Steven Graboff v. Colleran Firm

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________

No. 13-2229
________________

STEVEN R. GRABOFF

v.

THE COLLERAN FIRM; FRANCIS T. COLLERAN;
AMERICAN ACADEMY OF ORTHOPAEDIC
SURGEONS;
AMERICAN ASSOCIATION OF ORTHOPAEDIC
SURGEONS,

American Academy of Orthopaedic Surgeons;
American Association of Orthopaedic Surgeons,

Appellants

________________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 2-10-cv-01710)
Honorable Joel H. Slomsky, District Judge
________________
 Submitted under Third Circuit LAR 34.1(a)
December 20, 2013

BEFORE: JORDAN, VANASKIE, and
GREENBERG, Circuit Judges

(Filed: February 20, 2014)
______________

Clifford E. Haines
Lauren A. Warner
Haines & Associates
1835 Market Street
Suite 2420
Philadelphia, PA 19103

Attorneys for Appellee

Daniel E. Rhynhart
Christopher M. Guth
Blank Rome
130 North 18th Street
One Logan Square
Philadelphia, PA 19103

Attorneys for Appellants
______________

OPINION OF THE COURT
______________

2
GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before this Court on an appeal from
an order of the District Court entered March 28, 2013, denying
defendants-appellants, the American Academy of Orthopaedic
Surgeons and the American Association of Orthopaedic
Surgeons’ (together the “AAOS”), motion for judgment as a
matter of law and for judgment notwithstanding the verdict. For
the reasons we set forth we will affirm the March 28, 2013
order.

The AAOS is a voluntary professional organization for
orthopaedic surgeons, which has adopted professional standards,
including member grievance procedures. Though most
orthopaedic surgeons are members of the AAOS, it is not a
licensing authority and consequently an orthopaedic surgeon
need not be an AAOS member to practice orthopaedic surgery.
This case is an outgrowth of an AAOS grievance proceeding
that an AAOS member, Dr. Menachem Meller, initiated against
another AAOS member, plaintiff-appellee Dr. Steven R.
Graboff, a California-based orthopaedic surgeon. Dr. Meller
filed the grievance claiming that Dr. Graboff wrote an
inaccurate report based on incomplete information that was used
against him in a civil malpractice case. The report charged that
Dr. Meller departed from reasonable and accepted standards of
medical care in treating the plaintiff in the malpractice case.
After determining that Dr. Graboff’s testimony violated the
AAOS’s Standards of Professionalism, which require its

3
members to provide honest and accurate testimony when serving
as expert witnesses, the AAOS suspended Dr. Graboff from
membership for two years. The AAOS published a description
of the grievance proceedings in AAOS Now, an AAOS
newsletter. Dr. Graboff, who has resigned from the AAOS, then
sued the AAOS, alleging that the AAOS Now article (the
“article”) was actionable both as defamatory and a false-light
invasion of privacy because it selectively recounted the
circumstances of the grievance proceedings to imply that he had
testified falsely.

At the conclusion of a trial the District Court submitted
the case to the jury to answer interrogatories. The jury answered
that the article did not contain any false statements, but did
contain statements portraying Dr. Graboff in a false light, and it
awarded Dr. Graboff $196,000 in damages. Though the jury
through its answers did not address the ultimate question of
whether the AAOS was liable on either the defamation or false-
light claim, the District Court treated the answers as having
found in favor of Dr. Graboff on the false-light claim and in
favor of the AAOS on the defamation claim. The AAOS
subsequently moved for a judgment notwithstanding the verdict,
but the Court denied the motion.

The AAOS appeals, arguing that, under the District
Court’s treatment of the jury’s answers, the answers were
inconsistent because, as a matter of law, the jury’s finding that
the AAOS had not made false statements foreclosed the
possibility that it could be liable on the false-light claim. Thus,
the AAOS contends that it was entitled to a judgment in its favor
on both claims. We, however, hold that the answers can be

4
reconciled and thus were not inconsistent. But we conclude that
the District Court erred by treating the jury’s findings as
returning a verdict in Dr. Graboff’s favor only on the false-light
claim as we are satisfied that the findings established that the
AAOS was liable on both the false-light and defamation claims.
Nevertheless, the error was harmless and, accordingly, we will
affirm the order of March 28, 2013.

