2015 IL App (1st) 140534
FIFTH DIVISION
March 31, 2015
No. 1-14-0534
) Appeal from the
JAMES KAPOTAS, ) Circuit Court of
) Cook County
Plaintiff-Appellant, )
)
v. )
) No. 12 L 9864
BETTER GOVERNMENT ASSOCIATION, SUN-TIMES )
MEDIA, NBC SUBSIDIARY (WMAQ-TV), LLC, DICK )
JOHNSON, individually, and PATRICK REHKAMP, )
individually, ) Honorable
) Daniel T. Gillespie,
Defendants-Appellees. ) Judge Presiding.
JUSTICE REYES delivered the judgment of the court, with opinion.
Presiding Justice Palmer and Justice Gordon concurred in the judgment and opinion.
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.
1-14-0534
¶2 BACKGROUND
¶3 Plaintiff initially filed a verified complaint against defendants on August 30, 2012, in the
circuit court of Cook County. 1 The operative pleading in this appeal is the verified second
amended complaint, filed on May 7, 2013. 2
¶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. 3 Unused sick time, however, has
value insofar as it can be added to a pension. The payments issued during the leave of absence
were allegedly due to a clerical error. Plaintiff alleged that when he learned he had received
county funds due to a clerical error, he immediately assisted in correcting the problem by paying
the county back.
1
The verified complaint also named NBC Universal Media, LLC, a co-owner of WMAQ,
as a defendant.
2
The circuit court granted the motion by plaintiff for leave to file the verified second
amended complaint on that date. The first amended complaint is not included in the record on
appeal.
3
The complaint does not state whether this prohibition was a written policy.
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¶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:
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"A former Stroger Hospital doctor was given checks amounting to six
figures with no work to show for it.
The revelation has pushed Cook County's independent Inspector General
to look into whether the issuances were accidental or intentional; a huge, one-time
oversight or standard practice, an NBC Chicago / Better Government Association
investigation has found.
***
'All I wanted was to get out,' said orthopedic surgeon Dr. James Kapotas,
who spent 12 years at the hospital. 'I was originally going to resign, but they said,
"Take a leave of absence."[]' By all appearances, it would have been a lucrative
leave.
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.
Payroll records show Kapotas was paid more than $100,000 ***. A pay
code indicates he was compensated for unused sick days.
But under hospital policy, no employee is allowed to be paid for either
unused sick time or a personal leave of absence.
'We were able to find that there was a clerical error made and that there
was, in fact, a former employee incorrectly paid on a leave of absence,' said
Marisa Kollias, a spokeswoman for the hospital system.
***
Kapotas is now working again. He's in private practice with Central
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Indiana Orthopedics, where he declined an on-camera interview. He answered
questions about his Stroger paychecks via telephone only.
'I don't go looking at my checking account,' he said. 'I do direct deposit. I
don't have a boat. I don't have three wives. There's no intent to defraud the
county.'
In the words of the hospital spokeswoman, it was all a 'big clerical error.'
Still, it was only after an inquiry into the story that hospital administrators
launched an investigation into it.
Kapotas has since paid back the money that wasn't rightfully his. A
Tuesday delivery at the suburban home of Kapotas' department chairman at
Stroger, Dr. Richard Keen, included a formal letter of resignation and a check.
Kollias confirmed that Kapotas 'paid back everything' and insisted the
incident was isolated.
Cook County Inspector General Pat Blanchard is in the process of
determining if that's true and how the mistake originally happened.
Kapotas and others have already been interviewed.' " 4
¶ 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
4
The articles at issue in this appeal are not reprinted in their entirety in this opinion, but
include the allegedly defamatory material and those portions of the articles necessary to our
analysis of the issues raised by the parties.
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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:
"Many doctors at the Cook County Health and Hospital System work long
hours and difficult shifts for relatively modest pay compared with the private
health-care industry. But one longtime county physician got a big bonus earlier
this year: [h]e was paid an extra $80,000 while on a personal leave of absence
that was supposed to be unpaid, the Better Government Association has learned.
