STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. - . . - - CIVIL ACTION i Docket No. CV-03-569 4'
JOHN JAMISON,
Plaintiff,
ORDER
OHI, SUZANNE PHILP, and BONNIE-JEAN BROOKS,
Defendants.
Before the court is (1)a special motion by defendants OHI, Suzanne Phlp, and
Bonnie Lee Brooks to dismiss plaintiff John Jamison's complaint under Maine's anti-
SLAPP statute, 14 M.R.S.A. § 556; and (2) a motion by defendants in the alternative for
summary judgment.
Although the facts will be discussed in more detail below, they can be initially
summarized as follows:
From March 2000 until he resigned in May 2001 Jamison was the administrator of
Harrington House, a therapeutic residential program operated by OH1 to serve the
needs of chldren with social, emotional, behavioral, developmental and mental
challenges. Defendants' statement of material facts filed March 8, 2005 ("Defendants1
SMF") ¶¶ 2-3 (admitted). In July 2001, two months after Jamison's resignation,
defendant Philp (then acting administrator of Harrington House) reported to DHHS
various instances of abuse that had allegedly occurred at Harrington House w h l e
Jamison was the director. Defendants' SMF ¶ 28 (admitted in pertinent part). In March
2002, relying on Phlpls information and without tallung to Jamison to learn h s side of
the story, Sennett Dep. 19, 41; Defendants' SMF ¶ 40, DHHS issued a letter to OH1 and defendant Brooks (OHI's Executive Director) stating (1) that the information
obtained in the investigation substantiated physical and emotional abuse and (2) that
certain license violations were also identified. On the issue of physical or emotional
abuse, the letter stated that a specific resident of Harrington House had been physically
and emotionally abused by John Jamison when he and other staff held her in a restraint
for hours and that the same resident was physically and emotionally abused by
Harrington House staff and John Jamison when she was "dragged" across the room by
her ankles. Exhbit 41 at 12-13. Jamison was not sent a copy of h s letter.
In March 2002, Brooks informed Jamison's supervisor at Port Resources, h s new
place of employment, that OH1 had received a letter from DHHS substantiating
allegations of abuse and/or neglect against Jamison. Defendants' SMF ¶ 38 (admitted
in pertinent part). Prompted by Brooks, Jamison's new employer checked with DHHS,
w h c h confirmed the finding. Defendants' SMF ¶ 39 (admitted). Port Resources then
placed Jamison on restricted status. Defendants' SMF ¶ 44 (admitted in pertinent part).
Several weeks later, w h l e still on restricted status, Jamison resigned h s position with
Port Resources. Defendant's SMF 9 66 (admitted). In the meantime, he had contacted
DHHS to inquire how DHHS could substantiate alleged abuse without tallung to h m .
Defendants' SMF ¶ 40. At that point DHHS reopened its investigation. Defendants'
SMF ¶¶ 42-43 (admitted). DHHS eventually spoke directly with Harrington House
staff members who had purportedly witnessed the incidents reported by Phlp. Exhibit
41 at 16-17.
When interviewed, the staff members did not support the version of events
previously supplied by Phlp in a number of respects. Id. In November 2002, DHHS
issued a new finding stating that the instances of physical and emotional abuse were
now unsubstantiated. Exhbit 41 at 18. In its letter, DHHS noted that there were licensing violations and repeated that a resident had been physically and emotionally
abused. Id.at 18-19. However, all mentions of Jamison's name had been deleted.
Jamison is suing OHI, Phlp, and Brooks, alleging that OH1 and Phlp defamed
h m by reporting false information to DHHS and that OH1 and Brooks intentionally
interfered with h s contractual relationshp with Port Resources by communicating to
Port Resources that DHHS had substantiated allegations of abuse and/or neglect by
Jamison w h l e at Harrington House. He also alleges that OHI's conduct as a whole
amounted to intentional infliction of emotional distress and seeks punitive damages.
A. Defendants' Special Motion Under the Anti-SLAPP Statute
Maine's anti-SLAPP statute, 14 M.R.S.A. 5 556, was enacted in 1995 as a measure
to prevent the filing of lawsuits intended to dissuade or punish the exercise of First
Amendments rights. Morse Brothers, Inc. v. Webster, 2001 ME 70 4[ 10, 772 A.2d 842,
846.' Section 556 targets "plaintiffs who do not intend to win their suits; rather they are
filed solely for delay and distraction, and to punish activists by imposing litigation costs
on them for exercising their constitutional rights to speak and petition the government
for redress of grievances." Maietta Construction, Inc. v. Wainwright, 2004 NIE 53 ¶ 6,
847 A.2d 1169, 1173, quoting Morse Bros., 2001 ME 70 ¶ 10, 772 A.2d at 846 (internal
quotations omitted).