II. BACKGROUND

In 2007, Dr. Graboff drafted an expert report that was
used in Jones v. Meller, a malpractice case against Dr. Meller
filed in the Court of Common Pleas of Philadelphia County,
Pennsylvania. Dr. Graboff’s draft report stated that Dr. Meller’s
treatment of the malpractice plaintiff departed from reasonable
and accepted standards of medical care. Although Dr. Graboff
had included the words “Draft Report” in bold, underlined
letters at the top of his report, the law firm representing the
plaintiff in the Jones case, without Dr. Graboff’s consent or
knowledge, whited out the “Draft Report” designation and used
the report to obtain a settlement from Dr. Meller.

Dr. Meller filed a grievance against Dr. Graboff with the
AAOS asserting that Dr. Graboff had provided false testimony
in the malpractice case against him. Dr. Meller based his
grievance on the AAOS’s Standards of Professionalism which,
among other provisions, require orthopaedists serving as expert
witnesses to provide honest and accurate testimony. The AAOS
enforces these standards through its Professional Compliance
Program Grievance Procedures. These procedures provide that

5
AAOS members can file grievances with the AAOS when they
believe that a fellow member has engaged in unprofessional
conduct. In Dr. Graboff’s case there were two hearings before
AAOS administrative bodies. At the first hearing, Dr. Meller
confronted Dr. Graboff with x-rays of the Jones plaintiff that Dr.
Graboff had not seen when he prepared his expert report. Based
on these x-rays, Dr. Graboff admitted that his report was flawed
and that Dr. Meller’s treatment of his patient had satisfied the
appropriate standard of care. Dr. Graboff also testified that he
believed his report had been preliminary, and that he had not
expected it to be used in litigation. Ultimately, however, the
AAOS Board of Directors reached a final decision that Dr.
Graboff had violated its Standards of Professionalism, and it
suspended him from membership in the AAOS for two years.

Pursuant to its bylaws, the AAOS published a summary
of the grievance proceedings against Dr. Graboff in AAOS
Now, a publication available to both AAOS members and the
public. The article described the Jones case and the grievance
proceedings against Dr. Graboff, but did not mention Dr.
Graboff’s exculpatory testimony from the grievance proceedings
that he considered the report to have been preliminary, that it
had been altered, and that it had been used improperly to settle
the case. Instead, the article explained that Dr. Graboff “was
initially absolute in his opinion that [Dr. Meller] had violated the
standard of care,” but later “contradicted himself” and “admitted
his report had been based on lack of information.” JA 562. The
article was publicly available on the AAOS website and
appeared in online searches of Dr. Graboff’s name.

On April 16, 2010, Dr. Graboff instituted this action

6
against the AAOS alleging, as we have explained, that the
article was actionable as it was defamatory and was a false light
invasion of privacy. Though these charges set forth separate
causes of action, the actions are related and include, as will be
seen, certain common elements. At the ensuing 12-day jury
trial, Dr. Graboff testified that the article omitted the fact that
his report had been a draft, made it seem that he had access to
the x-rays prior to drafting the report, and implied that he
intentionally had falsified information rather than explaining
that the report had been a preliminary draft based on limited
information. Dr. Graboff, who, until the time of the publication
of the article, frequently testified as an expert witness for both
plaintiffs and defendants, including defendants’ insurance
companies, also testified that his credibility as an expert witness
suffered following the publication of the article. Consequently,
several of his longstanding clients terminated their relationships
with him and, when testifying, he was subject to impeachment
because of the article and his suspension from AAOS
membership.

As we have indicated, the jury concluded that the AAOS
had not made false statements in the article, but had made
statements that portrayed Dr. Graboff in a false light and
awarded him $196,000 in damages. As we also have indicated,
the District Court treated the jury’s findings as returning a
verdict in favor of Dr. Graboff on the false-light-invasion-of-
privacy claim, but in favor of the AAOS on the defamation
claim.

