J-E03003-16
2017 PA Super 397
ELLIOT MENKOWITZ, M.D., IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellant
v.
PEERLESS PUBLICATIONS, INC. AND
ERIC ENGQUIST,
No. 2048 EDA 2014
Appeal from the Judgment Entered July 23, 2014
In the Court of Common Pleas of Montgomery County
Civil Division at No: 98-07291
ELLIOT MENKOWITZ, M.D., IN THE SUPERIOR COURT
OF
PENNSYLVANIA
v.
PEERLESS PUBLICATIONS, INC. AND
ERIC ENGQUIST,
Appellants No. 2096 EDA 2014
Appeal from the Judgment Entered July 23, 2014
In the Court of Common Pleas of Montgomery County
Civil Division at No: 98-07291
BEFORE: BENDER, P.J.E., BOWES, PANELLA, LAZARUS, OTT, STABILE,
DUBOW, MOULTON, RANSOM, JJ.
OPINION BY STABILE, J.: FILED DECEMBER 15, 2017
This is an action for defamation commenced by a private-figure plaintiff
against a media defendant involving an issue of public interest. Elliot
J-E03003-16
Menkowitz, M.D., appeals from the July 23, 2014 judgment entered in his
favor and against Peerless Publications, Inc. and Eric Engquist (collectively the
“Newspaper”), and challenges the trial court’s grant of judgment non obstante
verdict (judgment n.o.v.) on a punitive damage award rendered by a jury.1
The Newspaper cross-appeals contesting the trial court’s denial of judgment
n.o.v. or a new trial on the jury award of compensatory damages on the
defamation claim. After careful review, we vacate the judgment in favor of
Dr. Menkowitz in its entirety and remand for entry of judgment in favor of
Peerless Publications, Inc. and Eric Engquist.
The facts giving rise to the within action are as follows. Dr. Menkowitz
is a board-certified orthopedic surgeon. In 1971, he was granted staff
privileges at the Pottstown Memorial Medical Center (“PMMC”). In April 1996,
Mr. John Buckley, the President and CEO of PMMC, told Dr. Menkowitz that his
behavior of yelling at staff and other doctors was unacceptable. Mr. Buckley
conveyed the Medical Executive Committee’s (“MEC”) decision “to suspend
[Dr. Menkowitz’s] privileges or allow him to take a voluntary leave in an
attempt to address his behavioral concerns which had been ongoing for some
time.” N.T. Jury Trial Vol. II, 3/17/14, at 115, see Ex. P-3; N.T. Jury Trial
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1 Both parties purported to appeal from the June 26, 2014 order disposing of
the Newspaper’s motion for post-trial relief. We have amended the caption to
reflect that the appeals properly lie from the entry of judgment. Lynn v.
Pleasant Valley Country Club, 54 A.3d 915, 918 (Pa. Super. 2012) (citation
omitted) (appeal properly lies from entry of judgment).
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Vol. III, 3/18/14, at 609, see Ex. P-3. At that time, Dr. Menkowitz informed
Mr. Buckley that he had been diagnosed with attention deficit disorder (“ADD”)
in 1995, he was under the care of a psychiatrist and psychologist, and that
Ritalin had been prescribed for the condition. Consequently, in lieu of
suspension, the MEC imposed certain conditions described in a May 9, 1996
letter to Dr. Menkowitz:
This is to inform you that [PMMC] will not tolerate conduct by you
which violates the Bylaws and Policies (“Bylaws”) of [PMMC].
Specifically, this includes, but is not limited to, the following
conduct: verbal harassment of other physicians or employees of
[PMMC]; use of unprofessional language to other physicians or
employees of [PMMC]; inappropriate behavior in the presence of
[PMMC] patients; or physical intimidation of [PMMC] employees.
N.T. Jury Trial Vol. III, 3/18/14, at 609, see Ex. P-4. The letter continued
that, after Dr. Menkowitz’s meeting with Mr. Buckley and others, his disclosure
of previously unknown circumstances, and “his agreement to refrain from
providing services to patients in [PMMC] through and including May 8, 1996,
it was determined that no suspension of your clinical privileges would take
place at that time.” Id. The letter concluded:
Nevertheless, you should know that any future failure by you to
abide by the above restrictions, or any similar related violation by
you of the Bylaws of [PMMC] will be considered a willful disregard
of the Bylaws of [PMMC] and will result in the summary suspension
of your full clinical privileges.
Id.
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Less than one year later, on March 18, 1997, Dr. Menkowitz’s privileges
were suspended by PMMC for six months. The suspension was confirmed in a
formal letter dated March 25, 1997:
Since the issuance of the Caution letter, [PMMC] Administration
has informed you of your continuing unacceptable conduct . . .
This disruptive and unacceptable conduct has been and continues
to be a grave concern to [PMMC] and staff because a significant
portion of it occurs in operating room suites, patient floors and the
transitional care unit.
Consequently, on March 18, 1997, after hearing reports of your
conduct, the MEC voted unanimously to reaffirm its decision of
April 26, 1996 to implement section 6.5(b) of the Bylaws and
summarily suspend your medical staff privileges on the basis that
your conduct described in the Caution letter continues and
therefore constitutes a willful disregard of the Bylaws or other
policies of [PMMC] and also constitutes conduct which affects or
could affect, adversely the health or welfare of a patient(s). On
March 24, 1997, during a meeting at which [PMMC] staff members
appeared and described instances of disruptive behavior by you in
the operating room suites and transitional care unit, the Board of
Directors reached the conclusion that your conduct poses an
immediate threat to the health and welfare of patients.
Accordingly, the Board of Directors voted at the March 24, 1997,
meeting to unanimously approve the MEC’s decision to summarily
suspend your medical staff privileges. This summary suspension
shall be for a period of six (6) months commencing midnight,
March 25, 1997 (“Suspension Period”).
N.T. Jury Trial Vol. II., 3/17/14, at 130, see Ex. P.-16; N.T. Jury Trial
Vol. III, 3/18/14, at 609, see Ex. P-16.
On April 18, 1997, the first of four articles written by Eric Engquist, at
the time a reporter at the Pottstown Mercury Newspaper, about Dr.
Menkowitz’s suspension appeared in the Pottstown Mercury Newspaper:
A prominent physician has been suspended by Pottstown Memorial
Medical Center after 25 years on the hospital staff.
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Orthopedic surgeon Dr. Elliot Menkowitz, a partner at Orthopedic
Specialists of Pottstown, 1603 High St., was banned in late March
from seeing patients at the hospital.
The reported six-month suspension was handed down after a
“peer review” of Dr. Menkowitz by the hospital’s medical executive
committee and its board of directors.
Dr. Menkowitz’s sudden absence from the hospital has spawned
rampant rumors of professional misconduct regarding his
treatment of an older female patient. Yet hospital spokesperson
Debra L. Bennis has declined numerous requests from The
Mercury for comment.
“It’s an internal peer review issue, and we’re not at liberty to
discuss the details,” said Bennis. Asked to define the peer review
process, she would only say it concerned medical staff privileges.
Dr. Menkowitz has retained prominent Philadelphia attorney, Alan
Epstein, but as of Thursday had not legally challenged his
suspension. Epstein declined to comment Thursday . . .
....
Colleagues of the doctor lamented his recent fate and said they
have never hesitated to refer patients to him.