Prompted by inquiries from the BGA, county officials are trying to
determine whether the additional taxpayer-funded pay given to Dr. James Kapotas
was an isolated error or if others working for the county's financially strapped
health system have gotten money they weren't entitled to.
Kapotas has not been accused of wrongdoing, and he insists he didn't even
know he had been overpaid.
After the BGA raised questions, he formally resigned from his county post
and cut a check, refunding the estimated $80,000 that he was wrongly paid over a
roughly four-month stretch.
'Look, all I did was ask for a leave of absence,' said Kapotas, an
orthopedic surgeon who took a leave from the county in late April and currently is
working in central Indiana. 'The people in payroll made a mistake.'
Marisa Kollias, a spokeswoman for the county health system, echoed that
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assertion, calling the situation 'a big clerical error.'
'At this time, the investigation reveals no criminal intent on the part of
Cook County Health and Hospital System staff,' Kollias said.
But the county inspector general is continuing to investigate ***."
¶ 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:
"The Cook County Inspector General urged disciplinary action against a
top doctor and two others at Cook County Hospital, as a result of a Unit 5 and
Better Government Association investigation into another doctor who received
nearly $90,000.00 in pay --[sic] even though he no longer worked at the hospital
***.
Last November, Unit 5 and the B.G.A. revealed that a veteran orthopedic
surgeon at Cook County Hospital, Dr. James Kapotas, took a leave of absence
from the hospital in April of 2011, but stayed on the hospital payroll through
August of that year, receiving approximately $1,200.00 a day in taxpayer money.
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This was despite the fact that Dr. Kapotas had set up a new full-time private
practice in Anderson, Ind.
At the time, Dr. Kapotas told Unit 5: 'I don't go looking at my checking
account. I do direct deposit. I don't have a boat. I don't have three wives; I'm not
some nephew of a county commissioner who enjoys doing nothing. There's no
intent to defraud the county.'
Hospital spokesman [sic] Marisa Kollias said at the time that the payments
were a result of a 'big clerical error.' She conceded, however, that Dr. Kapotas did
not pay back the money until the week Unit 5 aired its story last fall.
***
Now Cook County Inspector General Pat Blanchard has determined that
Dr. Kapotas 'continued to receive a full time County salary while actively
employed elsewhere.' The I.G.'s report says the payments were 'improper' and
that there was 'negligence' on the part of three hospital employees, including Dr.
Richard Keen, who was Dr. Kapotas' supervisor at Cook County Hospital. The
I.G. report also recommends 'disciplinary action' and 'policy training' to keep this
from happening again.
Meanwhile, the anonymous hospital source who first told Unit 5 and the
B.G.A. about Dr. Kapotas' extra paychecks has received a letter from Cook
County Hospital, suspending him from his job there and banning him from the
premises."
¶ 14 Plaintiff alleged the article did not offer any explanation or context for the use of the term
"double dipping" or the phrase "still on the Inspector General's radar." Plaintiff also alleged the
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informant provided the defendants with information that could only have been obtained from his
private personnel/payroll or human resource records. Plaintiff further alleged that defendants
published this information with direct knowledge and willful disregard of the fact that the
information was protected from public disclosure and could not have been legally obtained by
the informant. In addition, plaintiff alleged he could not have been "double dipping" because he
was not being paid by Stroger Hospital on May 7, 2012. Moreover, plaintiff alleged that he was
not under investigation by the Inspector General on May 7, 2012.
¶ 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:
"The Cook County Health and Hospital System is being urged by the
county's inspector general to take disciplinary action against one of its top doctors
and two other employees following a Better Government Association/NBC5 [sic]
investigation reported last November.
In that report, the BGA and NBC5 revealed that a veteran county
orthopedic surgeon, Dr. James Kapotas, was paid almost $90,000 in taxpayer
money last summer even though he was no longer on staff. Or as the Cook
County IG later put it, he 'continued to receive a full time county salary while
actively employed elsewhere.' The 'elsewhere' is in central Indiana where
Kapotas now is in private practice.
