Filed: Dec. 21, 2009
Latest Update: Mar. 02, 2020
Summary: NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 09a0815n.06 Case No. 08-4389 FILED Dec 21, 2009 UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk FOR THE SIXTH CIRCUIT EDWARD PATRICK, ) ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE NORTHERN CLEVELAND SCENE PUBLISHING, LLC; ) DISTRICT OF OHIO THOMAS FRANCIS, ) ) Defendants-Appellees. ) ) _ ) BEFORE: BATCHELDER, Chief Judge; DAUGHTREY, Circuit Judge; and VAN TATENHOVE*, District Judge. ALICE M. BA
Summary: NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 09a0815n.06 Case No. 08-4389 FILED Dec 21, 2009 UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk FOR THE SIXTH CIRCUIT EDWARD PATRICK, ) ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE NORTHERN CLEVELAND SCENE PUBLISHING, LLC; ) DISTRICT OF OHIO THOMAS FRANCIS, ) ) Defendants-Appellees. ) ) _ ) BEFORE: BATCHELDER, Chief Judge; DAUGHTREY, Circuit Judge; and VAN TATENHOVE*, District Judge. ALICE M. BAT..
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0815n.06
Case No. 08-4389 FILED
Dec 21, 2009
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
EDWARD PATRICK, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE NORTHERN
CLEVELAND SCENE PUBLISHING, LLC; ) DISTRICT OF OHIO
THOMAS FRANCIS, )
)
Defendants-Appellees. )
)
_______________________________________ )
BEFORE: BATCHELDER, Chief Judge; DAUGHTREY, Circuit Judge; and
VAN TATENHOVE*, District Judge.
ALICE M. BATCHELDER, Circuit Judge. Edward Patrick, M.D., Ph.D., appeals the
order of the district court granting summary judgment to defendants Cleveland Scene and Thomas
Francis, and denying summary judgment to Patrick, in Patrick’s action brought under the court’s
diversity jurisdiction claiming that Cleveland Scene’s publication of Francis’s article Playing Doctor
on October 27, 2004, was defamatory. Because we find that Dr. Patrick failed to demonstrate the
threshold requirement of falsity regarding the main imputation or gist of Playing Doctor for his
defamation claim, we affirm the judgment of the district court.1
*
The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
1
Dr. Patrick’s complaint also raised claims of false-light invasion of privacy and invasion of privacy by
publication of private facts, on both of which the district court granted summary judgment to the defendants. Dr.
Patrick’s briefs on appeal neither mention nor argue the judgment as to those claims and any appeal as to those
I.
Dr. Patrick is an emergency medicine doctor who has taken a somewhat peripatetic path
throughout his training. He began his non-medical graduate education by earning a Ph.D. in
electrical engineering from Purdue University in 1966, and a medical degree from Indiana University
in 1974. The next part of Dr. Patrick’s medical training, which involves his time spent in Cincinnati,
Ohio, training at Jewish Hospital under the tutelage of Dr. Henry Heimlich, its director of surgery,2
is the subject of some dispute. To begin with, Dr. Patrick’s position and medical field during this
period are unclear. They are listed variously on his curricula vitae and job applications as:
“Rotating Internship”; “Resident I”; “Residency Surgery and Medicine”; “Medical
Residency/Medicine & Surgery (Rotating)”; “Resident I (designed for Emergency Medicine)”;
“Internship/Rotating Emergency Med, Surgery”; “PGI Surgery”; “Internship”; and “Residencies,
Fellowships, Preceptorships, Teaching Appointments/Emergency Medicine.”3 Dr. Patrick’s
designations of the location of the claimed positions are also inconsistent; the location is listed
sometimes solely as Jewish Hospital or University of Cincinnati, and sometimes as Jewish Hospital,
University of Cincinnati. Similarly, Dr. Patrick’s documents are not consistent in stating the years
during which he held the position. For example, his Lima Hospital application claims that it ran
claims is therefore waived.
2
Dr. Heimlich is the inventor of the famous “Heimlich Maneuver” for treatment of choking. The
maneuver’s genesis has been in some dispute, with Dr. Patrick publicly claiming partial credit for its invention. That
issue, however, is not germane to our disposition of Dr. Patrick’s claims.
3
Michael Bowen said in his deposition that he, Bowen, was also inconsistent in his use of titles (i.e.,
resident or intern) to describe this position, but this merely explains the possible genesis of some of Dr. Patrick’s
inconsistency regarding them. It does not affect the veracity of Playing Doctor’s gist, which is a holistic concept not
defined by the truth or falsity of its individual components. See Orr v. The Argus-Press Co., 586 F.2d 1108, 1112
(6th Cir. 1978). It also does not explain Dr. Patrick’s inconsistencies regarding the duration, location, or field of
medicine of his residency.
2
from 1974-1976; his Dearborn Hospital application shows it as a one-year position in 1975; and his
Scott Memorial hospital application expands it to a five-year position from 1975-1979.
