Justice REYES delivered the judgment of the court, with opinion.
¶ 1 Plaintiff, James Kapotas, M.D., appeals an order of the circuit court of Cook County dismissing his verified second amended complaint against defendants Better Government Association (BGA), Sun-Times Media (the Sun-Times), NBC Subsidiary (WMAQ-TV), LLC (WMAQ), Dick Johnson (Johnson), and Patrick Rehkamp (Rehkamp), which alleged defamation, false-light invasion of privacy, tortious interference with business expectancy, and public disclosure of private facts. For the following reasons, we affirm the judgment of the circuit court.
¶ 3 Plaintiff initially filed a verified complaint against defendants on August 30, 2012, in the circuit court of Cook County.
¶ 4 The verified second amended complaint alleged that plaintiff was employed as an orthopedic surgeon at John H. Stroger, Cook County Hospital (Stroger Hospital) from October 1999, through November 5, 2011, when he resigned as chief of orthopedic surgery. Prior to his resignation, plaintiff, in April 2011, requested and was granted a leave of absence from Stroger Hospital.
¶ 5 During the leave of absence, Stroger Hospital issued checks to plaintiff by direct deposit for untaken sick leave and vacation time "in an amount totaling $135,000." After payroll deductions, plaintiff received net payments of' $76,776.14. Stroger Hospital does not allow physicians to use sick time for nonmedical leaves of absence.
¶ 6 On November 4, 2011, Cathy Bodnar (Bodnar), the chief compliance and privacy officer of the Cook County Health & Hospitals System, sent an email to Dr. Richard Keen (Keen), identified in the complaint only as "another surgeon at Stroger Hospital." Bodnar directed Keen to request that plaintiff submit a letter of resignation and a check for $76,776.14 payable to the Cook County treasurer.
¶ 7 On November 5, 2011, upon receiving an email from Keen, plaintiff resigned from Stroger Hospital. The email stated in part that plaintiff: (1) had taken an unpaid leave of absence; (2) was incorrectly paid for sick time; (3) had not received back pay "effective end of January 2011" that he was due to receive; (4) had not received payment for vacation time he was due to receive; and (5) must be "zeroed out" before he could receive payment, similar to "house-closing-checks passing back and forth." The email also directed plaintiff to tender to Keen a check payable to the Cook County treasurer in the amount of $76,776.14. Keen indicated that Cook County would then issue a check to plaintiff representing the payments due him as described in the email.
¶ 8 On November 7, 2011, plaintiff issued a check payable to the Cook County treasurer in the amount of $76,776.14. He also issued a second check in the amount of $12,050.15 for retroactive insurance coverage. On December 14, 2011, Cook County issued a check payable to plaintiff for back pay due him in the amount of $53,774.09.
¶ 9 On November 11, 2011, after plaintiff resigned and before Cook County issued the check for back pay, Johnson authored and published an article through NBCChicago.com entitled, "Cook County Doc Gets Big Payout for No Work," accompanied by an online video segment. Plaintiff attached a copy of the article as an exhibit to the verified second amended complaint. The article states in relevant part:
¶ 10 Plaintiff alleged the article stated that he "received money for doing no work when, in fact, [he] was incorrectly paid during an approved leave of absence." The article did not explain that Cook County owed plaintiff in excess of $50,000 when the article was published. The article also states that plaintiff was offered an on-camera interview, but neither Johnson nor any representative from WMAQ interviewed plaintiff about the incident.
¶ 11 On November 16, 2011, the BGA and Rehkamp authored and published an article through the Sun-Times entitled, "Cook County doctor overpaid $80,000 while on leave." Plaintiff attached a copy of the article as an exhibit to the verified second amended complaint. The article states in relevant part:
¶ 12 The verified second amended complaint quotes the first paragraph of the article and the paragraph reporting that plaintiff resigned and repaid the estimated $80,000, then alleges "[t]he article does not state that Dr. Kapotas paid the money back so that the error could be corrected and Cook County could pay [him] the money it owed him." Rehkamp informed plaintiff that he would contact plaintiff prior to publishing the article, but he failed to contact plaintiff. Rehkamp did not wait for the results of the Cook County inspector general's investigation before publishing the story.
¶ 13 On May 7, 2012, Johnson authored and published a BGA and "Unit 5" report entitled, "Double Dipping Doctor Still on Inspector General's Radar." Plaintiff attached a copy of the article as an exhibit to the verified second amended complaint. The article states in relevant part:
¶ 14 Plaintiff alleged the article did not offer any explanation or context for the use of the term "double dipping" or the
¶ 15 Lastly, Johnson coauthored an article with Rehkamp, which was also published on May 7, 2012, entitled, "County Watchdog Slams Hospital for Doc's Double-Dipping Ways." The article, attached as an exhibit to the verified second amended complaint, states in relevant part:
Plaintiff alleged this article similarly lacked explanation for the term "double dipping" and was based on information protected from public disclosure.