'I don't go looking at my checking account,' Kapotas told the BGA last
fall. 'I do direct deposit. I don't have a boat. I don't have three wives . . . . [sic]
There's no intent to defraud the county.'
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Kapotas paid back the money the week the story aired on television.
Now, in the wake of the BGA/NBC5 probe, the IG released a report
calling the payments to Kapotas 'improper' and saying there was 'negligence' on
the part of three hospital employees—including Dr. Richard Keen, Kapotas'
supervisor at Stroger Hospital. In addition, the IG recommended 'disciplinary
action' and 'policy training' so this type of incident doesn't happen again.
But now the original tipster on the story has been placed on paid leave.
Gerald Cotton, a hospital employee who first told the BGA about the extra
paychecks Kapotas was pocketing, was sent a letter suspending him from his job
and banning him from the hospital. The letter alleged Cotton threatened another
hospital worker, which Cotton denies."
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 articles, proximately resulting in present and future damages. Count III
sounded in false-light invasion of privacy, alleging Johnson acted with actual malice in
publishing articles that were inaccurate and incomplete regarding the repayment of funds, and
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highly offensive in their insinuations of wrongdoing by plaintiff. Count IV sounded in tortious
interference with business expectancy, alleging that in March 2012, a recruiter contacted plaintiff
regarding a position with the Indiana University Health Hospital System, but plaintiff did not
receive an interview after the recruiter inquired about one of Johnson's articles, despite being
fully qualified for the position. Plaintiff also alleged he could no longer expect to form valid
relationships with patients and potential employers following the publication of Johnson's
articles, proximately resulting in present and future damages. Count V sounded in the public
disclosure of private facts, alleging Johnson's articles were published on WMAQ's highly
trafficked website and offensively insinuated wrongdoing by plaintiff in an improper attempt to
make a clerical error seem newsworthy.
¶ 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)). 5 The defendants argued: (1) plaintiff failed to identify any false statements in
5
The BGA's motion adopted in full the arguments presented by the remaining defendants
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their articles; (2) the articles were substantially true; (3) the articles did not impute that plaintiff
committed a crime, or lacked professional integrity or ability; (4) the articles could be reasonably
innocently construed; (5) plaintiff failed to plead facts establishing actual malice; (6) plaintiff
failed to plead special damages with particularity; (7) plaintiff failed to plead a valid business
expectancy; (8) plaintiff failed to plead that the defendants intended to interfere with a business
expectancy; (9) the payroll and salary data of Cook County employees is a matter of public
record; and (10) the subject of the articles was a matter of public interest and concern.
¶ 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 figures with no work to show for it" and "Dr. Kapotas was being paid tens of
thousands of dollars by the hospital – and doing no work" were defamatory per se because they
imputed that he committed a crime or lacked integrity. Plaintiff similarly argued the headline,
"Cook County doctor overpaid $80,000 while on leave" was false because he was owed
$53,774.09 for back pay. He additionally argued that while he was not accused of wrongdoing,
the phrase "the county's inspector general is continuing to investigate" implied he was the subject
of a criminal investigation. According to plaintiff, the articles referring to him as "double
dipping" were false because they misstated the nature of the overpayments and plaintiff was
in coordinated motions and briefs submitted to streamline the proceedings and avoid duplication.
The Sun-Times' memorandum in support of its motion to dismiss does not appear in the record
on appeal.
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merely the unknowing beneficiary of a clerical error. Also, the headline stating that plaintiff was
"still on the Inspector General's radar" again implied that plaintiff was the subject of the
investigation and thus imputed that he committed a crime, or lacked integrity or ability in his
profession.
¶ 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
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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.6
¶ 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 circuit court ruled: (1) plaintiff failed to
establish any false statements in the articles at issue; (2) the articles did not impute that plaintiff
committed a crime, or lacked professional integrity or ability; (3) plaintiff failed to adequately
allege the defendants acted with actual malice; (4) the articles could be reasonably innocently
construed; (5) plaintiff failed to adequately allege the special damages required to state a claim
for defamation per quod; (6) plaintiff failed to allege falsity, actual malice, or special damages
required to state a claim for false-light invasion of privacy; (7) plaintiff failed to allege a valid
business expectancy or the defendants' intent to interfere with said expectancy required to state a
claim for tortious interference; (8) plaintiff failed to allege private facts required to state a claim
for public disclosure of private facts, adding that the subject of the articles was also a matter of
public concern.
