59 Mass. App. Ct. 764 | Mass. App. Ct. | 2003
The plaintiff, Mark T. Reilly, a veterinary doctor, appeals from an order of the Superior Court granting the defendants’ motions for summary judgment and dismissing his complaint for defamation. Reilly filed the complaint in response to certain print and broadcast media publications, including an article that was published on May 21, 1995, on the front page of the Sunday edition of the Boston Herald (Herald). The Herald story (which we reprint as an Appendix to the opinion) related details regarding Reilly’s alleged negligence in caring for a six year old West Highland terrier named Zeke. After the Herald ran the story, The Associated Press (AP) picked it up and released a condensed version of it to its members. For the reasons set forth below, we reverse summary judgment as to the Herald defendants (except for Patrick J. Purcell, see note 1, supra) and affirm summary judgment as to the AP.
1. Facts. We take the facts in the light most favorable to Reilly and make an independent examination of the record as a whole. See Dulgarian v. Stone, 420 Mass. 843, 847 (1995); Ravnikar v. Bogojavlensky, 438 Mass. 627, 628 (2003).
At around 4:00 p.m. on Saturday, October 1, 1994, Reilly, the on-call veterinarian for the Barnstable Animal Hospital, received a telephone call from Erica Palermo, who explained that Zeke, her West Highland terrier, had been vomiting since noon. Reilly asked her to bring the dog in for an examination, but Palermo refused. At 6:00 p.m., Palermo called again and told Reilly that Zeke was still vomiting. The Palermos agreed to bring Zeke to the hospital, and Reilly saw him at 6:45 p.m.
After the examination, Reilly diagnosed the dog as suffering from pancreatitis and advised the Palermos that Zeke needed intravenous fluids and should be hospitalized. Joseph Palermo stated he could not leave Zeke alone overnight. Reilly then administered subcutaneous vitamins and fluids and instructed the Palermos to withhold food for the next twenty-four hours. Reilly further instructed the Palermos to feed Zeke a bland diet after the twenty-four hours had passed. Reilly could not order
That night, the Palermos paged Reilly two more times. In the first call, at 9:00 p.m., they informed him that the dog’s temperature was 103 degrees and that he was still vomiting. Reilly offered to hospitalize the dog but again Joseph Palermo refused. In the second call, at around midnight, they informed Reilly that Zeke’s temperature was 104.2 degrees but that the vomiting had stopped. Reilly told the Palermos that the lack of vomiting was a good sign and that if the Palermos wanted to have the dog monitored, they should hospitalize him instead of calling every few hours.
The next day, at approximately 8:00 a.m., Reilly called the Palermos to check on Zeke’s condition. Joseph Palermo stated that Zeke was fine and that the vomiting had stopped. Reilly, who was the only horse veterinarian on call on Cape Cod that weekend, then told Palermo that he often received horse calls on Sunday and might not be immediately available but that, if need be, he could be paged through an answering service.
Sunday was Reilly’s day off. After taking care of the animals at the hospital, Reilly returned home, read the newspaper, and then left to play a round of golf with his father, brother, and coworkers. While on the golf course, Reilly kept his pager and cell phone on his person. At noon, the Palermos called Reilly’s answering service and left a message stating that Zeke seemed well and that he was eating. Thus, the Palermos had disregarded Reilly’s orders from the previous day which were not to feed . the animal for twenty-four hours. About thirty to forty-five minutes later the Palermos called again. Reilly immediately returned their page, and the Palermos informed him that Zeke was acting “mopey.” They agreed to meet Reilly at the hospital at 2:15 p.m. or 2:30 p.m. (the exact time is in dispute).
Zeke walked into the appointment and slept on the examining table. During the ninety-minute examination, Reilly took X-rays from four different views and gave the dog subcutaneous fluids and vitamins, an injection of amoxicillin, and an injection of cimetidine. Reilly concluded again that the dog was suffering from pancreatitis. He explained the disease to the Palermos and instructed them, as he had done previously, not to feed Zeke.