¶ 16 The verified second amended complaint includes 25 counts, asserting 5 causes of action against each of the five defendants. Count I sounded in defamation per se, asserting that the three articles authored or coauthored by Johnson displayed a reckless disregard for the veracity of the statements contained therein, accused plaintiff of theft and embezzlement, of lacking integrity in his employment duties, and imputed a lack of ability or otherwise harmed plaintiff in the medical profession. Count II sounded in defamation per quod, alleging that plaintiff could no longer expect to form valid relationships with patients and potential employers following the publication of Johnson's
¶ 17 Counts VI through X of the verified second amended complaint alleged the same causes of action against WMAQ for publishing Johnson's articles through its website. Counts XI through XV alleged similar causes of action against Rehkamp regarding the two articles he authored or coauthored (although count XIV, asserting tortious interference with business expectancy, only refers to the article published on November 16, 2011). Counts XVI through XX alleged similar causes of action against the BGA for publishing all four articles on its highly-trafficked website. Counts XXI through XXV alleged similar causes of action against the Sun-Times regarding the November 16, 2011, article entitled, "Cook County doctor overpaid $80,000 while on leave," which was published on the highly trafficked Sun-Times website.
¶ 18 On June 11, 2013, the defendants filed motions to dismiss the verified second amended complaint pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2012)).
¶ 19 On July 2, 2013, plaintiff filed a response to the defendants' motions to dismiss the verified second amended complaint. Plaintiff contended that the defendants' arguments regarding the truth of the articles, first amendment privileges, and the innocent construction rule were all affirmative defenses that could not be raised in a motion to dismiss for failure to state a claim. He also argued the statements that "[a] former Stroger Hospital doctor was given checks amounting to six
¶ 20 In addition, plaintiff argued that if the innocent construction rule could be raised in a section 2-615 motion, it would not apply to this case because the defamatory construction was far more reasonable. He also argued he sufficiently pleaded actual malice by pleading the defendants acted with knowledge of the falsity of the articles and with reckless disregard of the facts. Regarding the claims of defamation per quod, plaintiff further argued he alleged special damages because: (1) he was forced to resign from Stroger Hospital; and (2) a recruiter stopped contacting him due to the publication of the articles.
¶ 21 Plaintiff additionally maintained he stated a cause of action for false-light invasion of privacy, because the court was required to view his allegations in the light most favorable to him, rather than defendants' interpretation of his allegations. Moreover, plaintiff argued his claim of tortious interference with business expectancies was based on valid relationships with: (1) Stroger Hospital; (2) his recruiter; (3) other potential employers; and (4) potential patients. He claimed that defendants' argument that there was no intent to interfere was absurd, asserting the only reason to publish the articles was to induce Stroger Hospital to terminate its relationship with him. Plaintiff also claimed the articles published on defendants' websites were followed by reader comments that established the articles defamed the plaintiff. Lastly, plaintiff argued that whether the articles involved a matter of public concern was an affirmative defense defendants could not raise in a section 2-615 motion to dismiss.
¶ 22 On August 2, 2013, defendant, the Sun-Times, filed a reply in support of its motion to dismiss the verified second amended complaint, arguing that substantial truth and innocent construction were issues Illinois appellate courts had decided as a matter of law when considering dismissals under section 2-615 of the Code. The Sun-Times also reiterated arguments presented in the defendants' motions to dismiss.
¶ 23 On September 6, 2013, the circuit court conducted a hearing on defendants' motions to dismiss the verified second amended complaint. On November 20, 2013, the circuit court entered a memorandum ruling and order granting defendants' motions to dismiss the verified second amended complaint with prejudice. The
¶ 24 On December 20, 2013, plaintiff filed a motion to reconsider the circuit court's dismissal of the verified second amended complaint. The circuit court on January 14, 2014, entered an order denying the motion to reconsider. On February 13, 2014, plaintiff filed a timely notice of appeal to this court.
¶ 26 On appeal, plaintiff argues the circuit court erred in denying his verified second amended complaint. "A trial court may grant a section 2-615 motion to dismiss a complaint that does not contain sufficient allegations of fact to state a cause of action." Shaker & Associates, Inc. v. Medical Technologies Group, Ltd., 315 Ill.App.3d 126, 133, 248 Ill.Dec. 190, 733 N.E.2d 865 (2000). A motion to dismiss under section 2-615 of the Code challenges the legal sufficiency of the complaint by alleging defects on its face. Clark v. Children's Memorial Hospital, 2011 IL 108656, ¶ 21, 353 Ill.Dec. 254, 955 N.E.2d 1065. "In ruling on a section 2-615 motion, we accept as true all well-pleaded facts in the complaint and all reasonable inferences therefrom." Id. "The critical inquiry is whether the allegations of the complaint, when construed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief may be granted." Id. We review de novo an order granting a section 2-615 motion to dismiss. Clark, 2011 IL 108656, ¶ 21, 353 Ill.Dec. 254, 955 N.E.2d 1065; Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill.2d 463, 473, 328 Ill.Dec. 892, 905 N.E.2d 781 (2009). De novo consideration means we perform the same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill.App.3d 564, 578, 350 Ill.Dec. 63, 948 N.E.2d 132 (2011).
