LINDA R. READE, Chief Judge.
TABLE OF CONTENTS I. INTRODUCTION .............................................................. 1068II. PROCEDURAL BACKGROUND .................................................... 1068III. SUBJECT MATTER JURISDICTION ............................................. 1069IV. SUMMARY JUDGMENT STANDARD ................................................ 1069V. RELEVANT FACTUAL BACKGROUND ............................................... 1070A. Parties ............................................................... 10701. Dr. Reeder ....................................................... 10702. Dr. Carroll ...................................................... 1070B. The Letter ............................................................ 1071C. Circumstances Leading to the Letter ................................... 1072D. The Gregory Letter .................................................... 1074E. The Unsigned Letter ................................................... 1074F. The Email ............................................................. 1074G. The Board's Investigative Procedure ................................... 10751. Chapter 653 investigation procedure .............................. 10752. Kent Nebel ....................................................... 10763. The Board's charges .............................................. 1076VI. ANALYSIS ................................................................. 1077A. Legal Background: Defamation and False Light Claims ................... 10771. Defamation ....................................................... 1077a. Defamation per se ........................................... 1077b. Qualified privilege ......................................... 10772. False light invasion of privacy .................................. 1079B. Slander ............................................................... 10791. Merits ........................................................... 10792. A stag of the motion ............................................. 10803. Conclusion ....................................................... 1080C. Civil Conspiracy ...................................................... 1080D. Libel and False Light ................................................. 10811. Statements at issue ............................................. 1081a. The Unsigned Letter ......................................... 1081b. The Gregory Letter .......................................... 1082c. The Email ................................................... 1082d. Conclusion .................................................. 10842. Application ...................................................... 1084a. Immunity and qualified privilege ............................ 1084i. Chapter 653 immunity ................................... 1084ii. Qualified privilege ................................... 1085b. Malice ..................................................... 1087i. Parties' arguments ..................................... 1087ii. Analysis .............................................. 1088c. Conclusion .................................................. 1090VII. CONCLUSION .............................................................. 1090
The matter before the court is Defendant Thomas Carroll's "Motion for Summary Judgment" ("Motion") (docket no. 45).
On February 15, 2009, Plaintiff Ralph Reeder, M.D., ("Dr. Reeder") filed a three-count Complaint (docket no. 1). In the
On September 10, 2009, Dr. Reeder filed an Amended Complaint (docket no. 17), in which he reasserts his claims against Dr. Carroll for slander, libel and false light invasion of privacy. Dr. Reeder also added a claim against Dr. Carroll and the Iowa Board of Medicine ("Board") for civil conspiracy to commit false light invasion of privacy. On September 23, 2009, Dr. Carroll filed an Answer (docket no. 19) to the Amended Complaint.
On October 14, 2009, the Board filed a Motion to Dismiss (docket no. 20). The Board argued it was immune from suit in this court pursuant to the Eleventh Amendment to the United States Constitution. On October 28, 2009, Dr. Reeder filed a Resistance to the Board's Motion to Dismiss. On March 5, 2010, 2010 WL 797136, the court entered an Order (docket no. 40) granting the Board's Motion to Dismiss, leaving Dr. Carroll as the sole defendant.
On August 31, 2010, Dr. Carroll filed the Motion. On October 4, 2010, Dr. Reeder filed a Resistance (docket no. 48). On October 12, 2010, Dr. Carroll filed a Reply (docket no. 49). Dr. Reeder requests oral argument on the Motion. The court finds that oral argument is unnecessary. The Motion is fully submitted and ready for decision.
There is complete diversity of citizenship among the parties. The amount in controversy exceeds $75,000. The court is satisfied that it has diversity subject matter jurisdiction over the instant action. See 28 U.S.C. § 1332(a).
Summary judgment is appropriate "if 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). "An issue of fact is genuine when `a reasonable jury could return a verdict for the nonmoving party' on the question." Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir.2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A fact is material when it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. "[T]o establish the existence of a genuine issue of material fact, `a plaintiff may not merely point to unsupported self-serving allegations.'" Anda v. Wickes Furniture Co., 517 F.3d 526, 531 (8th Cir.2008) (quoting Bass v. SBC Commc'ns, Inc., 418 F.3d 870, 872 (8th Cir.2005)). Rather, the nonmoving party "`must substantiate [its] allegations with sufficient probative evidence that would permit a finding in [its] favor.'" Anda, 517 F.3d at 531 (quoting Bass, 418 F.3d at 873). The court must view the record in the light most favorable to the nonmoving party and afford it all reasonable inferences. Baer Gallery, Inc. v. Citizen's Scholarship Found. of Am., Inc., 450 F.3d 816, 820 (8th Cir.2006) (citing Drake ex rel. Cotton v. Koss, 445 F.3d 1038, 1042 (8th Cir.2006)).
Procedurally, the moving party bears "the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue."
Viewing the facts in the light most favorable to Dr. Reeder and affording him all reasonable inferences, the undisputed facts are as follows:
Dr. Reeder is a founding member and owner of the Center for Neurosciences, Orthopaedics and Spine, PC ("CNOS"). CNOS is a group comprised of neurologists, psychiatrists, plastic surgeons and rheumatologists, as well as nurse practitioners and physician's assistants. CNOS and Dr. Reeder are part owners of the Siouxland Surgery Center ("Surgery Center"). The Surgery Center, located in Dakota Dunes, South Dakota, provides services to patients in the Sioux City, Iowa area. "Dr. Reeder was one of the leaders in CNOS's decision to acquire and operate a specialty surgery center." Plaintiff's Statement of Material Facts ("Pl. Statement of Facts") (docket no. 48-1) at ¶ 4. Since 1999, Dr. Reeder has served as Chairman of the Surgery Center.
