Hayhurst, N.M.D. v. Timberlake

• Court: District Court, D. New Hampshire
• Decided: April 30, 1997
• Docket: CV-94-199-SD
• Status: Published

Opinion

Hayhurst, N.M.D. v. Timberlake CV-94-199-SD 04/30/97

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Donald Hayhurst, N.M.D.

_____ v. Civil No. 94-199-SD

Robert Timberlake; American Association of Naturopathic Physicians; Institute for Naturopathic Medicine; New Hampshire Association of Naturopathic Physicians; James Senseniq

O R D E R

In this diversity action, plaintiff Donald Hayhurst alleges

he was defamed by certain statements made by the defendants. By

order dated May 15, 1996, the court conditionally granted summary

judgment in defendants' favor as to the allegations in the

complaint but granted plaintiff leave to amend his complaint to

state an additional claim based on an alleged defamatory

statement made by defendant Robert Timberlake to Patricia

DeSilvio in Concord, New Hampshire. Plaintiff amended the

complaint to include defamation and conspiracy claims based on

said statement. Subseguently, defendants filed a motion to dismiss the first amended complaint, which was denied by order

dated November 14, 1996. Presently before the court is a motion

for summary judgment filed by all defendants,1 to which plaintiff

obj ects.

Background

The only remaining claim arises out of the events which took

place at the Legislative Office Building in Concord, New

Hampshire, on April 30, 1993. Defendant Timberlake and Patricia

DeSilvio were present at a meeting concerning New Hampshire House

bill 451-FN (HB451), which pertained to the licensing of

naturopathic medical professionals in New Hampshire. Following

the meeting, Timberlake approached DeSilvio and allegedly defamed

Hayhurst by stating.

Dr. Hayhurst wasn't what I thought he would be. That he was a fraud. He had no credentials, and that he could prove to me--I guess he was trying to get me to join whatever he had. He could prove it to me if I were to go to his office.

Deposition of Patricia DeSilvio at 34, 37 (attached to

defendants' motion for summary judgment).2

1The court construes defendants' motion as being filed by all defendants.

defendants state that Timberlake's recollection of the specific statement differs from that of DeSilvio, but for the purposes of this motion, they do not dispute DeSilvio's allegations. Defendants' Memorandum at 3 n.2.

2 Defendants have moved for summary judgment on the defamation

claim, arguing that (1) the statement was not defamatory; (2)

Timberlake was protected by a conditional privilege under both

New Hampshire law and the United States Constitution; and (3)

plaintiff has failed to demonstrate damages at least egual to

$50,000, and is therefore unable to satisfy the reguirements for

diversity jurisdiction. Defendants have also moved for summary

judgment on plaintiff's conspiracy claim.

Discussion

1. Summary Judgment Standard

Summary judgment is appropriate when there is no genuine

issue of material fact and the moving party is entitled to a

judgment as a matter of law. Rule 56(c), Fed. R. Civ. P.; Lehman

v. Prudential Ins. Co. of Am., 74 F.3d 323, 327 (1st Cir. 1996) .

Since the purpose of summary judgment is issue finding, not issue

determination, the court's function at this stage "'is not [] to

weigh the evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial.'" Stone &

Michaud Ins., Inc. v. Bank Five for Savings, 785 F. Supp. 1065,

1068 (D.N.H. 1992) (guoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 249 (1986) ) .

3 When the non-moving party bears the burden of persuasion at

trial, to avoid summary judgment he must make a "showing

sufficient to establish the existence of [the] element[s]

essential to [his] case." Celotex Corp. v. Catrett,, 477 U.S.

317, 322-23 (1986). It is not sufficient to "'rest upon mere

allegation[s] or denials of his pleading.'" LeBlanc v. Great Am.

Ins. C o ., 6 F.3d 836, 841 (1st Cir. 1993) (guoting Anderson,

supra, 477 U.S. at 256), cert, denied, ___ U.S. , 114 S. C t .

1398 (1994). Rather, to establish a trial-worthy issue, there

must be enough competent evidence "to enable a finding favorable

to the non-moving party." Id. at 842 (citations omitted).

In determining whether summary judgment is appropriate, the

court construes the evidence and draws all justifiable inferences

in the non-moving party's favor. Anderson, supra, 477 U.S. at

255.

2. Plaintiff's Defamation Claim

To establish defamation, a plaintiff must generally show

that "a defendant failed to exercise reasonable care in

publishing, without a valid privilege, a false and defamatory

statement of fact about the plaintiff to a third party."

