Anti-SLAPP Alert. Beware Defamation Plaintiffs: Blanchard v. Steward Carney Hospital, Inc.
The Massachusetts Appeals Court yesterday issued its decision in Blanchard v. Steward Carney Hospital, Inc., another in a long series of appellate level cases involving the Massachusetts anti-SLAPP statute, General Laws chapter 231, section 59H. It is noteworthy for at least two reasons.
*The decision on its face extends anti-SLAPP protection for press statements.
The panel in Blanchard concluded that the defendant hospital president's statements quoted in the newspaper constituted protected petitioning activity within the protection of the First Amendment and the anti-SLAPP statute because (1) they were made in the context of regulatory and public scrutiny and in an effort to influence regulators, and although the statements were not made to the regulatory agencies, the regulators may have read or had access to them; (2) they were not unsolicited and they were "mirror images" of statements made in an investigative report by the hospital's outside counsel hired to help it address regulatory and licensing issues.
* The Court applied the anti-SLAPP statute to dismiss a portion of a single claim.
The anti-SLAPP motion in Blanchard sought dismissal of one count - defamation - of a multi-count complaint against the hospital, its president and others. Notwithstanding the well-established requirement that a claim be "based solely on" petitioning activity to qualify for anti-SLAPP dismissal, the Court parsed the defamation claim, dismissing so much of the claim that was based on the hospital president's press statements and allowing the rest of the claim, which was based on the president's internal email to hospital staff, to stand.
Plaintiffs were RNs working in the inpatient adolescent psychiatric unit at the defendant hospital. The hospital fired the plaintiff nurses after an investigation of complaints of abuse or neglect of patients in the unit having nothing to do with the plaintiff nurses and in response to a recommendation from outside counsel that all staff in the unit be replaced. After terminating the plaintiff nurses, the hospital president wrote an internal email to hospital staff stating, among other things, that certain "individual employees have not been acting in the best interest of the patients, the hospital, or the community [they] serve" and that "[a]s a result, [he has] terminated the employment of each of the individuals."
The next day, the Boston Globe ran an article stating that the hospital president had hired Scott Harshbarger to investigate a claim that an employee had sexually assaulted a teenager in the unit and that Harshbarger had recommeded "to start over on the unit." The Globe article quoted the hospital president's statement that the Harshbarger's report "described 'serious concerns about patient safety and quality of care.'" and reported that the hospital president further stated, "We will have top-notch employees replace those who left."
The Harshbarger investigation, the terminations, the email and the statements to the Boston Globe occurred at a time when the hospitial was under licensing scrutiny from the DMH, DPH, and DCF as a result of four complaints of abuse or neglect in the unit, again, having nothing to do with any of the plaintiff nurses. Later, a DMH report found wrongdoing by two staff members. In another Boston Globe article about the unit's problematic situation, the hospital president was quoted as stating, "[t]he Harshbarger report indicated that it wasn't a safe situation" and that he had based his decision to terminate the entire staff "on an investigation by [Harshbarger] and his law firm."
The plaintiff nurses sued the hospital and its president for defamation, and other claims.The defendants filed a special motion to dismiss the defamation claim based on the anti-SLAPP statute. The trial court (Giles, J.) found that the defendants' press and email statements did not constitute protected petitioning activity and denied defendants' special motion to dismiss.
On appeal, the Appeals Court affirmed in part and reversed in part. The Court framed the central issue in the case as "whether, during a period of crisis when [the hospital] faced the loss of its license to operate an in-patient adolescent psychiatric unit (unit) because of purported patient abuse and neglect, statements quoted in the newspaper made by the president of the hospital, and an [email] the president sent to staff announcing the dismissal of unnamed employees in the unit under review, constituted protected petitioning activity."
The Panel's answer: Yes and No.