Defendants contend that Jamison's claims against them are all based on
defendants' exercise of their right of petition under the U.S. and Maine Constitutions
and that as a result, Jamison's claims must be dismissed under 14 M.R.S.A. 5 556. That
provision provides in pertinent part as follows:
SLAPP is an acronym for "Strategic Lawsuit Against Public Participation." Id.
3 When a moving party asserts that the civil claims, counterclaims or cross claims against the moving party are based on the moving party's exercise of the moving party's right of petition under the Constitution of the United States or the Constitution of Maine, the moving party may bring a special motion to dismiss . . . . The court shall grant the special motion, unless the party against whom the special motion is made shows that the moving party's exercise of its right of petition was devoid of any reasonable factual support or any arguable basis in law and that the moving party's acts caused actual injury to the responding party.
In support of their argument, defendants liken h s case to the Maietta
Construction and Morse Bros. cases and point out that Section 556 contains broad
language that a party's exercise of its right of petition means "any written or oral
statement made before or submitted to a legslative, executive, or judicial body . . . or
any other statement falling w i h n constitutional protection of the right to petition
government." Phlp's reports to DHHS, argue defendants, were written and oral
statements "submitted to an executive body" and therefore entitled to protection under
the anti-SLAPP statute.
In deciding a special motion to dismiss under 14 M.R.S.A. § 556, the court must
first determine whether the claims against the moving party are based on the moving
party's exercise of its constitutional right of petition. See Morse Bros., 2001 ME 70 ¶ 19,
772 A.2d 849. At the outset, it should be noted that although Jamison is primarily
complaining about Phlp's reports to DHHS, h s claim of intentional interference with a
contractual relationshp also encompasses the actions of Brooks in informing Port
Resources of the DHHS findings. Communication with Port Resources does not
constitute the exercise of a right of petition even under the broad definition urged by
Moreover, the court ultimately concludes that Phlp's reports also do not
constitute the exercise of her right to petition the government. First, h s case does not involve what the Law Court has described as the "typical rnischef" that Section 556 was
designed to address - "lawsuits directed at individual citizens of modest means for
spealung publicly against development projects." Maietta, 2004 ME 53 ¶ 7, 847 A.2d at
1173; Morse Bros., 2001 ME 70 ¶ 10, 772 A.2d at 846. T h s does not necessarily eliminate
this case from the coverage of 556. However, it requires that careful consideration be
given before a statute designed to protect one party's exercise of its right to petition is
interpreted to impinge on another party's exercise of its own right to petition -
specifically, its right to petition the courts for redress of grievances by filing a lawsuit.
Second, there is a question whether a party who is requesting action by the
government but is not exercising either its right of free speech, as in Maietta, 2003 ME
53 9 3, 847 A.2d at 1172, or its right of access to the courts, as in Morse Bros., 2001 ME 70
¶ ¶ 3-5, 772 A.2d at 844-45, falls witlun the protection of Section 556. That question does
not need to be answered in tlus case, however, because the actions of Philp here do not
fall witlun the category of exercising her right to petition the government in any event.
T h s is because P h l p was reporting alleged instances of abuse pursuant to statutory
mandatory reporting requirements imposed pursuant to 22 M.R.S.A. €j 4011-A.
Defendants' pleadngs (including the affirmative defense that at all times defendants
were under a compulsion to act as they d d pursuant to the requirements of Maine
Law), Phlp's affidavit (noting that as a "mandatory reporter," she was legally obligated
to make DHHS aware of the allegations), and defendants' invocation of 22 M.R.S.A.5
4014, which provides immunity for reports made to DHHS in good faith, all
demonstrate that Phlp was not seelung redress from the government but was
complying with a regulatory obligation. Where a party is not requesting action by the
government but is providing information pursuant to a statutory mandate, that party is
not exercising its right of petition for purposes of 14 M.R.S.A. €J 556. The court notes that if it were to conclude that Phlp's actions here fell witl-un the
exercise of her right of petition, the special motion here would present some difficult
issues. On tl-us record, some of the reports made by Phlp were not devoid of any
reasonable factual support,' while others of her reports are at variance in all material
respects with the later interviews DHHS conducted with staff member^.^ Whether those
reports were devoid of any reasonable factual support depends solely on Phlp's own
testimony that she accurately reported what she was told at the time. And since Philp's
credibility is at the heart of this case, allowing her to be the only source of evidence on
this subject is highly problematic. The court does not need to reach tlus issue, however,
because of its conclusion that the right of petition was not involved here.
Accordingly, defendants' special motion to dismiss is deniedJ4 and the court
must address their motion for summary judgment.