“I just feel bad,” said Dr. Michael Pawlowski. “I know him to be a
nice person. I have sent him patients before and he has taken
care of them suitably.”
“I use him for orthopedic cases,” said Dr. Keith Harrison. “In fact,
my son fractured his foot and Dr. Menkowitz took care of him.”
The two physicians, both former members of the hospital’s
medical executive committee, said they were unaware of the
reason for Dr. Menkowitz’s suspension. “You hear rumors, but I’m
not aware of any details,” said Dr. Pawlowski. I know what you
know: that he’s not there to take patients.”
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Complaint, 4/14/98 at ¶ 10 (quoting The Pottstown Mercury Article, April 18,
1997).
The article listed Dr. Menkowitz’s professional credentials, civic
involvement and contributions, and concluded:
Three unrelated lawsuits, including two for wrongful death, have
been filed against Dr. Menkowitz in Montgomery County in the last
five years. The outcome of those suits could not be determined
Thursday.
No formal action against Dr. Menkowitz’s medical license has been
taken by the state Board of Medicine, according to State
Department spokesman Kevin Shivers.
Id. (quoting The Pottstown Mercury Article, April 18, 1997).
The Newspaper published a second article the next day, April 19, 1997,
which reported the details of a civil rights suit filed by Dr. Menkowitz that day
against PMMC. The suit alleged that his suspension violated the Americans
With Disabilities Act of 1990, 42 U.S.C. §12101 et seq. and other federal and
state statutes. The Newspaper summarized Dr. Menkowitz’s assertions that
he had ADD, that PMMC was so informed, that he was being treated for that
condition, and that he did not pose a threat to patients or hospital employees.
Complaint, 4/14/98 at ¶ 12. The Newspaper reported the physician’s
allegation that PMMC “engaged in a pattern of harassment and intimidation
due to his disability, including suspending his medical privileges without good
cause and a fair hearing[,]” and his contention that his suspension had nothing
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to do with his treatment of patients. N.T. Jury Trial Vol. III, 3/18/14, at 430,
609, see Ex. P-19.The Pottstown Mercury Article, April 19, 1997.
In a follow-up news article on April 23, 1997, the Newspaper reported
that an accord had been reached between Dr. Menkowitz and PMMC, and that
Dr. Menkowitz’s suspension had been lifted. Although the terms were
confidential, Dr. Menkowitz’s attorney was quoted as saying, “Treatment of
the patients by Dr. Menkowitz was never an issue.” N.T. Jury Trial Vol. IV,
3/19/14, at 99.
On April 26, 1997, the Newspaper published the following in its editorial
column entitled “Cheers and Jeers,” which purported to “[c]heer those working
to make our community a better place in which to live,” and “[j]eer those
whose deeds merit derision.” The Pottstown Mercury, April 26, 1997.
JEERS: To Dr. Elliott Menkowitz and Pottstown Memorial
Medical Center for the way they settled an incident that got the
doctor suspended. PMMC suspended Menkowitz, but then the
doctor sued in federal court for damages and to get the suspension
lifted. PMMC then backed down and lifted the suspension . . . .
Complaint, 4/14/98 at ¶ 14.
Dr. Menkowitz filed the instant defamation lawsuit against the
Newspaper on April 14, 1998.2 He alleged that the statement “professional
____________________________________________
2 Dr. Menkowitz also asserted claims for invasion of privacy based on false
light, intentional interference with existing and prospective relationships, and
intentional infliction of emotional distress based on the newspaper articles.
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misconduct in his treatment of an older, female patient” contained in the April
18, 1997 news article, as well as the April 26, 1997 editorial, were defamatory
per se and false and made with reckless disregard for the truth.3 Dr.
Menkowitz asserted that the statement “professional misconduct in his
treatment of an older, female patient” portrayed him “as an incompetent
doctor who engaged in criminal acts toward his patients,” Id. at ¶17, and
“implied that Dr. Menkowitz had engaged in unlawful or unprofessional
behavior.” Id. at ¶ 19.
Dr. Menkowitz testified at trial that he fell into a deep depression after
reading the first article. N.T. Jury Trial, Vol. II, 3/17/14, at 254. The
depression medications he was prescribed caused fasciculations4 and tremors
in his arms and hands and prevented him from performing surgery. He offered
expert testimony that his psychological condition impaired his ability to
perform surgery.
The Newspaper took the position that the aforementioned statement
was true, not misleading, and published in good faith, with a proper motive,
and without malice. Further, in new matter, the Newspaper pled that Dr.
Menkowitz’s injury to reputation and emotional and psychological injuries
____________________________________________
3Dr. Menkowitz did not challenge the statements in the April 19 and 23, 1997
articles as defamatory or false.
4 Fasciculations are involuntary muscle twitches.
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purportedly caused by the defamatory publication were the same damages
that Dr. Menkowitz claimed, in the federal litigation against PMMC, were
caused by his wrongful suspension.
For various reasons not pertinent hereto, this case did not proceed to a
jury trial until March 2014, almost sixteen years after the filing of the
complaint. At the close of Dr. Menkowtiz’s case, the trial court denied the
Newspaper’s motion for nonsuit, which was premised on the absence of proof
of falsity. A motion for directed verdict at the close of the evidence also was
denied. The jury found in favor of Dr. Menkowitz on the defamation claim and
awarded both compensatory and punitive damages.5
The Newspaper filed post-trial motions seeking judgment n.o.v. or, in
the alternative, a new trial or a remittitur of both the compensatory and
punitive damages. Following argument, the trial court vacated the punitive
damage award based on its finding that there was no evidence of malice, but
upheld the verdict and the award of compensatory damages. Dr. Menkowitz
appealed and he presents one issue for our review:
1. Where the jury’s verdict on punitive damages was supported
by clear and convincing evidence that [the Newspaper] acted
with actual malice in publishing defamatory statements about
[Dr. Menkowitz] in reckless disregard of the falsity of the
defamatory statements published by them, and the [trial] court
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5 The jury did not find liability for invasion of privacy based on false light,
intentional interference with existing and prospective relationships, and
intentional infliction of emotional distress and these claims are not at issue on
appeal. The jury also did not award any damages for emotional distress.
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below, in granting judgment notwithstanding the verdict,
viewed the evidence only in a light favoring to [the
Newspaper], did the [trial] court below commit reversible error
in vacating the jury’s award of punitive damages?
Dr. Menkowitz’s Brief at 7.
The Newspaper cross-appealed and asserted six errors: 6
1. Whether the trial court erred in failing to enter judgment in
[the Newspaper’s] favor because [Dr. Menkowitz] failed to
meet his constitutional burden of proving [the Newspaper’s]
news report on a matter of public concern contained a material
falsehood[?]
2. Whether the trial court committed reversible error by failing to
instruct the jury that [Dr. Menkowitz] was obligated to prove
the challenged news report was materially false, and [the
Newspaper] could not be found liable if the report was
substantially true[?]
3. Whether the trial court committed reversible error by not
admitting into evidence [the] minutes of a Board of Directors’
meeting that documented the basis for [Dr. Menkowitz]’s
suspension, because those minutes established the truth of the
challenged article[?]
4. Whether the trial court committed reversible error by failing to
instruct the jury on which statement was at issue, or even
identifying which of the three publications in the record was in
dispute[?]
