Clemetson v. Sweetser, Inc.

• Court: Superior Court of Maine
• Decided: November 4, 2011
• Docket: CUMcv-11-269
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION Docket No. CV-11-26( I:Dw- cv.._ _/11'- ' iY;;;..oo

CHARLES D. CLEMETSON,

Plaintiff

v. ORDER

STATE OF MAINE SWEETSER, INC., Cumberland, ss, Clerk's Office

Defendant. NOV 0 4 2011

RECEIVED In this action plaintiff Charles Clemetson is suing defendant Sweetser Inc.

alleging defamation, placement in a false public light, breach of fiduciary duty, and

intentional and negligent infliction of emotional distress. The complaint seeks

compensatory and punitive damages.

Before the court is a motion by Sweetser to dismiss the complaint on two

grounds: (1) that Sweetser's alleged actions constituted protected activity under Maine's

anti-SLAPP statute, 14 M.R.S. § 556; and (2) that in any event Dr. Clemetson's complaint

fails to state a claim upon which relief may be granted.

The gist of Dr. Clemetson's complaint is that Dr. Clemetson, who is a licensed

psychiatrist, was unfairly terminated from employment at Sweetser after approximately

three weeks of work and that Sweetser subsequently filed a complaint with the Board of

Licensure in Medicine falsely stating that Dr. Clemetson had failed to attend certain

training and had repeatedly missed scheduled appointments with patients. Complaint

<[<[ 3-15. Dr. Clemetson also alleges that in seeking future employment, he was

compelled to tell potential employers the unfounded and misleading reasons given by

Sweetser for his termination. Complaint <[ 23. Finally, he alleges in passing that Sweetser employees made false and unprivileged statements to unspecified third

parties. Complaint 1116. 19.

1. Sweetser's anti-SLAPP and Immunity Defenses

Sweetser argues that its report to the Board of Licensure in Medicine was

mandated under the Health Security Act, see 24 M.R.S. § 2506, 1 and falls within the anti-

SLAPP statute's definition of a "written or oral statement . . . submitted to a legislative,

executive or judicial body." 14 M.R.S. § 556. Sweetser notes that the Law Court has held

that "the Legislature intended to define in very broad terms those statements that are

covered by the statute." Schelling v. Lindell, 2008 ME 59 112, 942 A.2d 1226, 1230. As a

result, Sweetser argues, the anti-SLAPP statute requires Dr. Clemetson to show that

Sweetser's report to the Board of Licensure was devoid of any reasonable factual

support or any arguable basis in law and caused "actual injury" within the meaning of

the anti-SLAPP statute to Dr. Clemetson. See 14 M.R.S. § 556; Morse Bros. Inc. v.

Webster, 2001 ME 70 1 20, 772 A.2d 842, 849 (discussing plaintiff's burden under anti-

SLAPP statute); Schelling v. Lindell, 2008 ME 59 11 17-19, 27, 942 A.2d at 1231-34

(discussing actual injury requirement)

Sweetser also argues that the Health Security Act provides that any health care

provider or health care entity shall be "immune from civil liability . . . for making any

report or other information available to any board, appropriate authority, professional

competence committee or professional review committee pursuant to law." 24 M.R.S. §

1 Section 2506 provides that a health care provider or entity "shall, within 60 days, report in writing to the disciplined practitioner's board or authority" the name of any licensed employee whose employment has been terminated for reasons related to clinical competence or unprofessional conduct, together with pertinent information relating to that action.

2 2511(1). 2 As a result, Sweetser argues that even if the anti-SLAPP statute were

inapplicable, it cannot be held liable for its report to the Board of Licensure in Medicine.

2. Dr. Clemetson's Response

In response to Sweetser's motion, Dr. Clemetson has not contested Sweetser's

arguments that the anti-SLAPP statute is applicable. Nor has he attempted to

demonstrate through pleadings and affidavits that Sweetser's report to the Board of

Licensure was devoid of any factual support or any arguable basis in law and that he

suffered actual injury within the meaning of§ 556. See Morse Bros. v. Webster, 2001 ME

70 CJ[ 20, 772 A.2d at 849. Similarly, Dr. Clemetson does not argue that the immunity

contained in § 2511 is inapplicable in his case or that his claims relating to Sweetser's

report to the Board of Licensure are not subject to that immunity. See Plaintiff's

Opposition to Defendant's Motion to Dismiss dated August 12, 2011 at 1-2.