B. Defendants' Motion for Summarv Tudgment
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. E.n., Johnson v. McNeil, 2002 ME 99, ¶ 8, 800 A.2d 702, 704. The facts must
be considered in the light most favorable to the non-moving party. Id. Thus, for @ Philp's report that there was a policy of not letting children eat if they declined to come to dinner, which is arguably based on what staff member Runnels told her. a Philp's report that a resident was restrained when she was not posing a threat to herself or others. The subsequent staff interviews were all to the effect that the resident in question had been restrained when she was out of control (kiclung, biting, etc.). Jamison argues that defendants' anti-SLAPP motion should be denied for the additional reason that it was originally filed eleven months after the case was commenced. The court has already ruled on that issue, see order filed November 16,2004, and will add only that upon further review, it adheres to the view that Maietta did not extend the reach of the anti-SLAPP statute significantly beyond Morse Bros. The court believes that counsel's initial view that the statute was inapplicable (see Zmistowslu Affidavit sworn to October 29,2004 q[ 3) confirms that it would be a stretch to apply Section 556 to the case at bar. 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. Rodrime v. Rodrigue, 1997
ME 99 ¶ 8,694 A.2d 924,926.
At the outset, although Jamison has included causes of action for negligent
infliction of emotional distress and for fraudulent concealment, he has not pursued
these claims in h s papers. Moreover, a negligent infliction of emotional distress claim
cannot stand alone in the absence of a duty "based on the unique relationshp of the
parties." Brvan R. v. Watchtower Bible and Tract Societv, 1999 ME 144 ¶ 31, 738 A.2d
839, 848, denied, 528 U.S. 1189 (2000). The relationshp of a former employer to its
former employee has not been recognized as giving rise to a duty to avoid emotional
distress. See id. ¶ 32, 738 A.2d at 849. Whle Jamison might be entitled to damages for
emotional distress if he is successful on some of h s other claims, h s negligent infliction
of emotional distress claim must be dismissed.
Similarly, although the complaint includes a count for fraudulent concealment,
that is not a separate tort but a means of overcoming the statute of limitations. See 14
M.R.S.A. 5 859. As discussed below, the court does not need to reach Jamison's
fraudulent concealment argument under the circumstances of tlus motion.
That leaves Jamison's claims for defamation, intentional interference with a
contractual relationshp, and intentional infliction of emotional distress. Before
addressing those claims, the court must first consider defendants' assertations of
statutory immunity. 1. Immunity
In their motion for summary judgment, defendants have invoked immunity
under two statutes. The first is 22 M.R.S.A. § 4014, w h c h proves in pertinent part that
[a] person . . . participating in good faith in reporting under this subchapter or participating in a chld protection investigation or proceeding . . . is immune from any criminal or civil liability for the act of reporting or participating in the investigation or proceeding. Good faith does not include instances where a false report is made and the person knows the report is false.
The second immunity invoked by defendants is immunity under the Maine Tort
Claims Act, 14 M.R.S.A. §§ 8103, 8111. Acknowledgng that defendants P h l p and
Brooks are not employed by the state or by any local government, defendants
nevertheless contend that Phlp and Brooks were "governmental employees" for
purposes of 14 M.R.S.A. § 8102(1) because they were acting "on behalf" of a
governmental entity
Whle the Law Court has extended the immunity for governmental employees to
some individuals who are not employed by the government, see Hinklev v. Penobscot
Vallev Hospital, 2002 ME 70 ¶ 18, 794 A.2d 643, 648; Tavlor v. Herst, 537 A.2d 1163,
1165 (Me. 1988), none of those situations is comparable to the situation presented in h s
case. The relevant individual in the Taylor case was performing the governmental
function of determining wheth.er a mentally ill individual should be involuntarily
committed. 537 A.2d at 1165. The relevant individual in the Hinkley case was acting as
the supervising physician of a physician's assistant employed at a county hospital. 2002
ME 70 % 18, 794 A.2d at 648. Neither Philp nor OH1 were performing governmental
functions in h s case. The statutory requirement that they report instances of abuse to
DHHS does not mean that they were acting "on behalf" of DHHS. Accordingly, whle 22 h1.R.S.A. 5 4014 is potentially applicable to tlus action, '
defendants cannot claim the benefit of the Maine Tort Claims Act.5
2. Defamation - Legal Issues
Turning specifically to Jamison's defamation claims, Jamison must first of all
establish the existence of disputed issues for trial as to whether he was defamed by
either Phlp or Brooks. Under Maine law, the elements of a claim of defamation are "(1)
a false and defamatory statement concerning another; (2) unprivileged publication to a
h r d party; (3) fault amounting to at least negligence on the part of the publisher; and
(4) special harm or actionability regardless of special harm." Cole v. Chandler, 2000 ME
104 ¶ 5, 752 A.2d 1189, 1193. On the issue of whether a publication was privileged, the
defendant has the burden of proving the circumstances necessary for the existence of a
privilege. Saunders v. Van Pelt, 497 A.2d 1121, 1125 (Me. 1985). If the defendant does
so, the plaintiff then has the burden of proving that the privilege was abused. Id.
