Swartz v. Dicarlo

JAMES SWARTZ, JR. ET AL., Plaintiff, v. MARK A. DICARLO, Defendant.

CASE NO.1:12CV3112

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

March 31, 2017

JUDGE CHRISTOPHER A. BOYKO

ORDER

CHRISTOPHER A. BOYKO, J:

This matter is before the Court on the Motions for Summary Judgment of Plaintiffs James Swartz, Toniemarie Swartz and Vilma Swartz (ECF # 157) and Defendant Mark DiCarlo (ECF # 164). For the following reasons, the Court denies both Motions for Summary Judgment.

This case involves the alleged defamation of Plaintiffs by Defendant Mark DiCarlo, arising from a family dispute over the care received by Henry DiCarlo (deceased), father of Mark and brother of Plaintiff Vilma Swartz ("Vilma") and uncle of James Swartz ("James") and Toniemarie Swartz ("Toniemarie"). There is also a dispute between the parties over Henry's estate presently pending in Lake County, Ohio Probate Court.

FACTS

Henry DiCarlo was 85 years old in 2012 when he had a fall in his home in April of 2012. Henry was hospitalized at Aultman Hospital. After a brief period of hospitalization, Henry decided to move to an assisted living facility, Emeritus Senior Living Facility ("Emeritus"). On April 30, 2012, Henry was transferred to Emeritus. That same day he executed a medical power of attorney naming his sister Vilma as his agent to make decisions concerning his healthcare.

On May 2, 2012, Henry's health declined rapidly. James contacted Mark by phone, informing Mark of Henry's rapidly declining health. After concluding his phone conversation with James, Mark drafted and faxed a letter to Emeritus notifying Emeritus that he had medical power of attorney over Henry and instructing Emeritus to either have a doctor exam Henry immediately or transfer Henry to a hospital. In the letter, Mark disputed Henry's competence to make decisions regarding his healthcare and described Mark's belief that Vilma, Toniemarie and James Swartz were unduly influencing Henry in order to have him change his Will for their benefit. Mark's letter continues "I do not desire him to die merely because he is depressed at this moment. I am Catholic and I do not believe in euthanasia." Later in the letter Mark writes "His transfer to a hospice without proper medical care is, in my opinion, is an attempt to cause his death in order to benefit VilmaSwartz, Toni Marie (sp) Swartz and Jim Swartz for their monetary benefit, in that they recently encouraged him to change his will. Now they have arranged for his immediate death." Mark further wrote, "I believe he was spirited away without my permission, his will was changed, and he has been sentenced to death for lack of medical care."

Henry passed away on May 9, 2012. After Henry's death, Mark sent a second letter on July 13, 2012, to the Louis Stokes, Cleveland Veterans Administration Medical Center, Wade Park Campus and the national headquarters of the United States Department of Veterans Affairs.In his July 13, 2012 letter, Mark wrote:

I am concerned about a sequence of events regarding my father Henry M. DiCarlo, Sr. an 85 year old man; A World War II Veteran; A man with severe emotional problems, with a ninth grade education, which I believe resulted in his unnecessary death and/or murder and/or euthanasia in an apparent attempt to secure his estate of approximately $800,000.00.

I wanted to be certain that no other U.S. Veteran is euthanized and/or murdered and/or influenced to sign documents while physically and mentally incompetent and which leads to his death in suspicious circumstances, and that no one go through what I went through.