Instead, Dr. Clemetson focuses on his allegation that in seeking employment

after his termination from Sweetser, he was "compelled to explain to potential future

employers and third parties the unfounded and misleading reasons given by Sweetser

for his termination." Complaint CJ[ 23. Because he is proceeding under a theory of

"compelled self-publication," Dr. Clemetson argues, the Maine anti-SLAPP statute and

the Health Security Act "do not apply." Plaintiff's Opposition to Defendant's Motion to 2 The immunity set forth in§ 2511 applies to "any person acting without malice, any physician, podiatrist, health care provider, health care entity or professional society, any member of a professional competence committee or professional review committee, any board or appropriate authority and any entity required to report under this chapter." The Law Court has reserved decision on whether the immunity conferred by§ 2511 is absolute or conditioned on the absence of malice. McCullough v. Visiting Nurse Service, 1997 ME 55 CJI 14, 691 A.2d 1201, 1205. However, because the words "acting without malice" appear only in connection with "any person," Magistrate Judge Kravchuk has opined that§ 2511 is intended to provide absolute immunity to physicians, health care providers, and the other specifically identified professionals or entities. Landsberg v. Maine Coast Regional Health Facilities, 2009 U.S. Dist. LEXIS 37390, *27-28 (Recommended Decision), adopted in part, rejected in part on other grounds, 640 F. Supp. 2d 108 (D.Me. 2009).

3 Dismiss dated August 12, 2011 at 1. See id. at 2 (court should evaluate his allegation of

compelled self-publication under the normal standard applicable to motions to dismiss,

"not under the burden-shifting procedure set forth in the anti-SLAPP statute").

The court agrees that to the extent that Dr. Clemetson' s allegations do not

depend on reports that Sweetser has challenged under the anti-SLAPP statute and

under the immunity contained in 24 M.R.S. § 2511, his claims must be evaluated under

the usual standard applicable to a motion to dismiss. Under that standard, the material

allegations of the complaint must be taken as admitted and must be read in the light

most favorable to the plaintiff to determine if they sets forth elements of a cause of

action or facts that would entitle plaintiff to relief. In re Wage Payment Litigation, 2000

ME 162

Because Dr. Clemetson has waived any argument that his claims based on

reports to the Board of Licensure in Medicine are barred by the anti-SLAPP statute and

the immunity contained in § 2511, the court will grant Sweetser's motion as to those

claims.

3. Compelled Self-Publication

The Law Court has expressly reserved the question of whether Maine law

permits a defamation claim to be based on compelled self-publication. Cole v. Chandler,

2000 ME 104

predicted that Maine would recognize defamation claims based on compelled self-

publication, but only where it was reasonably foreseeable that the plaintiff would be

placed under strong compulsion to repeat the defamatory statement. See Carey v. Mt.

Desert Island Hospital, 910 F.Supp. 7, 11-13 (D.Me. 1995) (Brody, J.).

4 Since Judge Brody's decision, vanous other courts have weighed in on the

validity of compelled-self publication, and the court is aware that the theory of

compelled self-publication now appears to be a minority view, that it has been

described by the Seventh Circuit as a "largely discredited" doctrine, that Massachusetts

and Connecticut have declined to adopt that doctrine, and that the federal court in New

Hampshire has predicted that New Hampshire would not adopt such a theory. See

Olivieri v. Rodriguez, 122 F.3d 406, 408 (7th Cir. 1997) (Posner, C.J.); White v. Blue Cross

and Blue Shield of Massachusetts, 809 N.E.2d 1034, 1037-39 (Mass. 2004); Cweklinsky v.

Mobil Chemical Co., 837 A.2d 759 (Conn. 2004); Slater v. Verizon Communications, 2005

U.S. Dist. LEXIS 3270, *26-28 (D.N.H. 2005)(McAuliffe, J.).