¶ 27 When ruling on a section 2-615 motion, "only those facts apparent from the face of the pleadings, matters of which the court can take judicial notice, and judicial admissions in the record may be considered." Pooh-Bah Enterprises, Inc., 232 Ill.2d at 473, 328 Ill.Dec. 892, 905 N.E.2d 781. "[A] plaintiff may not rely on mere conclusions of law or fact unsupported by specific factual allegations." Id. Generally, "[a]n exhibit attached to a complaint becomes part of the pleading for every purpose, including the decision on a motion to dismiss. [Citations.] Where an exhibit contradicts the allegations in a complaint, the exhibit controls. [Citation.]." Gagnon v. Schickel, 2012 IL App (1st) 120645, ¶ 18, 368 Ill.Dec. 240, 983 N.E.2d 1044. We observe, however, that a defamation claim typically alleges that statements in articles attached as exhibits are false. Davis v. Keystone Printing Service, Inc., 111 Ill.App.3d 427, 433-34, 67 Ill.Dec. 214, 444 N.E.2d 253 (1982). Thus, a defamation claim cannot be dismissed
¶ 28 The verified second amended complaint includes 25 counts, asserting 5 causes of action against each of the five defendants, involving the four published articles. We analyze each cause of action in turn to determine whether the circuit court erred in dismissing the individual counts addressing specific published articles.
¶ 30 "The defamation action provides redress for false statements of fact that harm reputation." Brennan v. Kadner, 351 Ill.App.3d 963, 968, 286 Ill.Dec. 725, 814 N.E.2d 951 (2004). "To state a defamation claim, a plaintiff must present facts showing that the defendant made a false statement about the plaintiff, that the defendant made an unprivileged publication of that statement to a third party, and that this publication caused damages." Green v. Rogers, 234 Ill.2d 478, 491, 334 Ill.Dec. 624, 917 N.E.2d 450 (2009). "A defamatory statement is a statement that harms a person's reputation to the extent it lowers the person in the eyes of the community or deters the community from associating with her or him." Id.
¶ 31 "Statements may be considered defamatory per se or per quod." Kolegas v. Heftel Broadcasting Corp., 154 Ill.2d 1, 10, 180 Ill.Dec. 307, 607 N.E.2d 201 (1992). "Statements are considered defamatory per se when the defamatory character of the statement is apparent on its face; that is, when the words used are so obviously and materially harmful to the plaintiff that injury to his reputation may be presumed." Id. "Statements are considered defamatory per quod if the defamatory character of the statement is not apparent on its face, and extrinsic facts are required to explain its defamatory meaning." Id. Here, plaintiff asserts the articles published by the defendants were defamatory both per se and per quod. Prior to considering the specific theories of defamation, however, we address the defendants' argument that their articles did not contain false statements.
¶ 33 The circuit court dismissed the defamation counts of the verified second amended complaint in part because plaintiff failed to establish any false statements in the articles at issue. Plaintiff argues that truth is an affirmative defense to a defamation claim and the circuit court erred in considering an affirmative defense in dismissing the claim under section 2-615 of the Code. "An affirmative defense is properly asserted in a section 2-615 motion only if the defense is apparent from the face of the complaint." R & B Kapital Development, LLC v. North Shore Community Bank & Trust Co., 358 Ill.App.3d 912, 921, 295 Ill.Dec. 95, 832 N.E.2d 246 (2005). "Raising such defenses in a section 2-615 motion would completely contradict the purpose of bringing such a motion, where the movant is expressly challenging the sufficiency of the complaint itself." Becker v. Zellner, 292 Ill.App.3d 116, 122, 226 Ill.Dec. 175, 684 N.E.2d 1378 (1997).
¶ 34 This court has recognized "substantial truth" as an affirmative defense to a defamation action. See, e.g., Cianci v. Pettibone Corp., 298 Ill.App.3d 419, 424, 232 Ill.Dec. 583, 698 N.E.2d 674 (1998). Our supreme court, however, has repeatedly held falsity is an element of the defamation plaintiff's cause of action. E.g., Voyles v. Sandia Mortgage Corp., 196 Ill.2d 288, 300, 256 Ill.Dec. 289, 751 N.E.2d 1126
¶ 36 The verified second amended complaint attached the articles published by the defendants as exhibits, and the counts alleging defamation do not quote or otherwise identify specific statements in the articles as false. Plaintiff argues that the headline, "Cook County Doc Gets Big Payout For No Work," was false because he was otherwise entitled to the payments at some point in time, albeit not during his leave of absence. Initially, we observe that the headline, by itself, is not defamatory. Plaintiff must present facts establishing that the defendant made a false statement about him; the headline does not name him specifically. See Green, 234 Ill.2d at 491, 334 Ill.Dec. 624, 917 N.E.2d 450; see also Bryson v. News America Publications, Inc., 174 Ill.2d 77, 96-97, 220 Ill.Dec. 195, 672 N.E.2d 1207 (1996) (where a libelous article does not name the plaintiff, it should appear on the face of the complaint that persons other than the plaintiff and the defendant must have reasonably understood that the article was about the plaintiff). Thus, in order to determine whether the headline may be defamatory in this case, the text of the article must be considered.