Independent Mechanical Contractors, Inc. v. Gordon T. Burke &

Sons, Inc., 138 N.H. 110, 118, 635 A.2d 487, 492 (1993) (citing

4 R estatement (S e c o n d ) of T orts § 558 (1977); 8 Richard B. McNamara,

New Hampshire Practice, Personal Injury, Tort and Insurance

Practice § 2 (1988)). A statement is considered defamatory if

"it tends to so 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." R estatement (S e c o n d ) of T orts § 559

(1977). In other words, it "must tend to lower the plaintiff 'in

the esteem of any substantial and respectable group, even though

it may be guite a small minority.'" Duchesnave v. Munro Enters.,

Inc., 125 N.H. 244, 252, 480 A.2d 123, 127 (1984) (guoting

Thomson v. Cash, 119 N.H. 371, 373, 402 A.2d 651, 653 (1979)).

Whether a given statement is defamatory is a guestion of law for

the court to decide in the first instance. Nash v. Keene Pub.

Corp., 127 N.H. 214, 219, 498 A.2d 348, 351 (1985) (citing Pease

v. Telegraph Pub. Co., 121 N.H. 62, 65, 426 A.2d 463, 475

(1981)); see also Restatement, supra, § 614.

The law of defamation, which furthers the vital public

interest of discouraging attacks on reputation, is also subject

to the competing concern that it not stifle the freedoms of

speech and expression guaranteed by the First Amendment. In

Milkovich v. Lorain Journal Co., 497 U.S. 1, 15-20 (1990), the

Supreme Court discussed the extent to which state defamation

actions are constrained by the First Amendment. Because certain

5 constitutional safeguards3 had already been built into the law of

defamation, the Court declined to adopt an additional

constitutional privilege for all statements that can be

characterized as opinions. See id. at 21. Instead, statements

of opinion, like other categories of expression, should be

evaluated by whether they can "reasonably be interpreted as

stating actual facts about an individual." Id. at 20 (guotation

omitted). C f . Duchesnave, supra, 125 N.H. at 249, 480 A.2d at

125 ("a statement in the form of an opinion may be read to imply

defamatory facts, and it is actionable if it is actually

understood that way").

However, in so holding, the Court also cited approvingly a

prior line of cases which held that loose, figurative, or

hyperbolic language cannot ordinarily be the subject of a

defamation claim. See id. at 17-22 (citing Greenbelt Cooperative

Publishing Ass'n v. Bresler, 398 U.S. 6 (1970); Hustler Magazine,

Inc. v. Falwell, 485 U.S. 46, 50 (1988); Letter Carriers v.

Austin, 418 U.S. 264, 284-86 (1974)). "This provides assurance

that public debate will not suffer for lack of 'imaginative

expression' or the 'rhetorical hyperbole' which has traditionally

3For example, states cannot impose liability for defamation without reguiring some showing of fault. Id. at 15-16.

6 added much to the discourse of our Nation." Milkovich, supra,

497 U.S. at 20.

When considering whether a statement is defamatory, the

statement must be considered "in the context of the publication

taken as a whole." Duchesnave, supra, 125 N.H. at 249, 480 A.2d

at 125 (quotation omitted). The statement should be examined,

not in isolation, but in relation to the other statements uttered

at the time. Also relevant is the social context in which the

statement was made, the medium by which the statement was

published, and the audience to which it was published. See Lyons

v. Globe Newspaper Co., 612 N.E.2d 1158, 1162 (Mass. 1993); cf.

McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir. 1987) (holding

that statement should be analyzed in context of article in which

it appears along with larger social context to which it relates);

Restatement, supra, § 563 cmts. d, e. As noted by Justice Brennan,

"'A word is not a crystal, transparent and unchanged, it is the

skin of a living thought and may vary greatly in color and

content according to the circumstances and the time in which it

is used.'" Milkovich, supra, 497 U.S. at 26 (Brennan, J.,

dissenting) (quoting Towne v. Eisner, 245 U.S. 418, 425 (1918)).

This case arises in the context of an ongoing nationwide

battle between members of the community of naturopathic

physicians over the issue of whether their profession should be

7 subject to government regulation. Defendants Timberlake and the

American Association of Naturopathic Physicians (AANP) have

supported legislation that would reguire licensure of

naturopathic physicians. In contrast, Hayhurst has lobbied

against this type of legislation in several states. See

Deposition of Donald Hayhurst at 158, 159. His efforts included

making telephone calls and sending letters to state legislators

in New Hampshire in 1993 and 1994, at a time when a licensing

bill was under consideration.

On April 30, 1993, Timberlake and DeSilvio both attended a

hearing at the legislative office building in Concord, New

Hampshire, concerning the proposed legislation. See First

Amended Complaint 5 8. DeSilvio, a practitioner of naturopathy,

testified at the hearing in opposition to the licensing bill.

See DeSilvio Deposition at 5, 18, 33 (attached to defendants'

motion). After the hearing had ended, Timberlake approached

DeSilvio, introduced himself, and then stated that Hayhurst was a

fraud without credentials. See DeSilvio Deposition at 37

(attached to plaintiff's objection).4 He added that Hayhurst

"was not what [DeSilvio] thought he was" and "that he could prove

that he had no credentials" if DeSilvio came to his office. Id.

