Wentworth-Douglass Hospital 10-CV-120-SM 2/4/11 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Wentworth-Douglass Hospital, Plaintiff
v. Case N o . 10-cv-120-SM Opinion N o . 2011 DNH 020 Young & Novis Professional Association d/b/a Piscataqua Pathology Associates; Cheryl C . Moore, M.D.; and Glenn H. Littell, M.D., Defendants
O R D E R
Wentworth-Douglass Hospital (“WDH” or “the hospital”)
brought suit against several physicians, individually, as well as
their professional association, under the Computer Fraud and
Abuse Act and New Hampshire common law. Defendants, in turn,
have asserted counterclaims for invasion of privacy (false light)
and defamation. Defendant Moore says the hospital portrayed her
in a false light by publically stating that the College of
American Pathologists placed the hospital’s pathology laboratory
on probation because she, as Laboratory Director, failed to
provide proper oversight. All three defendants claim the
hospital defamed them when, in a public statement, its
spokeswoman characterized electronic data, that Moore and Littell
had possession of and later returned to the hospital, as having
been “stolen” from the hospital. Before the court is the hospital’s motion to dismiss, or in the alternative, for summary
judgment o n , defendants’ counterclaims. Defendants object. For
the reasons given, hospital’s motion to dismiss is denied.
The Legal Standard
The hospital moves to dismiss both of defendants’
counterclaims. But, it attaches numerous exhibits to its motion,
inviting the court to treat the motion as one for summary
judgment, should the court determine that the attached documents
are not incorporated by reference into defendants’ counterclaims.
Defendants object to treating plaintiff’s motion as one for
summary judgment, pointing out that discovery is still ongoing.
Because, in this district, “[f]ilers shall not combine multiple
motions seeking separate and distinct relief into a single
filing,” LR 7.1(a)(2), and because defendants have not had a
reasonable opportunity to respond to a motion for summary
judgment, see Fed. R. Civ. P. 12(d), the court will treat
plaintiff’s motion as a motion to dismiss, and will consider only
those exhibits appropriate to that procedural context.
A motion to dismiss for “failure to state a claim upon which
relief can be granted,” Fed. R. Civ. P. 12(b)(6), requires the
court to conduct a limited inquiry, focusing not on “whether a
plaintiff will ultimately prevail but whether the claimant is
2 entitled to offer evidence to support the claims.” Scheuer v .
Rhodes, 416 U.S. 232, 236 (1974). That i s , the complaint “must
contain ‘enough facts to raise a reasonable expectation that
discovery will reveal evidence’ supporting the claims.” Fantini
v . Salem State Coll., 557 F.3d 2 2 , 26 (1st Cir. 2009) (quoting
Bell Atl. Corp. v . Twombly, 550 U.S. 544, 556 (2007)).
When considering a motion to dismiss under Rule 12(b)(6), a
trial court must “assume the truth of all well-plead facts and
give the plaintiff[s] the benefit of all reasonable inferences
therefrom.” Vernet v . Serrano-Torres, 566 F.3d 254, 258 (1st
Cir. 2009) (quoting Ruiz v . Bally Total Fitness Holding Corp.,
496 F.3d 1 , 5 (1st Cir. 2007)). However, the court need not
credit “bald assertions, periphrastic circumlocutions,
unsubstantiated conclusions, . . . outright vituperation or
subjective characterizations, optimistic predictions, or
problematic suppositions.” Fantini, 557 F.3d at 26 (citations
and internal quotation marks omitted).
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Sutliffe v . Epping Sch.
Dist., 584 F.3d 314, 325 (1st Cir. 2009) (quoting Ashcroft v .
Iqbal, 129 S . C t . 1937, 1949 (2009)). On the other hand, a Rule
3 12(b)(6) motion should be granted if “the facts, evaluated in [a]
plaintiff-friendly manner, [do not] contain enough meat to
support a reasonable expectation that an actionable claim may
exist.” Andrew Robinson Int’l, Inc. v . Hartford Fire Ins. Co.,
547 F.3d 4 8 , 51 (1st Cir. 2008) (citations omitted).
Background
While the parties to this case share a long, complex, and
sometimes acrimonious history, the factual bases for defendants’
counterclaims are relatively straightforward.