Following the return of the verdict, the AAOS moved for
“judgment as a matter of law and for judgment notwithstanding

7
the verdict.” JA 1219-20.1 Although the motion referred to
both Federal Rule of Civil Procedure 50(b), dealing with the
renewal of motions after trial of earlier motions for a judgment
as a matter of law, and Rule 59, dealing with motions for a new
trial, and the District Court treated the motion as seeking both
remedies, the AAOS made the motion exclusively under Rule
50(b) because Rule 59 does not deal with motions for entry of
judgment, the relief that the AAOS requested in the District
Court.2 The Court in an exceptionally comprehensive opinion
dated March 28, 2013, denied the AAOS’s motion and, in effect,
sustained the damages verdict. See Graboff v. Colleran Firm,

1
An amendment of the Federal Rules of Civil Procedure in 1991
substituted the term “judgment as a matter of law” for the term
“judgment notwithstanding the verdict” but did not make a
substantive change in the law. 9 Moore’s Federal Practice –
Civil § 50.03 (Redish 2013); see also Fed. R. Civ. P. 50 advisory
committee’s note.

2
On this appeal the AAOS has expanded on the relief it sought
in the District Court as it asks as an alternative to granting it a
judgment as a matter of law that we remand the case for a new
trial. As we have indicated, notwithstanding the AAOS’s
reference to Rule 59, the District Court treated the Rule 59
motion as seeking either a judgment as a matter of law or a new
trial and it denied both motions. We see no reason why the
District Court should have granted a new trial and we therefore
will not remand the case for that purpose.

8
D.C. Civ. No. 10-1710, 2013 WL 1286662 (Mar. 28, 2013).3

III. JURISDICTION and STANDARD OF REVIEW

The District Court had jurisdiction based on diversity of
citizenship under 28 U.S.C. § 1332 and we have jurisdiction
under 28 U.S.C. § 1291. We review the District Court’s denial
of a motion for judgment as a matter of law de novo, Acumed
LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 211 (3d
Cir. 2009), and ordinarily apply the same standard as a district
court applies in considering a motion for judgment as a matter of
law. Johnson v. Campbell, 332 F.3d 199, 204 (3d Cir. 2003).
That standard requires a court of appeals to assess “whether,
viewing the evidence in the light most favorable to sustaining
the verdict, a reasonable jury could have found for the prevailing
party.” Id.; see also Lakeside Resort Enterps., LP v. Bd. of
Sup’rs of Palmyra Twp., 455 F.3d 154, 156 (3d Cir. 2006). Of
course, in this case inasmuch as we reach our result by our
treatment of the verdict and the AAOS does not challenge the
sufficiency of the evidence to support the verdict, we make our
determination by plenary application of legal principles.

3
Dr. Graboff also sued defendants other than the AAOS and
asserted claims for breach of contract, tortious interference of
contract, and commercial disparagement, but we need not
describe the proceedings on those aspects of his case because
the proceedings with respect to these parties and claims have
been terminated and are not at issue on this appeal. We note,
however, that the District Court addressed at length issues
beyond those that we now consider.

9
 IV. DISCUSSION

On this appeal we address the question of whether the
jury’s finding that the article did not contain false statements
precluded the District Court from treating the jury’s answers to
the interrogatories to support the entry of a judgment in favor of
Dr. Graboff on his false-light-invasion-of-privacy claim. The
AAOS argues that “the jury’s finding that the [a]rticle contained
no false statements about Graboff is incompatible (or at least
inconsistent) with its finding that the same [a]rticle portrayed
Graboff in a false light.” Appellants’ reply br. at 6-7. 4 The
AAOS, in making its contention that the verdict was internally
incompatible or inconsistent, points out that the Court’s
instructions defined falsity broadly to include both false
statements and true statements making a false implication.
Inasmuch as it is presumed that a jury applies the court’s
instructions as given, the AAOS argues that the jury necessarily
found that the AAOS did not make any statements in the article
that included a false implication with respect to Dr. Graboff.5
Therefore, in its view, the Court erred by treating the findings as

4
Although we believe that the AAOS did not raise this issue
fully in the District Court either before the jury was dismissed or
in its post-trial motion, we need not decide whether the AAOS
waived the argument because Dr. Graboff does not argue that it
did so. See Marra v. Phila. Housing Auth., 497 F.3d 286, 312
n.21 (3d Cir. 2007).