¶ 24 On December 20, 2013, plaintiff filed a motion to reconsider the circuit court's dismissal
6
The reply filed by the Sun-Times states that it adopted and incorporated "the legal
arguments and citations in its co-defendants' reply brief in support of their motion to dismiss as
they apply to the Sun-Times report." The record on appeal does not include any reply filed by
the defendants other than the Sun-Times.
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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.
¶ 25 ANALYSIS
¶ 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 (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. "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; Pooh-Bah Enterprises, Inc. v. County of Cook,
232 Ill. 2d 463, 473 (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 (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. "[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
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allegations in a complaint, the exhibit controls. [Citation.]." Gagnon v. Schickel, 2012 IL App
(1st) 120645, ¶ 18. 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 (1982). Thus, a defamation claim cannot be dismissed based solely on
the unchallenged, nondefamatory statements in an article, absent corroboration. See id. (exhibits
could not form sole basis for finding the plaintiff was a public figure when considering dismissal
under prior section 48 of the Code (Ill. Rev. Stat. 1979 ch. 110, ¶ 48)).
¶ 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.
¶ 29 Defamation
¶ 30 "The defamation action provides redress for false statements of fact that harm
reputation." Brennan v. Kadner, 351 Ill. App. 3d 963, 968 (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 (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 (1992). "Statements are considered defamatory per se
when the defamatory character of the statement is apparent on its face; that is, when the words
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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.
¶ 32 Falsity
¶ 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 (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 (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 (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 (2001) (and cases cited
therein). We are required to follow the decisions of the Illinois Supreme Court. E.g., Pyle v.
City of Granite City, 2012 IL App (5th) 110472, ¶ 19. Accordingly, regardless of whether
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"substantial truth" also may be an affirmative defense to a defamation action, we must address
whether plaintiff sufficiently alleged any false statements in the articles published by the
defendants.
¶ 35 "Cook County Doc Gets Big Payout For No Work"
¶ 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;
see also Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 96-97 (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
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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.
¶ 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, 7
plaintiff alleged that he was not entitled to such compensation during his leave of absence.
Accordingly, plaintiff has failed to demonstrate the article was false.
¶ 39 "Cook County Doctor Overpaid $80,000 While On Leave"
¶ 40 In the response to the motions to dismiss, plaintiff argued the headline, "Cook County
doctor overpaid $80,000 while on leave" was false because he was owed $53,774.09 for back
pay. Again, the headline did not identify plaintiff and thus we must also examine the text of the
accompanying article. Supra ¶ 36. In this instance, the article reported plaintiff "was paid an
extra $80,000 while on a personal leave of absence that was supposed to be unpaid." In his
complaint, plaintiff admitted he was erroneously issued payments for untaken sick leave and
vacation time during his leave of absence. We accept the allegation as true. Clark, 2011 IL
7
In this regard we observe in passing that the verified second amended complaint alleged
plaintiff received an email referring to back pay and vacation time not paid to plaintiff. The
verified second amended complaint subsequently referred to Cook County issuing a check
representing back pay to plaintiff, with no reference to vacation time. The verified second
amended complaint further alleged that unused sick time has value because it can be added to a
pension, but contained no specific allegations on this point.
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108656, ¶ 21. Thus, plaintiff has failed to establish the article was false, for the same reasons
plaintiff failed to prove the "Cook County Doc Gets Big Payout For No Work" article was false.
¶ 41 "Double Dipping"
¶ 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. 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.
¶ 44 The Inspector General's Investigation
¶ 45 Plaintiff further argues that on May 7, 2012, he was not the subject of any pending
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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.