For over eighteen years, Young & Novis Professional
Association (“Young & Novis”) provided pathology services to the
hospital under a series of contracts. The hospital decided not
to renew its most recent contract with Young & Novis, so it
expired on February 2 8 , 2010. At all times relevant to this
complaint, defendants Cheryl Moore, M.D., and Glenn Littell,
M.D., owned and were employees of Young & Novis. Dr. Moore also
served as Medical Director of the hospital’s laboratory, which
included the Pathology Department, and Dr. Littell was a member
of the hospital’s medical staff.
4 A . The College of American Pathologists Probation Decision
In late 2009 or early 2010, Drs. Moore and Littell filed
complaints against the hospital with various public and private
regulatory and accrediting agencies, including the College of
American Pathologists (“College”).1 Before the doctors filed
their complaints, the hospital attempted to manage the pathology
laboratory in a way that excluded Dr. Moore, over the express
objections of Drs. Moore and Littell. The hospital’s attempt to
assume management of the pathology laboratory was one reason for
the complaint Drs. Moore and Littell made to the College of
American Pathologists. The College is an accrediting body that
in effect certifies the proper operation of pathology
laboratories according to professional standards, one of which
requires direct supervision by a qualified Laboratory Director.
During the College’s subsequent investigation of the doctors’
complaint, the hospital dealt with and responded directly to the
College, “to the intentional exclusion of Dr. Moore.” (First Am.
Answer (document n o . 42) ¶ 98.)
Defendants’ false-light invasion of privacy claim is based
upon the hospital’s public reporting of the initial results of
the College’s inquiry. On February 1 7 , 2010, hospital CEO
1 The exact date of the complaint is not disclosed in the counterclaim, but is not material to any matter before the court
5 Gregory Walker sent an e-mail to all hospital employees and
medical staff — an e-mail reprinted in the WDH Beacon, a hospital
newsletter. That e-mail stated, in pertinent part:
On Friday, February 1 2 , 2010, the Hospital received a letter from the College of American Pathologists (CAP) regarding the findings related to a complaint filed by the pathologists involved in a contract dispute with the hospital. The accrediting agency placed Wentworth- Douglass Hospital’s lab on probation citing a failure on the part of Pathologist Dr. Cheryl Moore, the Laboratory Director, to provide proper oversight of laboratory practices. The hospital is seeking additional information about specific deficiencies on the part of Dr. Moore and will make a determination regarding how to proceed once the additional information is received. The CAP determination is based on an assessment of the oversight (administrative) activities. There were no findings related to the quality of services provided. Wentworth-Douglass Hospital is confident that it will satisfactorily address the recent concerns raised by CAP.
Several governmental and accrediting agencies, including [the] NH Attorney General, the Department of Health and Human Services, the Centers for Medicaid and Medicare Services and The Joint Commission have already completed their investigations and found no deficiencies.
(Pl.’s Mot. to Dismiss, Ex. 5 (document n o . 4 4 - 6 ) , at 2.) Also,
on February 1 7 , Foster’s Daily Democrat ran an article that
included the following relevant passages:
Wentworth-Douglass Hospital’s pathology lab has been put on probation by an accrediting agency due to the failure of a pathologist in a feud with the hospital to “provide proper oversight of laboratory practices,” the hospital disclosed Tuesday.
6 The College of American Pathologists informed the hospital on Friday of the action, which followed a complaint to the agency filed by Dr. Cheryl Moore, the lab director, and her partner, Dr. Glenn Littell, according to WDH spokeswoman Noreen Biehl.
The pathologists have alleged their contract wasn’t renewed after several years because they pushed the administration against its will to report a 13-month patient privacy breach to authorities and patients – allegations that have been rebuffed by WDH.
“The hospital is seeking additional information about specific deficiencies on the part of Dr. Moore and will make a determination regarding how to proceed once the additional information is received,” Biehl said. “The CAP determination is based on an assessment of the oversight (administrative) activities. There were no findings related to the quality of services provided. Wentworth-Douglass Hospital is confident that it will satisfactorily address the recent concerns raised by CAP.”
Moore did not return a message left for her Tuesday night.