Dr. Carroll is employed by and is a 25% owner of Pathology Medical Services of Siouxland ("PMSS"), a professional corporation in Sioux City, Iowa. Dr. Carroll receives a 25% share of PMSS's profits. PMSS provides pathology services to several hospitals and facilities, including St. Luke's Regional Medical Center ("St. Luke's"). St. Luke's is PMSS's largest customer, accounting for approximately 40 to 50% of PMSS's business and profits. Since 1992, Dr. Carroll has been on the St. Luke's medical staff. From 2000 to 2002, Dr. Carroll served as the St. Luke's Medical Staff President. He has also served on the Medical Executive Committee and currently serves as an at-large member of the Medical Executive Committee. In addition to his medical practice at St. Luke's, Dr. Carroll is the Woodbury County, Iowa Medical Examiner.
Dr. Carroll believes that it is inappropriate and unethical for physicians to own a surgery center or hospital and that physicians should not make money off of such ownership. Dr. Carroll believes a physician's ownership in a surgery center or hospital may cloud a physician's judgment. He explained:
Plaintiff's Appendix ("Pl. App'x") (docket no. 48-3) at 14. Dr. Carroll believes it is improper for CNOS to hold an ownership interest in the Surgery Center. He has held this view since the Center's inception.
Dr. Carroll has shared his opinion of physician ownership with others, including his father and brother, both of whom are or were physicians. Dr. Carroll has also shared this opinion with a Dr. Herbek and Peter Thoreen, the CEO of St. Luke's Hospital System. With respect to his conversation with Peter Thoreen, Dr. Carroll explained:
Id. at 16.
In May of 2008, at the request of Peter Thoreen, Dr. Carroll traveled to Washington, DC to attend an American Hospital Association and Iowa Hospital Association meeting. Dr. Carroll testified that, during this trip, he met with the offices of three legislators and he "believe[s]" he shared his views on physicians' ownership of surgery centers "in one or two of the offices.. . ." Id. at 32.
On February 16, 2004, Dr. Carroll sent a letter (the "Letter") to the Board. The Letter stated:
Defendant's Appendix ("Def. App'x") (docket no. 45-3) at 4-5.
Dr. Carroll learned of Dorothy Lohry's situation from a Dr. Bainbridge, who contacted Dr. Carroll the day after Lohry's surgery. Dr. Carroll believed that Dr.
Dr. Carroll did not believe that Lohry's death was a "medical examiner case" because Lohry "died in the hospital due to a medical mistake, and in general one does not get involved too much with those cases as it doesn't necessarily fall in the purview of the medical examiner." Id. at 22. Because it was not a medical examiner case, Dr. Carroll did not make any findings regarding Lohry's cause of death. Dr. Carroll did not examine Lohry's medical records, did not conduct an independent investigation, did not talk to Dr. Reeder about the surgery and did not speak to any other physicians regarding the surgery. Dr. Carroll testified that, had he approached it as a medical examiner case, he would have conducted a "thorough investigation," including an autopsy, review of available medical records and possibly speak to Dr. Reeder and the "physician in charge." Id. at 23.
RaeAnn Isaacson is the director of compliance and risk management for St. Luke's. Isaacson testified that "it was determined that the ventilator equipment that the respiratory therapist was using to ventilate Mrs. Lohry during the procedure was incorrectly assembled and that did not allow her to be ventilated properly, and she suffered brain damage related to that." Id. at 67. With respect to a settlement reached between Lohry's estate and St. Luke's, Isaacson testified that she did "not recall any suggestion" that Dr. Reeder was "in any way the cause of the damages to the estate." Id. at 69. Isaacson testified that she does not recall Dr. Carroll ever inquiring about the circumstances of Lohry's death.
Dr. Carroll does not know anything about cervical spinal fusions utilizing fixation plates, other than knowing that they were performed in the cases of Lohry, Carr and Smith. Dr. Carroll "does not know if it is a risky surgery or if there are more conservative methods of treatment." Pl. Statement of Facts at ¶ 31. Because he is not a surgeon, Dr. Carroll is unable to determine whether things taking place in a surgery are improper, whether a surgery is necessary or whether there are more conservative methods of treatment.
In 2001, Dr. Carroll offered deposition testimony during a criminal investigation involving Carr's car accident. During this deposition, Dr. Carroll testified that Carr died from natural causes that were accelerated by the accident and stated that "[t]he immediate cause of death was the natural disease processes" but that if Carr "had not had an accident he would not have died of these natural disease processes." Pl. App'x at 75. Dr. Carroll also testified that his "impression was that [Carr] received [the] standard of care for someone with his illnesses." Id. at 78.
Dr. Carroll performed medical examiner autopsies on Carr and Smith. Dr. Carroll testified that, after speaking with Dr. Bainbridge about Lohry's case, it reminded him of Carr and Smith's cases "[b]ecause the two other patients had had similar surgical procedures, and the—Mr. Smith died as a consequence of the surgery, and Mr. Carr the surgery contributed to but was not the underlying cause of his death." Id. at 22.
The Letter regarding Dr. Reeder was the first time that Dr. Carroll submitted a report about another physician to the Board. When asked why he sent the Letter, Dr. Carroll explained:
Def. App'x at 22-23. Dr. Carroll wrote the Letter as both a physician and as the Woodbury County Medical Examiner. Dr. Carroll testified that, after sending the Letter to the Board in 2004, he had no contact with the Board until August 2008, when the Board contacted him regarding his potential testimony about the Letter.
In February of 2004, a letter bearing the name of Dr. James Gregory (the "Gregory Letter") was sent to Ed Knapp at the Board. The Gregory Letter stated:
Id. at 1.
When asked whether he believes Dr. Carroll wrote the Gregory Letter, Dr. Reeder testified "I don't know." Id. at 36. Nonetheless, he does not believe that Dr. Gregory sent the Gregory Letter. Dr. Carroll testified that he does not know Dr. Gregory and that, prior to seeing it at his deposition, he had never seen the Gregory Letter.