¶ 37 In this instance, the text of the article reported, "Between April and August of this year the BGA and NBC Chicago have learned Dr. Kapotas was being paid tens of thousands of dollars by the hospital — [sic] and doing no work" for the hospital. In his complaint, plaintiff admitted he was paid tens of thousands of dollars by Stroger Hospital while he was not working there. The article also reported, "A pay code indicates he was compensated for unused sick days." In his complaint, plaintiff admitted Stroger's payments represented unused sick leave and vacation time. The article further reported that "under hospital policy, no employee is allowed to be paid for either unused sick time or a personal leave of absence." In his complaint, plaintiff admitted Stroger Hospital does not allow physicians to use sick time for nonmedical leaves of absence. We accept the allegations in the verified second amended complaint as true. Clark, 2011 IL 108656, ¶ 21, 353 Ill.Dec. 254, 955 N.E.2d 1065.
¶ 38 Initially, we observe that sick and vacation pay are generally forms of compensation for periods of time when an employee is not working. Nevertheless, even assuming that plaintiff was entitled to compensation for some or all of his unused sick or vacation time at some time,
¶ 40 In the response to the motions to dismiss, plaintiff argued the headline,
¶ 42 Plaintiff also argued the articles referring to him as "double dipping" were false because they misstated the nature of the overpayments. The verified second amended complaint alleged these articles did not offer any explanation or context for the claim that plaintiff was double dipping. On appeal, plaintiff observes the term "double dipping" has been defined as "obtain[ing] an income from two different sources, typically in an illicit way." Oxford Dictionary of English 525 (3d ed. 2010). "Illicit" has been defined as "forbidden by law, rules, or custom." Oxford Dictionary of English 872 (3d ed. 2010). Similar to the first two articles, the headlines using the term did not identify plaintiff and thus we must also examine the text of the accompanying articles. Supra ¶ 36.
¶ 43 In this case, the articles using the term "double dipping" reported that plaintiff was in private practice in Indiana during the time period of the erroneous payments. Thus, the articles that referred to "double dipping" explained the use of the term. The text controls over the contrary allegation in the verified second amended complaint. Gagnon, 2012 IL App (1st) 120645, ¶ 18, 368 Ill.Dec. 240, 983 N.E.2d 1044. Although the articles using the term were published after the improper payments ceased, the use of the present-tense term "double dipping," when read in context, did not indicate the payments were continuing. Indeed, plaintiff's repayment of the funds was reported in the articles. Given the allegations of the verified second amended complaint, plaintiff cannot establish that the term "double dipping" was false in this instance.
¶ 45 Plaintiff further argues that on May 7, 2012, he was not the subject of any pending investigation by the Inspector General. The articles published by the defendant, however, did not assert that plaintiff was the subject of the investigation. One article stated that plaintiff was "still on the Inspector General's radar," but that article went on to report that the Inspector General was urging disciplinary action against three hospital employees (none of which was plaintiff) as a result the improper payments to plaintiff. Thus, the colloquial use of the term "radar" was not false when read in context of the article.
¶ 47 Lastly, plaintiff complained that on May 7, 2012, his payroll information was not readily available to the public. This allegation does not establish that the defendants' articles were false.
¶ 48 In sum, the circuit court did not err in ruling that the verified second amended complaint failed to sufficiently allege false statements in the articles published by the defendants. The lack of false statements
¶ 50 Illinois recognizes five categories of statements that are considered defamatory per se: "(1) words that impute a person has committed a crime; (2) words that impute a person is infected with a loathsome communicable disease; (3) words that impute a person is unable to perform or lacks integrity in performing her or his employment duties; (4) words that impute a person lacks ability or otherwise prejudices that person in her or his profession; and (5) words that impute a person has engaged in adultery or fornication." Green, 234 Ill.2d at 491-92, 334 Ill.Dec. 624, 917 N.E.2d 450. "Although a complaint for defamation per se need not set forth the allegedly defamatory words in haec verba, the substance of the statement must be pled with sufficient precision and particularity so as to permit initial judicial review of its defamatory content." Id. at 492, 334 Ill.Dec. 624, 917 N.E.2d 450. "The preliminary construction of an allegedly defamatory statement is a question of law, and our review therefore is de novo." Id.