Whether this court or the Law Court will ultimately recognize compelled self-

publication is, therefore, far from a foregone conclusion. Under the circumstances,

however, the court will not make a final determination at the pleading stage. Additional

factual development, either as part of a summary judgment record or at trial, will help

to illuminate whether and to what extent compelled self-publication should provide a

basis for liability. This is particularly true because Dr. Clemetson has also alleged, as

noted above, that employees of Sweetser made unprivileged and defamatory

statements to unspecified third parties. If true, this might provide a basis for liability

apart from Dr. Clemetson's compelled self-publication theory and apart from any

report made to the Board of Licensure in Medicine or any other appropriate authority.

The Law Court has held, however, that a defendant in a defamation case is

entitled to sufficient notice of the content and circumstances of an allegedly defamatory

statement to be able to determine whether defenses such as truth and privilege should

be raised. See Picard v. Brennan, 307 A.2d 833, 834-35 (Me. 1973). In the court's view

allegations that Sweetser employees made unspecified defamatory and unprivileged

5 statements to unspecified third parties are insufficient under this standard. Dr.

Clemetson shall have 20 days from the date of this order to amend count I of his

complaint in order to remedy these defects.

4. Dr. Clemetson's Other Causes of Action

Count II of Dr. Clemetson's complaint alleges that Sweetser's allegedly

unfounded reasons for termination placed him in a false light. The essential elements of

a false light claim are set forth in Restatement Second Torts§ 652E (1977):

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability ...

(emphasis added). See Cole v. Chandler, 2000 ME 104 C)I17, 752 A.2d at 1197. Publicity

requires communication to the public at large or to a sufficient number of persons so

that it must be regarded as substantially certain to become a matter of public

knowledge. Id.; Restatement (Second) of Torts § 652D, comment a.

Dr. Clemetson' s complaint alleges that Sweetser's statements to third parties and

to the Board of Licensure have given publicity to assertions that have placed Dr.

Clemetson in a false light, Complaint CJI 27, but the complaint does not allege that

Sweetser made any communications to the public at large or to a sufficient number of

persons that those communications are substantially certain to become a matter of

public knowledge. 3 As a result, Sweetser's motion to dismiss Dr. Clemetson's false light

claim will be granted.

3 For the reasons noted above, Dr. Clemetson has not contested Sweetser's arguments that its report to the Board of Licensure were protected by the anti-SLAPP statute and were privileged under 24 M.R.S. § 2511, so his false light claims cannot be based on that report. In any event, a communication to the Board of Licensure is not a communication to the general public or a communication that is substantially certain to become a matter of public knowledge.

6 Count III of the complaint alleges that Sweetser breached a fiduciary duty to Dr.

Clemetson but does not allege any of the essential elements of a fiduciary relationship -

the actual placing of trust and confidence by the party claiming a fiduciary relationship

and a great disparity of position and influence between the parties. See Bryan R. v.

Watchtower Bible and Tract Society, 1999 ME 144

even if Dr. Clemetson had recited those elements, the Law Court has ruled that in order

to survive a motion to dismiss, "a plaintiff must set forth specific facts constituting the

alleged relationship with sufficient particularity to enable the court to determine

whether, if true, such facts could give rise to a fiduciary relationship." Id. <[ 21, 738 A.2d

at 846-47. Count III of Dr. Clemetson's complaint falls far short on this score, and

Sweetser's motion to dismiss that count will be granted.

Count IV of Dr. Clemetson's complaint alleges intentional infliction of emotional

distress. In part, this count of Dr. Clemetson's complaint consists of conclusory

allegations that simply track the elements of intentional infliction of emotional distress

as set forth in such cases as Curtis v. Porter, 2001 ME 158 <[ 10, 784 A.2d 18, 22-23. See

Complaint <[<[ 38-40. The only facts supporting such a claim are those previously set

forth - that Sweetser unfairly terminated Dr. Clemetson and made a false report to the

Board of Licensure as to the reasons for Dr. Clemetson' s termination, that Sweetser

employees made unprivileged and defamatory statements about Dr. Clemetson to third

parties, and that Sweetser's termination compelled Dr. Clemetson to repeat Sweetser's

defamatory statements in seeking new employment and cast him in a false light.