On or about April 13, 2005, an unsigned letter bearing the salutation "Dear Health Care Provider" (the "Unsigned Letter") was circulated among health care providers in the Sioux City area. Id. at 6. The Unsigned Letter states, in part, that Mercy Medical Center and CNOS had "teamed up to monopolize the medical market in the Siouxland area." Id. Although the Unsigned Letter references CNOS and its business practices, it does not refer to Dr. Reeder. Dr. Carroll testified that he did not draft the Unsigned Letter and had not seen it prior to his deposition in this case. Dr. Reeder admits he has no evidence that Dr. Carroll drafted or sent the Unsigned Letter to anyone.
On June 22, 2006, Dr. Carroll sent an email to Dr. Dale Andres. The email stated:
Id. at 3. Apparently, the link was to a Department of Justice ("DOJ") press release regarding a settlement between CNOS and DOJ. See Def. App'x at 37 (testimony of Dr. Reeder that the link was "to the article that the Department of Justice released regarding the settlement between CNOS and . . . the Department of Justice"); Resistance at 6 (noting that the Email referred to "federal charges against the Surgery Center"). Dr. Reeder acknowledges that the settlement between DOJ and CNOS was "public record" and that the DOJ press release contained "factual information." Def. App'x at 37.
The Board's complaint and investigation procedure is set forth in Iowa Administrative Code Chapter 653. The Board opens a "complaint file" upon receiving a complaint. Iowa Admin. Code r. 653-24.2(1). "A complaint file becomes an investigative file once an investigation is ordered." Id. Complaints are sent to the "complaint review committee," which includes "the medical advisor, executive director, director of legal affairs, and chief investigator." Id. at r. 653-24.2(2)(a). After reviewing a complaint, the complaint review committee either: (1) closes the complaint file administratively for any of three reasons;
The "screening committee" assesses the complaint review committee's recommendations and either: (1) recommends to the Board that the complaint file be closed without investigation; (2) requests an investigation by seeking a letter of explanation from the physician, medical records or both; (3) reviews the letter of explanation and/or medical records and recommends to the Board that the investigative file be closed, with or without issuing an informal letter; or (4) requests a full investigation for Board review. Id. at r. 653-24.2(3).
The Board then reviews the screening committee's recommendations and may either: (1) close the complaint file without investigation; (2) close the investigative file that has been partially or fully investigated, with or without issuing an informal letter; or (3) request further investigation. Id. at r. 653-24.2(4)(a).
After completing an investigation, the investigator must prepare a report for the Board's consideration. Id. at r. 653-24.2(5)(d). The Board must then "review the investigative record, discuss the case, and take one of the following actions:" (1) close the investigative file without action; (2) request further investigation, including peer review; (3) meet with the licensee
The Board "may assign any case to peer review for evaluation of the professional services rendered by the licensee and report to the [B]oard." Id. at r. 653-24.3. "The [B]oard or [B]oard staff shall determine which peer reviewers will review a case and what investigative information shall be referred to a peer reviewer." Id. at r. 653-24.3(2). Peer reviewers are directed to "review the information provided by the [B]oard and provide a written report to the [B]oard." Id. at r. 653-24.3(6). The report must include a statement of facts, the peer reviewers' opinion as to whether the licensee violated the standard of care and the rationale supporting the opinion.
If the Board "finds there is probable cause for taking disciplinary action against a licensee," it must "order that a contested case hearing be commenced by the filing of a statement of charges." Id. at r. 653-25.4(1).
Kent Nebel, the Board's legal director, testified that he is the person best suited to answer questions about the Board's investigative process. Nebel testified that Iowa physicians are subject to a mandatory reporting obligation. He recalled that the Board has filed charges against a physician for failure to report and that sanctions were taken against the nonreporting physician. Nebel testified that, if a complaint is made to the Board regarding competency or care-related issues, the complaint goes to the Board for review. Nebel testified that the source of a complaint is not involved in the Board's screening process and the Board does its own independent review of a complaint regardless of the source.
After reviewing a complaint, the Board decides whether peer review is appropriate. According to Nebel, the "vast majority of the Board's complaints are closed without action at the first time the Board reviews the case before any further either peer review or other action is done." Pl. App'x at 37-38. If the Board orders peer review, the Board reviews the peer reviewer's report, along with the entire file, "and then they decide what the appropriate next step is." Id. at 38. In some cases, the Board finds dismissal is appropriate after it has reviewed the peer review report and case file.
During his deposition, Nebel invoked confidentiality requirements and refused to discuss the details of the Board's investigation of Dr. Reeder. See Iowa Admin. Code r. 653-24.2(6) ("All investigative information obtained by the [B]oard or its employees or agents, including peer reviewers acting under the authority of the [B]oard, in the investigative process is privileged and confidential."). The identity of a complainant is kept confidential from the physician being investigated until formal charges are filed. Thus, Dr. Reeder did not learn of the Letter until February 2008.
On February 11, 2008, the Board filed a "Statement of Charges" against Dr. Reeder. Pl. App'x at 45. The Board stated that it had "found probable cause to file [the] Statement of Charges" charging Dr. Reeder with "professional incompetency"
Dr. Carroll asks the court to grant summary judgment in his favor with respect to all of Dr. Reeder's claims because the claims are: (1) barred by the immunity provisions of Iowa Administrative Code Chapter 653; (2) barred by a qualified privilege; and/or (3) barred by the statute of limitations. Dr. Carroll also contends that summary judgment is appropriate on Dr. Reeder's slander claim because Dr. Reeder "has no evidence that Dr. Carroll has made any oral statements defaming [Dr. Reeder]." Motion at ¶ 4. Finally, Dr. Carroll seeks summary judgment on Dr. Reeder's civil conspiracy claim "because there is absolutely no evidence of any agreement between Dr. Carroll and the Board to act in concert to place Dr. Reeder in a false light." Id. at ¶ 6.
The court briefly summarizes relevant principles of defamation and false light claims under Iowa law.
