ARGUED: March 6, 2019
from the Order of the Superior Court at Nos. 2048 & 2096
EDA 2014 dated December 15, 2017 Vacating the Judgment
Entered July 23, 2014 in Montgomery County Court of Common
Pleas, Civil Division, at No. 1998-07291 and remanding
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY,
awarded Appellant, Elliot Menkowitz, M.D. ("Dr.
Menkowitz"), $1, 000, 000 in compensatory damages in his
defamation suit against Appellees, Peerless Publications,
Inc. ("Peerless") and Eric Engquist
("Engquist"). The Superior Court found that the
trial court erred in failing to enter judgment non
obstante verdicto ("JNOV") in Appellees'
favor and vacated the award of compensatory damages. We
granted allocatur to consider whether in so doing, the
Superior Court failed to exercise appropriate deference to
the fact-finder when reviewing a JNOV ruling, as explained in
this Court's ruling in Joseph v. Scranton Times,
L.P., 129 A.3d 404 (Pa. 2015) ("Joseph
III"). For the reasons set forth herein, we vacate
the order of the Superior Court and remand the case to that
court for further proceedings.
Menkowitz began his employment as an orthopedic surgeon at
Pottstown Memorial Medical Center ("PMMC") in the
early 1970s. At PMMC, Dr. Menkowitz was accused of verbally
abusing colleagues and staff and engaging in other
inappropriate behavior in front of patients. In April 1996,
Dr. Menkowitz was informed that due to his inappropriate
conduct, PMMC's Medical Executive Committee and the
Medical Committee of the Board had voted to suspend him or
allow him to take a voluntary leave to address his behavioral
problems. Dr. Menkowitz then disclosed that he had recently
been diagnosed with ADHD and suggested that he might be
protected under the Americans with Disabilities
Act. In light of this information, PMMC did
not suspend Dr. Menkowitz or require him to take a leave of
absence, but issued a written warning explaining that should
Dr. Menkowitz's misbehavior continue, PMMC would
summarily suspend all of his clinical privileges. Less than a
year later, on March 25, 1997, based upon continuing
behavioral issues, PMMC suspended Dr. Menkowitz for six
months. The suspension did not last for the full six months,
however, as PMMC lifted it approximately one month later when
Dr. Menkowitz filed suit against PMMC in federal court for
violation of the Americans with Disabilities Act and section
504 of the Rehabilitation Act.
April 18, 1997, the Mercury, a local Pottstown newspaper, ran
a front-page article about Dr. Menkowitz (hereinafter
"the Article"). The Mercury is published by
Peerless and the Article was written by Engquist. Under the
headline "PMMC Suspends Physician," the Article
reported that Dr. Menkowitz had been suspended from PMMC. Of
particular relevance to this appeal, the Article further
stated, that "[Dr. Menkowitz's] sudden absence from
the hospital has spawned rampant rumors of professional
misconduct regarding his treatment of an older female
patient." This statement (hereinafter, "the
Statement") forms the heart of this litigation. On April
26, 1997, the Mercury ran an editorial feature called
"Cheers and Jeers," which mentioned Dr.
Menkowitz's clash with PMMC and "jeered" the
manner in which the parties handled the incident, noting the
suspension, the federal civil action filed by Dr. Menkowitz,
and PMMC's subsequent decision to lift the
opening his newspaper on April 18, 1997, Dr. Menkowitz
discovered the Article. He quickly fell into a severe
depression. Dr. Menkowitz's treatment for this depression
included multiple medications that caused fasciculations
(tremors) in his arms and hands, impairing Dr.
Menkowitz's ability to perform surgery.
April 1998, Dr. Menkowitz filed the underlying action in
Montgomery County, raising claims of defamation, invasion of
privacy - false light, intentional interference with existing
and prospective relationships, and intentional infliction of
emotional distress related to these
publications. In particular, Dr. Menkowitz alleged
that the Statement, which referenced misconduct in connection
with an elderly female patient, gave rise to defamatory
implications or innuendo. Complaint, 4/14/1998, ¶ 19.
Dr. Menkowitz sought punitive damages, which required him to
prove that Appellees acted with malice in publishing the
Article. See New York Times Co. v. Sullivan, 376
U.S. 254 (1964). Dr. Menkowitz also sought compensatory
damages for his mental and emotional pain. To be entitled to
compensatory damages, Dr. Menkowitz did not have to prove
malice, but did have to prove that the alleged defamatory
innuendo was published negligently and that Dr. Menkowitz
suffered reputational injury therefrom. See Joseph,
129 A.3d at 428-29; American Future Sys., Inc. v. Better
Bus. Bureau of E. Pennsylvania, 923 A.2d 389, 400 (Pa.
did not commence until 2014. In an attempt to prove malice in
connection with his claim for punitive damages, Dr. Menkowitz
presented testimony from an expert witness to establish that
Appellees published the Article with a high awareness of its
probable falsity or serious doubts as to its truthfulness.
