Patlovich v. Rudd

949 F. Supp. 585, 1996 U.S. Dist. LEXIS 17679, 1996 WL 685456
CourtDistrict Court, N.D. Illinois
DecidedNovember 20, 1996
Docket96 C 3426
StatusPublished
Cited by9 cases

This text of 949 F. Supp. 585 (Patlovich v. Rudd) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Patlovich v. Rudd, 949 F. Supp. 585, 1996 U.S. Dist. LEXIS 17679, 1996 WL 685456 (N.D. Ill. 1996).

Opinion

MEMORANDUM OPINION AND ORDER

ASPEN, Chief Judge:

Plaintiff Joseph Patlovieh, M.D., brings this three-count complaint against Defendant Thomas A. Rudd, M.D., seeking damages in excess of $50,000 for libel, slander, and breach of contract. Patlovieh resides in Florida, while Rudd resides in Illinois, which gives this court diversity jurisdiction over their dispute. 28 U.S.C. § 1332(a)(1). Presently before this court is the defendant’s motion to dismiss all three counts of the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, the motion is denied.

I. Motion to Dismiss Standard

Dismissal under Rule 12(b)(6) is improper “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). For purposes of this motion, we must take all of the well-pleaded factual allegations in the complaint as true, and construe them in the light most favorable to the plaintiff. See Richmond v. Nationwide Cassel L.P., 52 F.3d 640, 644 (7th Cir.1995). 1

II. Background

Pathology and Nuclear Medicine Associates, S.C. (“PNMA”) is a corporation comprised of a small group of physicians who provide pathology services to hospitals and various other entities in Lake County, Illinois. PL’s Compl. at 1-2. One service that PNMA provides to its hospital clients is the testing of tissue samples from patients: this service was frequently provided in conjunction with the Consolidated Medical Laboratories (“CML”), a joint venture between Highland Park Hospital and Lake Forest Hospital which was supervised by PNMA staff. Id. Patlovieh is a pathologist who served as President of PNMA, and Executive Director of CML, from 1977 until 1995. Rudd also worked for PNMA, serving as a director, officer, and shareholder of the company from the late 1970s until 1993, when he was forced to resign. Id. Rudd’s resignation was “acrimonious and hostile.” Id.

On May 11,1995 CML received for testing two tissue samples from a patient. One of these samples was lost by Dr. William Janes, who was an employee of both CML and PNMA, and who had remained friendly with the departed Dr. Rudd. Id. at 2-3. Rather than report the loss to the patient and/or CML administrators, Janes instructed a CML histoteehnologist under his supervision to replace the patient’s lost tissue sample with that of another patient. Id. at 2. On approximately May 15, CML administrators learned of the illicit replacement and commenced an investigation. Between May 15 and June 2, CML completed its investigation of the incident, fired Janes, performed a pathological evaluation of the remaining sample, and prepared an amended report that noted the lost sample. Id. at 3. The patient was not contacted regarding this incident by either CML or PNMA. Rudd, however, learned of the incident from Janes and from the histoteehnologist under Janes’ supervision. Id.

During late May, June, and July of 1995, the family of the patient whose tissue sample was misplaced received a number of anonymous phone calls in which the caller discussed the events which had taken place with the sample. Id. PNMA asserts, based on the information the anonymous caller possessed about the tissue sample incident and about PNMA in general, that these calls were made by Rudd, and that his statements were defamatory. 2 Id. at 3-4. The caller stated during the phone calls that:

*589 (1) Dr. Janes’ loss and substitution of the patient’s tissue sample was an example of a “common occurrence” because the physicians at PNMA were routinely unethical;
(2) quality control at PNMA was very poor because the physicians were more concerned with running a high volume practice which would generate a high profit; and
(3) in recent years Patlovich began to sacrifice the quality of the laboratory in order to generate higher profits.

Id. at 9.

Beginning in early June 1995, hundreds of anonymous letters and notes were sent, either by Rudd alone or in conjunction with others, to various hospitals, medical laboratories, Trustees of the American Pathology Foundation, and others with whom Patlovich had a professional relationship. Id. at 4, 7. The letters appended to the complaint contain the following statements, which Patlo-vich suggests are false or distorted:

(1) “This memo details the account of the unethical behavior of Drs. Janes and Bradley and the subsequent attempted coverup by Dr. Patlovich and his pathology group.... In fact many administrators even now do not know the full extent of the ... coverup.” Id. at 5-6 & Pl.’s Ex. B.
(2) “It was not until Dr. Patlovich analyzed the situation with his lawyers that it was told to Dr. Bradley that he had to deny any part in the case to protect the entire pathology group from possible dismissal. It was then decided Dr. Janes was to be the fall guy.” Id. at 6 & Pl.’s Ex. B.
(3) “We feel that Dr. Patlovich must resign immediately.... His behavior in this situation was reprehensible and completely self-serving.” Id.
(4) “‘They’ll never find out’ and ‘fix it later’ attitudes have been the continuous styles of the pathology group over recent years.” Id. & Pl.’s Ex. A.
(5)“Past and present employees have related the following incidents/transgressions/improper conduci/unethical medical behavior by present and former members of Pathology and Nuclear Medicine Associates.” The letter then lists a number of alleged “incidents” involving PNMA staff, such as the claim that “[a] former chief of pathology ... once ordered several pathologists to keep quiet about a false diagnosis of cancer on a patient_” Id. & Pl.’s Ex. C.

Patlovich asserts that the above statements by Rudd are defamatory per se because they falsely criticize his professional integrity and competence. Id. at 5. Additionally, Patlovich claims that by publicizing these statements Rudd violated a non-disparagement clause in his severance agreement, which states: “You agree that you will not at any time engage in any action either directly or indirectly that disparages or results in the disparagement of PNMA, its shareholders or employees.” Id. at 8 & Pl.’s Ex. D. We consider each of these claims in turn.

III. Defamation

Under Illinois law, 3

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Bluebook (online)
949 F. Supp. 585, 1996 U.S. Dist. LEXIS 17679, 1996 WL 685456, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patlovich-v-rudd-ilnd-1996.