5. Whether the trial court committed reversible error by
instructing the jury to draw an adverse inference from the
absence of certain evidence without any showing by [Dr.
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6 The Newspaper presents a seventh issue that was merely a
counterstatement of the issue asserted by Dr. Menkowitz: “Whether the trial
court correctly vacated the jury’s award of punitive damages where plaintiff
failed to prove by clear and convincing evidence that defendants published
any defamatory falsehood with actual malice.” Newspaper’s Brief at 5.
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Menkowitz] that [the Newspaper] had a duty to preserve the
evidence or that they did not preserve it in bad faith[?]
6. Whether the trial court erred by failing to set aside or remit the
compensatory damages award because [Dr. Menkowitz] failed
to present evidence establishing the alleged defamatory
implication caused any actual injury[?]
The Newspaper’s Brief at 4-5.
Because the issues raised by the cross-appeal, if successful, would result
in either judgment in the Newspaper’s favor or a new trial, and render Dr.
Menkowitz’s punitive damages issue moot, we begin our analysis there. The
Newspaper contends first that Dr. Menkowitz failed to adduce evidence that
the defamatory statement was materially false. Additionally, the Newspaper
maintains that, with regard to the allegedly defamatory implications assigned
to that statement, the court erred as it failed to determine whether the words
were reasonably capable of those implications. Since these questions
implicate the trial court’s denial of judgment n.o.v., the following informs our
review:
There are two bases on which the court can grant judgment
n.o.v.:
[O]ne, the movant is entitled to judgment as a matter
of law and/or two, the evidence is such that no two
reasonable minds could disagree that the outcome
should have been rendered in favor of the movant.
With the first, the court reviews the record and
concludes that even with all factual inferences decided
adverse to the movant[,] the law nonetheless requires
a verdict in his favor, whereas the second, the court
reviews the evidentiary record and concludes that the
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evidence was such that a verdict for the movant was
beyond peradventure.
Polett v. Public Communications, Inc., 83 A.3d 205, 212 (Pa.
Super. 2013) [(en banc)]. In an appeal from the trial court’s
decision to deny judgment n.o.v.,
we must consider the evidence, together with all
favorable inferences drawn therefrom, in a light most
favorable to the verdict winner. Our standard of
review when considering motions for a directed
verdict and judgment notwithstanding the verdict are
identical. We will reverse a trial court’s grant or denial
of a judgment notwithstanding the verdict only when
we find an abuse of discretion or an error of law that
controlled the outcome of the case. Further, the
standard of review for an appellate court is the same
as that for a trial court.
Id. at 211.
Drake Mfg. Co., Inc. v. Polyflow, Inc., 109 A.3d 250, 258-59 (Pa. Super.
2015).
Dr. Menkowitz is a private figure, the Newspaper is a media defendant,
and the issue is one of public concern. See Dougherty v. The Boyertown
Times, 547 A.2d 778 (Pa. Super. 1988) (speech concerning character of
chiropractor was matter of public concern); see also ToDay’s Housing v.
Times Shamrock Communications, Inc., 21 A.3d 1209, 1213 (Pa. Super.
2011) (activities of highly regulated industry like the housing industry are
matters of public concern). In such cases, the United States Supreme Court
has identified two competing societal interests: the “need to avoid self-
censorship by the media” and the “legitimate state interest underlying the law
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of libel [in] the compensation of individuals for the harm inflicted on them by
defamatory falsehood.” Gertz v. Robert Welch, 418 U.S. 323, 341 (1974);
see also Time, Inc. v. Firestone, 424 U.S. 448, 456 (1976).
In a case involving similar parties, Philadelphia Newspapers, Inc. v.
Hepps, 475 U.S. 767, 778 (1986), the United States Supreme Court ruled
unconstitutional Pennsylvania’s common law presumption that defamatory
speech is false. It held further that, when a newspaper publishes speech of
public concern about a private-figure plaintiff, the “private-figure plaintiff must
bear the burden of showing that the speech at issue is false before recovering
damages for defamation from a media defendant.” Id. (emphasis added);
see also Krajewski v. Gusoff, 53 A.3d 793, 803 (Pa. Super. 2012)
(reinforcing that statements on matters of public concern by the media must
be provable as false before there can be liability); ToDay’s Housing, supra.7
____________________________________________
7 In addition, the Pennsylvania defamation statute, the Uniform Single
Publication Act, 42 Pa.C.S.A. § 8343(a), provides that the burden is on the
plaintiff to prove:
(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.
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Section 8343(b)(1) of the Uniform Single Publication Act, 42 Pa.C.S.A. §
8343(b)(1), also provides that a defendant may avoid liability for defamation
if it shows “[t]he truth of the defamatory communication.” See also Dunlap
v. Phila. Newspapers, Inc., 448 A.2d 6, 15 (Pa. Super. 1982) (“The proof
of truth must go to the gist or sting of the defamation.”). In Masson v. New
Yorker Magazine, Inc., 501 U.S. 496, 516-17 (1991), the United States
Supreme Court held that substantial truth “would absolve a defendant even if
she cannot ‘justify every word of the alleged defamatory matter; it is sufficient
if the substance of the charge be proved true, irrespective of slight inaccuracy
in the details.’” Id. at 516-17. The Masson Court explained, “the law does
not require perfect truth.” Id.; see also ToDay’s Housing, supra at 1215
(“The law does not require perfect truth.”). “Minor inaccuracies do not amount
to falsity so long as ‘the substance, the gist, the sting, of the libelous charge
be justified.’” Id. The Court added that “[t]he essence of that inquiry . . .
remains the same whether the burden rests upon plaintiff or defendant.” Id.
A “statement is not considered false unless it ‘would have a different effect on
____________________________________________
(5) The understanding by the recipient of it as intended to be
applied to the plaintiff.
(6) Special harm resulting to the plaintiff from its publication.
(7) Abuse of a conditionally privileged occasion.
42 Pa.C.S.A. § 8343.
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the mind of the reader from that which the pleaded truth would have
produced.’” Id. (quoting R. Sack, Libel, Slander, and Related Problems 138
(1980)).
Furthermore, as this Court held in Krajewski, supra, even “a
statement of opinion relating to matters of public concern that does not
contain a provably false connotation will receive full constitutional protection.”
Id. (citing Hepps, supra). “[W]hether a particular statement or writing
constitutes fact or opinion is a question of law for the court to determine in
the first instance.” Elia v. Erie Ins. Exchange, 634 A.2d 657, 660 (Pa.
Super. 1993). Opinion is actionable only if it "implies the existence of [false]
undisclosed facts.” Dougherty, supra at 785.
In addition to proving falsity, the plaintiff must prove fault in publishing
the communication. The Gertz Court concluded that private-figure plaintiffs
could recover compensatory damages against media defendants by proving
something less than actual malice. Gertz, supra at 348. So long as a state
law does not impose liability without fault, “the States may define for
themselves the appropriate standard of liability for a publisher or broadcaster
of defamatory falsehood injurious to a private individual.” Id. at 347. In
Pennsylvania, that fault need not rise to the level of malice; negligence in the
publication will suffice. Specifically, in order to prove negligence, a plaintiff
must demonstrate publication with “want of reasonable care and diligence to
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ascertain the truth.” Am. Future Sys., Inc. v. Better Bus. Bureau, 923
A.2d 389, 400 (Pa. 2007).