In Iowa, "[t]he law of defamation is comprised of the twin torts of libel and slander." Barreca v. Nickolas, 683 N.W.2d 111, 116 (Iowa 2004). "`The gist of an action for libel or slander is the publication of written or oral statements which tend to injure a person's reputation and good name.'" Id. (quoting Lara v. Thomas, 512 N.W.2d 777, 785 (Iowa 1994)). "Libel is generally a written publication of defamatory matter, and slander is generally an oral publication of such matter." Schlegel v. Ottumwa Courier, 585 N.W.2d 217, 221 (Iowa 1998). To establish a prima facie case of defamation under Iowa law, the plaintiff must show the defendant "(1) published a statement that was (2) defamatory (3) of and concerning the plaintiff." Taggart v. Drake Univ., 549 N.W.2d 796, 802 (Iowa 1996).
"A plaintiff alleging defamation ordinarily must prove that the statements at issue were made with malice, were false, and caused damage." Kerndt v. Rolling Hills Nat'l Bank, 558 N.W.2d 410, 418 (Iowa.1997). "However, some statements are defamatory per se; that is, they are of such a nature that the court can presume as a matter of law that their publication will have a defamatory effect, even without a showing by the plaintiff of malice, falsity, or damage." Id. "In such cases, malice is presumed." Id. "Defamatory statements affecting a person in his or her business, trade, profession or office" are defamatory per se. Id.
There is a limited privilege that can serve as an affirmative defense to a defamation claim. See Taggart, 549 N.W.2d at 803 ("Qualified privilege is an affirmative defense that must be pled and proven."). As the Iowa Supreme Court explains:
Vojak v. Jensen, 161 N.W.2d 100, 105 (Iowa 1968), abrogated on other grounds by Barreca, 683 N.W.2d at 117. "The burden is on the defendant to establish the existence of a qualified privilege." Lara, 512 N.W.2d at 785.
Previously, the Iowa Supreme Court characterized the qualified privilege doctrine as follows:
Barreca, 683 N.W.2d at 118 (quoting Winckel v. Von Maur, Inc., 652 N.W.2d 453, 458 (Iowa 2002)). However, in Barreca, the Iowa Supreme Court explained that it no longer approaches the issue in this way. See id. (quoting the four element test of Winckel and stating that, "[a]lthough the parties continue to frame the issue in this way, we do not"). Instead, the court's task "is simply to determine whether the occasion of [the defendant's] statement was qualifiedly privileged; if it was so privileged, it must then be determined whether that privilege was abused." Id. "Generally, the former question is for the judge; the latter for the jury." Id.
In Barreca, the Iowa Supreme Court relied on the Restatement (Second) of Torts ("Restatement") for guidance in determining what occasions give rise to a qualified privilege. See id. (citing Restatement §§ 595 & 598); see also Park v. Hill, 380 F.Supp.2d 1002, 1019-20 (N.D.Iowa 2005) ("It follows from the adoption of § 593 in Barreca that the Iowa Supreme Court would also look to these sections of the Restatement for the description of specific `privileged occasions.'"). The Restatement instructs courts to consider a list of factors to determine which occasions give rise to a qualified privilege. Such factors include: (1) protection of the publisher's interest; (2) protection of the interest of the recipient or third party; (3) common interest; (4) family relationships; and (5) communication to those who may act in the public interest. Restatement §§ 594-598A.
"A qualified privilege is lost when it is abused." Barreca, 683 N.W.2d at 117. "A qualified privilege is abused. . . when a defamatory statement is published with `actual malice.'" Id. In other words, "a publication loses its character as privileged and is actionable on proof of actual malice." Vinson v. Linn-Mar Cmty. Sch. Dist., 360 N.W.2d 108, 116 (Iowa 1984). If a defendant is protected by a qualified privilege, the plaintiff has the burden of proving that the defendant acted with actual malice. Kelly v. Iowa State Educ. Ass'n, 372 N.W.2d 288, 296 (Iowa Ct.App.1985). To show actual malice, and therefore "defeat a qualified privilege, a plaintiff must prove the defendant acted with knowing or reckless disregard of the truth of a statement." Barreca, 683 N.W.2d at 121. "`There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.'" Id. at 123 (quoting Caveman Adventures UN, Ltd. v. Press-Citizen Co., 633 N.W.2d 757, 762 (Iowa 2001)). "`[T]he actual malice standard require[s] a high degree of
A false light invasion of privacy claim is one of "four distinct wrongs" comprising the common law tort of invasion of privacy. See Anderson v. Low Rent Housing Comm'n of Muscatine, 304 N.W.2d 239, 248 (Iowa 1981). A false light claim "is predicated upon an untruthful publication which places a person before the public in a manner that would be highly offensive to a reasonable person." Id. The Iowa Supreme Court explained:
Kiesau v. Bantz, 686 N.W.2d 164, 179 (Iowa 2004).
"The essential element of untruthfulness differentiates `false light' from the other forms of invasion of privacy and many times affords an alternate remedy for defamation even though it is not necessary for a plaintiff to prove that he or she was defamed." Anderson, 304 N.W.2d at 248. A plaintiff "may recover under either defamation or false light but not both causes of action." Bradbery v. Dubuque County, No. 99-1881, 2001 WL 23144, at *4 (Iowa Ct.App. Jan. 10, 2001) (unpublished); see also Berry v. Nat'l Broad. Co., Inc., 480 F.2d 428, 431 (8th Cir.1973) ("[The plaintiff] may lay his action in two theories, but will be limited to only one recovery.").
Dr. Carroll seeks summary judgment on Dr. Reeder's slander claim because, "[q]uite simply, [Dr. Reeder] has no evidence that Dr. Carroll has made any oral statements defaming [Dr. Reeder]." Def. Br. at 20. Dr. Reeder contends that summary judgment on this claim is "premature." Resistance at 22. He notes that Dr. Carroll "admitted making oral statements regarding physician ownership in surgery centers to numerous persons," and explains that "[t]here are additional depositions that are required and Dr. Reeder is still developing the facts regarding [Dr. Carroll's] oral statements and the content and timing of those statements." Id.
