Menkowitz, E. v. Peerless Publications, Inc.
2048 EDA 2014
| Pa. Super. Ct. | Dec 15, 2017Background
- Elliot Menkowitz, M.D., sued Peerless Publications and reporter Eric Engquist for defamation based on a newspaper article stating he was suspended and that his "sudden absence" had "spawned rampant rumors of professional misconduct involving the treatment of an older, female patient."
- The article reported the hospital suspended Menkowitz for six months after peer review; the hospital and several officials declined to comment and Menkowitz refused requests for comment.
- Menkowitz alleged the article implied sexual misconduct, criminal prosecution, or other defamatory wrongdoing despite some literal statements being true.
- The trial court submitted the defamatory-meaning question to the jury; the jury found for Menkowitz on implication theories among others.
- Judge Bowes (concurring) agreed with the majority opinion generally but dissented on one point: he argued the court (and trial court) should have decided as a matter of law that the article, read as a whole, was not reasonably capable of the particularly salacious defamatory implications alleged by Menkowitz.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the article was reasonably capable of conveying defamatory implications (e.g., sexual misconduct, criminality) | Menkowitz: wording and context ("rampant rumors", gender of patient) would lead readers to infer sexual abuse or criminal conduct | Newspaper: article made clear the basis was a hospital suspension after peer review, not criminal prosecution; context negates salacious innuendo | Majority allowed jury to decide; concurring judge would have resolved as matter of law that alleged innuendos were not reasonable when article read as a whole |
| Whether a defamation-by-implication claim may stand when plaintiff also alleges defamation per se based on same words | Menkowitz: implication claim appropriate because article suggested wrongful acts beyond literal statements | Newspaper: truth of per se statements undermines implication theory (truth defense) | Concurring judge cautioned that mixing per se and implication claims from same words creates problems; issue not dispositive here and not fully resolved on appeal |
| Proper role of trial court vs. jury in deciding whether publication is capable of defamatory meaning | Menkowitz: jury should assess whether reasonable readers could draw the implication | Newspaper: trial court should determine as a matter of law whether the publication can reasonably bear the alleged innuendos before sending to jury | Concurring judge: threshold is a legal question for the court; trial court erred by treating it as sufficiency of evidence and submitting to jury |
| Whether reference to an "older, female patient" reasonably imputes sexual misconduct | Menkowitz: mentioning patient gender supports inference of sexual wrongdoing | Newspaper: specifying an older female patient more readily suggests medical malpractice or treatment-related issues, not sexual abuse | Concurring judge: context (suspension, peer review, refusals to comment) undercuts sexual connotation; implication not reasonable |
Key Cases Cited
- Livingston v. Murray, 612 A.2d 443 (Pa. Super. 1992) (court must determine whether publication justifiably supports alleged defamatory implication)
- Dunlap v. Philadelphia Newspapers, Inc., 448 A.2d 6 (Pa. Super. 1982) (court examines article as whole—headlines, photos, text—to decide if defamatory meaning is reasonably conveyed)
- Mzamane v. Winfrey, 693 F. Supp. 2d 442 (E.D. Pa. 2010) (applying Pennsylvania law to assess statements in full for defamatory implication)
- Cheney v. Daily News L.P., [citation="654 F. App'x 578"] (3d Cir. 2016) (defamation-by-implication viable when article context and adjacent images reasonably tie a named individual to scandal)
- Sarkees v. Warner-West Corp., 37 A.2d 544 (Pa. 1944) (innuendo cannot be used to expand natural meaning of words absent justification in the publication)
- ToDay's Housing v. Times Shamrock Communications, Inc., 21 A.3d 1209 (Pa. Super. 2011) (distinguishes implication claims that derive from innocent words versus defamatory-per-se statements)