Finally, the private-figure plaintiff suing a media defendant for
defamation must prove actual damage to reputation causally linked to the
false defamatory communication to recover compensatory damages. Joseph
v. The Scranton Times, L.P., 129 A.3d 404 (Pa. 2015). Thus, in order to
recover under Pennsylvania law, a private-figure plaintiff must prove falsity,
at a minimum negligence in the publication, and actual damage to reputation
flowing from the defamatory communication. Damages will be presumed
without proof of harm to reputation only if actual malice is shown. See Gertz,
418 U.S. at 349 (even a private-figure plaintiff is required to show actual
malice in order to recover either punitive damages or presumed compensatory
damages, i.e., compensatory damages without proof of harm to reputation);
accord Hepps, 475 U.S. at 773-774. Malice “can be proven by demonstrating
that the defendant subjectively acted with reckless disregard for the truth [by
entertaining] serious doubts as to the truth of his publication.” Castellani v.
Scranton Times, L.P., 124 A.3d 1229, 1234 (Pa. 2015) (quotation marks
omitted) (quoting Weaver v. Lancaster Newspapers, Inc., 926 A.2d 899,
903 (Pa. 2007)).
Preliminarily, we note the following. Although Dr. Menkowitz initially
identified both the statement in the April 18, 1997 article and the “Cheers and
Jeers” editorial as defamatory, he focused on the April 18th article at trial, and
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particularly, one sentence: “Dr. Menkowitz’s sudden absence from the hospital
has spawned rampant rumors of professional misconduct regarding his
treatment of an older female patient . . ..” Secondly, those same defamatory
words were the basis of Dr. Menkowitz’s defamation by implication claim.
Although an action for defamation by implication lies only when non-
defamatory, i.e., innocent words, become contextually defamatory, the
propriety of permitting the plaintiff to proceed on both theories was not
challenged below. Hence, that issue is not before us. 8 Third, the verdict slip
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8 Herein, the phrase “Dr. Menkowitz’s sudden absence from the hospital has
spawned rampant rumors of professional misconduct regarding his treatment
of an older female patient[,]” was explicitly libelous on its face and actionable
per se. Dr. Menkowitz also proffered several defamatory implications from
those same words. In ToDay’s Housing v. Times Shamrock
Communications, Inc., 21 A.3d 1209 (Pa. Super. 2011), the plaintiff pled
both defamation per se and defamation by implication. However, unlike the
situation herein, the defamatory implications were not derived from the
defamatory per se statements but from innocent words in the article that were
not materially false. Therein, a modular housing retail company sued for
defamation after the local newspaper published a series of five articles
reporting homeowner complaints about the company’s failure to respond to
and repair deficiencies. The company alleged that its reputation was harmed
because the articles explicitly impugned its customer service. It argued, in
the alternative, that the articles falsely implied that it designed and
manufactured the defective modular homes. The trial court granted summary
judgment in favor of the newspaper. On appeal, this Court held the company
did not prove the falsity of the newspaper’s account of customer complaints.
We found that the evidence in the record was not “even remotely capable of
supporting a finding that the pertinent articles were false.” Id. at 1214.
In the alternative, the company argued that the articles as a whole, while not
materially false, falsely implied that it manufactured the defective modular
homes. We concluded that the articles could not reasonably be construed as
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made no distinction between the per se defamatory statement and the
allegedly defamatory innuendos. Thus, we are unable to discern whether the
jury believed the defamatory statement in the April 18, 1997 article was
facially false, the implications were false, or both. The jury was simply asked:
1. Did Defendants negligently publish a defamatory
communication about Elliot Menkowitz, M.D.?
2. Was the defamatory communication false either because it
contained untrue or incomplete statement of fact or because
its implication was untrue?
N.T. Jury Trial Vol. V, 3/20/14, at 151-52. It is against this backdrop that we
apply the applicable legal principles to the facts herein.
The April 18, 1997 article reported that Dr. Menkowitz’s staff privileges
at PMMC had been suspended and that “his sudden absence from the hospital
had spawned rampant rumors of professional misconduct regarding his
treatment of an older, female patient.” Dr. Menkowitz pled that this statement
was defamatory per se and false.
A communication is defamatory if it “tends 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.” Elia, supra at 704. “A
communication is also defamatory if it ascribes to another conduct, character
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imparting such an implication. One of the articles identified the manufacturers
of the modular homes and another specifically stated that ToDay’s Housing
did not build the homes, but was responsible for the manufacturer’s warranty.
The claim for defamation by innuendo failed as a matter of law.
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or a condition that would adversely affect his fitness for the proper conduct of
his proper business, trade or profession.” Maier v. Maretti, 671 A.2d 701,
704 (Pa. Super. 1995); Restatement (Second) of Torts, § 573 (1977); see
also Mengel v. Reading Eagle Co., 88 A. 660, 661 (Pa. 1913) (“Written or
printed words injurious to one in his business, calling, trade or profession are
libelous”). Since the published statement was of the type that would tend to
adversely affect Dr. Menkowitz’s fitness for his profession, we agree that it
was defamatory per se.
However, not all defamatory publications subject the publisher to
liability. Where, as here, an issue of public interest is involved, even a private-
figure plaintiff must prove that the statements were false, negligently or
maliciously published, and, absent proof of actual malice, that the false
defamatory communications caused damage to his reputation. Joseph,
supra. The Newspaper contends that, in order to recover even compensatory
damages, Dr. Menkowitz was required to show that the statement was
materially false, i.e., that it “would have a different effect on the mind of the
reader from that which the pleaded truth would have produced.” Air Wis.
Airlines Corp. v. Hoeper, 134 S.Ct. 852, 861 (2014) (citation omitted).
Dr. Menkowitz conceded the truth of the Newspaper’s representation
that his staff privileges at PMMC were suspended. He maintained, however,
that the statement that his “sudden absence from the hospital has spawned
rampant rumors” was defamatory and false. Dr. Menkowitz denied that there
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were rumors; his wife said she did not personally hear any rumors. Dr.
Menkowitz’s journalism expert, Thomas Eveslage, Ph.D, opined that, “rampant
rumors of professional misconduct is a false statement” because “I did not see
any evidence that it was true.” N.T. Jury Vol. III, 3/18/14, at 423. Dr.
Eveslage thus testified in derogation of the constitutional requirement that a
plaintiff, rather than the media defendant, has the burden to prove the falsity
of a statement.
We find first that the report of “rampant rumors” did not carry the gist
of the libelous charge and was not actionable as defamation as a matter of
law. The substance of the alleged rumors was the proper focus of the alleged
defamation. Moreover, even if the “rampant rumors” language could be
viewed as libelous, the record substantiates the truth of that representation.
Dr. Pawlowski, one of the physicians interviewed by Mr. Engquist regarding
Dr. Menkowitz’s suspension, was quoted in the news article as stating that,
although he was unaware of the reasons for the suspension, “You hear
rumors.” Pottstown Mercury Article, April 18, 1997. Dr. Menkowitz offered
no evidence that the Newspaper falsified or fabricated Dr. Pawlowski’s
statement. Dr. Menkowitz’s own witness, Attorney Jeffrey Krawitz, testified
that there were “rumors flying all over” about Dr. Menkowitz’s suspension.