5
We presume that the jury followed the District Court’s
instructions when arriving at its verdict. See Weeks v.
Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 733 (2000).

10
returning a verdict in favor of Dr. Graboff for false light
invasion of privacy. Rather, it contends that the Court should
have read the answers to the interrogatories to reach a
conclusion that the AAOS was not liable for either defamation
or false light invasion of privacy.

Although we conclude that the AAOS’s contentions do
not have merit, we also conclude that the District Court erred in
its treatment of the jury’s answers for, contrary to that Court’s
view, the answers support findings that the AAOS was liable for
both defamation and false light invasion of privacy rather than
only for the latter claim. However, for the reasons we set forth,
we conclude that the Court reached the correct result in denying
AAOS’s post-trial motion, and its error thus was harmless.
Therefore, we will affirm the denial of AAOS’s post-trial
motion and, in effect, uphold the judgment entered against the
AAOS.6

A. Legal Framework and Jury Instructions on
Defamation and False Light Invasion of Privacy

In light of the AAOS’s incompatibility or inconsistency
contention with respect to the jury’s verdict, we discuss the
elements of defamation and false light invasion of privacy under
Pennsylvania law as the parties agree that Pennsylvania law is

6
It is important to recognize that neither the District Court nor
this Court has had the advantage of having precedential opinions
of the Pennsylvania Supreme Court on all of the state-law issues
in this case.

11
applicable in this case.

1. Defamation

A claim for defamation claim under Pennsylvania law
includes the following elements:

(1) The defamatory character of the
communication.
(2) Its publication by the defendant.
(3) Its application to the plaintiff.
(4) The understanding by the recipient of its
defamatory meaning.
(5) The understanding by the recipient of it as
intended to be applied to the plaintiff.

Tucker v. Fischbein, 237 F.3d 275, 281 (3d Cir. 2001) (quoting
42 Pa. Const. Stat. Ann. § 8343(a) (West 1998)). Procedurally,
a trial court at the outset should decide whether a statement is
capable of a defamatory meaning.7 Id. (citing Thomas Merton

7
Though the District Court apparently did not make this
determination, neither party has raised this issue on this appeal,
so we need not address whether the District Court’s bypassing
of this issue was an error. In any event, the oversight would
have been harmless because the statements at issue undoubtedly
are capable of a defamatory meaning. See Hill v. Reederei F.
Laeisz G.M.B.H., Rostock, 435 F.3d 404, 420 (3d Cir. 2006)
(holding that harmless error requires asking whether it is “highly
probable that the error did not affect the outcome of the case”)
(internal quotation marks omitted).

12
Ctr. v. Rockwell Int’l Corp., 442 A.2d 213, 215-16 (Pa. 1981)).
If the court determines that a statement can support such a
meaning, the jury then must decide “whether the recipient
actually understood the statement to be defamatory.” Id. at 281-
82 (citing Corabi v. Curtis Publ’g Co., 273 A.2d 899, 904 (Pa.
1971)).

A statement is defamatory if “it tends so to harm the
reputation of another as to lower him in the estimation of the
community or to deter third persons from associating or dealing
with him.” Id. at 282 (quoting Birl v. Phila. Elec. Co., 167 A.2d
472, 476 (Pa. 1960) (internal quotation marks omitted)). But the
statement must do more than merely embarrass or annoy the
plaintiff; it must provoke “‘the kind of harm which has
grievously fractured [one’s] standing in the community of
respectable society.’” Tucker v. Phila. Daily News, 848 A.2d
113, 124 (Pa. 2004) (quoting Scott-Taylor, Inc. v. Stokes, 229
A.2d 733, 734 (Pa. 1967)).