The court rejects Dr. Reeder's implication that Dr. Carroll's statements about physician ownership in surgery centers, without more, constitute slander. Dr. Reeder is unable to provide any oral statement in which Dr. Carroll did anything more than state generally his opinion on the propriety of such ownership. "Opinion is absolutely protected under the First Amendment." Janklow v. Newsweek, Inc., 788 F.2d 1300, 1302 (8th Cir.1986). In distinguishing "fact" and "opinion," a court must consider: (1) the precision and specificity of the statement; (2) verifiability; (3) the literary context, such as tone and the use of cautionary language; and (4) the public context, such as the public or political arena in which a statement is made. Id. at 1302-03; Yates v. Iowa West Racing Ass'n, 721 N.W.2d 762, 770 (Iowa 2006) (noting the Iowa Supreme Court's reliance on Janklow for its adoption of the four-factor test). After considering these factors, the court concludes that Dr. Carroll's statements regarding the propriety or ethical implications of physicians' ownership in surgery centers are statements of opinion.
In addition to asking the court to deny the Motion with respect to his slander claim, Dr. Reeder states that, "at a minimum, the [M]otion should be stayed until such time as discovery is completed with regard to the allegations of slander." Resistance at 22. Dr. Reeder's position that discovery is ongoing is perplexing. See Order (docket no. 33) (granting Dr. Reeder's unopposed motion for an extension of the discovery deadline and stating "[t]he deadline for the completion of fact discovery is extended to
In any event, the court declines Dr. Reeder's invitation to stay the Motion with respect to his slander claim. A "district court does not abuse its discretion by denying further discovery `where the nonmoving party is not deprived of a fair chance to respond to the summary judgment motion.'" Ballard v. Heineman, 548 F.3d 1132, 1136 (8th Cir.2008) (quoting Nord v. Kelly, 520 F.3d 848, 852 (8th Cir. 2008)). Further, Dr. Reeder states in his Resistance only that he is "still developing the facts" regarding alleged "oral statements" and his "allegations of slander." Resistance at 22. In these circumstances, the court rejects Dr. Reeder's request for additional discovery regarding alleged oral statements. See Ballard, 548 F.3d at 1137 ("Unless a party files an affidavit under Federal Rule of Civil Procedure 56(f) showing what facts further discovery may uncover, `a district court generally does not abuse its discretion in granting summary judgment on the basis of the record before it.'" (quoting Nolan v. Thompson, 521 F.3d 983, 986 (8th Cir.2008))).
For the foregoing reasons, the court shall grant the Motion to the extent it seeks summary judgment on Dr. Reeder's slander claim.
Dr. Carroll submits that summary judgment in his favor is warranted on Dr. Reeder's civil conspiracy claim "because there is absolutely no evidence of any agreement between Dr. Carroll and the Board to act in concert to place Dr. Reeder in a false light." Motion at ¶ 6. Dr. Reeder counters that such an argument is "disingenuous in light of the [Board's] refusal to offer testimony or evidence on critical components of its investigation and based on the credibility issues that arise out of [Dr. Carroll's] bald denial of wrongdoing." Resistance at 22.
"Under Iowa law, `[a] conspiracy is a combination of two or more persons by concerted action to accomplish an unlawful purpose, or to accomplish by unlawful means some purpose not in itself unlawful.'" Wright v. Brooke Group Ltd., 652 N.W.2d 159, 171 (Iowa 2002) (quoting Basic Chems., Inc. v. Benson, 251 N.W.2d 220,
The court finds that Dr. Carroll is entitled to summary judgment on Dr. Reeder's civil conspiracy claim. Simply put, Dr. Reeder sets forth absolutely no evidence of any agreement between Dr. Carroll and the Board to commit a wrong against Dr. Reeder. Dr. Reeder protests that Dr. Carroll "should not be permitted to rely upon the [Board's] confidentiality provisions to support an argument that there are no facts regarding an agreement . . ., particularly before any motion has been brought to challenge the [Board's] attempted invocation of the confidentiality provisions in a deposition." Resistance at 24. To date, Dr. Reeder has not filed such a motion in this court or, to the court's knowledge, any other. The court shall address the Motion on the record before it. Dr. Carroll's denial of an agreement with the Board, and the corresponding question of his credibility on this issue, by itself, is insufficient to overcome a properly supported summary judgment motion. See Reasonover, 447 F.3d at 578 ("Evidence, not contentions, avoids summary judgment."). The court shall grant the motion to the extent it seeks summary judgment on Dr. Reeder's civil conspiracy claim.
First, the court considers which allegedly defamatory statements are at issue in Dr. Reeder's libel and false light claims. Then, the court shall consider whether a genuine issue of material fact exists with respect to these claims.
According to Dr. Carroll, Dr. Reeder purports to base his libel and false light claims on four items: the Letter, the Gregory Letter, the Unsigned Letter and the Email.
Dr. Carroll denies writing the Unsigned Letter and maintains that he had never seen it prior to his deposition in this case. He also contends that Dr. Reeder has no evidence that he wrote or published the Unsigned Letter. Dr. Reeder agrees, admitting that he "does not have any evidence that Dr. Carroll drafted or sent that letter to anyone." Def. Statement of Facts at ¶ 36; Dr. Reeder's Response ("Pl. Response") (docket no. 48-2) to Dr. Carroll's Statement of Facts at ¶ 36. In light of Dr. Reeder's concession, and his consequent failure to point to any evidence controverting Dr. Carroll's claim that he did not publish the Unsigned Letter, the court
Dr. Carroll denies writing the Gregory Letter and insists that he had not seen it prior to his deposition in this case. He also denies knowing Dr. Gregory. Dr. Reeder acknowledged in his deposition that he does not know if Dr. Carroll wrote the Gregory Letter.