N.T. Jury Trial Vol. I, 3/14/14, at 47. Mr. Engquist’s confidential source
reported such rumors, and Mr. Engquist verified that members of the public
telephoned the Newspaper positing why Dr. Menkowitz was suspended.
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Hence, even if the “rampant rumors” statement had been actionable, Dr.
Menkowitz did not establish that it was false.
Dr. Menkowitz also pled that the statement that his suspension involved
“professional misconduct regarding his treatment of an older, female patient”
was false. These words were the essence of his defamation claim, and under
Hepps, supra, it was Dr. Menkowitz’s burden to prove the falsity of that
statement.9 However, Dr. Menkowitz testified that he had “no knowledge”
why he was suspended or whether his suspension was related to an incident
involving a 79-year-old female patient A.D.10 in the Transitional Care Unit
(“TCU”) on March 16, 1997. See N.T. Jury Trial Vol. III, 3/17/14, at 162.
Although he confirmed he visited A.D. in the TCU on that date, N.T. Jury Trial
Vol. I, 3/14/14, at 68, he had “absolutely no recollection” of the interaction
between him and the female patient. N.T. Jury Trial Vol. II, 3/17/14, at 268,
276. As the Newspaper correctly points out, a lack of recollection or
knowledge does not constitute evidence of falsity. ToDay’s Housing, supra
at 1214.
____________________________________________
9Dr. Menkowitz also testified that he had no knowledge of the truth or falsity
of representations that there were three lawsuits pending against him, two of
which were wrongful death actions, or whether the Commonwealth had taken
any action against his license. N.T. Jury Trial Vol II, 3/17/14, at 165-168.
Furthermore, he offered no proof that the representation was false.
10 Although the patients were identified in the certified record, we use initials
to protect their privacy.
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Dr. Menkowitz argues on appeal that he was suspended because of
PMMC’s determination that his disruptive behavior and verbal harassment of
co-workers continued in violation of the ground rules set forth in a 1996
caution letter rather than any misconduct in his professional treatment of an
older, female patient. In support thereof, he points to the May 25, 1997 letter
advising him that he was suspended for six months because his conduct
“poses an immediate threat to the health and welfare of patients.” N.T. Jury
Trial Vol. III, 3/18/14, at 531. The letter recounted the issuance of the 1996
warning letter and alluded generally to his continued disruptive and
unacceptable conduct. Dr. Menkowitz argued that the Newspaper’s account
that he was suspended due to professional misconduct involving a female
patient was false because the suspension letter did not specifically mention
such an incident as the basis for the action.
The caution and suspension letters simply did not refute the
Newspaper’s account. Furthermore, the Newspaper introduced substantial
evidence that the statement was true. Dr. Buckley confirmed that staff
reported that Dr. Menkowitz verbally intimidated a patient in the TCU. N.T.
Jury Trial Vol. II, 3/17/14, at 134. Clayton W. Chang, M.D., who was the
Medical Director of the TCU in 1997, testified regarding an incident in that unit
involving Dr. Menkowitz on March 16, 1997, just days before the suspension.
Dr. Chang was conducting his rounds when Registered Nurse Kathy Koresko
approached him. After a conversation with her, Dr. Chang sought out and
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spoke to two patients in the TCU, one a female, and the other a male. He
described the woman as “upset, agitated, confused, and close to tears.” N.T.
Jury Trial Vol. IV, 3/19/14, at 694. The man “was confused, agitated, he was
angry.” Id. at 696. Dr. Chang met with each of the patients and prepared
an incident report addressed to his superior. He was subsequently directed
to obtain a statement from Dr. Menkowitz regarding the incident, but Dr.
Menkowitz refused to sign anything. Even Dr. Menkowitz’s journalism expert,
Mr. Eveslage, conceded that the April 18, 1997 article was factually true. N.T.
Jury Trial Vol III, 3/18/14, at 580-81; 591-92. Dr. Menkowitz did not meet
his burden of proving the falsity of the defamatory statement under Hepps
and Dougherty and thus, there can be no liability premised on a defamation
per se theory as a matter of law.
However, in addition to arguing that the statement in the article that Dr.
Menkowitz’s suspension was prompted by “professional misconduct involving
the treatment of an older, female patient” was defamatory per se and false,
Dr. Menkowitz argued that those same words were capable of defamatory
implications that were also false. We agree.
Defamation by implication is an acknowledgement that, in some
instances, innocent words, i.e., words not defamatory on their face, may
create a defamatory innuendo due to the context in which the statements are
issued. Innuendo is the insinuation or implication that arises from the literal
language used in a statement or set of comments. Such words are actionable
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as defamation where the innuendo is both defamatory and false. See
Dunlap, supra at 15 (recognizing that “the literal accuracy of separate
statements will not render a communication ‘true’ where . . . the implication
of the communication as a whole was false.”). Even where innocent words
are literally true, if, when viewed in toto, they create a false implication, the
speaker may be liable for creating a defamatory implication.
The Newspaper contends that the trial court applied the wrong legal
standard when it submitted the defamation by implication claim to the jury.
It argues that the trial court incorrectly viewed the issue as one of sufficiency
of the evidence and found that the statement could be interpreted as
defamatory based upon the testimony of Dr. Menkowitz, his wife and son, and
Attorney Krawitz. The proper question, according to the Newspaper, was
whether the various innuendos were reasonable and justified from the
language used, an inquiry that the Newspaper urges us to answer in the
negative.
The legal test to be applied to determine whether a statement is
defamatory by implication is whether the challenged language can “fairly and
reasonably be construed” to imply the defamatory meaning alleged by a
plaintiff. Sarkees v. Warner-West Corp., 37 A.2d 544, 546 (Pa. 1944).
The “innuendo must be warranted, justified and supported by the publication.”
Livingston v. Murray, 612 A.2d 443, 449 (Pa.Super. 1992) (quoting
Thomas Merton Center v. Rockwell International Corp., 442 A.2d 213,
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217 (Pa. 1981)). A publication however, cannot be made libelous “by
innuendo which puts an unfair and forced construction on the interpretation
of the publication.” Bogash v. Elkins, 176 A.2d 677, 679 (Pa. 1962) (quoting
Sarkees, supra at 546). In other words, innuendo cannot be “used to
introduce new matter, or to enlarge the natural meaning of the words, and
thereby give to the language a construction which it will not bear.” Sarkees,
supra at 546. “If the words are not susceptible of the meaning ascribed to
them by the plaintiff and do not sustain the innuendo, the case should not be
sent to a jury.” Id.
To determine whether a publication is capable of a defamatory meaning
“the court must consider the effect of the entire article and the impression it
would engender in the minds of the average reader among whom it is
circulated.” Green v. Mizner, 692 A.2d 169, 172 (Pa. Super. 1997) (citations
omitted). When considering defamation by implication, we have stated the
following:
The purpose of an innuendo, as is well understood, is to define the
defamatory meaning which the plaintiff attaches to the words; to
show how they come to have that meaning and how they relate
to the plaintiff. But it cannot be used to introduce new matter, or
to enlarge the natural meaning of the words, and thereby give to
the language a construction which it will not bear[.] It is the duty
of the trial court in all cases to determine whether the language
used in the objectionable article could fairly and reasonably be
construed to have the meaning imputed in the innuendo. If the
words are not susceptible of the meaning ascribed to them by the
plaintiff and do not sustain the innuendo, the case should not be
sent to a jury[.]
