Newspaper published a second article the next day, April 19,
1997, which reported the details of a civil rights suit filed
by Dr. Menkowitz that day against PMMC. The suit alleged that
his suspension violated the Americans With Disabilities Act
of 1990, 42 U.S.C. §12101 et seq. and other
federal and state statutes. The Newspaper summarized Dr.
Menkowitz's assertions that he had ADD, that PMMC was so
informed, that he was being treated for that condition, and
that he did not pose a threat to patients or hospital
employees. Complaint, 4/14/98 at ¶ 12. The Newspaper
reported the physician's allegation that PMMC
"engaged in a pattern of harassment and intimidation due
to his disability, including suspending his medical
privileges without good cause and a fair hearing[, ]"
and his contention that his suspension had nothing to do with
his treatment of patients. N.T. Jury Trial Vol. III, 3/18/14,
at 430, 609, see Ex. P-19.The Pottstown Mercury
Article, April 19, 1997.
follow-up news article on April 23, 1997, the Newspaper
reported that an accord had been reached between Dr.
Menkowitz and PMMC, and that Dr. Menkowitz's suspension
had been lifted. Although the terms were confidential, Dr.
Menkowitz's attorney was quoted as saying,
"Treatment of the patients by Dr. Menkowitz was never an
issue." N.T. Jury Trial Vol. IV, 3/19/14, at 99.
April 26, 1997, the Newspaper published the following in its
editorial column entitled "Cheers and Jeers, "
which purported to "[c]heer those working to make our
community a better place in which to live, " and
"[j]eer those whose deeds merit derision." The
Pottstown Mercury, April 26, 1997.
JEERS: To Dr. Elliott Menkowitz and Pottstown Memorial
Medical Center for the way they settled an incident that got
the doctor suspended. PMMC suspended Menkowitz, but then the
doctor sued in federal court for damages and to get the
suspension lifted. PMMC then backed down and lifted the
suspension . . . .
Complaint, 4/14/98 at ¶ 14.
Menkowitz filed the instant defamation lawsuit against the
Newspaper on April 14, 1998. He alleged that the statement
"professional misconduct in his treatment of an older,
female patient" contained in the April 18, 1997 news
article, as well as the April 26, 1997 editorial, were
defamatory per se and false and made with reckless
disregard for the truth. Dr. Menkowitz asserted that the
statement "professional misconduct in his treatment of
an older, female patient" portrayed him "as an
incompetent doctor who engaged in criminal acts toward his
patients, " Id. at ¶17, and "implied
that Dr. Menkowitz had engaged in unlawful or unprofessional
behavior." Id. at ¶ 19.
Menkowitz testified at trial that he fell into a deep
depression after reading the first article. N.T. Jury Trial,
Vol. II, 3/17/14, at 254. The depression medications he was
prescribed caused fasciculations and tremors in his arms and
hands and prevented him from performing surgery. He offered
expert testimony that his psychological condition impaired
his ability to perform surgery.
Newspaper took the position that the aforementioned statement
was true, not misleading, and published in good faith, with a
proper motive, and without malice. Further, in new matter,
the Newspaper pled that Dr. Menkowitz's injury to
reputation and emotional and psychological injuries
purportedly caused by the defamatory publication were the
same damages that Dr. Menkowitz claimed, in the federal
litigation against PMMC, were caused by his wrongful
various reasons not pertinent hereto, this case did not
proceed to a jury trial until March 2014, almost sixteen
years after the filing of the complaint. At the close of Dr.
Menkowtiz's case, the trial court denied the
Newspaper's motion for nonsuit, which was premised on the
absence of proof of falsity. A motion for directed verdict at
the close of the evidence also was denied. The jury found in
favor of Dr. Menkowitz on the defamation claim and awarded
both compensatory and punitive damages.
Newspaper filed post-trial motions seeking judgment n.o.v.
or, in the alternative, a new trial or a remittitur of both
the compensatory and punitive damages. Following argument,
the trial court vacated the punitive damage award based on
its finding that there was no evidence of malice, but upheld
the verdict and the award of compensatory damages. Dr.
Menkowitz appealed and he presents one issue for our review:
1. Where the jury's verdict on punitive damages was
supported by clear and convincing evidence that [the
Newspaper] acted with actual malice in publishing defamatory
statements about [Dr. Menkowitz] in reckless disregard of the
falsity of the defamatory statements published by them, and
the [trial] court below, in granting judgment notwithstanding
the verdict, viewed the evidence only in a light favoring to
[the Newspaper], did the [trial] court below commit
reversible error in vacating the jury's award of punitive
Menkowitz's Brief at 7.
Newspaper cross-appealed and asserted six errors:
1. Whether the trial court erred in failing to enter judgment
in [the Newspaper's] favor because [Dr. Menkowitz] failed
to meet his constitutional burden of proving [the
Newspaper's] news report on a matter of public concern
contained a material falsehood[?]
2. Whether the trial court committed reversible error by
failing to instruct the jury that [Dr. Menkowitz] was
obligated to prove the challenged news report was materially
false, and [the Newspaper] could not be found liable if the
report was substantially true[?]
3. Whether the trial court committed reversible error by not
admitting into evidence [the] minutes of a Board of
Directors' meeting that documented the basis for [Dr.
Menkowitz]'s suspension, because those minutes
established the truth of the challenged article[?]
4. Whether the trial court committed reversible error by
failing to instruct the jury on which statement was at issue,
or even identifying which of the three publications in the
record was in dispute[?]
5. Whether the trial court committed reversible error by
instructing the jury to draw an adverse inference from the
absence of certain evidence without any showing by [Dr.
Menkowitz] that [the Newspaper] had a duty to preserve the
evidence or that they did not preserve it in bad faith[?]
6. Whether the trial court erred by failing to set aside or
remit the compensatory damages award because [Dr. Menkowitz]
failed to present evidence establishing the alleged