(Id., Ex. 2 (document n o . 4 4 - 3 ) , at 2 ; emphasis supplied.) While
defendants did not attach Walker’s e-mail, the WDH Beacon
article, or the Foster’s Daily Democrat article to their answer
and counterclaim, the parties agree that it is appropriate for
the court to treat those three documents as having been
incorporated into defendants’ complaint and to consider them when
ruling on plaintiff’s motion to dismiss.
The hospital also submitted the February 1 0 , 2010, letter
from the College announcing that it had placed the hospital’s
7 laboratory on probation.2 The hospital contends that it is
appropriate for the court to consider the letter. Defendants did
not include that letter in the list of documents they deem to be
“absolutely central” to their counterclaims (and, thus,
appropriate for consideration at this point), 3 but, on the other
hand, they quote the letter several times in their objection to
the hospital’s motion to dismiss, and it is quoted as well in the
documents they did file.
Both parties agree on the legal standard applicable in
determining whether the court may consider the College’s letter.
“Under Rule 12(b)(6), the district court may properly consider
only facts and documents that are part of or incorporated into
the complaint; if matters outside the pleadings are considered,
the motion must be decided under the more stringent standards
applicable to a Rule 56 motion for summary judgment.” Trans-Spec
Truck Serv., Inc. v . Caterpillar Inc., 524 F.3d 315, 321 (1st
Cir. 2008) (citing Garita Hotel Ltd. P’ship v . Ponce Fed. Bank,
F.S.B., 958 F.2d 1 5 , 18 (1st Cir. 1992)). However, “[w]hen . . .
2 That letter was addressed to Dr. Moore and copied to various others, including the hospital’s CEO. 3 That list includes Walker’s e-mail, the WDH Beacon article, and the Foster’s Daily Democrat article, all dated February 1 7 , 2010, plus another Foster’s Daily Democrat article, dated May 1 3 , 2010, which relates to defendants’ defamation claim.
8 a complaint’s factual allegations are expressly linked to – and
admittedly dependent upon – a document (the authenticity of which
is not challenged), that document effectively merges into the
pleadings and the trial court can review it in deciding a motion
to dismiss under Rule 12(b)(6).” Trans-Spec, 524 F.3d at 321
(quoting Beddall v . State S t . Bank & Trust Co., 137 F.3d 1 2 , 16-
17 (1st Cir. 1998); citing Clorox C o . P.R. v . Proctor & Gamble
Comm. Co., 228 F.3d 2 4 , 32 (1st Cir. 2000)).
To determine whether the College’s letter should be treated
as if it were incorporated into defendants’ pleading, it is
necessary to closely examine defendants’ false-light claim. That
claim asserts, in pertinent part:
In addition to other false and misleading representations, Plaintiff represented to the public that the Individual Defendants [i.e., Moore and Littell] were responsible for the CAP placing Plaintiff’s pathology lab on probation. In particular, the Plaintiff misrepresented that CAP had cited Dr. Moore [as being] personally responsible for “failure” to provide “proper oversight of laboratory practices,” and that she was personally responsible for “specific deficiencies.”
(First Am. Answer ¶ 98.) Given that defendants’ false-light
claim is based on allegations that the hospital misrepresented
what the College actually said about Dr. Moore, and given
defendants’ own reliance on that letter in their objection to the
hospital’s motion to dismiss, the court concludes that
9 defendants’ false light claim is linked to and dependent upon the
letter. Accordingly, the court will consider it in resolving the
hospital’s motion to dismiss. See Fudge v . Penthouse Int’l,
Ltd., 840 F.2d 1012, 1015 (1st Cir. 1988) (affirming trial
court’s decision, when ruling on motion to dismiss, to consider
document that was “absolutely central” to plaintiffs’ complaint
and that plaintiffs would need to introduce at trial to prove
their case).
The February 10 letter from the College stated, in pertinent
part:
This letter serves as notice that on February 9, 2010, the Accreditation Committee of the College of American Pathologists’ Laboratory Accreditation Programs placed the accreditation of Wentworth-Douglass Hospital Main Clinical Laboratory on Probation. . . . This decision is based on the laboratory’s failure to demonstrate compliance with Standard I , as identified during a complaint investigation (Cx#3902).