Dr. Clemetson's claims based on Sweetser's report to the Board of Licensure are

barred for the reasons stated above, and the court has some doubt that Dr. Clemetson' s

remaining allegations would, if proven, demonstrate that Sweetser's conduct was so

extreme and outrageous as to exceed all possible bounds of decency and be regarded as

7 atrocious and intolerable in a civilized community. See Staples v. Bangor Hydro-Electric

Co., 561 A.2d 499, 501 (Me. 1989). Nevertheless, that cannot be determined at the

pleading stage.

Count V of the complaint consists of a claim for negligent infliction of emotional

distress. In order to recover on a free-standing claim for negligent infliction of

emotional distress, a plaintiff must demonstrate that a special relationship existed

between plaintiff and defendant that created a duty to avoid the negligent infliction of

emotional harm. Curtis v. Porter, 2001 ME 158 <[[<[[ 18-19, 784 A.2d 18, 25-26. The only

relationship between Dr. Clemetson and Sweetser that can be discerned from the

complaint is an employer-employee relationship. However, there is no authority for the

proposition that an employer-employee relationship constitutes the kind of special

relationship that could give to a negligent infliction claim. Accordingly, count V of the

complaint will be dismissed.

Count VI of the complaint seeks punitive damages. This is not a separate cause of

action but a form of relief that may be available if Sweetser is held liable on one or more

of Dr. Clemetson's other claims and if Dr. Clemetson also proves entitlement to

punitive damages by clear and convincing evidence. In light of the rulings on Dr.

Clemetson's other causes of action, his claim for punitive damages cannot be resolved

on the pleadings.

The entry shall be:

With respect to Count I of the complaint, defendant's motion to dismiss is granted as to any defamation claims based on reports by defendant to the Board of Licensure in Medicine but is denied as to plaintiff's allegations of compelled self- publication. With respect to allegations in the complaint of unprivileged statements to third parties, plaintiff shall have 20 days from the date of this order to amend count I of the complaint as set forth in this order. If not such amendment is filed, plaintiff's claims relating to unspecified statements to third parties shall be dismissed. Defendant's

8 motion to dismiss is granted as to counts II, III and V of the complaint and is denied as to counts IV and VI of the complaint.

The Clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).

Dated: November tf , 2011

Thomas D. Warren Justice, Superior Court

9 CHARLES CLEMETSON VS SWEETSER UTN:AOCSsr -2011-0056023 CASE #:PORSC-CV-2011-00269

01 0000003404 MOSS PHILIP D/B/A MOSS SHAPIRO 400 CONGRESS ST PORTLAND ME 04112 F SWEETSER INC DEF RTND 07/15/2011

02 0000007244 UHL ERIC J D/B/A MOSS SHAPIRO 400 CONGRESS ST PORTLAND ME 04112 F SWEETSER INC DEF RTND 07/15/2011

03 0000009329 BANDA DARRICK X 39 PORTLAND PIER PO BOX 4803 PORTLAND ME 04112 F CHARLES CLEMETSON PL RTND 06/14/2011 STATE OF MAINE CUMBERLAND, ss.

SWEETSER, INC.,

Defendant.

Before the court is a motion by defendant Sweetser Inc. for summary judgment.

In light of this court's prior orders dated November 4, 2011 and January 17, 2012,

the remaining claims in this action are (1) a defamation claim based on the theory that

plaintiff Charles Clemetson, a licensed psychiatrist who was terminated by Sweetser in

June 2009, has been compelled to repeat certain allegedly unfounded and misleading

reasons given by Sweetser for his termination and (2) a claim that Sweetser's conduct

also constituted intentional infliction of emotional distress.

Summary Judgment

Summary judgment should be granted if there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law. In considering a

motion for summary judgment, the court is required to consider only the portions of the

record referred to and the material facts set forth in the parties' Rule 56(h) statements.

g., Johnson v. McNeil, 2002 ME 99

considered in the light most favorable to the non-moving party. I d. Thus, for purposes of summary judgment, any factual disputes must be resolved against the movant.

Nevertheless, when the facts offered by a party in opposition to summary judgment

would not, if offered at trial, be sufficient to withstand a motion for judgment as a

matter of law, summary judgment should be granted. Rodrigue v. Rodrigue, 1997_ME

99 <[ 8, 694 A.2d 924, 926.