At 8:30 p.m., the Palermos called Reilly again, and Reilly recommended that they take Zeke to SSVA. About an hour and one-half later, the Palermos arrived at SSVA. Zeke died shortly after their arrival there. The Palermos refused to have an autopsy performed on Zeke.
The Palermos promptly filed a malpractice suit against Reilly and a complaint with the Board of Registration in Veterinary Medicine (the board). The board conducted an informal hearing in March 1995. On May 15, 1995, the board issued a letter to Reilly stating it had found grounds to refer the case to the Division of Registration’s legal unit to initiate formal disciplinary action.
Pursuing their cause in the court of public opinion, the Paler-mos contacted a number of local papers, several of which ran the story. Eventually, the Herald too showed interest in the story. Meanwhile, Reilly, having heard that the Herald might write a story, called the newspaper and told his version of events to Jack Sullivan, an editor. In response to Reilly’s request to be interviewed, Sullivan told Reilly that the Herald always reported both sides of an issue and that, in any event, the Herald did not plan to run a story about Zeke. Sullivan assured Reilly that if the Herald did write a story, then someone from the newspaper would contact Reilly for an interview.
On May 21, 1995, shortly after Reilly contacted the newspaper, the Herald published the story about Zeke’s death that prompted this lawsuit. The reporter did not contact Reilly for an interview. The story’s headline, “Bereaved pet owners doggedly seek justice,” aptly sums up the flavor of the piece. The inside subheadline further exclaimed: “Vet played golf instead of treating dog.” The article also reported that Zeke’s
Reilly claims that, as a result of the story, his professional reputation throughout the Cape Cod community has been shattered. He received threatening telephone calls, lost clients, and lost his job at the Barnstable Animal Hospital.
On June 6, 1996, the board dismissed the charges against Reilly after concluding that there was insufficient evidence that Reilly had committed either malpractice or misconduct. The board issued a letter of warning to Reilly stating that in the future, he should order prompt laboratory tests and provide aggressive fluid therapy.
On this essential core of facts, the motion judge granted summary judgment for the media defendants.
2. Discussion. “[The] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates . . . that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case.” Dulgarian v. Stone, 420 Mass. at 846, quoting from Symmons v. O’Keeffe, 419 Mass. 288, 293 (1995). With regard to the Herald, its reporter, and its editor, the Superior Court judge concluded that there were no disputed issues of material fact and that Reilly failed to meet his burden of proof as to defamation for any of the statements in the article. The judge also granted summary judgment in favor of Patrick J. Purcell, the publisher of the Herald. With regard to the AP, the judge concluded that the reverse wire defense protected the AP from Reilly’s complaint. We examine the claims regarding each defendant.
A. The Herald, its reporter, and its editor. To withstand the
1. False statements. We identify and discuss five express or implied allegations made in the article that a jury could find were false statements of fact: (a) Reilly was an incompetent veterinarian; (b) Reilly played golf instead of treating Zeke; (c) Reilly initially lied to the Palermos about playing golf; (d) Reilly stole Zeke’s medical records and then altered them (“doctored” was the Herald’s word); and (e) Reilly made threatening telephone calls to the Palermos and to the clinic. The article commented on a matter of public concern — the possible discipline of a State licensed veterinarian due to negligent care; therefore, Reilly must show that these statements were capable of being proved false. See Jones v. Taibbi, 400 Mass. 786, 797 (1987); Friedman v. Boston Broadcasters, Inc., 402 Mass. 376, 381-382 (1988); Shaari v. Harvard Student Agencies, Inc., 427 Mass. 129, 132 (1998); Salvo v. Ottaway Newspapers, Inc., 57 Mass. App. Ct. 255, 259 (2003). The Herald claims that Reilly has no reasonable expectation of proving certain of the offending statements false because they are either matters of personal opinion or substantially true.