Although Dr. Reeder does not specify the purported "facts" that suggest Dr. Carroll wrote the Gregory Letter, he presumably refers to the fact that both letters were sent to the Board's Ed Knapp in February of 2004. Both letters also refer to Lohry's case. However, the similarities end there. The Gregory Letter provides little detail of Lohry's case and generally questions the wisdom of "perform[ing] an elective cervical surgery on the patient despite the patient being on plavix, (a blood thinner that has a PDR warning about bleeding)." Def. App'x at 1. The Gregory Letter goes on to discuss a "Dr. Ross Bacon" and states that "[b]laming anyone other than the surgeon is a cover-up." Id. The Gregory Letter provides two possible dates of death, and states that the author "believe[s] the patient was Dorothy Lohry." Id. In the Letter, by contrast, Dr. Carroll makes no mention of Lohry taking Plavix, does not mention Dr. Ross Bacon, does not allege any sort of cover up and states affirmatively that Lohry was the patient at issue. Dr. Carroll's Letter also provides detailed dates and medical information about Lohry's case and explains how Dr. Carroll came to acquire such information.
The court finds that Dr. Reeder simply has failed to put forth sufficient evidence to support a finding that Dr. Carroll wrote or published the Gregory Letter. Dr. Carroll denies writing the Gregory Letter. He testified that he does not know Dr. Gregory and had not seen the Gregory Letter until he was deposed in the instant action. Aside from pointing to the timing and addressee of the Gregory Letter, Dr. Reeder simply speculates that Dr. Carroll wrote or sent the Gregory Letter. Even affording Dr. Reeder all reasonable inferences, the jury would be left to speculate as well. Accordingly, the court shall disregard the Gregory Letter in its analysis of the Motion.
Dr. Carroll admits he wrote the Email to Dr. Andres, but notes that, although it refers to the Surgery Center, and perhaps implicitly to CNOS, it makes no reference to Dr. Reeder. The only statement in the Email that arguably could be considered defamatory is the statement that "[t]his group has done so much damage to the reputation of the majority of the medical community in Sioux City that play by the rules." Def. App'x at 3. As Dr. Carroll points out, CNOS is not a party to this action. Thus, Dr. Carroll argues that
Dr. Reeder acknowledges that the Email does not refer to him. He also concedes, as he must, that CNOS is not a party to this case. However, he states that the Email "refers to an entity in which Dr. Reeder holds an ownership interest and serves as a board member." Def. Statement of Facts at ¶ 27; Pl. Response at ¶ 27.
As previously noted, to be actionable, a defamatory statement must be "of and concerning the plaintiff." Taggart, 549 N.W.2d at 802. "A defamatory communication is made concerning the person to whom its recipient correctly, or mistakenly but reasonably, understands that it was intended to refer." Restatement (Second) of Torts § 564. In other words, "[i]t is necessary that the recipient of the defamatory communication understand it as intended to refer to the plaintiff." Id. cmt. a.
In some circumstances, an individual member of a group may have a defamation claim based upon a defamatory statement concerning the group. Section 564A of the Restatement sets forth what is known as the "group defamation" doctrine, and states:
Id. at § 564A. In Ball v. Taylor, the Eighth Circuit Court of Appeals considered the argument that the Iowa Supreme Court has not adopted the group defamation doctrine. 416 F.3d 915, 917 (8th Cir. 2005) (per curiam). The Eighth Circuit Court of Appeals held that, regardless of whether the Iowa Supreme Court would adopt the doctrine, the Iowa Supreme Court:
Id. (quoting Wisner v. Nichols, 165 Iowa 15, 143 N.W. 1020, 1025 (1913)).
The court concludes that, as a matter of law, Dr. Carroll's statements in the Email could not reasonably be understood to be of and concerning Dr. Reeder. The parties offer no argument and point the court to no evidence regarding the size of CNOS or the circumstances of the Email's publication. However, the Email refers only to "[t]his group" and nothing suggests that "the circumstances of the publication reasonably give rise to the conclusion that there is particular reference to" Dr. Reeder. Restatement § 564A (cited with approval in Ball, 416 F.3d at 918); see also Wisner, 143 N.W. at 1025. Therefore, the court concludes that the recipient, Dr. Andres, could not have "correctly, or mistakenly but reasonably, underst[ood] that [the allegedly defamatory statement] was intended to refer" to Dr. Reeder. Restatement § 564.
Dr. Carroll is not liable to Dr. Reeder for any allegedly defamatory statement in the Email unless the statement was "of
The court concludes that, to the extent Dr. Reeder bases his libel and false light claims on all four documents discussed above, the only legitimate basis for such claims is the Letter itself. With this in mind, the court turns to consider Dr. Reeder's libel and false light claims.
Dr. Carroll argues that he is immune from civil liability for his allegedly defamatory statements to the Board. He also contends that the allegedly defamatory statements are protected by the qualified privilege. Because both of these claimed defenses ultimately turn on whether Dr. Carroll acted with malice, the court considers them together.
It is undisputed that Dr. Carroll is a "licensee" within the meaning of Chapter 653. Licensees are subject to a mandatory reporting requirement, which directs that "[a] report shall be filed with the [B]oard when a licensee has knowledge as defined in this rule that another person licensed by the [B]oard may have engaged in reportable conduct." Iowa Admin. Code r. 653-22.2(2). "Knowledge" is defined as "any information or evidence of reportable conduct acquired by personal observation, from a reliable or authoritative source, or under circumstances causing the licensee to believe that wrongful acts or omissions may have occurred." Id. at r. 653-22.2(1). "Reportable conduct" is defined as:
Id.
"Failure to report a wrongful act or omission in accordance with this rule within the required 30-day period shall constitute a basis for disciplinary action against the licensee who failed to report." Id. at r. 653-22.2(2)(e). "A licensee shall not be civilly liable as a result of filing a report with the [B]oard so long as such report is not made with malice." Id. at r. 653-22.2(2)(f).
Dr. Carroll argues that, as a licensee, he "was required to make a report to the Board if he had any information under circumstances causing him to believe that [Dr. Reeder] may have engaged in wrongful acts or omissions." Def. Br. at 19. Therefore, Dr. Carroll contends that he is immune from liability for his allegedly defamatory statements unless he acted with malice. Dr. Reeder challenges the underlying premise of Dr. Carroll's immunity claim. That is, Dr. Reeder asserts that Dr. Carroll did not have a mandatory reporting obligation in the first place because he did not have the requisite "knowledge" of reportable conduct.
