Menkowitz v. Peerless Publications, Inc.

176 A.3d 968

Elliot MENKOWITZ, M.D., Appellant

v.PEERLESS PUBLICATIONS, INC. and Eric Engquist,Elliot Menkowitz, M.D.,

v.Peerless Publications, Inc. and Eric Engquist, Appellants

No. 2048 EDA 2014

No. 2096 EDA 2014

Superior Court of Pennsylvania.

Argued December 13, 2016

Filed December 15, 2017

Reargument Dismissed January 11, 2018

Alan B. Epstein, Philadelphia, for Menkowitz.

Gregory M. Harvey and Michael L. Berry, Philadelphia, for Peerless Publications.

BEFORE: BENDER, P.J.E., BOWES, PANELLA, LAZARUS, OTT, STABILE, DUBOW, MOULTON, RANSOM, JJ.

OPINION BY STABILE, J.:

This is an action for defamation commenced by a private-figure plaintiff against a media defendant involving an issue of public interest. Elliot Menkowitz, M.D., appeals from the July 23, 2014 judgment entered in his favor and against Peerless Publications, Inc. and Eric Engquist (collectively the "Newspaper"), and challenges the trial court's grant of judgment non obstante verdict (judgment n.o.v.) on a punitive damage award rendered by a jury.¹ The Newspaper cross-appeals contesting the trial court's denial of judgment n.o.v. or a new trial on the jury award of compensatory damages on the defamation claim. After careful review, we vacate the judgment in favor of Dr. Menkowitz in its entirety and remand for entry of judgment in favor of Peerless Publications, Inc. and Eric Engquist.

The facts giving rise to the within action are as follows. Dr. Menkowitz is a board-certified orthopedic surgeon. In 1971, he was granted staff privileges at the Pottstown Memorial Medical Center ("PMMC"). In April 1996, Mr. John Buckley, the President and CEO of PMMC, told Dr. Menkowitz that his behavior of yelling at staff and other doctors was unacceptable. Mr. Buckley conveyed the Medical Executive Committee's ("MEC") decision "to suspend [Dr. Menkowitz's] privileges or allow him to take a voluntary leave in an attempt to address his behavioral concerns which had been ongoing for some time." N.T. Jury Trial Vol. II, 3/17/14, at 115, see Ex. P–3; N.T. Jury Trial Vol. III, 3/18/14, at 609, see Ex. P–3. At that time, Dr. Menkowitz informed Mr. Buckley that he had been diagnosed with attention deficit disorder ("ADD") in 1995, he was under the care of a psychiatrist and psychologist, and that Ritalin had been prescribed for the condition. Consequently, in lieu of suspension, the MEC imposed certain conditions described in a May 9, 1996 letter to Dr. Menkowitz:

This is to inform you that [PMMC] will not tolerate conduct by you which violates the Bylaws and Policies ("Bylaws") of [PMMC]. Specifically, this includes, but is not limited to, the following conduct: verbal harassment of other physicians or employees of [PMMC]; use of unprofessional language to other physicians or employees of [PMMC]; inappropriate behavior in the presence of [PMMC] patients; or physical intimidation of [PMMC] employees.

N.T. Jury Trial Vol. III, 3/18/14, at 609, see Ex. P–4. The letter continued that, after Dr. Menkowitz's meeting with Mr. Buckley and others, his disclosure of previously unknown circumstances, and "his agreement to refrain from providing services to patients in [PMMC] through and including May 8, 1996, it was determined that no suspension of your clinical privileges would take place at that time." Id. The letter concluded:

Nevertheless, you should know that any future failure by you to abide by the above restrictions, or any similar related violation by you of the Bylaws of [PMMC] will be considered a willful disregard of the Bylaws of [PMMC] and will result in the summary suspension of your full clinical privileges.

Id.

Less than one year later, on March 18, 1997, Dr. Menkowitz's privileges were suspended by PMMC for six months. The suspension was confirmed in a formal letter dated March 25, 1997:

Since the issuance of the Caution letter, [PMMC] Administration has informed you of your continuing unacceptable conduct ... This disruptive and unacceptable conduct has been and continues to be a grave concern to [PMMC] and staff because a significant portion of it occurs in operating room suites, patient floors and the transitional care unit.

Consequently, on March 18, 1997, after hearing reports of your conduct, the MEC voted unanimously to reaffirm its decision of April 26, 1996 to implement section 6.5(b) of the Bylaws and summarily suspend your medical staff privileges on the basis that your conduct described in the Caution letter continues and therefore constitutes a willful disregard of the Bylaws or other policies of [PMMC] and also constitutes conduct which affects or could affect, adversely the health or welfare of a patient(s). On March 24, 1997, during a meeting at which [PMMC] staff members appeared and described instances of disruptive behavior by you in the operating room suites and transitional care unit, the Board of Directors reached the conclusion that your conduct poses an immediate threat to the health and welfare of patients. Accordingly, the Board of Directors voted at the March 24, 1997, meeting to unanimously approve the MEC's decision to summarily suspend your medical staff privileges. This summary suspension shall be for a period of six (6) months commencing midnight, March 25, 1997 ("Suspension Period").