Under the law of defamation, a conditional privilege is abused if a person who
communicates false and defamatory information either (1)knows the information to be
false or (2) acts in reckless disregard as to its truth or falsity. Restatement, Second, Torts
5 600 (1977). Thus, both for purposes of the statutory immunity under 22 M.R.S.A. 5 4014 and for purposes of conditional privilege under the law of defamation, no
privilege exists if knowingly false information is communicated. Whle the law of
defamation provides that a conditional privilege is also abused if false and defamatory
information is recklessly communicated, the statutory immunity provision does not
One other issue can be disposed of summarily - defendants' contention that Jamison's claims are somehow barred by the doctrine of collateral estoppel based on the findings made by DHHS after it reopened its investigation. The short answer to this argument is (1)the DHHS findings in question did not constitute the lund of final administrative determination that is entitled to collateral estoppel effect; (2) the DHHS findings in question deleted Jamison's name from its findings that abuse had occurred; and (3) Jarnison did not have a full and fair opportunity to litigate before DHHS. contain an exception for recklessness. See 22 M.R.S.A. 5 4014. The court concludes that
where reports to DHHS are concerned, the statutory immunity provision is controlling
and requires Jamison to show either that Phlp made a knowingly false report or that
she made a false report with the intent to harm Jamison.
Finally, there is a two-year statute of limitations applicable to defamation claims.
T h s action was commenced on October 17, 2003. As defendants point out, h s means
that claims based on Phlp's initial reports to DHHS in July 2001 are time barred. As
Jamison points out, however, there is evidence that in January 2002 P h l p was
interviewed by DHHS licensing investigator Pamela Sennett and provided her with
incident reports P h l p had drafted in July 2001 and with an internal investigation
report. Plaintiff's SMF ¶ 30; Exhbit 41 at 11. Those documents repeat the same
information provided in Phlp's July 2001 initial report. Accordingly, P h l p is not
entitled to summary judgment on statute of limitation grounds.
3. Defamation Claims Against Phlp - Factual Issues
It does not appear to be disputed that, if Phlp's reports to DHS were false, they
were also defamatory in that they were harmful to Jamison's reputation.
Restatement, Second, Torts § 559. Nor does it appear to be disputed that Phlp's
reports, if false, affected h s fitness for h s profession and would therefore be actionable
even absent proof of special harm. Id.§ 573. For purposes of summary judgment, the
dispositive issues are whether there are disputed issues as to the falsity of Phlp's
reports and if so, whether there are disputed issues with respect to Phlp's knowledge
of any f a l ~ i t y . ~
In their statement of material facts, defendants seek to have the court consider the views expressed by DHHS employees at certain points in the process that they did not believe Jarnison was being forthright. The court concludes that there are disputed issues for trial as to whether Phlp's
reports to DHS were false. Indeed, it is difficult to evaluate the facts in dus case without
concluding that a significant injustice may have been done to Jarnison. Specifically,
Phlp's reports concern four categories of alleged abuse and/or neglect. In each
category, Jamison can point to later DHS i n t e ~ e w whch s paint a significantly different
picture.7
One instance of alleged neglect or abuse reported by Philp, and perhaps the most
serious, was that a specific resident of Harrington House had been subjected to physical
restraints when she did not pose a threat to herself or others and on other occasions was
retained for unreasonable lengths of time, including one occasion for up to four hours
in whch Jamison instructed the staff to take turns keeping her in a MANDT hold8 and
not to document it. & Defendants' SMF 14; Exhbit 5.
When DHHS did its own interviews of the relevant staff members, however, one
staff member stated that although there were some lengthy restraints, the staff had let
go every three minutes as required and would restrain again only if the chld got out of
control. According to that staff member, restraints were used when luds were
threatening staff or other luds by htting, luclung, throwing dungs, or threatening to
hurt themselves. With respect to the particular resident referred to in Phlp's report, the
staff member reported that Jarnison would try to release the resident every three
minutes but she would luck or bite and they often had to hold her until she fell asleep. & Defendants' SMF 46, 65. The court emphatically agrees with Jamison that opinions expressed by one witness as to another witness's credibility are inadmissible. E.n., State v. Gilman, 637 A.2d 1180,1181 (Me. 1994); State v. Steen, 623 A.2d 146,148-49 (Me. 1993). Whether Jamison was being forthright or whether he was loath to speak to DHHS in the absence of his attorney and without being advised of the contents of the original reports made against him is an issue for the trier of fact. Opinions of DHHS employees on that issue are not admissible. The DHHS records containing these interviews (Exhibit 41 a t 14-17 and 23-24) have been shown to be admissible in evidence under M.R.Evid. 803(6) and 803(8)(A). See Plaintiff's SMF q[ 93; Drake Dep. 101- Inq IUL.