A defendant may avoid liability for defamation if it
shows that its statements were “substantially true.” See 42 Pa.
Const. Stat. Ann. § 8343(b)(1) (West 2013); see also Dunlap v.
Phila. Newspapers, Inc., 448 A.2d 6, 15 (Pa. Super. Ct. 1982)
(“The proof of truth must go to the gist or sting of the
defamation.”) (quoting Sack, Libel, Slander, and Related
Problems at 50-51, 137-38 (1980) (internal quotation marks
omitted)). However, a defamatory statement must be viewed in
context, Baker v. Lafayette Coll., 532 A.2d 399, 402 (Pa. 1987),
and a defendant cannot use truth as a defense where “the
implication of the communication as a whole was false,” even if
the statement is “literally accura[te],” Dunlap, 448 A.2d at 15.

13
Though we are not aware of any Pennsylvania Supreme Court
case on the point, inferior Pennsylvania courts applying
Pennsylvania law have concluded that defamation may be
established where a statement, viewed in context, creates a false
implication. See, e.g., id. (adopting defamation by innuendo
theory); Mzamane v. Winfrey, 693 F. Supp. 2d 442, 476-78
(E.D. Pa. 2010) (collecting cases approving a defamation-by-
implication theory).

2. False Light Invasion of Privacy

In Pennsylvania there can be four separate torts when
there has been an invasion of privacy, one of which, publicity
placing a person in a false light, is at issue here. Marks v. Bell
Tel. Co., 331 A.2d 424, 430 (Pa. 1975). Pennsylvania has
adopted the definition of false light invasion of privacy from the
Restatement (Second) of Torts, which imposes liability on a
person who publishes material that “is not true, is highly
offensive to a reasonable person, and is publicized with
knowledge or in reckless disregard of its falsity.” Larsen v.
Phila. Newspapers, Inc., 543 A.2d 1181, 1188 (Pa. Super. Ct.
1988) (en banc) (citing Restatement (Second) of Torts § 652E);
see also Vogel v. W.T. Grant Co., 327 A.2d 133, 135-36 (Pa.
1974) (adopting Restatement (Second) definitions for all four
invasion of privacy claims). Although to the best of our
knowledge the Pennsylvania Supreme Court has not addressed
the contours of falsity in the false-light-invasion-of-privacy
context, the Superior Court has defined falsity broadly in that
context. A plaintiff can establish falsity by showing that a
defendant “selectively printed or broadcast true statements or
pictures in a manner which created a false impression.” Larsen,

14
543 A.2d at 1189. Thus, even where a publication is literally
true, “discrete presentation of information in a fashion which
renders the publication susceptible to inferences casting one in a
false light entitles the grievant to recompense for the wrong
committed.” Id. at 1189. The Superior Court has drawn this
broad definition from defamation law, which permits recovery
where a publication was true, but implied falsehoods. Id. (citing
Dunlap, 448 A.2d at 15).

Applying this standard in Larsen, the Superior Court
allowed the plaintiff’s claim to survive a motion to dismiss
where he alleged that a series of articles, although literally true,
conveyed a false impression that he had lied under oath. Id. See
also Krajewski v. Gusoff, 53 A.3d 793, 809-10 (Pa. Super. Ct.
2012) (reversing dismissal of false-light claim where factual
statements in article “suggest[ed] a causal relationship” that
could not be proven), appeal dismissed, ____A.3d ____, 2014
WL 321859 (Pa. Jan. 29, 2014); Santillo v. Reedel, 634 A.2d
264, 267 (Pa. Super. Ct. 1993) (“A false light claim can be
established where true information is released if the information
tends to imply falsehoods.”).