N.T. Jury Trial Vol. II., 3/17/14, at 130, see Ex. P.–16; N.T. Jury Trial Vol. III, 3/18/14, at 609, see Ex. P–16.

On April 18, 1997, the first of four articles written by Eric Engquist, at the time a reporter at the Pottstown Mercury Newspaper, about Dr. Menkowitz's suspension appeared in the Pottstown Mercury Newspaper:

A prominent physician has been suspended by Pottstown Memorial Medical Center after 25 years on the hospital staff.

Orthopedic surgeon Dr. Elliot Menkowitz, a partner at Orthopedic Specialists of Pottstown, 1603 High St., was banned in late March from seeing patients at the hospital.

The reported six-month suspension was handed down after a "peer review" of Dr. Menkowitz by the hospital's medical executive committee and its board of directors.

Dr. Menkowitz's sudden absence from the hospital has spawned rampant rumors of professional misconduct regarding his treatment of an older female patient. Yet hospital spokesperson Debra L. Bennis has declined numerous requests from The Mercury for comment.

"It's an internal peer review issue, and we're not at liberty to discuss the details," said Bennis. Asked to define the peer review process, she would only say it concerned medical staff privileges.

Dr. Menkowitz has retained prominent Philadelphia attorney, Alan Epstein, but as of Thursday had not legally challenged his suspension. Epstein declined to comment Thursday ...

....

Colleagues of the doctor lamented his recent fate and said they have never hesitated to refer patients to him.

"I just feel bad," said Dr. Michael Pawlowski. "I know him to be a nice person. I have sent him patients before and he has taken care of them suitably."

"I use him for orthopedic cases," said Dr. Keith Harrison. "In fact, my son fractured his foot and Dr. Menkowitz took care of him."

The two physicians, both former members of the hospital's medical executive committee, said they were unaware of the reason for Dr. Menkowitz's suspension. "You hear rumors, but I'm not aware of any details," said Dr. Pawlowski. I know what you know: that he's not there to take patients."

Complaint, 4/14/98 at ¶ 10 (quoting The Pottstown Mercury Article, April 18, 1997).

The article listed Dr. Menkowitz's professional credentials, civic involvement and contributions, and concluded:

Three unrelated lawsuits, including two for wrongful death, have been filed against Dr. Menkowitz in Montgomery County in the last five years. The outcome of those suits could not be determined Thursday.

No formal action against Dr. Menkowitz's medical license has been taken by the state Board of Medicine, according to State Department spokesman Kevin Shivers.

Id. (quoting The Pottstown Mercury Article, April 18, 1997).

The Newspaper published a second article the next day, April 19, 1997, which reported the details of a civil rights suit filed by Dr. Menkowitz that day against PMMC. The suit alleged that his suspension violated the Americans With Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. and other federal and state statutes. The Newspaper summarized Dr. Menkowitz's assertions that he had ADD, that PMMC was so informed, that he was being treated for that condition, and that he did not pose a threat to patients or hospital employees. Complaint, 4/14/98 at ¶ 12. The Newspaper reported the physician's allegation that PMMC "engaged in a pattern of harassment and intimidation due to his disability, including suspending his medical privileges without good cause and a fair hearing[,]" and his contention that his suspension had nothing to do with his treatment of patients. N.T. Jury Trial Vol. III, 3/18/14, at 430, 609, see Ex. P–19. The Pottstown Mercury Article, April 19, 1997.

In a follow-up news article on April 23, 1997, the Newspaper reported that an accord had been reached between Dr. Menkowitz and PMMC, and that Dr. Menkowitz's suspension had been lifted. Although the terms were confidential, Dr. Menkowitz's attorney was quoted as saying, "Treatment of the patients by Dr. Menkowitz was never an issue." N.T. Jury Trial Vol. IV, 3/19/14, at 99.

On April 26, 1997, the Newspaper published the following in its editorial column entitled "Cheers and Jeers," which purported to "[c]heer those working to make our community a better place in which to live," and "[j]eer those whose deeds merit derision." The Pottstown Mercury, April 26, 1997.

JEERS: To Dr. Elliott Menkowitz and Pottstown Memorial Medical Center for the way they settled an incident that got the doctor suspended. PMMC suspended Menkowitz, but then the doctor sued in federal court for damages and to get the suspension lifted. PMMC then backed down and lifted the suspension ....

Complaint, 4/14/98 at ¶ 14.

Dr. Menkowitz filed the instant defamation lawsuit against the Newspaper...