' A MANDT hold is a particular form of physical restraint. The summary judgment record does not provide any additional details. Another staff member did not recall such lengthy restraints but said that when
restraints were used, they would let go every three minutes and continue if the chld
was still out of control. Exhbit 41 at 16-17.
When Jamison hmself was asked about the use of restraints on the specific
resident referred to in Phlp's reports, he told DHHS that she was frequently out of
control but when restrained they would follow protocol and let go every three minutes
"but she was so out of control they would need to do h s until she got tired." Exhbit
41 at 17. The resident herself, when interviewed by DHHS, said she had been placed in
restraints all the time, but it was "no big deal." She recalled that she had been placed in
restraints for hours once when she "was being destructive" and that she could not
remember who had been present but thought Jamison had been there.9 Exhbit 41 at 15.
The resident also volunteered that Jamison had been "awesome and was the only one
that cared about the luds." Id.at 14. In the DHHS interviews the staff members did not
say that they had been told by Jamison not to document restraints, as P h l p had
asserted."
In h s connection, the record also reflects an acknowledgment by DHHS that
MANDT restraints are permissible when a cluld's own safety or the safety of another
person is at risk. Plaintiff's SMF ¶ 55, citing Drake Dep. 81. On the basis of the DHHS
interviews with Harrington House staff, although there may be a basis for concern that
the use of restraints for long periods may not be ideal, the court does not see a basis to
conclude that restraints were impermissibly employed.
The second alleged instance of abuse reported by P h l p was that a "typical
protocol" used at Harrington House was that out of control chldren were locked out of
The resident apparently was not asked if she had been released every three minutes. lo There is also no indication in the DHHS reports that the staff members were asked whether this was true. the house and denied re-entry, with the foyer being used as an isolation room. Exhbit
6. The later DHS interviews reflect a somewhat different picture: that there was a
heated, lighted foyer used as a "time out" room for luds who were out of control but
that staff would stay out with the children to talk to them and calm them down. Exhbit
41 at 16-17. The same resident interviewed in connection with restraints described one
occasion when she had been locked out - apparently without staff present although one
staff member had come out and checked on her. She eventually had crawled back in
through her bedroom window. Exhibit 41 at 15. That same resident also said, however,
that Jamison did not know about h s incident and would never have allowed it. Id.
The third alleged incident of abuse reported by Phlp involved one or more
occasions when staff members were allegedly instructed to drag the same resident
involved in the restraint incidents1' by her ankles. Accordng to Phlp, on one occasion
a staff member refused, reported the incident to Jamison but was told she could lose her
job if she did not do as she was told. Exhbit 10. According to the DHHS records, that
same staff member, when interviewed by DHHS, stated that on one occasion she and
another staff member had atte~nptedto restrain the resident, that the resident had
wriggled away, and that they had then picked the resident up by her ankles and moved
her about 9 feet before the staff member stopped and said they shouldn't be doing h s .
The staff member did not state that she had been instructed to drag the resident. She
did state that when she had later talked to Jamison about h s , he had said she needed to
do what she was told or she could lose her job. Exhbit 41 at 16. The resident herself
stated she did not h n k she had been dragged but she thought another resident had
been dragged at one point by unidentified staff. Exhbit 41 at 15.
" That resident was described by one staff member as "always in crisis." Exhibit 41 at 16.
13 The final alleged instance of abuse or neglect reported by Philp was the existence
of a standard protocol not to allow chldren to eat meals outside of the scheduled
mealtimes. Exhbit 7. When staff was later interviewed by DHHS, however, they stated
that the chldren could always have s o m e h n g to eat. If the chldren did not come to
eat on time, they could eat leftovers or a sandwich and there was also a snack before
bed. Exhbit 41 at 16-17.
The above evidence is more than sufficient to demonstrate the existence of
disputed issues of fact as to the falsity of all of the alleged instances of abuse reported
by Phlp. The more difficult question is if there are disputed factual issues as to
whether Phlp knew that her allegations were false or otherwise acted in bad faith in
order to overcome the immunity set forth in 22 M.R.S.A. § 4014. Thus, just because a
significant injustice may have been done1' does not necessarily mean that Jamison is
entitled to a trial, gven the legislature's policy decision to immunize even recklessly
false reports made to DHHS because of the importance of those reports.