¶ 51 Plaintiff argues the articles published by defendants accused him of theft and embezzlement, of lacking integrity in his employment duties, and imputed a lack of ability or otherwise harmed him in the medical profession. To constitute defamation per se based on imputing the commission of a crime, the crime must be an indictable one, involving moral turpitude and punishable by death or imprisonment, not by a fine. Jacobson v. Gimbel, 2013 IL App (2d) 120478, ¶ 27, 369 Ill.Dec. 626, 986 N.E.2d 1262. Although the words do not need to meet the technical requirements necessary for an indictment, they must fairly impute the commission of a crime. Id. A statement that an individual has been interviewed by police does not impute the commission of a crime by that person. Hurst v. Capital Cities Media, Inc., 323 Ill.App.3d 812, 817, 257 Ill.Dec. 771, 754 N.E.2d 429 (2001). A statement that an individual has been arrested or charged with an offense is not evidence of guilt in that offense and thus does not impute the commission of a crime. See Adams v. Sussman & Hertzberg, Ltd., 292 Ill.App.3d 30, 47, 225 Ill.Dec. 944, 684 N.E.2d 935 (1997) (and cases cited therein). Similarly, the use of a term which has a broader, noncriminal meaning does not impute the commission of a crime. See id. (citing Owen v. Carr, 134 Ill.App.3d 855, 88 Ill.Dec. 343, 478 N.E.2d 658 (1985), aff'd, 113 Ill.2d 273, 100 Ill.Dec. 783, 497 N.E.2d 1145 (1986)).
¶ 52 In this case, plaintiff asserts that the articles published by the defendants impute the crimes of theft and embezzlement. The articles, however, read in their entirety, do not expressly accuse plaintiff of either offense, or claim that he has been arrested with regard to the underlying incident. The article entitled "Cook County Doc Gets Big Payout For No Work" reported that plaintiff "was given checks amounting to six figures with no work to show for it," but does not claim this occurred as the result of criminal acts by plaintiff.
¶ 53 The Sun-Times article entitled "Cook County doctor overpaid $80,000 while on leave" included the statement that "the county's inspector general is continuing to investigate." Assuming for the sake of argument that this statement, outside
¶ 54 Plaintiff objects to the headlines "Double Dipping Doctor Still on Inspector General's Radar" and "County Watchdog Slams Hospital for Doc's Double-Dipping Ways." As previously noted, the term "double dipping" has been defined as "obtain[ing] an income from two different sources, typically in an illicit way." Oxford Dictionary of English 525 (3d ed. 2010). "Illicit" has been defined as "forbidden by law, rules, or custom." Oxford Dictionary of English 872 (3d ed. 2010). Another common definition of a "double-dipper" is "a person who collects both a government pension and a government salary," without any reference to the legality of the practice. Merriam-Webster's Collegiate Dictionary at 374 (11th ed. 2006). Accordingly, the term has a broader, non-criminal meaning that does not impute the commission of an indictable crime. See Jacobson, 2013 IL App (2d) 120478, ¶ 27, 369 Ill.Dec. 626, 986 N.E.2d 1262; Adams, 292 Ill.App.3d at 47, 225 Ill.Dec. 944, 684 N.E.2d 935. Indeed, the definition plaintiff offers does not necessarily imply criminal behavior. Plaintiff also maintains the phrase "Still on Inspector General's Radar" implies that he is personally under investigation, but this argument fails for the reasons already stated. See supra ¶ 53 (citing Adams, 292 Ill.App.3d at 47, 225 Ill.Dec. 944, 684 N.E.2d 935).
¶ 55 Plaintiff further argues the articles impute that he lacks integrity in performing his employment duties, or lacks the ability to fulfill his professional responsibilities. As previously noted, statements that prejudice a party, or impute lack of ability, in his or her trade, profession or business are considered defamatory per se. Kolegas, 154 Ill.2d at 10, 180 Ill.Dec. 307, 607 N.E.2d 201; see Vicars-Duncan v. Tactikos, 2014 IL App (4th) 131064, ¶ 33, 384 Ill.Dec. 542, 16 N.E.3d 935. For example, in Vicars-Duncan, the appellate court ruled that claiming an assistant State's Attorney bullied and told untruths to an individual charged with a lane-change violation did not obviously accuse the prosecutor of misconduct or of lacking integrity in performing her job. Id. Similarly, in Powers v. Delnor Hospital, 148 Ill.App.3d 844, 102 Ill.Dec. 109, 499 N.E.2d 666 (1986), this court ruled that comments directed towards a plaintiff's personality conflicts with his or her coworkers did not address the plaintiff's knowledge and ability to care for patients as a nurse, and thus would not be defamatory per se. Id. at 847, 102 Ill.Dec. 109, 499 N.E.2d 666 (discussing Heying v. Simonaitis, 126 Ill.App.3d 157, 81 Ill.Dec. 335, 466 N.E.2d 1137 (1984)).
¶ 56 In this case, plaintiff does not identify any statement in any of the articles that impute that plaintiff lacks ability as medical professional or violated any rule of medical ethics. Thus, plaintiff has failed to establish any statements in the articles which are defamatory per se. Vicars-Duncan, 2014 IL App (4th) 131064, ¶ 33, 384 Ill.Dec. 542, 16 N.E.3d 935.