Standard I requires the Laboratory Director to assume professional, scientific, consultative, organizational, administrative and educational responsibilities for the services provided.
The Accreditation Committee is especially concerned about the documentation submitted both by the Laboratory Director and Senior Vice President of Operations indicating a lack of oversight by the Laboratory Director involving laboratory practices.
As a condition of continued accreditation and in order to allow the Committee to assess compliance with Standard I , the laboratory must:
10 • Submit documentation that demonstrates that the Laboratory Director is actively providing oversight to the activities of the laboratory as detailed in Standard I .
(Pl.’s Mot. to Dismiss, Ex. 1 (document n o . 4 4 - 2 ) , at 2 ; emphasis
added.)
B . The Hospital’s Statement Regarding Theft
The hospital initiated suit against defendants in a
complaint dated March 2 9 , 2010. In Count I of the complaint, the
hospital alleged a violation of the federal Computer Fraud and
Abuse Act (“CFAA”):
Defendants intentionally accessed computers without authorization or exceeded authorized access, and thereby obtained information from a protected computer in that Defendants, without the prior authorization and approval of the WDH Information Systems Department and in violation of IM-09, connected removable storage devices or external hardware to PY001, PY002 and the HP laptop computer, and obtained or altered information from WDH computers owned by WDH that Defendants were not entitled to obtain or alter.
(Compl. (document n o . 1 ) ¶ 72.) An article in the May 1 3 , 2010,
edition of Foster’s Daily Democrat described the hospital’s
complaint:
In late March, WDH filed suit against Moore and Littell in U.S. District Court saying they violated the Computer Fraud and Abuse Act and hospital policy by attaching storage devices to two computers and a laptop owned by the hospital between Feb. 1 and Feb. 2 8 .
11 The hospital alleged that on the last day the doctors had access to the computers, “extraordinarily large removable storage devices were attached” to the computers without approval of the hospital’s information systems department, and electronic data was downloaded from the W D H computer network, according to the suit.
W D H spokeswoman Noreen Biehl recently said the doctors returned the electronic data, which she described as being stolen from the hospital. The case is ongoing.
(Pl.’s Mot. to Dismiss, Ex. 6 (document n o . 4 4 - 7 ) , at 3 (emphasis
added).)
Defendants assert that “Plaintiff’s representative or
representatives made a statement or statements to FOSTER’S DAILY
DEMOCRAT and/or other persons that the Defendants had committed
criminal theft, which statement or statements FOSTER’S DAILY
DEMOCRAT then published on or about May 1 3 , 2010.” (First Am.
Answer ¶ 105.)
Discussion
A . Invasion of Privacy (False Light)
Defendants Moore and Littell assert that the hospital made
false and misleading representations concerning them when it
“represented to the public that [they] were responsible for the
[College] placing Plaintiff’s pathology lab on probation” — in
Walker’s February 1 7 , 2010, e-mail to hospital staff members, in
the article in the February 17 W D H Beacon, and in statements
12 attributable to hospital officials reported in the February 17
article in Foster’s Daily Democrat. (First Am. Answer ¶ 98.)
More specifically, defendants complain that “the [hospital]
misrepresented that [the College] had cited Dr. Moore [as being]
personally responsible for ‘failure’ to provide ‘proper oversight
of laboratory practices,’ and that she was personally responsible
for ‘specific deficiencies.’” (Id.)
While defendants generally identify three publications that
included statements that allegedly placed them in a false light,
they do not identify with precision just what allegedly
misleading statements support the claim. Reading the identified
documents in the light most favorable to defendants, see Vernet,
566 F.3d at 258, the offending statements in the e-mail and the
WDH Beacon article appear to be those comments that, taken
together and in context, are capable of conveying to the ordinary
reader an objectionable, highly offensive, meaning. That i s , a
plain implication or innuendo to the effect that Dr. Moore
performed her professional responsibilities as Laboratory
Director in a deficient manner, failing to provide proper
administrative oversight of laboratory practices to a substantial
degree, resulting in imposition of a probationary sanction by an
accrediting agency, pending correction of the deficient
condition.