Whether Jamison has demonstrated the existence of a disputed issue for trial as
to whether Philp's reports were knowingly false is, on h s record, a close question.
Significantly, no direct evidence has been offered to refute Philp's assertions as to what
she was told in July 2001. Thus, whle the relevant staff members told DHHS markedly
different versions when interviewed in November 2002, Jamison has offered no
affidavits or deposition testimony from the staff members in question denying that they
originally told P h l p what Philp had reported. The only way that the court could
l2 If an injustice was done here, DHHS also bears some responsibility. According to the record, it appears that DHHS waited five months before talung any action on the reports made by Philp and then "substantiated the allegations of abuse relying only on Philp's information, without ever tallung to Jamison or anyone with first hand knowledge of the alleged events. Thereafter DHHS did reopen the file and ultimately interviewed the relevant staff and the resident primarily involved and removed the finding of substantiated abused as to Jamison. On the basis of the record before the court, however, some of the statements contained in DHHS's final and updated report finding licensing violations (Exhibit 41 at 18-19) are questionable. conclude that there is a disputed issue of fact as to whether Phlp knew her reports were
false would be if it were to conclude that a fact finder could draw such an inference
from the sheer number of discrepancies between what P h l p wrote in July 2001 and
what the staff members reported to DHHS in November 2002.
It is also possible to conclude, however, that staff members' memories had
deteriorated between July 2001 and November 2002, or that Phlp had misunderstood
what she was told in July 2001, or that Phlp was an alarmist, or that the staff members
were more candid with Phlp in July 2001 then they were with DHHS in November
2002.'~ Moreover, DHHS chd not interview all the staff members Phlp says she talked
to, and some of the staff members not interviewed by DHHS might have offered more
corroboration of Philp's reports. Because Jamison has the burden of overcoming the
presumption of good faith, see M.R.S.A. 9 4014(3), the court concludes that he has to
offer some evidence not just that Phlp's reports were false but that she knew they were
false before he can be found to have raised a factual dispute for trial on tlus issue. See
Gautschi v. Maisel, 565 A.2d 1009, 1011 (Me. 1989) ("Gautsch offered no evidence by
affidavit, deposition or otherwise that Preston had not said the tlungs Maisel
reported").
The court concludes that Jamison has not met h s burden. As noted above, he
has not offered any direct evidence to rebut Phlp's assertions that her reports to DHHS
accurately reflected what she had been told. In the court's view, Jamison could avoid
summary judgment if he had offered any evidence of a motive on Phlp's part to falsify.
Such evidence would permit an inference that Phlp's reports were knowingly false and
l 3 In h s case it is apparently not disputed that Phlp's inquiries began when she saw an entry in the logbook by staff member Katherine Runnels stating that if luds refuse to eat during a meal, they should not be allowed to eat until snack. Defendants' SMF q[ 6 (admitted in pertinent part). Although Jamison points out that Philp elsewhere acknowledged that Runnels sometimes invented policies on her own, see Plaintiff's SMF 41 6, there is no evidence to controvert Philp's statement that she started her investigation because she was concerned about the entry made by Runnels. would also demonstrate the existence of a factual dispute as to whether P h l p was
otherwise acting with the good faith necessary for immunity under 22 M.R.S.A. § 4014.
The court concludes, however, that Jamison has not offered evidence that P h l p
had any animosity toward Jamison. Jamison has instead offered evidence suggesting
that P h l p was overwhelmed and possibly out of her depth. Q., Plaintiff's SMF ¶ 17.
That evidence does not demonstrate the existence of a disputed issue for trial because -
if believed - it would suggest at worst negligence or misunderstanding on Phlp's part,
rather than knowing falsity. Jamison has also suggested that P h l p was predisposed to
the view that the prior administration of Harrington House had been unsatisfactory.
Plaintiff's SWIF ¶ 93.14 However, the fact that P h l p might have been too ready to jump
to conclusions does not suggest that she knew her reports were false. A different
conclusion might be reached if a DHHS investigation had already been underway
because P h l p might then have had a motive to blame Jamison in order to exonerate
herself. But the evidence is undisputed that until P h l p made her reports, DHHS had
no knowledge of the alleged abuses.