Falsity with respect to a defendant’s statements thus
carries the same meaning in the defamation and false-light-
invasion-of-privacy contexts; indeed, the Superior Court drew
its definition of falsity in the false-light-invasion-of-privacy
context from its corresponding definition in the defamation
context. Larsen, 543 A.2d at 1189. And Pennsylvania inferior
courts consistently apply the same analysis to both types of
claims when the causes of action are based on the same set of
underlying facts. See, e.g., Krajewski, 53 A.3d at 809 (using

15
discussion of statements as to defamation claim in false-light-
invasion-of-privacy context). Accordingly, publication of
factually correct statements that convey a false impression can
be actionable as defamation (if the statements had a grievous
effect on one’s reputation), or actionable as a false light invasion
of privacy (if the statements would be highly offensive to a
reasonable person). Clearly there is little difference between
these claims in dealing with the consequences of a defendant’s
statements.

3. The Jury Instructions and the
Interrogatories

The District Court’s instructions correctly told the jury
that a defendant’s statements in the defamation context could be
false if the statements included untrue statements or if the
statements implied something that was untrue. See JA 1198 (“A
communication or any portion of it is defamatory if in context its
stated or implied meaning is defamatory.”); JA 1199 (“A
communication may be false either because it contains untrue or
incomplete statements of fact, or because its implication is
untrue.”). The Court also correctly told the jury that the
AAOS’s statements were presumed to be false, and that the
AAOS had the burden to overcome this presumption and “to
prove by a fair preponderance of the evidence that the
communication was substantially true.” JA 1199. The Court,
however, did not specifically charge the jury that a finding that
the AAOS published a false statement was a prerequisite for Dr.
Graboff to recover for false light invasion of privacy. Rather,
the Court stated that the AAOS could be liable for false light
invasion of privacy if it published statements that placed Dr.

16
Graboff “before the public in a false light” and if the publication
would be highly offensive to a reasonable person. JA 1202.
This charge was correct as far as it went though it omitted an
explanation that the AAOS could be liable in a false-light case if
it made a factually untrue statement.

As we have explained, the District Court did not submit
the case to the jury by asking for general verdicts on the two
alleged torts. Instead, the Court submitted the case to the jury
on interrogatories which, in addition to including a damages
question that the jury needed to address only if it answered the
liability questions in favor of Dr. Graboff, asked only three
questions regarding liability on the tort claims involved on this
appeal: (1) did Dr. Graboff show, by a preponderance of the
evidence, that the AAOS made statements in the article that
were either false, or (2) portrayed Dr. Graboff in a false light,
and (3) did the AAOS act knowingly or with reckless disregard
for the truth of its statement? JA 1262. The jury found that the
article did not contain false statements but that it did contain
statements that portrayed Dr. Graboff in a false light and that the
AAOS acted knowingly or with reckless disregard for the truth.
The completed interrogatories and answers read:

6. Do you find that Dr. Steven Graboff
proved by a preponderance of the evidence that
the American Academy of Orthopaedic Surgeons
and American Association of Orthopaedic
Surgeons (‘AAOS’) made statements in AAOS
Now about Dr. Steven Graboff that:

(a) Were false?

17
 ____YES __X__ NO

(b) Portrayed Dr. Steven Graboff in a false light?

__X_YES _____ NO

If your answer to Question No. 6(a) or
6(b) is “YES”, please proceed to Question No. 7.
If your answers to Question No. 6(a) and 6(b)
are “NO”, please proceed to Question No. 9.

7. Do you find that the American Academy
of Orthopaedic Surgeons and American
Association of Orthopaedic Surgeons (‘AAOS’)
knew or acted in reckless disregard for the truth or
untruth of statements in AAOS NOW that were
false or portrayed Dr. Steven Graboff in a false
light?

__X_YES _____ NO8

We reiterate that the District Court treated these answers as

8
This finding was sufficient to establish mens rea for both
claims. See American Future Sys., Inc. v. Better Bus. Bureau,
923 A.2d 389, 400 (Pa. 2007) (explaining that a party may liable
for defamation against a non-public figure if it acted
negligently); Krajewski, 53 A.3d at 807 (requiring knowledge
that the statements would be offensive to a reasonable person to
recover on false light claim).

18
making a finding in favor of Dr. Graboff for false light invasion
of privacy and in favor of the AAOS on the defamation claim.