Defamation

The elements of a cause of action for defamation are (1) a false and defamatory

statement concerning another person; (2) an unprivileged publication to a third party;

(3) fault amounting to at least negligence; and (4) either actionability of the statement

irrespective of special harm or the existence of special harm caused by the publication.

See Rice v. Alley, 2002 ME 43 <[ 19, 791 A.2d 932; Restatement (Second) of Torts§ 558

(1977).

The allegedly defamatory statements made by Sweetser in this case were that Dr.

Clemetson had missed appointments with patients with no call or explanation. This was

the alleged behavior which caused Sweetser to terminate him and which formed the

basis for Sweetser's subsequent report to the Board of Licensure in Medicine. 1

Because Sweetser was required to make a report to the Board of Licensure

pursuant to 24 M.R.S. § 2506, because such reports are subject to a statutory privilege

pursuant to 24 M.R.S. § 2511(1), and because of the provisions of the anti-SLAPP statute,

this court has previously dismissed Dr. Clemetson's defamation claims based on

1 In that report Sweetser stated that Dr. Clemetson had received a verbal warning for missing the patient appointments, which Sweetser characterized as "unprofessional" behavior. The report to the Board of Licensure also stated that Dr. Clemetson had missed a training session, but any claims based on that report have been dismissed as discussed below. There is no evidence that Sweetser told Dr. Clemetson that his termination was based on anything other than missed appointments.

2 Sweetser's report to the Board of Licensure. See order dated November 4, 2011. It has

also dismissed Dr. Clemetson' s claim that Sweetser employees made unspecified

defamatory and unprivileged statements to unspecified third parties. See order dated

January 17, 2012.

The issues to be decided on the instant motion are whether there are disputed

factual issues for trial on Dr. Clemetson's defamation claim and whether Dr. Clemetson

can proceed to trial on his defamation claim when his only evidence of an unprivileged

publication is based on the theory of "compelled self-publication" - that in seeking

future employment, Dr. Clemetson was compelled to tell potential employers the

allegedly unfounded and misleading reasons given by Sweetser for his termination.

On certain issues, the record demonstrates that there are disputed issues of fact

for trial. Thus, while Sweetser contends that Dr. Clemetson missed appointments that

were on his schedule, Dr. Clemetson has offered evidence that he was not aware of the

appointments in question.

Sweetser also points out that Dr. Clemetson has continued to receive income

from seeing private patients and has not offered any evidence other than speculation to

substantiate his contention that he failed to obtain employment because of his

termination from Sweetser. Thus, while Dr. Clemetson submitted an email exchange

reflecting that he was turned down for a job at the Togus VA hospital, the emails in

question state that he was turned down because of issues with his medical license that

had occurred during the period from 2002 to 2004- five years before his employment at

Sweetser. 2 However, since the alleged defamatory statements relate to Dr. Clemetson's

2 See documents identified as "Clemetson Employment Search 000005-000006" annexed to the October 17, 2012 affidavit of Dr. Clemetson. Specifically, the record reflects that Dr. Clemetson's license was suspended in May 2002 "due to unprofessional conduct and incompetence based on habitual substance abuse and diagnosis of a physical or mental condition that may result in the

3 fitness for his occupation as a psychiatrist, those statements would be actionable even

absent any evidence of special harm in the form of lost employment income. See

Restatement (Second) Torts § 573.

Similarly, assuming that the concept of compelled self-publication is legally

sufficient, Sweetser argues that Dr. Clemetson has not shown that he in fact disclosed

the reasons given by Sweetser for his termination to prospective employers. In this

connection Sweetser relies on one set of employment applications on which, several

months after he was terminated by Sweetser, Dr. Clemetson answered "No" when

asked if he had been ever been "fired" or "discharged" from employment in the

preceding five years. 3 However, another document in the record reflects that Dr.