Jamison points out that the notes Phlp made of her interviews with staff in July
2001 are now missing and suggests that an adverse inference should be drawn as a
result. However, in Lester v. Powers, 596 A.2d 65, 71-72 (Me. 1991)' the Law Court was
faced with a similar argument and nevertheless affirmed a decision granting summary
judgment. Absent some indication that the notes in question were destroyed after the
initiation of the lawsuit, the absence of the notes is insufficient in a case of this nature to
permit an inference of knowing falsity.
l4 Paragraph 93 of Plaintiff's SMF refers to Exhibit 41 at pages 8-9. Although those pages were not specifically authenticated as business records, see Drake Dep. 101-02, they are identical to the type of records that were authenticated as business records. and the testimonv as to business records concerned records of the same "type." See id. Defendants have not objected to the admissibility of pages 8 and 9 of Exhibit 41. Jamison also points out that there is evidence P h l p made reports to DHHS that
referred to alleged "standard protocols" in effect whle Jamison was the administrator
when P h l p had not reviewed the actual written protocols and policies that were
operative during Jamison's tenure at Harrington House. Plaintiff's SIVIF ¶ 18. T h s
evidence might be sufficient to create a disputed issue as to recklessness on Phlp's part,
but is not sufficient to demonstrate the existence of a disputed issue for trial as to
knowing falsity. The letter is necessary to overcome the statutory immunity contained
in 22 M.R.S.A. § 4014.
In sum, the court interprets Law Court precedent in the area of defamation as
requiring evidence of knowing falsity that goes beyond a showing of falsity itself. See.
Lester v. Powers, 596 A.2d at 71 ("evidence that some of Powers's factual premises
were objectively false, or even that no reasonable person would have believed them to
be true, does not show that she knew or disregarded their falsity"). It concludes that
Jamison has failed to demonstrate the existence of disputed facts as to the availability of
immunity under 22 M.R.S.A. 5 4014. Moreover, since all of Jamison's claims against
P h l p - not just h s defamation claim - are based on Phlp's reports to DHHS, and since
Section 4014 immunity would also apply to those claims, summary judgment shall be
granted in favor of Phlp on all claims.
4. Claims Ag-ainst Brooks
Jamison's claims against Brooks require a somewhat different analysis.
Jamison's complaint alleges that in addition to Phlp, Brooks also made various false
and defamatory statements to DHHS. In response to the motion for summary
judgment, he has focused on two instances when Brooks allegedly made statements to
DHHS. The first involves statements allegedly made on March 25, 2002 and reflected in certain handwritten notes found in the DHS file. Plaintiff's SMF 97; Exhbit 41 at 3. As
defendants point out, however, that page of Exhbit 41 was never authenticated as a
business record and does not resemble the portions of Exhbit 41 that were
authenticated. Rule 56(e) requires that parties set forth facts that would be admissible
in evidence on a motion for summary judgment. On h s record, Page 3 of Exhbit 41 is
inadmissible, unauthenticated hearsay and does not create disputed issues for trial with
respect to false and defamatory statements allegedly made by Brooks on March 25,
2002.
The second instance in w h c h Jamison complains of statements of made by
Brooks to DHHS involves an April 2, 2002 letter sent by Brooks to DHHS expressing
concern about Jamison's employment at Port Resources. Plaintiff's SMF ¶ 98; Exhbit
13. The letter does not make any direct allegations of abuse but implies there may be
problems if Jamison has direct responsibility for "vulnerable individuals." However,
Jamison has not offered any evidence that Brooks either knew or even had reason to
know that allegations of abuse against h m were unfounded when she wrote the April
2, 2002 letter, and her statements in the April 2, 2002 letter are therefore entitled to
immunity under 22 M.R.S.A. § 4014.
The final defamation claim relating to Brooks concerns her conversation with
Jamison's supervisor at Port Resources in March 2002. Although the information
communicated was apparently limited to the general assertion that DHHS had
substantiated abuse and/or neglect by Jamison, the publication of false and defamatory
statements even if attributed to others can still form the basis for a claim of defamation.
See, Restatement, Second, 'Torts § 581A, comment e. Brooks's conversation with
Port Resources is also not subject to the statutory immunity for reports to the DHHS set
forth in 22 M.R.S.A § 4014. Defendants, however, contend that under the law of defamation, a conditional privilege would nevertheless apply to h s conversation. See
Restatement, Second, Torts 55 595(1), 596; Defendants' Special Motion to Dismiss and
Motion for Summary Judgment, filed March 8,2005, at 22 n.5.
Whether a conditional privilege exists is an issue of law to be determined by the
court. Saunders v. Van Pelt, 497 A.2d at 1125. A conditional privilege arises in settings
where society has an interest in promoting free, but not absolutely unfettered, speech.
Lester v. Powers, 596 A.2d at 69. In h s instance no common interest existed between
OH1 and Port Resources, see Restatement, Second, Torts § 596, comment d, so the
existence of a conditional privilege must be analyzed in terms of the interests of Port
Resources, as Jamison's employer, in receiving the lund of information that was
communicated by Brooks. Restatement, Second, Torts § 595.