B. The Jury’s Verdict is Consistent

The AAOS challenges the jury’s verdict as “incompatible
(or at least inconsistent).” Appellants’ reply br. at 6-7. The
AAOS argues that because the Court defined falsity as including
“true statements that create a false impression,” id. at 5, the
jury’s finding in interrogatory 6(a) that the AAOS had not
published false statements precludes imposing liability on it
either for defamation or false light invasion of privacy. In
effect, the AAOS is arguing that, inasmuch as the jury found
that it did not make false statements about Dr. Graboff, it could
not have made statements portraying him in a false light.
We approach the incompatibility and inconsistency
argument recognizing that “inconsistent jury verdicts are an
unfortunate fact of life in law, and should not, in and of
themselves, be used to overturn otherwise valid verdicts.”
Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396,
407 (3d Cir. 2000). Rather, when faced with a seemingly
inconsistent verdict, a court, to the extent possible, should read
the verdict to resolve the inconsistencies.9 Pitts v. Delaware,

9
The AAOS requests that we reverse the judgment and enter
judgment in its favor, or, alternatively, that we reverse the
judgment and remand the case for a new trial. Appellants’ reply
br. at 7. The first request directly conflicts with Mosley v.
Wilson, 102 F.3d 85, 91 (3d Cir. 1996), in which we held that
the district court erred by “directing a judgment notwithstanding
the jury’s verdict on one claim on the sole ground that it was

19
646 F.3d 151, 156 n.2 (3d Cir. 2011); see also Mosley v.
Wilson, 102 F.3d 85, 90 (3d Cir. 1996) (noting that a court has a
“‘duty to attempt to read the verdict in a manner that will resolve
inconsistencies’” (quoting Los Angeles v. Heller, 475 U.S. 796,
806, 106 S.Ct. 1571, 1576 (1986) (Stevens, J. dissenting)));
Repola v. Mobark Indus., Inc., 934 F.2d 483, 494 (3d Cir. 1991)
(characterizing duty to resolve inconsistencies in jury verdicts as
a constitutional obligation).

We conclude that the answers to the interrogatories can
be reconciled but that the District Court did not correctly treat
the answers to resolve a possible inconsistency in them when it
concluded that the jury found for the AAOS on the defamation
claim and for Dr. Graboff on the false-light-invasion-of-privacy
claim. The Court, applying Pennsylvania law, explained to the
jury that Dr. Graboff could prove his defamation claim if the
AAOS published either untrue statements or true statements that
implied something untrue. The Court explained that the AAOS
could be liable for false light invasion of privacy if it published
statements that portrayed Dr. Graboff in a false light, but in so
defining a false-light claim did not distinguish between untrue
statements or statements that implied something untrue.
Overall, when the entire charge is considered, it is clear that the
Court split the bases for finding liability under the two causes of

inconsistent with the jury’s verdict on another claim.” Although
reversal and remand for a new trial is one potential approach to
resolving inconsistent verdicts, see Acumed LLC, 561 F.3d at
217-18, where possible we have attempted to reconcile verdicts
that seemingly were inconsistent. See, e.g., Pitts, 646 F.3d at
156 n.2.

20
action at issue into two possibilities: i.e., factually false
statements or statements whether or not true that implied
something untrue.

The jury found that the AAOS had not published false
statements, but had published statements that portrayed Dr.
Graboff in a false light. Under the instructions, these responses
support a finding of liability for both defamation and false light
invasion of privacy; after all, as the District Court explained to
the jury, it was not necessary for the jury to find a statement was
untrue for there to be a recovery on a defamation claim. JA
1199. What the Court did, in effect, was to ask the false-light
interrogatory twice, the first time as part of what the Court
regarded to be the defamation claim interrogatory because
falsity by implication was included in the definition of falsity
and the second time in what the Court believed to be the false-
light claim interrogatory. When we view the interrogatories in
this way, the verdict was not inconsistent because the evidence
supported a conclusion that the AAOS had made statements that
were false inasmuch as they portrayed Dr. Graboff in a false
light but that the statements were not factually false.