Clemetson did disclose to another prospective employer that he had been fired by

Sweetser. Clemetson Deposition Ex. 11. In that document Dr. Clemetson further stated

that he and the staff had been inaccurately informed about his schedule, that this led to

a "misunderstanding," and that "the matter was subsequently clarified with the

employer" - statements which Sweetser contends were inaccurate and, more

importantly, not defamatory even under the compelled self-publication doctrine. 4

licensee performing services in a manner that endangers the healthy or safety of patients." See id. and Defendant's Statement of Material Facts ("SMF") dated August 28, 2012

4 In making these arguments, however, Sweetser overlooks that Dr. Clemetson' s

affidavit squarely states that he was compelled to disclose the circumstances of his

termination by Sweetser to more than a dozen prospective employers or employment

agencies. October 17, 2013 Clemetson Affidavit 'f[ 1. That is sufficient to create a

disputed issue of fact for trial on the question of whether Dr. Clemetson was compelled

to publish allegedly defamatory statements by Sweetser.

Negligence and Conditional Privilege

There are, however, two respects in which the court concludes that, construing

the factual record in the light most favorable to Dr. Clemetson, he has nevertheless not

demonstrated the existence of a genuine factual dispute for trial. These involve the

interrelated subjects of whether Dr. Clemetson has offered evidence demonstrating the

existence of a factual dispute as to whether Sweetser was at least negligent in making

the statements that Dr. Clemetson alleges were defamatory and whether he has offered

evidence demonstrating the existence of a factual dispute as to whether Sweetser is

entitled to a conditional privilege.

As noted above, the tort of defamation requires fault amounting to at least

negligence. ~ Rice v. Alley, 2002 ME 43 'f[ 19. In this case Sweetser's Rule 56(h)

statement of material facts asserts that Sweetser "justifiably believed" that Dr.

Clemetson had been provided with advance copies of schedules showing the

appointments that he subsequently missed. Sweetser's August 28, 2012 SMF 'f['f[ 18, 24.

In his opposing statement of material facts Dr. Clemetson questioned the relevance of

5 Sweetser's justifiable belief but admitted those assertions. Plaintiff's October 23, 2012

SMF

Elsewhere in his opposing papers Dr. Clemetson refers to deposition testimony

in which he asserted that Sweetser had fired him for a different reason- because it

could not bill MaineCare for his services. See, ~ Plaintiff's October 23, 2012 SMF <]I 46.

However, Dr. Clemetson has offered nothing but speculation to support the contention

that a MaineCare billing problem motivated his termination, and Sweetser has offered

unrebutted evidence that it was eventually paid by MaineCare for his services. See

Sweetser SMF <]I 39.

Given Dr. Clemetson's acknowledgment that Sweetser had a justifiable belief

that he had missed patient appointments that were on his schedule without an excuse

or explanation- the basis for his claim of defamation- the court cannot find that there

is a genuine dispute of fact as to whether Sweetser's statements to that effect were at

least negligent. Even assuming that Sweetser also had other reasons for terminating Dr.

Clemetson, this is fatal to Dr. Clemetson's defamation claim. See Lester v. Powers, 596

A.2d 65,71 (Me. 1991).

Moreover, the undisputed fact that the allegedly defamatory statements were the

reasons given for Dr. Clemetson's termination establish that Sweetser is entitled to a

conditional privilege under the circumstances in this case. See Cole v. Chandler, 2000

ME104 <]I 6, 752 A.2d 1189 (employer entitled to conditional privilege on claim of

5 This is consistent with subsequent statements by Dr. Clemetson that Ms. Fagan of Sweetser may have thought he was apologizing for missing appointments and that, when he was terminated, Ms. Fagan had not realized that the calendars from which he was working did not show the appointments he had missed and that he had not spoken up at that time to explain his side of the story. See documents identified as Clemetson Employment Search 000063 and 000065 annexed to the October 17, 2012 Clemetson affidavit; Sweetser August 28, 2012 SMF

6 defamation arising out of employee's termination). A conditional privilege would be

applicable unless the originator of the defamatory statement abused the privilege. Id. 1

7. In this case Dr. Clemetson has not offered any evidence other than speculation to

generate a disputed issue for trial as to whether Sweetser abused the privilege by

making knowingly false statements, by recklessly disregarding the truth or falsity of its

statements, or by acting out of ill will. 6

Indeed, the concession that Sweetser "justifiably believed" that Dr. Clemetson

had missed patient appointments that were on his schedule demonstrates that it is

undisputed that Sweetser is entitled to a conditional privilege as to the statements that

Dr. Clemetson contends were defamatory.