¶ 58 Furthermore, it is "well settled that, even if an alleged statement falls into one of the categories of words that are defamatory per se, it will not be actionable per se if it is reasonably capable of an innocent construction." Green, 234 Ill.2d at 499, 334 Ill.Dec. 624, 917 N.E.2d 450. "Under the `innocent-construction rule,' a court must consider the statement in context and give the words of the statement, and any implications arising from them, their natural and obvious meaning."
¶ 60 In this case, even assuming for the sake of argument that the statements identified by plaintiff were defamatory per se, each of the articles when read in their entirety may reasonably be innocently interpreted. The article headlined "Cook County Doc Gets Big Payout For No Work": (1) noted the incident was under investigation to determine whether the payments were accidental or intentional; (2) quoted plaintiff stating that the leave of absence was the idea of Stroger Hospital, explaining he had not regularly examined his checking account, and declaring there was no fraudulent intent; (3) quoted a Stroger Hospital spokesperson characterizing the incident as a "big clerical error"; and (4) reported plaintiff had repaid the funds at issue. Consequently, the article could be reasonably construed as reporting the incident consistently with the facts as alleged by plaintiff in his verified second amended complaint.
¶ 62 Similarly, the article headlined "Cook County doctor overpaid $80,000 while on leave," read in its entirety, reported: (1) plaintiff had not been accused of wrongdoing and insisted he did not know he was overpaid; (2) plaintiff characterized the payments as a mistake by Stroger Hospital; (3) a county health system spokesperson characterized the situation as a "big clerical error"; and (4) plaintiff was "mistakenly compensated" for unused sick and vacation time. The article thus could also be reasonably construed as reporting the incident consistently with the facts as alleged by plaintiff in his verified second amended complaint.
¶ 64 The article headlined "Double Dipping Doctor Still on Inspector General's
¶ 66 Lastly, the article "County Watchdog Slams Hospital for Doc's Double-Dipping Ways" may be read as primarily critical of Stroger Hospital, even in its headline. Read in its entirety, the article reported: (1) the explanation offered by plaintiff; (2) the repayment of the funds by plaintiff; and (3) the Inspector General's report found negligence on the part of three Stroger Hospital employees, but did not claim plaintiff was one of those employees. Moreover, the article (similar to the "Double Dipping Doctor Still on Inspector General's Radar" article) reports on allegations that Stroger Hospital retaliated against the person who informed some of the defendants about the incident. The defendants did not report that plaintiff had any involvement regarding the alleged retaliation.
¶ 67 In sum, none of the statements plaintiff identified in his verified second amended complaint fall within the defamatory per se category. The articles may be reasonably read as critical of Stroger Hospital for issuing payments to plaintiff during his leave of absence without imputing any crime to plaintiff, or any lack of integrity or ability in his professional duties. Accordingly, the circuit court did not err in relying in part on the innocent construction rule to dismiss the claims of defamation per se in counts I, VI, XI, XVI and XXI of the verified second amended complaint.
¶ 69 Statements are defamatory per quod under two circumstances: (1) where the defamatory character of the statement is not apparent on its face and resort to extrinsic circumstances is necessary to demonstrate its injurious meaning; and (2) where the statement is defamatory on its face, but does not fall within one of the limited categories of statements that are actionable per se. Bryson, 174 Ill.2d at 103, 220 Ill.Dec. 195, 672 N.E.2d 1207. Unlike a defamation per se action, plaintiff must plead and prove special damages to recover for defamation per quod. Id.
¶ 70 For example, in Barry Harlem Corp. v. Kraff, 273 Ill.App.3d 388, 210 Ill.Dec. 101, 652 N.E.2d 1077 (1995), the plaintiff eye clinic, which advertised and performed no-stitch cataract surgery, alleged the defendant ophthalmologist defamed the plaintiff by publishing a commentary stating: (1) there were no current masked double blind published studies demonstrating any advantage of no-stitch over conventional surgery that uses stitches to close the wound; (2) the main advantage of no-stitch surgery was one of advertising; (3) a scientific study should be conducted to evaluate the alleged advantages of no-stitch, one stitch or multiple stitch procedures; and (4) the defendant saw no need to perform no-stitch surgery as it may have adverse effects on patients. See id. at 390-91, 210 Ill.Dec. 101, 652 N.E.2d 1077. The plaintiff eye clinic alleged "that a double-blind study was impossible to perform, that other existing
¶ 71 The Barry Harlem court found the plaintiff's allegations were insufficient to establish the defendant's commentary accused the plaintiff of deceptive or fraudulent practices. See id. at 394-95, 210 Ill.Dec. 101, 652 N.E.2d 1077. The appellate court also ruled that plaintiff failed to sufficiently allege special damages, where the plaintiff's complaint stated: "Upon information and belief, [plaintiff] has lost patients who would have otherwise presented themselves for treatment at the [plaintiff eye clinic] but did not do so." (Internal quotation marks omitted.) Id. at 395, 210 Ill.Dec. 101, 652 N.E.2d 1077. Accordingly, the appellate court held the circuit court properly dismissed the plaintiff's claim of defamation per quod. Id. See also Anderson v. Vanden Dorpel, 172 Ill.2d 399, 416-17, 217 Ill.Dec. 720, 667 N.E.2d 1296 (1996) (allegations that the plaintiff was damaged monetarily by losing gainful employment and wages and suffered great mental pain and anguish were insufficient to establish special damages resulting from allegedly defamatory comment); Taradash v. Adelet/Scott-Fetzer Co., 260 Ill.App.3d 313, 318, 195 Ill.Dec. 420, 628 N.E.2d 884 (1993) (allegations that because of the defamatory remarks by defendants, customers refused to deal with the plaintiff, that he was hindered from selling his product lines, and that he suffered lost commissions and income failed to allege special damages or to set forth sufficient facts to satisfy the per quod action).