Dr. Patrick also claims that he was engaged in other training activities during this same time
period, including — according to his American Medical Association profile — a post-graduate
medical training program in emergency medicine at “Deaconess Hsp/Cleveland” from “9/1976 -
8/1978," and a residency at the Heimlich Institute, “Specialty: EM” from 1976 to 1979 as
represented on a professional liability insurance application. Further, on several curricula vitae and
job applications, Dr. Patrick has variously characterized the 1976 to 1979 period as a “special
residency” or “specially arranged residency” “under directorship of Henry J. Heimlich” or
“supervised by Henry J. Heimlich” at various hospitals. Dr. Patrick’s training-related inconsistencies
on these documents are exacerbated by his also listing multiple birth dates for himself, ranging from
his actual birth date, October 7, 1937, to dates in 1942 and 1947. This carelessness — or worse —
regarding his birth date led to confusion in 2005 within NES Healthcare Group, for whom Dr.
Patrick was working at the time, as to “whether this was the same physician” — i.e., whether the
Edward Patrick whose Ohio medical license listed a birth date of 1937 was the same Edward Patrick
whose North Carolina medical license listed a birth date of 1947.
Not surprisingly, Dr. Patrick’s claimed stint at Jewish Hospital in Cincinnati has generated
a flurry of requests to that hospital, asking for verification of his position there. The record contains
eleven requests to the hospital, and one to Dr. Heimlich, asking for verification of the range of titles,
specialties, and durations of Dr. Patrick’s time and training there. Francis’s notes from his interview
of Michael Bowen, the Administrative Director of the Department of Surgery at Jewish Hospital,
reflect this:
3
Francis: You complained to the medical board about getting tons of verification
requests [regarding Dr. Patrick] didn’t you?
Bowen: Basically, they said they would look into it, and I believe they did. And I
don’t know who the particulars were, who was involved with it.
Francis: You were uncomfortable with this?
Bowen: Well, in my business if you see something time and again . . . It does make
you wonder. It didn’t take a rocket scientist to figure out something was amiss.
What was this guy up to? I just said, ‘This is something people need to keep an eye
on.’
R.116, dep. ex. WWW at 13 (Francis’s notes from Bowen interview). Bowen said during his
deposition that he was not surprised at the number of verification requests he was being shown by
Cleveland Scene’s counsel. But it is unclear from the transcript of the deposition whether he meant
that he was not surprised by the number of requests he was being shown at his deposition, given the
number that had been made, or that he was not surprised by the gross number of requests made to
him. Regardless, Bowen confirmed in his deposition that the multitude of verification requests he
had received put him on notice that at least some institutions were questioning Dr. Patrick’s
completion of an emergency medicine residency at Jewish Hospital.
Following his stint at Jewish Hospital, which by Patrick’s various accounts ran for anywhere
from one to five years ending as late as 1979, Dr. Patrick has practiced at numerous hospitals, both
as a staff member and as a doctor hired through staffing services (e.g., Interim Physicians and
Medical Doctors Associates). He has twice been removed from, or had his contract not renewed at,
hospitals due to, among other things, questions regarding the nature of his claimed residency in
emergency medicine at Jewish Hospital, deficient sterilization practices, and patient complaints.
II.
We review de novo a district court’s grant of summary judgment, using the same standard
under Rule 56(c) used by the district court. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir. 1999)
4
(en banc). We must view the evidence, all facts, and any inferences that may be drawn from the facts
in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as
to any material fact and that the movant is entitled to judgment as a matter of law.” FED . R. CIV . P.
56(c). The fact that both parties have filed summary judgment motions does not alter the standard
by which we review these motions. “Rather, the court must evaluate each party's motion on its own
merits, taking care in each instance to draw all reasonable inferences against the party whose motion
is under consideration.” Taft Broadcasting Co. v. United States,
929 F.2d 240, 248 (6th Cir.
1991)(quoting Mingus Constructors, Inc. v. United States,
812 F.2d 1387, 1391 (Fed. Cir. 1987)).
Because this case was filed in federal court in Ohio under diversity jurisdiction, we apply the
substantive law of Ohio. “Under the Erie doctrine, federal courts sitting in diversity apply the
substantive law of the forum state and federal procedural law.” Biegas v. Quickway Carriers, Inc.,
573 F.3d 365, 374 (citing Erie R. Co. v. Tompkins,
304 U.S. 64 (1938)). Ohio’s defamation law is
succinctly explained in Bruss v. Vindicator Printing Co.,
672 N.E.2d 238 (Ohio Ct. App. 1996):
In order to establish a claim of defamation, a plaintiff must show that (1) a false
statement of fact was made concerning him or her; (2) the statement was defamatory;
(3) the statement was written; (4) the statement was published; and (5) in publishing
the statement, the defendant acted with the requisite degree of fault . . . . To survive
a motion for summary judgment in a libel action, the plaintiff must make a sufficient
showing of the existence of every element essential to his or her case . . . .