13 The hospital moves to dismiss Moore’s false-light claim on
grounds that she has not identified any statement published by
the hospital that was not true, and, that the statements on which
she bases her claim did not create a misleading impression that
placed her in a false light. It moves to dismiss Dr. Littell’s
false-light claim on grounds that defendants have identified no
actionable statements “of and concerning” Littell.
The New Hampshire Supreme Court has “not yet addressed
whether the tort of invasion of privacy – false light is
recognized in New Hampshire.” Thomas v . Tel. Publ’g Co., 151
N.H. 435, 440 (2004) (citing Hamberger v . Eastman, 106 N.H. 107
(1964)). Both parties, however, agree that defendants’ claim is
recognized by Section 652E of the Restatement (Second) of Torts
(1977). The New Hampshire Supreme Court often looks to the
Restatement in developing the common law of New Hampshire, and
this court will proceed on the likelihood that it would
substantially adopt the Restatement’s provisions in describing
the tort under New Hampshire’s common law. See Howard v .
Antilla, 294 F.3d 244, (1st Cir. 2002) (applying Section 652E to
false-light claim in a diversity case from New Hampshire).
The Restatement describes the tort of “Publicity Placing a
Person in False Light” in the following way:
14 One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if
(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
Restatement (Second) of Torts § 652E. While, as noted, the tort
of false-light invasion of privacy has yet to be formally
recognized under New Hampshire’s common law, the state’s highest
court has recognized that such a claim “requires falsity or
fiction.” Hamberger, 106 N.H. at 111 (citing William L. Prosser,
Torts § 112, at 842-43 (3d ed. 1964); see also Restatement
(Second) of Torts § 652A cmt. a (“it is essential to the rule
stated in this Section that the matter published concerning the
plaintiff is not true”); Dan B . Dobbs, The Law of Torts § 428, at
1208 (2001) (“the objectionable false light is not necessarily a
defamatory one, only false and offensive one”); Stuart M. Speiser
et a l . , The American Law of Torts § 30:30, at 971 (1991) (“the
statement must be untrue”).
Defendants’ false-light claim, properly understood, asserts
that the hospital’s public comments relative to the College’s
imposition of a probationary sanction are reasonably capable of
15 implying a highly objectionable, and false, statement about Dr.
Moore — i.e., that she was professionally deficient in carrying
out her responsibilities as Laboratory Director, to the point
that a respected accrediting agency placed the laboratory on
probationary status, and, that other deficiencies in her
professional performance might soon be discovered.
Defendants also assert that the hospital knew that the
representations it made in the Walker e-mail, the WDH Beacon, and
Foster’s Daily Democrat were false and misleading because
the [hospital] knew that it had actively undermined Dr. Moore’s oversight of the pathology lab by attempting to manage the lab through its employee, Gint Taoras, to the exclusion of Dr. Moore and Dr. Littell, over the repeated objections of Dr. Moore and Dr. Littell, and by responding to CAP’s inquiries directly and to the intentional exclusion of Dr. Moore; and because the Plaintiff knew that its efforts to undermine the Defendants’ efforts to manage the lab were the basis of the Defendants’ complaint to CAP.
(First Am. Answer ¶ 98.)
Generally (and New Hampshire law is likely to be
consistent), “the court should make the threshold determination
of whether a statement is capable of implying the objectionable
association of which the plaintiff complains.” Fudge, 840 F.2d
at 1018. Here, it is arguable that the hospital’s comments
characterizing the College’s action were not strictly accurate,
16 and, taken in context, are capable of conveying the message that
Dr. Moore was professionally deficient in failing to provide the
required oversight of laboratory processes. Such a public
criticism, if false, might well be found to have put Dr. Moore in
a highly offensive light. The complaint also alleges facts and
circumstances supporting the claim, i.e., that the implication
was false, and that the hospital either knew it was false or
acted in reckless disregard of its falsity (given that the
hospital allegedly intentionally interfered with Dr. Moore’s
ability to provide the necessary oversight). On the other hand,
the facts, when fully developed, may well point to administrative
deficiencies on Dr. Moore’s part that led to the probationary
sanction.
More to the point, perhaps, it cannot be said, on this
record, that the hospital’s comments were, as a matter of law,
not false, or did not place Dr. Moore in a highly offensive
light. The College’s letter did not directly ascribe blame for
the apparent lack of administrative oversight by the Laboratory
Director, and seemingly took pains to communicate “concern” about
“the documentation submitted both by [Moore] and [the hospital]
indicating a lack of oversight by the Laboratory Director.”
