Menkowitz, E. v. Peerless Publications, Inc.
176 A.3d 968
| Pa. Super. Ct. | 2017Background
- Dr. Elliot Menkowitz, a private-figure orthopedic surgeon, was suspended from staff privileges at Pottstown Memorial Medical Center in March 1997; the suspension and related events were reported by the Pottstown Mercury in April 1997.
- The April 18, 1997 news article stated his "sudden absence" had "spawned rampant rumors of professional misconduct regarding his treatment of an older, female patient." An April 26 editorial repeated criticism of the settlement.
- Menkowitz sued the newspaper and reporter for defamation (per se and by implication), seeking compensatory and punitive damages; other tort claims were tried but not at issue on appeal.
- At trial (2014) the jury found for Menkowitz and awarded compensatory and punitive damages; the trial court vacated the punitive award for lack of actual malice but left compensatory damages intact.
- The newspaper appealed, arguing Menkowitz failed to prove material falsity, erroneous jury instructions, exclusion of board minutes, improper adverse-inference instruction, and lack of proof that any reputational injury was caused by the allegedly false implication rather than by the suspension itself. The Superior Court reviewed whether judgment n.o.v. was appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the statement was materially false (burden on plaintiff for a matter of public concern) | Menkowitz: the article falsely suggested misconduct/rumors beyond the truthful fact of suspension | Newspaper: report of suspension was true; plaintiff must prove falsity of the gist/innuendo and he failed to do so | Held: the plaintiff failed to prove falsity of the per se statement; jury verdict reversed as to per se claim. |
| Whether the language could give rise to defamatory implication (innuendo) | Menkowitz: words could reasonably be read to imply sexual or physical misconduct with an elderly patient | Newspaper: innuendo must be a reasonable construction of the language; court should decide as a matter of law | Held: the phrase could fairly and reasonably be construed to imply sexual/physical misconduct; defamation-by-implication properly went to the jury. |
| Causation of reputational damage and entitlement to compensatory damages (absent actual malice) | Menkowitz: article (and its innuendos) caused reputational injury and professional harm | Newspaper: reputational harm flowed from the suspension itself (a true event), not from any false implication; plaintiff failed to prove causation | Held: plaintiff failed to prove by preponderance that reputational injury was caused by the false implication (not the suspension); compensatory award cannot stand. |
| Whether punitive damages were supported (actual malice required, clear and convincing proof) | Menkowitz: jury found punitive damages based on reckless publication | Newspaper: no evidence of actual malice; reporter relied on reliable confidential source and attempted verification | Held: no clear and convincing evidence of actual malice; trial court correctly vacated punitive damages. |
Key Cases Cited
- Gertz v. Robert Welch, 418 U.S. 323 (private-figure plaintiffs suing media must prove falsity and at least negligence)
- Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (when media publishes on matter of public concern, plaintiff bears burden to prove falsity)
- New York Times Co. v. Sullivan, 376 U.S. 254 (actual malice standard for punitive/presumed damages)
- Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (substantial truth doctrine; minor inaccuracies do not make statement false)
- Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (failure to investigate alone is not necessarily actual malice; must show serious doubts)
- Joseph v. The Scranton Times, L.P., 129 A.3d 404 (Pa. 2015) (private-figure/public-concern plaintiffs must prove reputational injury caused by false statement to recover compensatory damages)
- Dunlap v. Philadelphia Newspapers, Inc., 448 A.2d 6 (Pa. Super. 1982) (true facts that imply a falsehood can be actionable; doctrine of defamation by implication)
- Pelagatti v. Cohen, 536 A.2d 1337 (Pa. Super. 1987) (where alternative defamatory interpretation exists, jury decides whether defamatory meaning was understood)
- ToDay’s Housing v. Times Shamrock Communications, Inc., 21 A.3d 1209 (Pa. Super. 2011) (substantial-truth test; plaintiff must prove falsity of accounts on matters of public concern)