[M]aterial falsity is an essential element of a libel claim. In Natl. Medic Serv. Corp.
v. E.W. Scripps Co. . . . the court, in construing falsity as an element in a libel action,
noted that Professor Prosser has stated: “It is sufficient [in defending against a
defamation action] to show that the imputation is substantially true, or as it is often
put, to justify the “gist,” the “sting,” or the substantial truth of the defamation.” The
Ohio Supreme Court has held that it is for the court to decide as a matter of law
whether certain statements alleged to be defamatory are actionable or not.
5
Bruss, at 240-241 (internal citations omitted) (emphasis added) (abrogated in part on other grounds
by Welling v. Weinfeld, 866 N.E.2d 1051 (Ohio 2007)).
The district court concluded that Dr. Patrick had the burden of establishing the falsity of the
Cleveland Scene article by clear and convincing evidence because the matters contained in the article
were matters of public concern, and, further, that because Dr. Patrick is a “limited public figure,” he
had the burden of demonstrating actual malice on the part of the defendants. We do not reach those
issues because we conclude that even if Dr. Patrick were simply a private citizen claiming
defamation by the media, he would be required to make the threshold showing of falsity, a showing
that the district court correctly determined he failed to make.
The district court held that the gist of Playing Doctor is “twofold: the reported character of
Dr. Patrick's 1975-1976 residency at Jewish Hospital raised questions about the degree of his
participation in and the thoroughness of his residency training; and, Dr. Patrick's representations of
his medical training were either exaggerated or inaccurate.” Patrick v. Cleveland Scene Pub. LLC,
582 F. Supp. 2d 939, 948 (N.D. Ohio 2008). Turning to the first of these two imputations, the court
held that Dr. Patrick failed to present evidence of the material falsity of the article’s claims that Dr.
Patrick’s various applications and curricula vitae contained significant inconsistencies regarding the
dates, claimed fields of medicine, and position titles (i.e., intern or resident) of his medical training,
and of his birth date. Our review of the record confirms that the record contains evidence of
numerous inconsistencies. Dr. Gordon Margolin, the Director of the Department of Internal
Medicine at Jewish Hospital, had refused to sign Dr. Patrick's residency certificate, saying that he
had misgivings about doing so and had asked Dr. Heimlich to sign it on behalf of the hospital. Dr.
Heimlich signed that certificate, and confirmed that Dr. Patrick did a one-year residency at Jewish
6
Hospital, but disclaimed knowledge of any residency training program done by Patrick beyond that,
thus casting doubt on Dr. Patrick’s claims of a residency at the “Heimlich Institute” and a “special
residency” supervised by Dr. Heimlich after the year at Jewish Hospital. And while Jewish Hospital
confirmed that Dr. Patrick spent the year there as a surgical resident from 1975-1976, it has
responded to numerous verification requests disavowing any knowledge of his completing an
emergency medicine residency or receiving any specialized emergency medicine training there.
Indeed, Francis’s interview notes and the depositions taken in this case show that both Dr. Margolin
and Mr. Bowen stated that Jewish Hospital had no residency program in emergency medicine at the
time Dr. Patrick was there, but offered residencies only in surgery and internal medicine. This
evidence is unrebutted in the record.
The other imputation of Playing Doctor, that “Dr. Patrick's representations of his medical
training were either exaggerated or inaccurate,” is similarly supported by the record evidence. The
record demonstrates many inconsistencies in Dr. Patrick’s representations of virtually all aspects of
his medical training, including: the title (i.e., intern or resident), medical field (i.e., emergency
medicine or surgery), location (i.e., Jewish Hospital, University of Cincinnati, or the Heimlich
Institute) and year and duration (i.e., various years and time periods between 1974 and 1979) of his
residency. The district court held that Dr. Margolin’s refusal to sign Dr. Patrick’s residency
certificate, Dr. Heimlich’s disclaiming any knowledge of Dr. Patrick’s training beyond the one year
at Jewish Hospital, and Jewish Hospital’s refusal to certify that — contrary to Dr. Patrick’s claims
— he had obtained any training in emergency medicine while there, together with inconsistencies
in Dr. Patrick’s own documents, demonstrate that the gist of Playing Doctor is substantially true.
And the record supports the district court’s conclusion that although Dr. Patrick made some attempt
7
to rebut this evidence, the rebuttal evidence is wholly insufficient to make the showing of falsity
necessary to survive summary judgment.
Because Dr. Patrick failed to make a showing of an essential element of his defamation claim
— i.e., that the gist of Playing Doctor is false — he cannot survive the defendants’ motion for
summary judgment. The district court therefore did not err in granting summary judgment to the
defendants and dismissing the complaint.
III.
For the foregoing reasons, we affirm the judgment of the district court.
8