Appellees defended against this accusation with testimony
from Engquist regarding his sources for the Article and his
belief as to the truth of its representations. Appellees also
called an expert witness, who opined that publication of the
Article did not violate journalistic standards.
regard to compensatory damages, Dr. Menkowitz testified to
the depression he suffered following the publication of the
Article and the physical consequences of the medicines used
to alleviate the depression. He also testified that after
publication of the Article, additional hospitals terminated
his privileges and attorneys ceased using him as an expert
witness. Dr. Menkowitz's wife and son testified regarding
the effect that reading the Article had on him. Dr.
Menkowitz's treating psychologist, who testified as to
the depth and severity of Dr. Menkowitz's depression,
opined that it was triggered by the publication of the
Article. Dr. Menkowitz also presented the testimony of a
practicing attorney, Jeffrey A. Krawitz, Esquire
("Attorney Krawitz"), who indicated that he had
written a letter to opposing counsel who was planning to use
Dr. Menkowitz as an expert in a particular case. In this
letter, Attorney Krawitz informed opposing counsel that he
had learned that Dr. Menkowitz had been indicted on charges
relating to improper sexual conduct with patients.
jury returned a verdict in Dr. Menkowitz's favor,
awarding both compensatory and punitive damages. In
compensatory damages, the jury awarded $200, 000 for harm to
reputation and $800, 000 for past wage loss and future
earning capacity. Appellees filed post-trial motions,
seeking, among other relief, JNOV, and a remittitur or
vacation of the punitive damage award. After entertaining
argument, the trial court vacated the punitive damage award,
concluding that Dr. Menkowitz had failed to establish that
Appellees acted with malice. The trial court denied all other
relief, including Appellees' request for entry of JNOV.
parties appealed. Appellees raised eight issues of trial
court error, asserting claims that the trial court erred in
denying their post-trial request for JNOV; denying their
post-trial request for remittitur of the compensatory damage
award; failing to issue particular jury instructions; and
making certain evidentiary rulings. See Trial Court
Opinion, 9/19/2014, at 5-6. Dr. Menkowitz challenged only the
trial court's decision to vacate the punitive damage
award. Id. at 5. The trial court issued a lengthy
opinion pursuant to Rule 1925(a) of the Pennsylvania Rules of
Appellate Procedure. With regard to Appellees' challenge
to the denial of their motion for JNOV, the trial court
rejected Appellees' contention that Dr. Menkowitz had
failed to prove that the Article contained a material
falsity. The trial court noted that the Superior Court has
recognized the tort of defamation by implication, pursuant to
which the "literal accuracy of separate statements will
not render a communication 'true' where … the
implication of the communication as a whole was false."
Id. at 13 (quoting Dunlap v. Philadelphia
Newspapers, Inc., 448 A.2d 6, 15 (Pa. Super. 1982)).
Reviewing the testimony of Dr. Menkowitz, his son, his wife
and Attorney Krawitz, each of whom indicated that the
Statement's reference to "professional
misconduct" in connection with an "older female
patient" implied that Dr. Menkowitz was guilty of sexual
improprieties, the trial court concluded that the jury had
sufficient evidence to conclude that the Statement was
defamatory by implication, and thus it was not error to
submit the issue of defamatory meaning to the jury for
resolution. Id. at 14-16.
the trial court supported its decision to vacate the
jury's award of punitive damages, concluding that Dr.
Menkowitz had failed to produce sufficient evidence that
Appellees either knew that the Article was false or had a
"high degree of awareness of … probable
falsity." Id. at 12 (quoting Harte-Hanks
Commc'ns., Inc. v. Connaughton, 491 U.S. 657, 688
(1989)). Finally, based upon the testimony of Dr. Menkowitz,
his treating psychologist, and Attorney Krawitz, the trial
court determined that Dr. Menkowitz had presented sufficient
evidence to support the jury's award of compensatory
damages for harm to reputation, past wage loss and impairment
of future income, and that as a result JNOV had been properly
denied. Id. at 27-29.
appeal, the Superior Court acknowledged that in cases such as
this, with a private figure as plaintiff, a media defendant,
and an issue of public concern, the plaintiff must prove
falsity of the communication at issue, negligence in its
publication, and actual damage to the plaintiff's
reputation caused by the defamatory communication for an
award of compensatory damages. Menkowitz v. Peerless
Publ'ns, Inc., 176 A.3d 968, 978 (Pa. Super. 2017),
appeal granted in part, 190 A.3d 594 (Pa. 2018).