As noted above, Chapter 653 defines "knowledge" as "any information of reportable conduct acquired by personal observation, from a reliable or authoritative source, or under circumstances causing the licensee to believe that wrongful acts or omissions may have occurred." Iowa Admin. Code r. 653-22.2(1). Dr. Reeder submits that Dr. Carroll lacked knowledge of reportable conduct because he did not personally observe Lohry's treatment and his conversation with Dr. Bainbridge did not constitute a "reliable or authoritative source" because it was "part of a casual conversation" and Dr. Bainbridge was not present for Lohry's surgery or follow-up care. Resistance at 18.
Dr. Reeder's argument overlooks the last clause of Chapter 653's definition of knowledge, which states that knowledge includes "any information or evidence of reportable conduct acquired . . . under circumstances causing the licensee to believe that wrongful acts or omissions may have occurred." Iowa Admin. Code r. 653-22.2(1) (emphasis added). Thus, even if Dr. Carroll did not personally observe Lohry and Dr. Bainbridge was not a reliable or authoritative source, Dr. Carroll still could acquire the requisite knowledge to trigger the reporting obligation.
Dr. Reeder's position also appears to impose a higher knowledge threshold than Chapter 653 requires. The reporting obligation arises if a licensee has knowledge that a wrongful act or omission "may have occurred." Id. Thus, Dr. Reeder's argument that Dr. Carroll's information "barely rose to the level of reasonable suspicion," Resistance at 19, misses the point. Dr. Carroll testified that, after hearing of Lohry's death from Dr. Bainbridge, the case reminded him of Smith and Carr, both of whom underwent similar surgeries by Dr. Reeder. Dr. Carroll personally observed Smith and Carr in his capacity as the medical examiner. The fact that he did not ultimately perform an autopsy on Lohry does not preclude him from acquiring the requisite knowledge to trigger Chapter 653's reporting requirement. The court finds, as a matter of law, that Dr. Carroll had knowledge of reportable conduct and was therefore subject to Chapter 653's mandatory reporting obligation. Accordingly, he is immune from civil liability for the Letter unless he published it with malice.
Dr. Carroll also contends that Dr. Reeder's claims are barred by qualified privilege.
As previously noted, it is appropriate to turn to the Restatement's recitation of privileged occasions, several of which are applicable here. The court finds, as a matter of law, that Dr. Carroll's allegedly defamatory statements were made: (1) in furtherance of the protection of Dr. Carroll's interests; (2) to protect the interests of the recipient or a third person; and/or (3) as a communication to those who may act in the public interest. See Barreca, 683 N.W.2d at 118 (stating that whether defamatory statements were published on a "privileged occasion" is "[g]enerally . . . for the judge"). Accordingly, Dr. Carroll's allegedly defamatory statements were qualifiedly privileged on any or all of these grounds.
A publication is privileged "if the circumstances induce a correct or reasonable belief that (a) there is information that affects a sufficiently important interest of the publisher, and (b) the recipient's knowledge of the defamatory matter will be of service in the lawful protection of the interest." Restatement § 594. Here, Chapter 653 imposes a mandatory reporting obligation on physicians who have knowledge of reportable conduct. A failure to report such conduct "constitute[s] a basis for disciplinary action against the licensee who failed to report." Iowa Admin. Code r. 653-22.2(2)(e). Nebel testified that the Board has filed charges against a physician for failure to report and sanctions were taken against the non-reporting physician. Under these circumstances, the court finds that the occasion of Dr. Carroll's allegedly defamatory statements to the Board were privileged. The statements were made to protect Dr. Carroll's interest in complying with his reporting obligations as a physician and he made the statements to the Board, as Chapter 653 requires. Thus, the statements were made to protect his interest in carrying out his reporting obligations under Iowa law.
Similarly, the court finds that Dr. Carroll's statements were made to protect the interest of the recipient or a third person. A publication is privileged if the circumstances induce a correct or reasonable belief that:
Restatement § 595. As explained above, Dr. Carroll was under a legal duty to file a report with the Board when he acquired knowledge that reportable conduct may have occurred. Here, the Board has a sufficiently important interest in ensuring that physicians licensed in the state of Iowa are able to practice medicine competently and safely. The citizens of Iowa obviously share in this interest. Accordingly, Dr. Carroll's statements to the
Finally, the court finds that Dr. Carroll's statements are privileged because they were made to one who may act in the public interest. A publication is privileged if the circumstances induce a correct or reasonable belief that "(a) there is information that affects a sufficiently important public interest, and (b) the public interest requires the communication of the defamatory matter to a public officer or a private citizen who is authorized or privileged to take action if the defamatory matter is true." Restatement § 598. For the reasons explained with regard to Restatement § 595, the Board and the public share a sufficiently important interest in ensuring the competency and safety of physicians practicing in the state of Iowa. By submitting the Letter to the Board, Dr. Carroll published the allegedly defamatory statements to "a public officer . . . who is authorized or privileged to take action if the defamatory matter is true." Id.; Iowa Admin. Code r. 653-1.2(17A) (charging the Board with "the investigation of violations or alleged violations of statutes and rules relating to the practice of medicine and surgery" and "the imposition of discipline upon licensees"). Accordingly, Dr. Carroll's statements are qualifiedly privileged on this ground as well.
In light of the court's finding that Dr. Carroll's statements in the Letter were made pursuant to his Chapter 653 reporting obligation and are qualifiedly privileged, the remaining question is whether actual malice negates these protections. See Iowa Admin.Code r. 653-22.2(2)(f) (providing civil immunity "so long as such report is not made with malice"); Barreca, 683 N.W.2d at 121 ("[T]o defeat a qualified privilege, a plaintiff must prove the defendant acted with knowing or reckless disregard of the truth of a statement"). Dr. Reeder bears the burden of proving Dr. Carroll acted with actual malice. See Kelly, 372 N.W.2d at 296.