4Plaintiff explains that Timberlake likely thought DeSilvio was one of Hayhurst's supporters. Timberlake then gave DeSilvio his card, but DeSilvio never

contacted him after that. Id. at 46.

When viewed in isolation, the "fraud without credentials"

remark might constitute defamation. However, when the context in

which the remark was made is considered, the court finds that the

remark neither states nor implies actual facts about Hayhurst.

First, the remark was made in the midst of a highly charged

debate which has concerned, in various ways, the type of

credentials naturopathic physicians should be reguired to

possess. At other times, Hayhurst himself has used embellished

language when describing naturopathic doctors who favor

licensing. For example, in his deposition Hayhurst stated (in

reference to Timberlake's organization), "I'm not going to sit

idle while a group of untrained masguerading doctors try for a

bill that allows them to do minor surgery when they are in fact

hurting people." Hayhurst Deposition at 159 (attached to

defendants' motion for summary judgment). DeSilvio has also used

strident language when discussing the issue of licensing

naturopathic physicians: "I was opposed to licensing naturopathic

medical doctors. There is no such thing. That is a crock unless

they have gone to medical school and done internships in [a]

hospital, which they have not." DeSilvio Deposition at 33

(attached to defendants' motion). From these comments, the court concludes that it was hardly

unusual for the credentials of naturopathic physicians to be the

subject of ridicule and derision in the course of the ongoing

debate concerning licensure. Although Timberlake may have

"crossed the line" somewhat by identifying Hayhurst as a fraud

with no credentials, it appears from this record that Timberlake

was merely engaging in the type of rhetorical hyperbole commonly

employed by participants in the debate.

Also relevant to the issue is the audience to whom

Timberlake was speaking--DeSilvio, who had just openly opposed

Timberlake's viewpoint, and who knew that Timberlake was from the

opposing side because he had given her his card. DeSilvio stated

in her deposition that her opinion of Hayhurst was unaffected by

Timberlake's statement because he had no proof.5 See DeSilvio

Deposition at 63, 83 (attached to defendants' motion).

In addition, the vagueness of the terms used by Timberlake

make it difficult to find that they imply actual facts about

Hayhurst. Timberlake's use of the term "fraud" is ambiguous, and

appears to represent simply his opinion about Hayhurst's

5DeSilvio attaches a supplemental affidavit in which she states that Timberlake's statements temporarily caused her to doubt Hayhurst's credentials until she checked them out for herself. Even if this contradicting affidavit is considered, see Colantuoni v. Calcaani & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994), it indicates, at most, a de minimis impact on DeSilvio's opinion of Hayhurst's reputation.

10 character. Similarly, although a statement that someone has "no

credentials" might be defamatory in another context, here the

very meaning of what it takes to be a credentialed naturopathic

doctor was the subject of an ongoing debate. Given this context,

Timberlake could have meant that he had no respect for the

schools from which Hayhurst had graduated or that Hayhurst had

never graduated from a medical school (which is true). See,

e.g.. Phantom Touring, Inc. v. Affiliated Publications, 953 F.2d

724, 728 (1st Cir. 1992) (finding that imprecision of the terms

"fake" or "phony" make them unprovable because they are

susceptible to many interpretations).

Given these circumstances, and that Timberlake's verbal

remarks to DeSilvio were simply a brief, one-time occurrence, it

appears that Timberlake was primarily sharing his opinion of

Hayhurst with DeSilvio and inviting her to assess his information

and draw her own conclusions.

Accordingly, after considering the context in which

Timberlake's statements to DeSilvio were made, his audience, and

his mode of communication, the court finds, as a matter of law,

that they were not defamatory. Rather than stating or implying

actual facts about Hayhurst, Timberlake's comments fall into the

category of vigorous epithets or loose language protected by the

11 First Amendment. Defendants are thus entitled to summary

judgment as to Hayhurst's defamation claim.

3. Plaintiff's Conspiracy Claim

A conspiracy action "serves as a device through which

vicarious liability for the underlying tort may be imposed on all

who commonly plan, take part in, further by cooperation, lend aid

to, or encourage the wrongdoers' acts." University System of

N.H. v. U.S. Gypsum, 756 F. Supp. 640, 652 (D.N.H. 1991) . For a

conspiracy action to succeed, there must be an underlying tort

that the alleged conspirators agreed to commit, and did indeed

commit. See id. Because the court finds there is no defamation,

plaintiff's conspiracy claim must fail as well.

Conclusion

For the foregoing reasons, the court grants defendants'

motion for summary judgment (document 127) on plaintiff's

12 defamation claim and plaintiff's conspiracy claim. The clerk

shall enter judgment accordingly.

SO ORDERED.

Shane Devine, Senior Judge United States District Court April 30, 1997 cc: Linda A. Theroux, Esg. Roger Hooban, Esg. Gary M. Burt, Esg. Paul R. Kfoury, Esg. Robert A. Backus, Esg.