(Emphasis added.) Why there appeared to be a lack of oversight
by the Laboratory Director was simply not addressed by the
17 College. The letter could reasonably be construed to imply that
the cause (or “fault”) was with Dr. Moore — after all, she was
the Laboratory Director duty bound to provide oversight. The
difference between what the College literally wrote, and what the
hospital attributed to the College, however, is sufficiently
marked that, depending on the facts developed, a reasonable jury
could sustainably find that the hospital’s statements about Dr.
Moore were false. But, a fact-finder might also plausibly read
the College’s letter and the hospital’s statement as entirely
consistent — the difference in words used being explained as a
difference in the degree of professional courtesy exhibited.
If the hospital’s statements are found to be false, those
statements could also be found to be highly offensive to a
reasonable person, as they quite directly call into question Dr.
Moore’s professional performance of her duties. And, it cannot
be said on this undeveloped record that the hospital did not know
o f , or did not act with reckless disregard for, the alleged
falsity of the publicized matter, or the alleged false light in
which Dr. Moore would be placed. The complaint makes that
allegation, and it alleges some supporting facts, all of which
must be taken as true for purposes of ruling on a motion to
dismiss.
18 With respect to Dr. Littel, however, it is clear that the
hospital’s statements were not capable of placing him in an
actionable false light, either directly or by implication.
Nothing was said about Dr. Littel, and certainly nothing false or
offensive. The hospital’s alleged comments were limited to the
College’s action, which was based upon a perceived lack of
oversight by Dr. Moore, the Laboratory Director. Those
statements did not reflect upon Dr. Littel’s professionalism.
Accordingly, the hospital’s motion to dismiss Dr. Moore’s
false light claim is necessarily denied at this stage given that
the complaint adequately asserts a claim for false light invasion
of privacy; the motion to dismiss Dr. Littel’s false light claim,
however, is granted.
B . Defamation
All three defendants claim that plaintiff defamed them when
a hospital employee, speaking to a Foster’s Daily Democrat
reporter, told the reporter “that the Defendants had committed
criminal theft.” (First Am. Answer ¶ 105.) The hospital says
the defamation claim should be dismissed, because the statement
is not capable of defamatory meaning and is substantially true.
Defendants disagree, categorically.
19 In New Hampshire, a “plaintiff proves defamation by showing
that the defendant failed to exercise reasonable care in
publishing a false and defamatory statement of fact about the
plaintiff to a third party, assuming no valid privilege applies
to the communication.” Thomas v . Tel. Publ’g Co., 155 N . H . 314,
321 (2007) (quoting Pierson v . Hubbard, 147 N . H . 760, 763
(2002)). “To be defamatory, language must tend to lower the
plaintiff in the esteem of any substantial and respectable group,
even though it may be quite a small minority.” Touma v . S t .
Mary’s Bank, 142 N . H . 762, 765 (1998) (quoting Duchesnaye v .
Munro Enters., Inc., 125 N . H . 244, 252 (1984)). Moreover:
The defamatory meaning must be one that could be ascribed to the words by “hearers of common and reasonable understanding.” Jones v . Walsh, 107 N . H . 379, 381 (1966). An action in libel cannot be maintained on an artificial, unreasonable, or tortured construction imposed upon innocent words, nor when only “supersensitive persons, with morbid imaginations” would consider the words defamatory. Lambert v . Providence Journal Co., 508 F.2d 656, 659 [(1st Cir. 1975)] (citations omitted). “No mere claim of the plaintiff can add a defamatory meaning where none is apparent from the publication itself.” W . PROSSER, [Torts § 111, at] 749 [(4th ed. 1971)]. See also 53 C . J . S . Libel and Slander § 162(b), at 250-51 (1948).
Thomson v . Cash, 119 N . H . 371, 373 (1979) (parallel citations and
subsequent history omitted). Finally, “[w]hether a given
statement can be read as being . . . an actionable statement of
fact is itself a question of law to be determined by the trial
court in the first instance, considering the context of the
20 publication as a whole.” Nash v . Keene Publ’g Corp., 127 N . H .