¶ 46 Payroll Information
¶ 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 would be a sufficient basis for dismissing the defamation claims in the
verified second amended complaint. The circuit court, however, recited further reasons to
dismiss the claims of defamation per se and defamation per quod in the verified second amended
complaint. We now turn to consider those additional bases for the dismissal of the defamation
claims.
¶ 49 Defamation Per Se
¶ 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.
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"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. "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. 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 (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 (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 (1985), aff'd, 113 Ill. 2d 273 (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
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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 the context of the article, implied
that plaintiff was under investigation, the statement does not claim the inspector general was
conducting a criminal investigation or impute the commission of an offense. See Adams, 292 Ill.
App. 3d at 47.
¶ 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, noncriminal meaning that does not impute the commission of an indictable
crime. See Jacobson, 2013 IL App (2d) 120478, ¶ 27; Adams, 292 Ill. App. 3d at 47. 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).
¶ 55 Plaintiff further argues the articles impute that he lacks integrity in performing his
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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; see Vicars-Duncan v.
Tactikos, 2014 IL App (4th) 131064, ¶ 33. 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 (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 (discussing Heying v.
Simonaitis, 126 Ill. App. 3d 157 (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.
¶ 57 Innocent Construction
¶ 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. "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."
(Emphasis omitted.) Id. "If the statement may reasonably be innocently interpreted, it cannot be
actionable per se." Id. at 500. " 'There is no balancing of reasonable constructions ***.' " Id.
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(quoting Mittelman v. Witous, 135 Ill. 2d 220, 232 (1989)). "At the same time, when the
defendant clearly intended and unmistakably conveyed a defamatory meaning, a court should not
strain to see an inoffensive gloss on the statement." Green, 234 Ill. 2d at 500. "When applying
the innocent construction rule to a story or column ***, courts consider the text of the entire
article and the headline as one document when considering the context and meaning of the
purported article." Seith v. Chicago Sun-Times, Inc., 371 Ill. App. 3d 124, 135 (2007) (and cases
cited therein). "Whether a statement is reasonably susceptible to an innocent interpretation is a
question of law for the court to decide." Bryson v. News America Publications, Inc., 174 Ill. 2d
77, 90 (1996). 8
¶ 59 "Cook County Doc Gets Big Payout For No Work"
¶ 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
8
We note that in Bryson, our supreme court ruled the innocent construction rule could
not be the subject of a section of a section 2-615 motion and treated it as affirmative matter
raised under section 2-619 of the Code, where the plaintiff did not attach a copy of the article to
her complaint as an exhibit or recite the article within the complaint. Bryson, 174 Ill. 2d at 91-
92. In this case, plaintiff attached the articles at issue to her complaint, thus incorporating them
into the pleading. Gagnon, 2012 IL App (1st) 120645, ¶ 18. Accordingly, the innocent
construction rule may be asserted under section 2-615 of the Code in this case. See, e.g., Green,
234 Ill. 2d at 499.
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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.
¶ 61 "Cook County Doctor overpaid $80,000 while on leave"
¶ 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.
¶ 63 "Double Dipping Doctor Still on Inspector General's Radar"
¶ 64 The article headlined "Double Dipping Doctor Still on Inspector General's Radar"
reported that the Cook County Inspector General determined plaintiff improperly continued to
receive a salary while actively employed elsewhere. The article also repeated the explanations
offered by Kapotas and the Stroger Hospital spokesperson. The article further reported that 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. The article thus could be reasonably
construed as describing the Inspector General's report finding negligence on the part of the
hospital without any claim of criminal or unethical behavior by plaintiff.
¶ 65 "County Watchdog Slams Hospital for Doc's Double-Dipping Ways"
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¶ 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.
¶ 68 Defamation Per Quod
¶ 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. Unlike a defamation per se action, plaintiff must plead and prove
special damages to recover for defamation per quod. Id.
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¶ 70 For example, in Barry Harlem Corp. v. Kraff, 273 Ill. App. 3d 388 (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.
