Gresk v. Demetris

96 N.E.3d 564

Paul GRESK, Trustee FOR the Bankruptcy ESTATE OF Derek VANWINKLE and Stacey VanWinkle on behalf of M.V. and A.V., their minor children, Appellants (Plaintiffs)

v.Cortney DEMETRIS, M.D., Appellee (Defendant)

Stephen W. Robertson, Commissioner of the Indiana Department of Insurance, Party in Interest

Supreme Court Case No. 49S02–1711–MI–686

Supreme Court of Indiana.

Argued: December 7, 2017

Decided: May 10, 2018

ATTORNEYS FOR APPELLANTS: Ronald J. Waicukauski, Price Waicukauski Joven & Catlin, LLC, Indianapolis, Indiana, William W. Gooden, Maggie L. Sadler, Clark, Quinn, Moses, Scott & Grahn, LLP, Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: Bryce H. Bennett, Jr., Laura S. Reed, Laura K. Binford, Courtney David Mills, Riley Bennett Egloff LLP, Indianapolis, Indiana

On Petition to Transfer from the Indiana Court of Appeals, No. 49A02–1610–MI–2287

Massa, Justice.

Public participation is fundamental to self-government, and thus protected by the Indiana and United States Constitutions. When citizens are faced with meritless retaliatory lawsuits designed to chill their constitutional rights of petition or free speech, also known as Strategic Lawsuits Against Public Participation (SLAPP), Indiana's anti-SLAPP statute provides a defense.

Here, two minors and their parents filed a medical malpractice lawsuit against a doctor who reported suspected medical child abuse to the Department of Child Services (DCS). The doctor claimed the lawsuit was a SLAPP and her report to DCS was protected speech shielded by Indiana's anti-SLAPP statute. The trial court agreed and dismissed the lawsuit. We reverse, finding the anti-SLAPP statute inapplicable in this case because to be protected under Indiana's anti-SLAPP statute a person's actions must be "in furtherance of" his or her right of petition or free speech and "in connection with a public issue." Ind. Code § 34–7–7–5 (2017).

Facts and Procedural History

Stacey VanWinkle, a neonatal-intensive-care-unit nurse, and Derek VanWinkle, a stay-at-home father, have two children, A.V. and M.V. Since birth, A.V. has suffered from several medical conditions, including gastrointestinal (GI) issues, requiring many procedures and medications.

In May 2013, Dr. Susan Maisel, A.V.'s doctor, became concerned that Stacey was exaggerating A.V.'s GI symptoms. Dr. Maisel recommended admitting A.V. to the hospital for observation. Dr. Maisel then contacted Dr. Cortney Demetris, a board-certified doctor in pediatrics and child-abuse pediatrics, about her concerns that A.V. was a victim of medical child abuse.¹

In June 2013, A.V. was admitted for observation, and Dr. Demetris was her attending physician. After two days, Dr. Demetris noted in her medical files that A.V. was "a well appearing child" without "any significant medical complaints." Appellants' App. Vol. 2, p.127. Based on video surveillance from A.V.'s room, conversations with A.V.'s other physicians, and interactions with A.V.'s parents, Dr. Demetris concluded that A.V. suffered from medical child abuse. A hospital social worker then reported Dr. Demetris's diagnosis to DCS.

Less than a week later, DCS removed A.V. and M.V. from their parents and filed a petition alleging they were children in need of services (CHINS). Ultimately, A.V. and M.V. were returned to their parents. However, because Stacey worked with children, DCS conducted a Child Care Worker Assessment Review (CCWAR).² Following the CCWAR, DCS substantiated the allegations of abuse. Eventually, DCS dismissed the CHINS petition, but the VanWinkles sought administrative appeal of the substantiated allegations. After a hearing, an administrative law judge substantiated the neglect allegations as to A.V. only. This finding was ultimately reversed by the trial court.

The VanWinkles, individually and on behalf of A.V. and M.V., then filed a proposed medical malpractice complaint with the Indiana Department of Insurance, alleging Dr. Demetris's diagnosis of medical child abuse fell below the standard of care.³ Before the medical review panel could consider the complaint, Dr. Demetris moved for a preliminary determination of law and dismissal, arguing that her report to DCS was protected by Indiana's anti-SLAPP statute.⁴ The trial court agreed and dismissed, finding "Dr. Demetris spoke upon a matter of public concern or public interest when she reported her diagnosis of medical child abuse to [DCS]" and therefore her report was protected speech covered under the statute. Appellants' App. Vol. 2, pp.15–16.