Under Restatement § 595(2)(a), one relevant factor is whether the information
was volunteered or solicited. In h s case Brooks volunteered the information in
question. Defendants' SMF ¶ 38; MacDonald Aff. ¶ 3.15 Nevertheless, the court
concludes that under the circumstances presented, Port Resources had a sufficient
interest in knowing about possible prior abuse by one of its employees, and there was a
sufficient societal interest in protecting vulnerable chldren, that a conditional privilege
existed as to the communications made to Port Resources by Brooks.16
The remaining question is whether there are disputed issues for trial as to
whether Brooks abused that privilege. A conditional privilege is abused if the person
malung the communication either knows her statement to be false or recldessly
disregards its truth or falsity. L,ester v. Powers, 596 A.2d at 69; Restatement, Second,
l5 AS a result, this is not a case where a conditional privilege exists for comments on employment qualifications that were made "in the normal channels of an employment review." Lester v. Powers, 596 A.2d at 68, citing Gautschi v. Maisel, 565 A.2d at 1011 (Me. 1989). l6 See Restatement, Second, Torts 595, comment i (recognizing that former employers are conditionally privileged under many circumstances to communicate information about the character or conduct of their former employees to succeeding employers). Torts €j600. A conditional privilege is also abused if the person seehng the
communication acts out of spite or ill will. Lester v. Powers, 596 A.2d at 69 n. 7;
Restatement, Second, Torts § 603.
In response to defendants' motion for summary judgment, Jamison has not
offered any evidence either that Brooks knew the allegations of abuse to be false, or that
she acted in reckless disregard of whether the abuse allegations were true or false, or
that she acted out of malice toward Jamison. Whatever inadequacies there may have
been in the report made by Philp and whatever false information was contained therein,
there is no evidence on h s record that Brooks knew that information to be false or
recklessly disregarded the possibility that it was false. Accordingly, summary
judgment must also be granted dismissing Jamison's defamation claims against Brooks.
For the same reasons, summary judgment must also be granted on Jamison's
claim against Brooks for interference with a contractual or advantageous relationshp.
Whle her communications to Port Resources may have had an adverse effect on
Jamison's employment at Port I
with a contractual relationshp is that the interference must be accomplished through
fraud or intimidation. & Rutland v. Mullen, 2002 ME 98 ¶ 14, 798 A.2d 1104, 1111.
The absence of any evidence that Brooks knew the allegations of abuse were false or
acted in reckless disregard of the possibility that they were false demonstrates that
Jamison has not raised a factual dispute for trial as to whether Brook's interference with
h s employment was accomplished through fraud.
Moreover, given the court's conclusion that a conditional privilege exists,
summary judgment must also be granted dismissing Jamison's claims of intentional
infliction of emotional distress based on Brooks's actions. The issue of whether a
defendants' alleged conduct is sufficiently extreme or outrageous to meet the standard for intentional infliction is an issue for the court to determine in the first instance.
- v. Mid-Maine Medical Center, 1998 NIE 87 ¶ 16, 711 A.2d 842,847. Having Champa~ne
concluded that there is a sufficient societal interest to permit communications from
former to current employers relating to the possibility of past abuse by a former
employee the court is constrained to conclude that Brooks's alleged conduct was not "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 society."
See Restatement, Second, Torts 46, comment d. In the absence of evidence that Brooks either knew Phlp's allegations of abuse were false or recklessly disregarded that
possibility, her conduct simply cannot be found to have exceeded all permissible
bounds of decency.
5. Other Issues
Given the above rulings, it is evident that summary judgment must be granted
dismissing the second amended complaint in its entirety. Jamison has also asserted
claims against OHI, but those claims are based on the actions of P h l p and Brooks and
cannot stand once it has been found that Phlp and Brooks are entitled to summary
judgment.
Once h s other claims are dismissed, Jamison's claims for punitive damages must
be chsmissed as well. Punitive damages can only be awarded if a plaintiff receives
compensatory damages. Jolovitz v. Alfa Romeo Distributors, 2000 ME 174 ¶ 11, 760
A.2d 625, 629.
The entry shall be: Defendants' special motion to dismiss is denied. Defendants' motion for
- summary judgment dismissing the complaint is granted. The clerk is directed to
incorporate h s order in the docket by reference pursuant to Rule 79(a).
Dated: November 2 8 , 2 0 0 5
Thomas D. Warren Justice, Superior Court COURTS nd County ox 287 i e 04112-0287
THAD ZMISTOWSKI, ESQ. PO BOX 1 2 1 0 BANGOR, ME 04402-1210
COURTS i d County IX 287 e 041 12-0287
JAKES HUNT, ESQ. PO BOX 568 PORTLAND, ME 04112-0568