The plaintiff eye clinic alleged "that a double-blind study was impossible to perform, that other
existing studies show the advantages of no-stitch surgeries, and that defendant was involved in a
study regarding the benefits of the procedure." Id. at 394.
¶ 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. 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. 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 (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 (1993) (allegations
that because of the defamatory remarks by defendants, customers refused to deal with the
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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; Barry Harlem Corp., 273 Ill. App. 3d at 395; Taradash, 260 Ill.
App. 3d at 318.
¶ 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,
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172 Ill. 2d at 416-17 (allegations that the plaintiff was "damaged monetarily by losing gainful
employment and wages" and that she "suffered great mental pain and anguish and incurred great
expense for the treatment thereof" were insufficient to plead defamation per quod (Internal
quotation marks omitted)). Accordingly, the circuit court did not err in dismissing the claims of
defamation per quod in counts II, VII, XII, XVII and XXII of the verified second amended
complaint.
¶ 74 Ancillary Claims
¶ 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 (2005), rev'd on other grounds, 224 Ill. 2d 490 (2006);
Harte v. Chicago Council of Lawyers, 220 Ill. App. 3d 255, 263 (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.
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.
¶ 76 False-Light Invasion of Privacy
¶ 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'
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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. 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 (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.
¶ 79 Tortious Interference With Business Expectancy
¶ 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,
and (4) damage to the plaintiff resulting from the defendant's interference." Anderson, 172 Ill.
2d at 406-07. "The hope of receiving a job offer is not a sufficient expectancy." Id. at 408. The
plaintiff must specifically identify the person with whom the plaintiff expected to contract and
allege specific acts of interference. See Citylink Group, Ltd. v. Hyatt Corp., 313 Ill. App. 3d
829, 840 (2000). The focus of the analysis is not on the conduct of the person terminating the
31
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relationship, but on the conduct of the party inducing the breach or interfering with the
expectancy. Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 484 (1998). "Moreover, to prevail
on the claim, a plaintiff must show not merely that the defendant has succeeded in ending the
relationship or interfering with the expectancy, but 'purposeful interference' – that the defendant
has committed some impropriety in doing so." Id. at 485. A claim of intentional interference
"must set forth facts which suggest that defendant acted with the purpose of injuring plaintiff's
expectancies." J. Eck & Sons, Inc. v. Reuben H. Donnelley Corp., 213 Ill. App. 3d 510, 515
(1991).
¶ 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; J. Eck & Sons, Inc., 213 Ill. App. 3d at 515. 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. 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.
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¶ 82 Publication of Private Facts
¶ 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 (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 (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.
¶ 84 The question of whether the articles published by the defendants publicized a matter of
legitimate public concern is a proper subject for a section 2-615 motion to dismiss. See, e.g.,
Green, 286 Ill. App. 3d at 9-11 (and cases discussed therein) " 'In determining what is a matter
of legitimate public interest, account must be taken of the customs and conventions of the
community; and in the last analysis what is proper becomes a matter of the community mores.
The line is to be drawn when the publicity ceases to be the giving of information to which the
public is entitled, and becomes a morbid and sensational prying into private lives for its own
sake, with which a reasonable member of the public, with decent standards, would say that he
had no concern.' " Id. at 11 (quoting Restatement (Second) of Torts § 652D, cmt. h, at 391
(1977)).
¶ 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 (1986). "[P]hysicians, as licensed professionals providing public
services at the taxpayers' expense, at best have a limited privacy interest in this information, and
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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 (quoting State ex rel. Stephan v. Harder, 641 P.2d 366,
376 (Kan. 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.
Accordingly, the circuit court did not err in dismissing counts V, X, XV, XX, and XXV of the
verified second amended complaint.
¶ 87 CONCLUSION
¶ 88 For all of the aforementioned reasons, the judgment of the circuit court of Cook County is
affirmed.
¶ 89 Affirmed.
34
Kapotas v. Better Government Association
Court: Appellate Court of Illinois
Date filed: 2015-03-31
Citations: 2015 IL App (1st) 140534, 30 N.E.3d 572
Copy CitationsCombined Opinion