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Livingston, 612 A.2d at 449 (first alteration in original) (quoting Sarkees,
37 A.2d at 546). “[E]ven where a plausible innocent interpretation of the
communication exists, if there is an alternative defamatory interpretation, it
is for the jury to determine if the defamatory meaning was understood by the
recipient.” Pelagatti v. Cohen, 536 A.2d 1337, 1345 (Pa. Super. 1987)
(citing Gordon v. Lancaster Osteopathic Hosp. Ass’n, Inc., 489 A.2d
1364, 1368 (Pa. Super. 1985)), appeal denied, 548 A.2d 256 (Pa. 1988).
“[T]he literal accuracy of separate statements will not render a communication
‘true’ where, as here, the implication of the communication as a whole was
false.” Dunlap v. Philadelphia Newspapers, Inc., 448 A.2d 6, 15 (Pa.
Super. 1982). (citations omitted). A publisher may be liable
for the implications of what he has said or written, not merely the
specific literal statements made. To say, for example, that a man
and a woman married, but not to each other, spent a night
together in a hotel room, will be interpreted as an assertion of the
pair engaged in sexual activities, because the average reader will
assume that “they sayeth not a pater noster there.”
Dunlap 448 A.2d at 15 (citation omitted) (emphasis in original). However,
The literal “truth” of a publication need not be established, only
that the statement is “substantially true.” The proof of “truth”
must go to the “gist” or “sting” of the defamation. The test is
“whether the [alleged] libel as published would have a different
effect on the mind of the reader from that which the completed
truth would have produced.
Id. (citing Sack, Libel, Slander, and Related Problems, 50-51, 137-138
(1980)) (footnotes omitted) (emphasis in original).
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Dr. Menkowitz, his wife, son, and Attorney Krawitz assigned several
libelous innuendos to the defamatory per se words “professional misconduct
in the treatment of an older, female patient.” Mrs. Menkowitz testified that
one could believe that Dr. Menkowitz had been accused of sexual misconduct,
although she did not state that she believed it. Similarly, the couple’s son
testified that the words could mean sexual misconduct or medical malpractice,
but again, did not testify that he personally believed either implication.
Attorney Jeffrey Krawitz testified that he believed Dr. Menkowitz was indicted
for sexual misconduct, although he could not link that belief to the language
in the article in question.11
The operative paragraph in the Newspaper’s article upon which the
defamation by implication claim is premised reads:
Dr. Menkowitz’s sudden absence from the hospital has spawned
rampant rumors of professional misconduct regarding his
treatment of an older female patient. Yet hospital spokesperson
Deborah L. Bennis has declined numerous requests from The
Mercury for comment.
A jury reading this passage as a whole could find that the passage constitutes
defamation by implication. The passage speaks about the doctor’s “sudden
____________________________________________
11 Although Attorney Krawitz testified that he read an article discussing Dr.
Menkowitz’s professional misconduct with respect to his treatment of an
elderly female patient, he was unable to link his impression that it was sexual
abuse to the article under scrutiny. He vaguely stated that he “obtained or
read from multiple publications articles about Dr. Menkowitz.” N.T. Jury Trial
Vol. III, 3/18/14, at 255.
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absence” from the hospital that has spawned “rampant rumors” of
“professional misconduct” regarding his treatment of an older “female”
patient and that the hospital spokesperson remains mute when asked for
comment. It cannot be said as a matter of law that the cumulative effect of
this passage may not suggest that Dr. Menkowitz engaged in improper sexual
or physical conduct with an older female patient. The reference to the doctor’s
sudden absence suggests some immediate urgency as if to suggest he is
fleeing. People sometimes flee when they have done something terribly wrong
or have committed a crime. The mention of “rampant rumors” can certainly
suggest something salacious in the untold details of this report. Professional
misconduct may certainly suggest many types of misbehavior, including
physical or sexual, to a layperson, and certainly at least that and more to
others in the medical profession. All of this of course is tied to the treatment
of a female patient. One may reasonably ask the purpose to be served by
referring to gender if nothing sexual is to be inferred. Thus, a jury was entitled
to consider whether this passage is defamatory by implication. “[E]ven where
a plausible innocent interpretation of the communication exists, if there is an
alternative defamatory interpretation, it is for the jury to determine if the
defamatory meaning was understood by the recipient.” Pelagatti, 536 A.2d
at 1345 (citations omitted).
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Further, the phrase “professional misconduct” could implicate physical
contact or criminal activity. The Medical Practice Act of 198512 provides that
the State Board of Medicine (“State Board”) has the authority to discipline a
board-regulated practitioner found guilty of immoral or unprofessional
conduct. Regulations promulgated by the State Board provide, inter alia,
that sexual exploitation by a board-regulated practitioner of a current
patient constitutes unprofessional conduct. 49 Pa. Code § 16.110(a).
“Sexual Exploitation” in turn is defined as “[a]ny sexual behavior that uses
trust, knowledge, emotions or influence derived from the professional
relationship.” 49 Pa. Code § 16.1. “Sexual Behavior” is defined as “[a]ny
sexual conduct which is non-diagnostic and non-therapeutic.” Id.
This is not an instance wherein a plaintiff is attempting to use innuendo
to introduce new matter, or to enlarge the natural meaning of words to sustain
his claim for defamation by implication. See Sarkees, 37 A.2d at 546.
Instead, the implications that may be deemed defamatory are derived from
the meanings ascribed to the language used and the manner in which the
language is used when looking at the statement as a whole. See Dunlap,
448 A.2d at 14-15. The passage specifically refers to Dr. Menkowitz’s
professional misconduct with regard to his treatment of an older female
patient. The suggestion of sexual or physical misconduct may be inferred
____________________________________________
12 Act of December 20, 1985, P.L. 457, 63 P.S. §422.1, et seq.
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from the allegation of professional misconduct. This innuendo does not
enlarge the natural meaning of these terms. Rather, the innuendo may be
derived from the ordinary meaning of the language used. Thus, we conclude
the language used by the Newspaper could fairly and reasonably be construed
by implication in a defamatory manner. Therefore, the trial court did not err
when it submitted the case to the jury on a defamation by implication theory
and denied the Newspaper’s motion for judgment n.o.v.13
Our conclusion that the challenged statements were capable of
defamation by implication also is supported by and aligns with other cases.
In Dunlap v. Philadelphia Newspapers, Inc., 448 A.2d 6 (Pa. Super.
1982), the Philadelphia Inquirer ran a front page article with a large banner
entitled “Wide Police Corruption Revealed” and two smaller headlines side-by-
side stating “Patrol Outside, Gambling Inside” and “Hidden Cameras Confirm
Reports of Payoff System.” Id. at 8. Under the first of the two smaller
____________________________________________
13 In his brief, Dr. Menkowitz claims that he was not required to prove material
falsity in a defamation by implication claim. This claim fails. In Dunlap v.
Philadelphia Newspapers, Inc., 448 A.2d 6, 14 (Pa. Super. 1982), we held
that it was the plaintiff’s burden to prove the falsity of the article claimed to
be defamatory by implication. We further held “that the literal accuracy of
separate statements will not render a communication ‘true’ where … the
implication of the communication as a whole was false.” Id. at 15; see also,
Philadelphia Newspaper v. Hepps, 475 U.S. 767, 776 (1984)(the common
law’s rule on falsity – that the defendant must bear the burden of proving
truth – must similarly fall here to a constitutional requirement that the plaintiff
bear the burden of showing falsity, as well as fault, before recovering
damages.)