Compelled Self-Publication

In the alternative, Sweetser's motion for summary judgment should be granted

because the court has reviewed the authorities cited by the parties and the factual

record in this case and concludes that it is doubtful that the Law Court will adopt the

theory of "compelled self-publication," at least under the circumstances of this case.

In its previous order the court noted that a federal decision by Judge Brody in

1995 predicted that Maine would recognize defamation claims based on compelled self-

publication, that the Law Court had thereafter expressly declined to decide that issue,

Cole v. Chandler, 2000 ME 104 15, and that a number of recent court decisions in other

states have since declined to recognize defamation claims based on compelled self-

publication. See November 4, 2011 order at 4-5.

6 Lester v. Powers demonstrates that even if Dr. Clemetson had offered evidence from which an inference could conceivably be drawn against the validity of a conditional privilege, this would be insufficient to defeat summary judgment in a defamation case. See 596 A.2d at 71-72 (inference that defendant's destruction of her notes prior to lawsuit demonstrated her knowledge of falsity was too speculative to defeat summary judgment).

7 While the ultimate decision on this issue must come from the Law Court, this

court is persuaded by the reasoning of those courts that have, subsequent to Judge

Brody's 1995 prediction, rejected the compelled self-publication theory. See Olivieri v.

Rodriguez, 122 F.3d 406, 408 (7th Cir. 1997) (Posner, C.J.); White v. Blue Cross and Blue

Shield of Massachusetts, 809 N.E.2d 1034, 1037-39 (Mass. 2004); Cweklinsky v. Mobil

Chemical Co., 837 A.2d 759 (Conn. 2004); Slater v. Verizon Communications, 2005 U.S.

Dist. LEXIS 3270, *26-28 (D.N.H. 2005) (McAuliffe, J.). The reasoning of those courts

speaks for itself and will not be reiterated here.

A review of the summary judgment record in this case supports the conclusion

that compelled self-publication is not consistent with Maine law. At least for the kind of

jobs sought by Dr. Clemetson, there is evidence that certain employers do ask

applicants if they have previously been fired or otherwise discharged from

employment. As the record in this case demonstrates, however, Dr. Clemetson was not

required to simply recite Sweetser's reasoning for his firing but was able to give his

version of events, even to the point of misrepresenting the facts. See Clemetson

Deposition Ex. 11 in which Dr. Clemetson stated that he had been inaccurately

informed as to the scheduling of appointments and that this had led to a

"misunderstanding" which was "subsequently clarified" with his employer.

In other instances where the same question was posed, there is evidence that Dr.

Clemetson did not report that he had been fired. See documents identified as Clemetson

Employment Search 000040 and 000042 annexed to the October 17, 2012 Clemetson

affidavit. In still other instances Dr. Clemetson has stated that he fully disclosed the

reasons given by Sweetser for his termination. E.g., Clemetson Deposition 128-29;

October 17, 2012 Clemetson Affidavit 11. This underlies a problem with the compelled

self-publication theory - it makes the existence of a defamatory publication subject to

8 the sole discretion of what the defamation plaintiff chooses to tell prospective

employers.

Perhaps equally importantly, allowing a defamation action against an employer

under a compelled self-publication theory would be inconsistent with the Law Court's

long adherence to the rule that, where employment contracts are terminable at will,

Maine does not recognize a common law action for wrongful discharge. See, ~

Taliento v. Portland West Neighborhood Planning Council, 1997 ME 194 <]I 9, 705 A.2d

696; Bard v. Bath Iron Works, 590 A.2d 152, 156 (Me. 1991); Larrabee v. Penobscot

Frozen Foods, 486 A.2d 97, 100 (Me. 1984). As this case demonstrates, allowing Dr.

Clemetson to sue Sweetser under a compelled self-publication theory would focus on

whether he had unjustifiably missed patient appointments and would therefore allow

him to pursue a backdoor cause of action for wrongful discharge. It is difficult to see

why any other employee who wanted to bring a wrongful discharge claim could not

similarly adopt a compelled self-publication rationale.

Intentional Infliction of Emotional Distress

The remaining question is whether Sweetser is entitled to summary judgment on

Dr. Clemetson's claim of intentional infliction of emotional distress.