The VanWinkles appealed and our Court of Appeals reversed, concluding the anti-SLAPP statute did not apply. Gresk v. Demetris , 81 N.E.3d 645, 655 (Ind. Ct. App. 2017), vacated . As a matter of first impression, the panel concluded "child-abuse detection and prevention, on a macro level, is of great interest to the general public," but "the public interest in the more narrow issues addressed by Dr. Demetris's report to DCS ... is not significant [because it concerned] a private matter." Id. at 654. The panel also found that Dr. Demetris "reported her suspicions of child abuse to DCS primarily because of her duty to report" which is "inconsistent with any claimed intent to engage in public debate or to petition the government." Id.

We granted Dr. Demetris's petition to transfer, vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A).

Standard of Review

A motion to dismiss under Indiana's anti-SLAPP statute is treated as a motion for summary judgment. I.C. § 34–7–7–9(a)(1). Summary judgment is appropriate if the designated evidence shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C) ; Megenity v. Dunn , 68 N.E.3d 1080, 1083 (Ind. 2017).

Discussion and Decision

Our decision begins with a historical discussion of SLAPP lawsuits and Indiana's anti-SLAPP statute. We then apply Indiana's statute to the facts at hand, finding the anti-SLAPP defense inapplicable because Dr. Demetris's report was not made pursuant to her right of petition or free speech or in connection with a public issue.

I. SLAPPs identified as a threat to constitutionally protected activities.

A. SLAPPs generally.

In 1989, Professors Penelope Canan and George W. Pring observed that, since at least the 1970s, ordinary individuals were being sued for simply speaking out politically. SLAPPs: Strategic Lawsuits Against Public Participation , 7 Pace Envtl. L. Rev. 3, 3, 5 (1989) [hereinafter SLAPPs ]. These lawsuits implicitly challenged free speech or petition rights and sent the message that there was a "price" for civic engagement. Id. at 5–6. The "price" being a high-dollar retaliatory lawsuit—a meritless attempt at chilling participation in government. Id. at 5, 8. Professors Canan and Pring labeled these suits with the political-legal term "SLAPP," strategic lawsuits against public participation. Id. at 4. The defining goal of these lawsuits was not to win, but to silence opposition with "delay, expense and distraction." John C. Barker, Common–Law and Statutory Solutions to the Problem of SLAPPS , 26 Loy. L.A. L. Rev. 395, 405 (1993) [hereinafter Problem of SLAPPS ].

SLAPP lawsuits target a wide variety of political activity, including "reporting violations of law, writing to government officials, attending public hearings, testifying before government bodies, circulating petitions for signature, lobbying for legislation, campaigning in initiative or referendum elections, filing agency protests or appeals, being parties in law-reform lawsuits, and engaging in peaceful boycotts and demonstrations." SLAPPs at 5. And the public interest issues are equally as varied, ranging from zoning, health and safety, and environmental protection to public education, animal welfare, and taxation. Penelope Canan & George W. Pring, Studying Strategic Lawsuits Against Public Participation: Mixing Quantitative and Qualitative Approaches , 22 Law & Soc'y Rev. 385, 388–89 (1988).

Ultimately, Canan and Pring's studies revealed a "growing legal risk for ordinary citizens who speak up on community political issues," and they urged all three branches of government to act. SLAPPs at 8, 15. Since then many states have adopted anti-SLAPP statutes. An integral component of these statutes is balancing a plaintiff's right to have his or her day in court and a defendant's free speech and petition rights, while simultaneously providing a framework to distinguish between frivolous and meritorious cases. Problem of SLAPPS at 397–98. If the lawsuit stems from a legitimate legal wrong, it is not a SLAPP. George W. Merriam, Identifying and Beating a Strategic Lawsuit Against Public Participation , 3 Duke Envtl. Law & Pol'y F. 17, 18 (1993). But, if the lawsuit is filed for an ulterior political end, it is a SLAPP. Id. Anti–SLAPP statutes establish key procedural tools to safeguard First Amendment rights.

B. Indiana's anti-SLAPP statute.

Indiana adopted its anti-SLAPP statute in 1998 to address and reduce abusive SLAPP litigation. 1998 Ind. Acts 1403–06 (codified at I.C. §§ 34–7–7–1 to –10). Defendants may invoke the anti-SLAPP defense when faced with a civil action for acts or omissions "in furtherance of the person's right of petition or free speech" under the United States Constitution or Indiana Constitution "in connection with a public issue" and "taken in good faith and with a reasonable basis in law and fact." I.C. § 34–7–7–5. Once an anti-SLAPP motion to dismiss is filed, discovery is stayed except as necessary to respond to the issues raised in the motion. Id. §§ 34–7–7–6, –9(a)(3). Defendants who successfully invoke the statute's defense are entitled to dismissal and reasonable attorney's fees and costs. Id. § 34–7–7–7. But, if an anti-SLAPP motion is "frivolous" or "solely intended to cause unnecessary delay," the plaintiff may recover such fees and costs associated with answering. Id. § 34–7–7–8. Dismissal under the statute is in addition to other...