¶ 72 In this case, plaintiff claims that each of the articles is defamatory on its face, even if statements in the articles do not fall within one of the limited categories of statements that are actionable per se. Even assuming for the sake of argument, however, that the articles were defamatory, the relevant counts of the verified second amended complaint allege only that plaintiff "can no longer expect valid business relationships to form with patients and potential employers" after the publication of the articles. Accordingly, plaintiff failed to sufficiently allege the special damages necessary to maintain a cause of action for defamation per quod. Anderson, 172 Ill.2d at 416-17, 217 Ill.Dec. 720, 667 N.E.2d 1296; Barry Harlem Corp., 273 Ill.App.3d at 395, 210 Ill.Dec. 101, 652 N.E.2d 1077; Taradash, 260 Ill. App.3d at 318, 195 Ill.Dec. 420, 628 N.E.2d 884.
¶ 73 Plaintiff argues he sufficiently alleged special damages because: (1) he was forced to resign from Stroger Hospital; and (2) a recruiter stopped contacting him due to the publication of the articles. A careful reading of the verified second amended complaint, however, establishes that plaintiff did not allege either of these purported facts. The verified second amended complaint alleged that plaintiff resigned on November 5, 2011, prior to the publication of any of the articles published by the defendants. The verified second amended complaint also alleged that a recruiter contacted plaintiff regarding a position with the Indiana University Health Hospital System, but did not receive an interview after the recruiter inquired about one of Johnson's articles, despite being fully qualified for the position. Plaintiff did not allege that the recruiter stopped contacting him. Moreover, the failure to obtain an interview or further inquiries from a recruiter would not sufficiently establish defamation per quod. See Anderson, 172 Ill.2d at 416-17, 217 Ill.Dec. 720, 667 N.E.2d 1296 (allegations that the plaintiff was "damaged monetarily by losing gainful employment and
¶ 75 Having determined that the circuit court did not err in dismissing the defamation claims in the verified second amended complaint, we turn to address the claims of false-light invasion of privacy, intentional interference with prospective economic advantage, and public disclosure of private facts. At the outset, we observe that the dismissal of the first two of these three claims was proper, based on the proper dismissal of the defamation claims. For example, where the plaintiff fails to state a cause of action for defamation per se, a count alleging false-light invasion of privacy based on the allegedly inherently defamatory statements must fail as well. See Tuite v. Corbitt, 358 Ill.App.3d 889, 899, 294 Ill.Dec. 367, 830 N.E.2d 779 (2005), rev'd on other grounds, 224 Ill.2d 490, 310 Ill.Dec. 303, 866 N.E.2d 114 (2006); Harte v. Chicago Council of Lawyers, 220 Ill.App.3d 255, 263, 163 Ill.Dec. 324, 581 N.E.2d 275 (1991). Similarly, plaintiff acknowledges in his brief that accurate and proper statements cannot represent an unjustified interference with a plaintiff's prospective business expectancy. See Voyles, 196 Ill.2d at 301, 256 Ill.Dec. 289, 751 N.E.2d 1126. Nevertheless, we will examine the other grounds for dismissing these two claims before analyzing the dismissal of the counts alleging the public disclosure of private facts.
¶ 77 Three elements are required to state a cause of action for false-light invasion of privacy: (1) the plaintiffs were placed in a false light before the public as a result of the defendants' actions; (2) the false light in which the plaintiffs were placed would be highly offensive to a reasonable person; and (3) the defendants acted with actual malice, that is, with knowledge that the statements were false or with reckless disregard for whether the statements were true or false. Kolegas, 154 Ill.2d at 17-18, 180 Ill.Dec. 307, 607 N.E.2d 201. In addition, "a claim for false-light invasion of privacy based on language, the defamatory meaning of which can be established only by reference to extrinsic facts, requires the pleading of special damages with particularity." Schaffer v. Zekman, 196 Ill.App.3d 727, 736, 143 Ill.Dec. 916, 554 N.E.2d 988 (1990).