If the court is correct that Sweetser is entitled to summary judgment on the

defamation claims based on conditional privilege, see pp. 6-7 above, that privilege

would also apply to Dr. Clemetson's intentional infliction claim. See Rippett v. Bemis,

672 A.2d 82, 87 (Me. 1996), in which the Law Court stated that to allow recovery for

intentional infliction of emotional distress based on statements that are privileged under

defamation law would undermine the privilege.

9 In the alternative, and aside from whether conditional privilege exists, the court

has considered the summary judgment record in the light most favorable to Dr.

Clemetson and concludes that he has not generated a genuine dispute for trial as to

whether Sweetser's conduct was sufficiently extreme and outrageous to allow recovery

for intentional infliction of emotional distress. What is required is "conduct so

outrageous in character, and so extreme in degree, as to go beyond all possible bounds

of decency and to be regarded as atrocious and utterly intolerable in a civilized

community." Restatement (Second) of Torts § 46, comment d. The issue of whether

alleged conduct is sufficiently extreme or outrageous to meet the above standard is an

issue for the court to determine in the first instance. Champagne v. Mid-Maine Medical

Center, 1998 ME 87,

(Me. 1993)

In this instance, Sweetser's alleged conduct, accepted as true for purposes of this

motion, amounts to terminating Dr. Clemetson without cause and advancing baseless

reasons for the termination? This alleged conduct, if proven, would be both unfair and

wrongful, but it is not extreme and outrageous, nor does it qualify as "atrocious and

utterly intolerable in a civilized community." Persons are discharged from employment

all the time. Some of those discharges are unjustified and in most if not all of the cases

in which employees are unjustifiably discharged, the justifications advanced by the

employer will be incorrect. Those instances, however, do not come close to meeting the

7 Any contention that Sweetser knowingly advanced false reasons for Dr. Clemetson's discharge is belied by Dr. Clemetson's acknowledgment that Sweetser "justifiably believed" that he had missed patient appointments that were on his schedule. See discussion above at pp. 5-6. If Sweetser had followed up an unjustified discharge with a report to the Board of Licensure of Medicine purely on its own initiative, the situation might be different. However, Sweetser was required to file a report to the Board and such a filing is privileged. See 24 M.R.S. §§ 2506, 2511(1).

10 11 extreme and outrageous" standard required to proceed to trial on a claim for

intentional infliction of emotional distress.

The Law Court has ruled that in appropriate cases summary judgment may be

granted dismissing claims for intentional infliction of emotional distress if the court

concludes that the alleged conduct is not sufficiently extreme and outrageous" as a 11

matter of law. See Barnes v. Zappia, 658 A.2d 1086, 1090 (Me. 1995); Gray v. State of

Maine, 624 A.2d at 484 (neglect or refusal by caseworker to interview treating physician

and caseworker's misrepresentation of the views of two consulting professionals not

sufficiently extreme and outrageous); Staples v. Bangor Hydro-Electric Co., 561 A.2d

499, 501 (Me. 1989) (humiliation of plaintiff at staff meetings and demotion without

cause not sufficiently extreme and outrageous).

Sweetser is therefore entitled to summary judgment dismissing Dr. Clemetson's

intentional infliction of emotional distress claim. 8

Defendant's motion for summary judgment is granted. The Clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).

Dated: February /S 2013

8 Dr. Clemetson also has brought a claim for punitive damages against Sweetser, but punitive damages can only be awarded based on a finding that the defendant has engaged in tortious conduct. The dismissal of all of Dr. Clemetson's tort claims against Sweetser therefore eliminates his punitive damages claim as well.

11 CHARLES CLEMETSON VS SWEETSER UTN:AOCSsr -2011-0056023 CASE #:PORSC-CV-2011-00269

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02 0000003404 MOSS PHILIP D/B/A MOSS SHAPIRO 400 CONGRESS ST PORTLAND ME 04112 F SWEETSER INC DEF RTND 07/15/2011

03 0000007244 UHL ERIC J D/B/A MOSS SHAPIRO 400 CONGRESS ST PORTLAND ME 04112 F SWEETSER INC DEF RTND 07/15/2011