We cannot say that the jury did not follow the District
Court’s instructions in returning its verdict for, notwithstanding
the Court’s explanation that falsity includes statements false in
themselves and statements false by implication, the Court
separated the two categories of falsity and directed the jury to
consider the categories in different answers, and the jury did
exactly that. But we believe that the Court erred in its treatment
of the verdict because the legal consequence of the jury’s
finding that the AAOS published statements portraying Dr.

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Graboff in a false light was that the AAOS was liable on both
claims even though the jury found that the article did not make a
false statement.10 Properly applied, the jury’s determination
trumps the AAOS’s argument that its finding that the AAOS did
not make false statements about Dr. Graboff precluded a finding
of liability on either claim.

The confusion here could have been avoided if the Court
had combined the false statement and false light interrogatories
into a single three-part interrogatory requiring an affirmative
liability answer if the jury found that the AAOS made false
statements about Dr. Graboff, portrayed him in a false light, or
did both. But inasmuch as the Court split the bases for a finding
of liability it was required to enter a judgment in accordance
with the answers the jury gave to the interrogatories by, if
possible, reconciling the answers. Though it attempted to do so
we reiterate our conclusion that it erred when it treated the
answers as finding for the AAOS on the defamation claim, but
against it on the false-light claim. In fact, the jury did not find
for or against Dr. Graboff on the defamation claim as the Court
did not submit the case to it to make an ultimate finding on
either the defamation or false-light claim. Rather, the jury
simply answered the questions that the Court submitted to it and,
as we have explained, the jury’s answers, in addition to
supporting a judgment for Dr. Graboff on the false-light claim,
supported a judgment that the AAOS was liable for defamation
inasmuch as it could have defamed Dr. Graboff without making

10
It cannot be contended seriously that the article did not have a
grievous effect on Dr. Graboff’s reputation, an element of a
defamation charge.

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any statements that were false in themselves about him.

But even though the District Court did not read the
verdict as it could have and, indeed, should have to resolve any
seeming inconsistency in the verdict, the error was harmless
because once we reconcile the liability aspects of the verdict, as
we have done, the damages finding easily stands. The jury
calculated damages for defamation and false light invasion of
privacy together:

10. Please state the amount of damages, if any,
that Dr. Steven Graboff suffered as a result of the
liability you found against the American Academy
of Orthopaedic Surgeons and American
Association of Orthopaedic Surgeons (“AAOS”).
..

For Intentional Interference with Prospective
Contractual Relations, Defamation, and/or
Publication in a False Light:

Past loss of earnings in a lump sum:
$_____140,000___
Future loss of earnings in a lump sum:
$_____0_________
Noneconomic loss in a lump sum:
$____56,000______

JA 1264. Because the jury assessed damages for both claims as
a single unit, our reading of the verdict to provide that the
AAOS was liable both for defamation and false light invasion of

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privacy allows the damages award to stand. In these
circumstances, the District Court’s error in treating the jury’s
answers to the interrogatories so as to exonerate the AAOS on
the defamation claim was harmless because the error had no
effect on the outcome of the case. See Hill v. Reederei F. Laeisz
G.M.B.H., Rostock, 435 F.3d 404, 411 (3d Cir. 2006)
(explaining that errors are harmless where it is “highly probable
that the error did not affect the outcome of the case” (internal
quotation marks omitted)). Regardless of whether the jury
found for Dr. Graboff only for false light invasion of privacy, as
the District Court believed, or on both claims, its damage
calculation would have been the same.11

V. CONCLUSION

For the foregoing reasons we will affirm the order of
March 28, 2013, denying AAOS’s motion for judgment as a
matter of law and for judgment notwithstanding the verdict.

11
We also point out that Dr. Graboff has not cross-appealed
from the judgment in favor of the AAOS on his defamation
claim or asked us to remand the case for a new trial on damages
only on both the defamation and false-light claims or, without
disturbing the judgment in his favor on the false-light claim, on
the defamation claim alone.

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