Concerning falsity, the court explained that although Dr.
Menkowitz conceded that the component of the Article that
reported on his suspension was true, his argument focused on
the Statement and alleged that it was capable of defamatory
implications or innuendo that were false. Id. at
982. The Superior Court recognized that the test to determine
whether a statement is capable of defaming a subject by
innuendo asks whether the statement can reasonably be
construed to imply the defamatory meaning alleged.
Id. (citing Sarkees v. Warner-West Corp.,
37 A.2d 544, 546 (Pa. 1944)). The alleged innuendo must be
adequately supported by the challenged language and cannot be
the product of a forced construction of the natural meaning
of the words. Id. The trial court, in the first
instance, must assess whether the objected-to language is
capable of defamatory implication; if the court determines
that the language does not support the alleged innuendo, the
case should not be sent to the jury. Id. When the
language is capable of both innocent and defamatory
interpretations, it is for a jury to decide if the recipient
understood the defamatory implications. Id. (quoting
Pelagatti v. Cohen, 536 A.2d 1337, 1345 (Pa. Super.
Superior Court found that Dr. Menkowitz adequately
established that the Statement is capable of defamation by
implication. In reaching this conclusion, the Superior Court
parsed the Statement's phrases and discussed their
plausible implications at length. See id. at 983-87.
For instance, it reasoned that a jury could find that the
phrase "professional misconduct" suggests an array
of misconduct to lay persons, including sexual impropriety.
Id. at 984. The Superior Court found the inclusion
of the patient's gender supportive of the innuendo of
sexual impropriety, as there would be no reason to identify
the patient as female "if nothing sexual is to be
inferred." Id. at 984. It further noted that
the sexual innuendo from "professional misconduct"
is plausible because the State Board of Medicine's
regulations provide that sexual behavior with a patient is
"unprofessional conduct." Id. The Court
also focused on the use of the phrase "sudden
absence," which, in its view, could reasonably suggest
that Dr. Menkowitz had to act with urgency and was fleeing
Superior Court then turned its attention to whether Dr.
Menkowitz met the threshold requirements to be entitled to
either punitive or compensatory damages. It first considered
the trial court's conclusion that Dr. Menkowitz failed to
establish malice in connection with the punitive damage
award. The Superior Court found that the evidence of record
supported the trial court's conclusion, citing to
Engquist's testimony and Appellees' expert's
opinion that there was no deviation from journalistic
standards so as to permit a finding of malice. Id.
to the propriety of the compensatory damage award, the
Superior Court considered whether Dr. Menkowitz established
that he suffered damage to his reputation attributable to the
Statement's defamatory innuendo, as opposed to his
suspension from PMMC. It concluded that Dr. Menkowitz had
presented no evidence to confirm that the alleged injury to
reputation was caused by the contents of the Article as
opposed to his suspension. The Superior Court explained that
[n]ot one witness testified that his or her view of the
physician changed as a result of this communication.
Furthermore, even [Dr. Menkowitz] conceded that the harshness
of suspension alone after twenty-five years would lead one to
believe that he had done something horrible. N.T.,
3/17/14, at 260. He recounted a conversation with an
elderly gentleman who recognized his name "because he
remembered I was the doctor who was 'kicked out of the
hospital.'" Id. at 262. [Dr.
Menkowitz's] expert also acknowledged that the public
disclosure of the suspension alone was damaging to the
physician's reputation. Mr. Eveslage conceded, "If I
am reading that a surgeon in a hospital in my town has been
banned from seeing patients at the hospital, that clearly is
going to be damaging to his reputation." N.T.,
3/18/14, at 440.
[Dr. Menkowitz's] testimony that other hospitals with
which he was associated read the article and stopped using
him is similarly deficient as it failed to distinguish
whether the alleged injury to reputation was caused by the
suspension or the article. Absent is the causal connection
required by Joseph between the alleged defamatory
innuendos and the harm to reputation, as distinguished from
the suspension itself. All of the foregoing proof tends to
confirm that any damage to [Dr. Menkowitz's] reputation
flowed from the suspension itself, not any implication of
sexual or physical abuse. Thus, even if we were to find a
basis for liability, the record contained insufficient proof
that the defamatory statement or innuendos, rather than the
fact of suspension, caused damage to reputation that would
have supported a compensatory damage award. [Dr.
Menkowitz's] failure to prove damages to his reputation
resulting from the defamatory innuendo is fatal to his claim.
Id. at 989. The Superior Court vacated the award of
compensatory damages and remanded for the entry of JNOV in
Appellee's favor without reaching the ...