¶ 78 In this case, as previously noted, plaintiff failed to identify false statements in the articles published by the defendants. Supra ¶¶ 32-48. Plaintiff also failed to sufficiently allege the special damages necessary to maintain a cause of action for defamation per quod. Supra ¶¶ 72-73. For these reasons, the circuit court did not err in dismissing the claims of false-light invasion of privacy in counts III, VIII, XIII, XVIII and XXIII of the verified second amended complaint.
¶ 80 "To state a cause of action for intentional interference with prospective economic advantage, a plaintiff must allege (1) a reasonable expectancy of entering into a valid business relationship, (2) the defendant's knowledge of the expectancy, (3) an intentional and unjustified interference by the defendant that induced or caused a breach or termination of the expectancy,
¶ 81 In this case, plaintiff alleged in a conclusory manner that the defendants intentionally and unjustifiably interfered with his business expectancies. Plaintiff alleged no facts from which it could be inferred that the defendants acted with the purpose of injuring plaintiff's expectancies. Plaintiff asserts on appeal that the defendants could have had no other purpose than to terminate his relationship with Stroger Hospital. The defendants, however, assert their articles were published for the purpose of exposing the improper payment made by Stroger Hospital. The lack of specific allegations that the defendants acted with the purpose of injuring plaintiff's expectancies is fatal to his claim of tortuous interference with an economic expectancy. Dowd & Dowd, Ltd., 181 Ill.2d at 484, 230 Ill.Dec. 229, 693 N.E.2d 358; J. Eck & Sons, Inc., 213 Ill.App.3d at 515, 157 Ill.Dec. 626, 572 N.E.2d 1090. Indeed, plaintiff's second amended verified complaint alleged only that he did not receive an interview for a position at the Indiana University Health Hospital System, which is not a sufficient expectancy. Anderson, 172 Ill.2d at 408, 217 Ill.Dec. 720, 667 N.E.2d 1296. Consequently, as previously noted, plaintiff failed to sufficiently allege the defendants published false statements about him, which defeats the assertion that the defendants' actions were unjustified. Accordingly, the circuit court did not err in dismissing counts IV, IX, XIV, XIX and XXIV of the verified second amended complaint.
¶ 83 "The public disclosure of private facts is one branch of the tort of invasion of privacy." Green v. Chicago Tribune Co., 286 Ill.App.3d 1, 5, 221 Ill.Dec. 342, 675 N.E.2d 249 (1996). "To state a cause of action for the public disclosure of private facts, plaintiff must plead (1) the [defendant] gave publicity; (2) to her private, not public, life; (3) the matter publicized was highly offensive to a reasonable person; and (4) the matter publicized was not of legitimate public concern." Green v. Chicago Tribune Co., 286 Ill.App.3d 1, 5, 221 Ill.Dec. 342, 675 N.E.2d 249 (1996). The circuit court dismissed these counts of the verified second amended complaint because it concluded the facts published were not private and involved a matter of legitimate public concern.
¶ 85 For example, "the receipt of State funds by physicians creates a public interest in the physicians' activities regarding the use of those funds." Family Life League v. Department of Public Aid, 112 Ill.2d 449, 457, 98 Ill.Dec. 33, 493 N.E.2d 1054 (1986). "[P]hysicians, as licensed professionals providing public services at the taxpayers' expense, at best have a limited privacy interest in this information, and the physicians' interest is decidedly outweighed by the public's interest." Id. (ruling state records statute required the disclosure of the names of providers of abortion services, the number of abortions performed, and the amounts paid for those services under the Medicaid program). "`[T]he public's right to know how and for what purposes public funds are spent is a matter of legitimate public concern, far outweighing any personal privacy right of those providers to whom public funds are disbursed.'" Id. at 458, 98 Ill.Dec. 33, 493 N.E.2d 1054 (quoting State ex rel. Stephan v. Harder, 230 Kan. 573, 641 P.2d 366, 376 (1982)).
¶ 86 In this case, the defendants reported on payments issued by Stroger Hospital to plaintiff. The articles published by the defendants reported that Stroger Hospital is part of the Cook County Health & Hospital System and the payments to plaintiff involved public funds. The allegations in the verified second amended complaint, presumed to be true for the purposes of a section 2-615 motion to dismiss, establish the public funds were paid in violation of the Stroger Hospital policy. The issue of how and for what purposes Stroger Hospital disbursed funds to plaintiff is thus a matter of legitimate public concern. See Family Life League, 112 Ill.2d at 458, 98 Ill.Dec. 33, 493 N.E.2d 1054. Accordingly, the circuit court did not err in dismissing counts V, X, XV, XX, and XXV of the verified second amended complaint.
¶ 88 For all of the aforementioned reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 89 Affirmed.
Presiding Justice PALMER and Justice GORDON concurred in the judgment and opinion.