Mark's July 13 letter detailed his understanding of the events that resulted in his father's death. Mark relates in the letter that Henry fell in his home and as a result was hospitalized at Aultman Hospital with minor injuries. Mark spoke to his father while Henry was hospitalized at Aultman. Henry gave Vilma medical power of attorney on April 30, 2012 and, according to Mark, changed his Will on May 1, 2012, giving Vilma, Tonimarie and James each 25% of his estate. Mark flew to Ohio on May 2, 2012, only to discover Henry had been transferred to Emeritus. His letter then reads, "I discovered at that point, by questioning, that my father was not receiving medical attention and I therefore called the police and, wrote and faxed a letter to Emeritus Nursing Home. I believed that he was being allowed to die because he had changed the Will to give his entire estate to Vilma Swartz, James Swartz, and Toni Marie Swartz." Mark describes in his letter, "I believe it was the second day after seeing Vilma Swartz and her children Tomi Marie (sp) Swartz and James Swartz engaged, in what I felt was a sadistic and gleeful death watch over my poor father..." Mark described how he had not seen the Plaintiffs in thirty years due to an estrangement between Henry and Vilma. He recounted how he tried to convince Emeritus administrators, doctors and nurses that his father could not have been in hisright mind when he gave Vilma medical power of attorney but they would not help Mark because "They relied on my father's recent medical power of attorney and my father's sister, Vilma Swartz's insistence on my father's death to assure that Vilma Swartz would benefit financially and her two children, Vilma Swartz and Toni Marie Swartz." He continued "I believe Vima (sp) Swartz, James Swartz, and Toni Marie (sp) Swartz, effectively conned Aultman Hospital and Emeritus Nursing Home, into believing that they were caring relatives when they were strangers to my father, until relatively recently and were self interested in assuring his death." Mark concluded his letter by writing "I have a social and moral obligation to make the Veterans Administration aware of what occurred in order that employees of the VA not intentionally, accidentally or negligently harm veterans and their families."

Both James and Toniemarie are employed by the VA. James is a Decision Review Officer at the Cleveland Regional Office of the VA and Toniemarie is a pharmacist at the Louis Stokes VA Medical Center. Mark sent the July letter to the VA specifically because it was James' and Toniemarie's employer.

Plaintiffs assert that Defendant's statements in both letters falsely accuses Plaintiffs of unduly influencing Henry to change his Will to Mark's detriment and Plaintiffs' benefit. Mark further falsely accused Plaintiffs of withholding or causing to be withheld medical treatment from Henry in order to hasten his demise by murder or euthanasia in order to benefit Plaintiffs financially. According to Plaintiffs, these false accusations have no basis in fact and Mark's own deposition testimony reveals he made no effort to establish the truth of the accusations madein his letters. Mark admits writing and sending the letters.

LAW AND ANALYIS

Standard of Review

Summary Judgment should be granted only if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." See Fed. R.Civ. P. 56(a). The burden is on the moving party to conclusively show no genuine issue of material fact exists. Celotex Corp. v Catrett, 477 U.S. 317, 323 (1986); Lansing Dairy. Inc. V. Espy, 39 F. 3d 1339, 1347 (6th Cir. 1994). The moving party must either point to "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers, or other materials" or show "that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Matsushita Elec. Indus. Co. V. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Once the movant presents evidence to meet its burden, the nonmoving party may not rest on its pleadings, but most come forward with some significant probative evidence to support its claim. Celotex, 477 U.S. at 324; Lansing dairy, 39 F.3d at 1347.

The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v Liberty Lobby, Inc. 477 U.S. 242, 247-48 (1986) (emphasis in original); accord Leadbetter v Gilley, 385 F. 3d 683, 689-90 (6th Cir. 2003). A factis only material if its resolution "might affect the outcome of the suit under governing law." Anderson, 477 U.S. at 248.

The Court does not have the responsibility to search the record sua sponte for genuine issues of material fact. Betkerur v. Aultman Hospital Ass'n., 78 F. 3d 1079, 1087 (6th Cir. 1996); Guarino v. Brookfield Township Trustees, 980 F. 2d 399, 404-06 (6th Cir. 1992). The burden falls upon the nonmoving party to "designate specific facts or evidence in dispute," Anderson, 477 U.S. at 249-50; and if the nonmoving party fails to make the necessary showing on an element upon which it has the burden of proof, the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. Whether summary judgment is appropriate depends upon "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a mater of law." Amway Distributors Benefits Ass'n v. Northfield Ins. Co., 323 F. 3d 386, 390 (6th Cir. 2003) (quoting Anderson, 477 U.S. at 251-52).

Arguments on Summary Judgment

According to Plaintiffs, Mark's letters contained several false statements which were defamatory per se. The letters accused Plaintiffs each, by name, of committing criminal acts. They were intended to injure James and Toniemarie specifically in their occupations as the July letter was sent directly to their employer. The letters were sent via fax and certified mail and no privilege existed. Mark sent the May 2 letter without any investigation of the truth as it was sent within hours of Mark talking to...