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Menkowitz v. Peerless Publications, Inc.

Superior Court of Pennsylvania

December 15, 2017

ELLIOT MENKOWITZ, M.D., Appellant
v.
PEERLESS PUBLICATIONS, INC. AND ERIC ENGQUIST, ELLIOT MENKOWITZ, M.D.,
v.
PEERLESS PUBLICATIONS, INC. AND ERIC ENGQUIST, Appellants

         Appeal from the Judgment Entered July 23, 2014 In the Court of Common Pleas of Montgomery County Civil Division at No: 98-07291.

          BEFORE: BENDER, P.J.E., BOWES, PANELLA, LAZARUS, OTT, STABILE, DUBOW, MOULTON, RANSOM, JJ.

          OPINION

          STABILE, J.

         This is 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.[1]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 Engquist.

         The 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.

         N.T. 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.

Id.

         Less 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, 1997:

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 care unit.
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.

         On 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 directors.
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 take patients."

         Complaint, 4/14/98 at ¶ 10 (quoting The Pottstown Mercury Article, April 18, 1997).

         The 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 determined Thursday.
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 18, 1997).

         The 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.

         In a 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.

         On 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.

         Dr. Menkowitz filed the instant defamation lawsuit against the Newspaper on April 14, 1998.[2] 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.[3] 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.

         Dr. 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[4] 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.

         The 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 suspension.

         For 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.[5]

         The 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 damages?

         Dr. Menkowitz's Brief at 7.

         The Newspaper cross-appealed and asserted six errors: [6]

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 ...

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