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headlines were two large photographs, the larger of which “shows a man
placing his hand inside a police car marked ‘17B.’ The caption to this
photograph reads ‘Sergeant’s Car 17B Stops Outside Known Gambling
Location.’” Id. The article further elaborated by explaining that a “man, who
appeared to be in his late 50s or early 60s, walked out into the street, leaned
on the driver’s side, and reached into the squad car through an open window.”
Id. When the Newspaper called the police station, the paper was told Sgt.
Samuel Dunlap occupied the car. Id. When asked, Dunlap indicated “more
than likely” he was driving the car that day and that he knew the man,
otherwise known as the town drunk. Id. The question presented was whether
those who read it could understand the article as defamatory. This Court
answered affirmatively concluding that a reasonable person who read the
article could have construed it to mean that Sgt. Dunlap was in car 17B and
receiving a bribe or pay off. Id. at 10. The paper attempted to defend arguing
that “the article reported only the undisputed and true facts.” Id. at 11
(citation omitted). We concluded that when taken as a whole, the article,
headline, and photographs could give rise to a false inference drawn from true
facts. Id. at 15. We also concluded that “‘true facts’ that in context imply a
falsehood are, in an action for defamation not ‘true’” and that “the literal
accuracy of separate statements will not render a communication ‘true’ where,
as here, the implication as a whole was false.” Id. at 448 A.2d 15 (citation
omitted). As in Dunlap, the literal accuracy of the statements here regarding
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Dr. Menkowitz may be true, but the implication that he may have physically
or sexually abused an older female patient also may reasonably be suggested
by innuendo.
In Mzamane v. Winfrey, 693 F. Supp.2d 442 (E.D. Pa. 2010), the
district court, applying Pennsylvania law, found that the statements there
could be defamatory by implication. The plaintiff brought an action for
defamation against Oprah Winfrey “stemming from comments made by
[Winfrey] regarding plaintiff’s performance as headmistress of” the girls’
school open and run by a foundation created by Winfrey in South Africa. Id.
at 461. Winfrey was alleged to state in a meeting and at a press conference
that “any person that caused harm to any [of the students] at the school will
no longer be allowed to work at the school.” Id. at 480. She continued to
relate that
thus far, we have removed all of the dorm parents. I’ve spoken
to [plaintiff] and I said to [plaintiff] that I don’t know what she
knows because the investigation is continuing. I don’t know what
she knows, or knew, or didn’t know, but that I have lost
confidence in her ability to run this school. And therefore, she will
not be returning to this school.
Id. (some capitalization omitted). The court held that the statements were
capable of defamatory meaning, since
[t]he average listener could interpret Winfrey’s statement that she
has “lost confidence” in plaintiff’s abilities, in conjunction with the
preceding statement that “any person that caused harm” to the
students would not be returning to [the school], to mean that
plaintiff was not being retained due to the fact that she played
some role in the “harm” caused to the students.
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Id. at 481 (some capitalization omitted).
Winfrey’s statement that she is uncertain what plaintiff ‘knows, or
knew, or didn’t know’ does not negate the implication that plaintiff
was aware of the misconduct by the dorm parents. The
implication that plaintiff was aware of abuse by the dorm parents
and did not react accordingly is capable of defamatory meaning
as it ascribes conduct which would render her unfit for her
profession as an educator.
Id. (some capitalization omitted). As in Winfrey, the same can be said here
where Dr. Menkowitz’s name was associated with an article alleging rampant
rumors of professional misconduct in his treatment of an older female patient.
In Cheney v. Daily News L.P., 654 Fed. Appx. 578 (3rd Cir. 2016),
the court held that the plaintiff could be defamed by implication, where
the Daily News published an article on its website entitled “Heated
Sex Scandal Surrounds Philadelphia Fire Department: ‘It’s Bad
Stuff.’” The text of the article described a sex scandal within the
Philadelphia Fire Department. According to the article, the
investigation into the scandal “implicates dozens of city
employees, including … firefighters,” and it was possible that such
employees would be criminally charged.
Cheney, 654 Fed. Appx. at 580. “The article consisted of two columns: the
left contained pictures, and the right contained the text of the article. In the
left column, a reader could toggle between two photographs. The first was the
silhouette of an unidentified firefighter outside a burning building[.]” Id. The
second, was a photograph “of Cheney captioned ‘Philadelphia firefighter
Francis Cheney holds a flag at a 9/11 ceremony in 2006.’ The photograph
focused on Cheney’s arm patch, but his face, though out of focus, is visible.”
Id. Cheney had no part in the scandal, but “was flooded with messages from
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his colleagues at the Philadelphia Fire Department, family, friends and
strangers.” Id. Cheney sued for defamation, and the question to be resolved
by the court was whether the article implicated Cheney as one of the
firefighters described in the scandal. In holding that the article was capable of
defamation, the court found that the article could suggest to a reasonable
person that Cheney was among the firefighters implicated in the scandal,
because the article described a scandal in which dozens of firefighters were
accused, but only identified Cheney in the caption next to the text of the
article. Id. Similar to Cheney, Dr. Menkowitz was associated with allegations
of professional misconduct regarding his treatment of an older female patient.
The possible association between the innuendo of sexual or physical
misconduct and Dr. Menkowitz cannot be mistaken.
Our determination that the challenged statement may be found to be
defamatory by implication however, does not answer completely the issue of
whether the Newspaper was entitled to have judgment n.o.v. entered in its
favor. It must still be determined whether the record supports an award of
either compensatory or punitive damages, as proof of damages is an essential
part of establishing Dr. Menkowitz’s cause of action for defamation by
implication. Our Supreme Court’s decision in Joseph is most instructive in
this regard. The Joseph Court reaffirmed that, in a private figure/public
concern defamation claim, “proof of actual injury to a private plaintiff’s
reputation is a prerequisite to the recovery of damages for other actual
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injuries, including mental and emotional injuries[,]” unless there is a showing
of actual malice. Joseph, supra at 429. Moreover, there must be proof by
a preponderance of the evidence that the plaintiff’s injury to reputation was
caused by the defamatory publication rather than the true statements in the
article.
First, we agree with the trial court there was no evidence of actual
malice adduced herein that would support an award of punitive damages. Our
High Court held in Joseph that a private-figure plaintiff in a libel case involving
media defendants may only recover punitive damages upon satisfaction of the
actual malice test enunciated in New York Times Co. v. Sullivan, 376 U.S.
254 (1964). Actual malice must be shown by clear and convincing evidence,
and “whether the evidence in the record in a defamation case is sufficient to
support a finding of actual malice is a question of law.” Joseph, supra at
436 (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 17 (1990)). A
media defendant acts with actual malice if it publishes false statements “with
a high degree of awareness . . . of probable falsity,” or with “serious doubts
as to the truth of his publication.” Joseph, supra at 437. The trial court
correctly found that there was no clear and convincing evidence that the
Newspaper and Mr. Engquist acted with actual malice. Hepps, supra at 774.
The following facts were largely uncontroverted. As in Joseph, Mr.