“The determination whether a statement is one of fact or opinion is generally considered a question of law.” Cole v. Westinghouse Bdcst. Co., 386 Mass. 303, 309, cert. denied, 459
We must also distinguish between “pure opinion” and an expression of opinion that implies a false assertion of fact. See Dulgarian v. Stone, 420 Mass. at 849. “[Expressions of ‘opinion’ may often imply an assertion of objective fact.” Id., quoting from Milkovich v. Lorain Journal Co., 497 U.S. 1, 18 (1990). Only pure opinion based on disclosed nondefamatory facts is protected under the First Amendment. See Cole v. Westinghouse Bdcst. Co., 386 Mass. at 311.
Further, a factual statement need not state the precise truth. See Dulgarian v. Stone, 420 Mass. at 847; Tartaglia v. Townsend, 19 Mass. App. Ct. 693, 698 (1985). Thus, when a statement is substantially true, a minor inaccuracy will not support a defamation claim.
With these principles in mind, we examine each of the five alleged false statements.
The article suggests that Reilly is an incompetent veterinarian
Palermo’s general statements regarding Reilly’s treatment are protected opinion. The reasonable reader could recognize these statements as generalizations uttered by a distraught pet owner. See Gonzalez v. Gray, 69 F. Supp. 2d 561, 568 (S.D.N.Y. 1999), aff’d, 216 F.3d 1072 (2d Cir. 2000) (“[a] reasonable viewer would understand that [the defendant’s] statements are not state-of fact, but represent the opinion of a distraught widower who recently lost his wife to a terrible illness”). Compare Kanaga v. Gannett Co., 687 A.2d 173, 181-182 (Del. Super. 1995) (within context of article, ordinary reader would not know that patient’s opinion that doctor’s care fell below standard of care was conjecture and hence could be viewed as express or implied misstatement of fact).
Other statements in the article attributed to Palermo regarding the course of Zeke’s treatment by Reilly (other than the one that Zeke was “sent home” with the Palermos, which Reilly contends only happened when the Palermos refused his several offers to hospitalize the dog) were essentially true, albeit with possible minor inaccuracies and, so, were not defamatory of Reilly’s competence as a veterinarian.
Allegations such as that Reilly played golf and lied about it support opinions about Reilly’s competence as a veterinarian and are factual and therefore capable of being proved false. See King v. Globe Newspaper Co., 400 Mass. 705, 717 (1987), cert. denied, 485 U.S. 940 and 485 U.S. 962 (1988). Palermo was quoted as saying that “Zeke is dead because of lazy treatment by a vet who decided to play golf instead of doing his job.” The article’s interior subheadline echoes Palermo’s conclusion: “Vet played golf instead of treating dog.” The article’s text elaborates:
“At 8 the next morning, Reilly called to say that he had been summoned on an ‘emergency horse call.’ He said he could see Zeke at noon. The truth, Reilly later admitted, was that he had gone to play golf, using an old vets’ excuse.”
We view these statements as factual. The statements are unattributed and are presented not as opinions but as actual events preceding (and possibly contributing to) Zeke’s death. Compare King v. Globe Newspaper Co., 400 Mass. at 714 (readers expect to read columnist’s views and opinion pieces as opposed to factual stories on op-ed page).
Here, the Herald reported that Reilly deliberately neglected his responsibilities to an ailing dog in favor of playing golf. By contrast, Reilly presented evidence that the purpose of his 8:00 a.m. telephone call was to check on Zeke, that he kept his pager on his person, that he promptly returned Palermo’s page, and that he and the Palermos agreed upon a 2:15 p.m. appointment time that Sunday. Further, Reilly stated that during his 8:00 a.m. call, Palermo said that Zeke appeared to be convalescing and had stopped vomiting. That statement calls into question whether Reilly knew or should have known that Zeke was ailing when he left for the golf course.
The article further reports that Reilly at first deceived the Palermos to avoid treating Zeke but later “admitted” the truth to them about playing golf. It is undisputed that Reilly played golf that Sunday; but whether he deceived the Palermos is a questian for a jury to decide.