Although Chapter 653 does not define "malice," both parties turn to the definition of actual malice applied in questions of qualified privilege; that is, a knowing or reckless disregard for the truth of a statement. The court shall do the same. Nothing suggests that the use of "malice" in Chapter 653 means anything different than it does in the qualified privilege context. Because Chapter 653 refers to "malice" in the context of filing a report with the Board, it is logical to give the term the same meaning it has in the realm of defamation and qualified privilege. Accordingly, the court's malice analysis is equally applicable to both issues. If Dr. Carroll acted with actual malice, his statements would lose the qualified privilege and he would not be entitled to immunity under Chapter 653.
In Barreca, the Iowa Supreme Court explained:
683 N.W.2d at 123 (quoting Caveman Adventures, 633 N.W.2d at 762).
Dr. Carroll contends that the Board's actions foreclose any possibility that he acted with malice:
Def. Br. at 19-20.
Dr. Reeder argues that a reasonable jury could find Dr. Carroll acted with actual malice because: (1) Dr. Carroll harbors animosity towards physician-owned surgery centers and their physician owners; (2) Dr. Carroll's profits are tried to St. Luke's success; (3) Dr. Carroll's Letter included statements that were "irrelevant and unrelated" to Lohry's case, Resistance at 15; (4) Dr. Carroll based his statements on "uncorroborated information" and did not adequately investigate his statements; and (5) Dr. Reeder was ultimately cleared of wrongdoing.
The court finds that, as a matter of law, Dr. Carroll's statements were not made in a knowing or reckless disregard of their truth. Dr. Carroll's own allegations in the Amended Complaint make clear that at least one peer reviewer found that Dr. Reeder's care was substandard. Dr. Reeder also concedes that, after an approximately four year investigation, the Board filed a statement of charges, finding there was probable cause to take disciplinary action against him. For these reasons, and those explained below, the court finds that a reasonable jury could not find that Dr. Carroll published the Letter with actual malice.
Dr. Reeder argues that Dr. Carroll "had a longstanding history of animosity towards Dr. Reeder and other physicians who held ownership interests in surgery centers."
The court also rejects Dr. Reeder's argument that an inference of malice may be drawn from Dr. Carroll's inclusion of so-called "irrelevant and unrelated statements," Resistance at 15, about Carr and Smith. Dr. Reeder argues that, because Dr. Carroll did not report these cases to the Board until long after he learned of them, "a reasonable inference can be drawn that [Dr. Carroll] did not believe that the situations involving Messrs. Carr and Smith warranted reporting." Id. However, Dr. Carroll explains that it was not until he learned of Lohry's case "that it occurred to [him] that the three deaths
Dr. Reeder also argues that Dr. Carroll's lack of surgical expertise and independent investigation support a reasonable inference that he acted with actual malice. "[A] failure to investigate, standing alone, ordinarily will not establish a knowing or reckless disregard for the truth . . . ." Barreca, 683 N.W.2d at 123. However, a failure to investigate coupled with other factors may establish actual malice. See id. (reversing summary judgment where the defendant published allegations to the public, including at a public meeting and to local media outlets, "with no basis other than an anonymous and uncorroborated tip" and the defendant's statements before the city council "arguably show[ed] he entertained serious doubts about the truth of the [anonymous] phone call"). Unlike Barreca, Dr. Carroll acquired personal knowledge of two cases—Smith and Carr—by performing their autopsies, and learned of Lohry's case from Dr. Bainbridge. Based on his knowledge of the three cases, Dr. Carroll wrote the Letter summarizing each case. He explained that he did so because he believed the Board had the resources to conduct an investigation, including peer review. Also unlike Barreca, there is no evidence that Dr. Carroll shared the information contained in the Letter with anyone other than the Board—the body charged with investigating such issues. While Dr. Carroll certainly could have endeavored to conduct a more thorough investigation, "`reckless conduct is not measured by whether a reasonably prudent man . . . would have investigated before publishing.'" Id. (quoting Caveman Adventures, 633 N.W.2d at 762).
Dr. Reeder's reliance on the Board's ultimate dismissal of charges is also misplaced. It is true that "unfounded allegations reasonably give rise to an inference of intent to do harm to the target of those allegations." King v. Sioux City Radiological Group, P.C., 985 F.Supp. 869, 881 (N.D.Iowa 1997) (holding, pre-Barreca, that a genuine issue of material fact existed as to the absence of actual malice where investigation revealed that allegations were unfounded). However, Dr. Reeder's argument ignores the fact that the Board conducted a nearly four year investigation, including peer review, before concluding that there was probable cause to charge him with professional incompetency and engaging in practice harmful or detrimental to the public. Although the Board ultimately dismissed the case because it was "unable to prove that Dr. Reeder's care in those cases fell below the standard of care," Pl. App'x at 57, a reasonable jury could not conclude that the statements in the Letter were unfounded.
Dr. Reeder's remaining basis for a finding of actual malice is Dr. Carroll's financial stake in St. Luke's success. While the court agrees that, in certain circumstances, a defendant's financial interest could lend weight to an inference of actual malice,
The court concludes, as a matter of law, that Dr. Carroll did not act with actual malice in publishing the statements in the Letter. Dr. Reeder puts forth no evidence that Dr. Carroll knew his statements were false. Nor is there "`sufficient evidence to permit the conclusion that [Dr. Carroll] in fact entertained serious doubts as to the truth of his publication.'" Barreca, 683 N.W.2d at 123 (quoting Caveman Adventures, 633 N.W.2d at 762). Because he did not publish the statements with actual malice, Dr. Carroll's statements in the Letter are qualifiedly privileged. For the same reason, he also is immune from civil liability for the statements pursuant to Iowa Administrative Code r. 653-22.2(2)(f). Accordingly, the court shall grant the Motion to the extent it seeks summary judgment with respect to Dr. Reeder's libel and false light claims.
In light of the foregoing, the Motion (docket no. 45) is