The Appeals Court concluded that the hospital president's statements to the Boston Globe constituted protected petitioning activity because they were made in the context of scrutiny from the regulatory licensing agencies and public pressure on those agencies to close the unit and withdraw its license. The Court reasoned that the hospital president's statements in that context were part of a "comprehensive approach to fixing the problems at the unit" undertaken "to ensure that the hospital retained its license and to prevent the unit from being closed." When viewed in this context, the Court explained, the hospital president's statements to the Globe "were designed to communicate to the regulatory agencies that the hospital was taking action to avoid losing its license to operate the unit." After all, the Court explained, it was clear that DMH "would be paying attention, or at least would have access to these articles."As the Court concluded: "With the agencies continuously monitoring the situation and the unavoidable publicity that developed around it, the media essentially became a venue to express the perspectives of each side; as such, the Boston Globe articles were available to, and likely considered by, the regulatory agencies."
Following Blanchard, statements to the media made in the midst of a public controversy or surrounding regulatory or other governmental issues, may now qualify for anti-SLAPP protection. The panel also extended the Wynne v. Creigel "mirror image" rule to press statements that were close to the report prepared by counsel for the defendant.
The Appeals Court went on to find that while the hospital president's statements to the Boston Globe did constitute protected petitioning activity, his email to hospital staff did not. This was so according to the Court because while the email may have been part of the overall strategy to address unit conditions with hopes of influencing the regulators, there was nothing to indicate the email itself had been provided to regulators or that regulators were told about it. The Court reversed the trial court's denial of the special motion to dismiss insofar as it had allowed the entire defamation claim to survive, and concluded that while the claim survived, it could not be based on the hospital president's statements to the Globe, only on his internal email.
The anti-SLAPP statute allows dismissal of a claim "based solely" on petitioning activity. This "based solely on" standard was the Supreme Judicial Court's effort to avoid constitutional questions surrounding the anti-SLAPP statute raised in Duracraft v. Holmes Prods. Corp., 427 Mass. 156 (1998). It requires a party seeking disimssal based on the anti-SLAPP statute to make a "threshold showing" that the complaint is based solely on petitioning activity and has no other substantial basis. The Supreme Judicial Court crafted this requirement to address the constitutional "conundrum" of how to protect a defendant's right to petition the government, while also protecting the plaintiff's right to petition by filing suit.
Recognizing that the nurses' defamation claim as a whole was not "based solely" on petitioning activity, the Appeals Court dealt with the "based solely" on requirement by explaining that even though the claim was not based solely on petitioning activity, it could have been because the Globe statements and the email were "distinct actions" that "could readily have been the subject of separate counts."
In other words, notwithstanding the SJC's ruling in Duracraft, claims can be dismissed in part even if they are not "based solely" on petitioning activity.
NOTES FOR DIE-HARD ANTI-SLAPP FANS
1. The Plaintiff nurses also sued Harshbarger and his firm for defamation and intentional infliction of emotional distress based on Harshbarger's investigative report. They countered with their own special motion to dismiss, and the trial court found the statements in the report constituted protected petitioning activity under the anti-SLAPP statute. The Court went on to find the hospital president's statements were petitioning activity also because they were "essentially" "mirror images" of statements in the Harshbarger report.
2. The Court did not need to analyze the second prong of the anti-SLAPP statute (whether the petitioning activity was devoid of reasonable basis in fact or law and caused plaintiffs actual injury) because the plaintiffs had not argued otherwise.
3. Justice Mary T. Sullivan concurred in the result, but questioned whether a single count alleging two separate bases for defamation could be dismissed given the "based solely on" requirement set out in Duracraft. Justice Sullivan noted that "[w]here the pertinent allegations suggest that there may be both petitioning activity and nonpetitioning activity, the motion must be denied." Justice Sullivan went on to wonder whether the SJC's decision in Wenger v. Aceto (allowing without discussion dismissal of less than all claims on anti-SLAPP grounds) applied or whether the pronouncement by the Appeals Court in Ehrlich v. Stern that the anti-SLAPP inquiry "produces an all or nothing result" correctly states the law. She concurred in the majority's result because she found that the statements to the Globe were protected "mirror image" statements, but invited "further clarification of the reach of the 'sole purpose' doctrine first articulated in Duracraft." She also cited this author's article One claim at a time: The inherent problems with piecemeal application of the anti-SLAPP statute.