214, 219 (1985) (citing Pease v . Tel. Publ’g Co., 121 N . H . 6 2 , 65
(1981); Morrissette v . Cowette, 122 N . H . 731, 733 (1982)).
As with defendants’ false-light claim, it is first necessary
to identify the allegedly defamatory statement. In their
counterclaim, defendants assert that “[The hospital’s]
representative or representatives made a statement or statements
. . . that the Defendants had committed criminal theft, which
statement or statements FOSTER’S DAILY DEMOCRAT then published on or
about May 1 3 , 2010.” (First Am. Answer ¶ 105.)
In the referenced article, after describing the hospital’s
civil claim under the C F A A , the newspaper reported that: “ W D H
spokeswoman Noreen Biehl recently said the doctors returned the
electronic data which she described as being stolen from the
hospital.” (Pl.’s Mot. to Dismiss, Ex. 6, at 2.) While the
article’s lack of direct attribution (the absence of quotation
marks around the offending phrase) leaves some question as to
whether the words on which defendants base their claim are
Biehl’s words or the reporter’s words, the court will proceed on
the assumption that defendants are claiming that Biehl said, in
substance, to the Foster’s Daily Democrat reporter: “Drs. Moore
21 and Littell returned the electronic data they stole from the
hospital.”
While defendants may construe that statement a bit too
broadly, in that Biehl is not reported as having said anything
one way or the other about defendants’ criminal liability, see
Fantini, 557 F.3d at 2 6 , the statement i s , nonetheless, capable
of a defamatory meaning. A statement to the effect that Drs.
Moore and Littell returned data that had been stolen from the
hospital is capable of fairly implying to a reasonable listener
that the doctors did, indeed, steal the data from the hospital.
Cf. Nash, 127 N.H. at 219 (explaining that a statement of opinion
is not actionable as defamation “unless it may reasonably be
understood to imply the existence of defamatory fact as the basis
for the opinion”). When a person says that another person stole
something, the accusation, if believed, would “tend to lower the
[accused thief] in the esteem of any substantial and respectable
group,” Touma, 142 N.H. at 765, even when the accusation is
silent on the question of eventual criminal liability.
Plaintiff’s second argument – that it cannot be liable for
defamation because Biehl’s statement is true – is a non-starter.
It is true that, under New Hampshire’s common law, “substantial
truth is a defense to a libel or defamation claim.” Thomas, 155
22 N.H. at 335. Thus, if it were undisputed that Drs. Moore and
Littell stole the hospital’s data (i.e., took the data without
authorization) then the hospital would be entitled to dismissal
of defendants’ defamation claim. But, it is hardly undisputed
that defendants took the hospital’s data without authorization;
that is precisely what is at issue in Counts I and IV of the
hospital’s complaint. The hospital says defendants took
electronic data from its computers in violation of both the CFAA
(Count I ) and the common law of New Hampshire (Count I V ) .
Defendants deny those claims. Those claims remain unresolved.4
This is not one of those rare cases in which a defamation claim
can be “dismissed on the rationale that the statements complained
of are substantially true.” Id. (quoting 53 C.J.S. Libel and
Slander; Injurious Falsehood § 164 (2005)).
Conclusion
For the reasons given, the hospital’s motion to dismiss
defendants’ counterclaims (document n o . 44) is granted in part
4 Because the hospital’s CFAA and conversion claims have yet to be resolved, this case stands on a different footing from Russin v . Wesson, 949 A.2d 1019 (Vt. 2008), on which plaintiff relies. In that case, the court held that where the plaintiff was awarded judgment on a conversion claim against the defendant, the trial court erred in entering judgment for the defendant on a counterclaim for defamation based upon the plaintiff’s statement that the defendant was a thief. See id. at 306. Here, by contrast, there is neither a judicial determination nor an admission that defendants took the hospital’s electronic data without authorization. For that reason, Russin is inapplicable.
23 and denied in part. The motion is granted with respect to
Dr. Littel’s false light claim. It is denied with respect to
Dr. Moore’s false-light claim, and denied with respect to the
defamation claim.
SO ORDERED.
February 4 , 2011
cc: William E . Christie, Esq. Charles W . Grau, Esq.