Engquist relied heavily upon a trusted confidential source that had proven 100
percent reliable in the past. N.T. Jury Trial Vol. IV, 3/19/14, at 737. He
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attempted to get confirmation of the reason for the suspension from Debra
Bennis, the spokesperson for PMMC, but she would not comment. When
Dr. Menkowitz did not return his one-half dozen telephone calls, the reporter
went to the physician’s office in an effort, albeit unsuccessful, to speak to him.
Mr. Engquist obtained a list of all members of the MEC and called every person.
Two physicians who had previously served on the MEC agreed to speak to him
and he quoted their remarks in the article. Information regarding former and
pending lawsuits was verified with reference to court records and
conversations with the attorneys involved. Attorney Epstein spoke to
Mr. Engquist “off the record” and upon the condition that he did not publish
his remarks. There is no evidence that he shared with Mr. Engquist what he
believed to be the reason for the suspension, but only that a federal lawsuit
would be filed the next day. The record establishes that the very day the
federal lawsuit was filed, Mr. Engquist accurately and fairly reported
Dr. Menkowitz’s allegations against PMMC and the physician’s view of the
stated reasons for his suspension. Finally, Dr. Menkowitz never sought a
retraction or a correction.
Mr. Engquist testified. He professed to have no doubts about the truth
of the publication. He characterized the factual statements in the first article
appearing April 18, 1997, as true. He chose the term “professional
misconduct” to connote that the incident occurred in the context of Dr.
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Menkowitz’s duties as a doctor. The reporter believed that was a fair choice
of words to describe Dr. Menkowitz’s conduct, and we agree.
Although Professor Eveslage criticized the ethics of a journalist relying
solely on confidential sources, such a deviation from journalistic standards
was held not to constitute actual malice in Harte-Hanks Communications,
Inc. v. Connaughton, 491 U.S. 657, 666-92 (1989); see also Blackwell v.
Eskin, 916 A.2d 1123 (Pa.Super. 2007) (holding reliance upon one
confidential source without independent confirmation is not malice). Herein,
the Newspaper conducted an investigation, but even the failure to do so does
not support a finding of malice. Harte-Hanks Communications, supra. A
showing of malice requires “more than consideration of whether a reasonable
person would have published the statement without further investigation;
rather, it requires the plaintiff to present evidence sufficient ‘to permit the
conclusion that the defendant in fact entertained serious doubts as to the truth
of his publication.’” Castellani, supra at 1241 (quoting St. Amant v.
Thompson, 390 U.S. 727, 731 (1968)). A newspaper’s decision to proceed
to publish the article, even if it did so in order to get the scoop on the story
and increase its profits, is not malice. Harte-Hanks Communication,
supra.
Herein, the trial court found, and the record supports, that “the proof
presented to show actual malice lacks the convincing clarity which the
constitutional standard demands, and hence that it could not constitutionally
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sustain a judgment for presumed or punitive damages in favor of [the
Newspaper] under the proper rule of law.” Trial Court Opinion, 9/19/14, at
59. Hence, the punitive damages award was properly vacated.14
The absence of proof of malice also plays a role in Dr. Menkowitz’s claim
for compensatory damages. In the absence of proof of malice, Dr. Menkowitz
was required to prove an injury to reputation caused by the allegedly false
statements or innuendos, not the truthful reporting of the suspension, in order
to be entitled to compensatory damages. He failed to meet that burden. Not
____________________________________________
14 We note that the trial court did not instruct the jury that actual malice for
purposes of punitive damages must be proven by clear and convincing
evidence, not by a mere preponderance. The court told the jury:
If you find that the Defendant or Defendants acted either
intentionally or recklessly in publishing the false or defamatory
communication, you may presume that the Plaintiff suffered both
injury to his reputation and emotional distress, mental anguish,
and humiliation that would result from such a communication.
N.T. Jury Trial Vol. V., 3/20/14, at 930. Later, the trial court reviewed the
verdict slip and the special interrogatory regarding punitive damages, which
asked: “Did Defendants act with knowledge that the published communication
was false or with reckless disregard of whether it was false or not?” Id. at
947. The court explained, “Again, for this particular proposition and question,
you evaluate the evidence, and you weigh the evidence and how the scales
relate to each other.” Id. This was a reference to its previous example of the
scales and the Plaintiff’s “burden of tipping the scale ever so slightly in
Plaintiff’s favor. If it is tipped ever so slightly in Plaintiff’s favor, then you
must vote for the Plaintiff on that question.” Id. at 943-944.
Although this instruction was erroneous, the Newspaper did not challenge it
below and the issue is not before us on appeal.
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one witness testified that his or her view of the physician changed as a result
of this communication. Furthermore, even Dr. Menkowitz conceded that the
harshness of suspension alone after twenty-five years would lead one to
believe that he had done something horrible. N.T. Jury Trial Vol. II, 3/17/14,
at 260. He recounted a conversation with an elderly gentleman who
recognized his name “because he remembered I was the doctor who was
‘kicked out of the hospital.’” Id. at 262. Dr. Menkowitz’s expert also
acknowledged that the public disclosure of the suspension alone was
damaging to the physician’s reputation. Mr. Eveslage conceded, “If I am
reading that a surgeon in a hospital in my town has been banned from seeing
patients at the hospital, that clearly is going to be damaging to his reputation.”
N.T. Jury Trial, Vol. III, 3/18/14, at 440.
Dr. Menkowitz’s testimony that other hospitals with which he was
associated read the article and stopped using him is similarly deficient as it
failed to distinguish whether the alleged injury to reputation was caused by
the suspension or the article.15 Absent is the causal connection required by
Joseph between the alleged defamatory innuendos and the harm to
____________________________________________
15The Newspaper pled that Suburban General Hospital threatened to suspend
Dr. Menkowitz’s privileges at that facility in a letter dated two days before
publication of the April 18, 1997 article due to PMMC’s dissemination of the
news of his suspension. Defendants’ Answer and New Matter at ¶42.
Dr. Menkowitz admitted the truth of that allegation. Plaintiff’s Answer to
Defendants’ New Matter at ¶42. That admission was not placed before the
jury.
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reputation, as distinguished from the suspension itself. All of the foregoing
proof tends to confirm that any damage to Dr. Menkowitz’s reputation flowed
from the suspension itself, not any implication of sexual or physical abuse.
Thus, even if we were to find a basis for liability, the record contained
insufficient proof that the defamatory statement or innuendos, rather than the
fact of suspension, caused damage to reputation that would have supported
a compensatory damage award. Dr. Menkowitz’s failure to prove damages to
his reputation resulting from the defamatory innuendo is fatal to his claim.
The Newspaper accordingly, was entitled to have judgment n.o.v. entered in
its favor on this claim.
For the above reasons, we vacate the judgment in favor of
Dr. Menkowitz, thus affirming the trial court’s decision to vacate his punitive
damages award, and remand for entry of judgment in favor of Peerless
Publications Inc. and Eric Engquist.16 Jurisdiction relinquished.
President Judge Emeritus Bender, Judge Panella, Judge Lazarus, and
Judge Ransom join this opinion.
Judge Bowes files a concurring opinion in which Judge Ott, Judge
Dubow, and Judge Moulton join.
____________________________________________
16In light of our conclusion that Dr. Menkowitz failed to sustain his burden of
proving damages and thus, his defamation claim, we need not consider the
Newspaper’s remaining issues presented for appeal.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/17
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Menkowitz, E. v. Peerless Publications, Inc.
Combined Opinion