An assertion that someone lied to avoid his professional duties can be proved false. See Milkovich v. Lorain Journal Co., 497 U.S. at 19 & n.7; Buckley v. Littell, 539 F.2d 882, 895-896 (2d Cir. 1976), cert. denied, 429 U.S. 1062 (1977) (assertion that journalist lied about and libeled certain people was assertian of fact). Compare Lyons v. New Mass Media, Inc., 390 Mass. at 60 (general assertion that plaintiff was “liar” was essentially “epithet” that merely expressed opinion). Here, the Herald pinpoints a specific alleged lie: Reilly said he was treating a horse but actually played golf, which is a statement that a single verifiable event occurred. King v. Globe Newspaper Co., 400 Mass. at 717. In contrast to the Herald’s statement, Reilly claims he told the Palermos that he “might” be tied up with a horse call (he was the only horse veterinarian on call on Cape Cod that Sunday) but that he was still on call to them and could be paged. He further states that he had discussed golf with his father the previous night, but had decided to play golf only after checking on his patients, including Zeke.
Several of the article’s passages are capable of conveying the suggestion or innuendo that Reilly stole, then altered, Zeke’s records from SSVA. The article attributes these “facts” to Palermo and to Michael Foley, SSVA’s business manager, who said the records had “disappeared” from the files only to turn up “misfiled” several months later. According to Palermo, they were also “doctored to imply that Reilly made a more complete diagnosis on the first day of Zeke’s illness.”
The existence of defamatory innuendo is a question of fact for a jury to consider. See Lyman v. New England Newspaper Publishing Co., 286 Mass. 258, 260-262 (1934); Sharratt v. Housing Innovations, Inc., 365 Mass. 141, 143-145 (1974). “[Djefamation can occur by innuendo as well as by explicit assertion. . . .” Brown v. Hearst Corp., 54 F.3d 21, 25 (1st Cir. 1995). See Merrill v. Post Publishing Co., 197 Mass. 185, 193 (1908). Existence of defamatory innuendo is a question of fact.
Foley’s statement insinuates that he suspected Reilly, who had previously worked at SSVA (as a nurse, not as an intern as the article states), was responsible for the missing files. Standing in isolation, the statement suggesting that Foley suspected Reilly as the one responsible for the missing file, but also stating that Foley had “no clue” as to the “cause,” is protected opinion based upon the “disclosed nondefamatory fact[]” that Zeke’s file at SSVA was missing for a time. See National Assn. of Govt. Employees v. Central Bdcst. Corp., 379 Mass. 220, 227-228 (1979), cert. denied, 446 U.S. 935 (1980); Lyons v. Globe Newspaper Co., 415 Mass. at 264.
In fact, Reilly’s records and the Barnstable Hospital’s records were always available to the Palermos. Indeed, the Palermos had copies of the records (although the Herald did not report that fact). Thus, a jury could examine the Palermos’ copies and compare them to the originals to ascertain whether Palermo’s statement about “doctored” records is true. A jury should also be able to consider whether the possibly defamatory insinuation that Reilly stole the records is false.
The article goes on to report that Foley received three anonymous, harassing telephone calls and that Palermo also had received a telephone call from someone who threatened to throw poisoned meat to his dogs. Tellingly, the article reports that Foley filed a police report in which he quoted one anonymous caller as stating: “The dog’s dead; stop helping Palermo. I have the records; he has no proof.” A jury could reasonably conclude that this statement all but identifies Reilly as the one who stole the SSVA records and who made the threatening telephone calls. The article reports that the telephone calls occurred after Palermo had put pressure on Reilly “for answers,” and then had
The Herald argues that statements in the article from the police report concerning Zeke’s missing records and the harassing telephone calls fall within the fair reporting privilege immunizing from liability those who “fairly and accurately report certain types of official or governmental action.” ELM Med. Lab., Inc. v. RKO Gen., Inc., 403 Mass. 779, 782 (1989). We disagree.
The fair reporting privilege derives from the recognition that the general public has the right to know of official government actions that affect the public interest, that news outlets are the best way to disseminate such information, and that news outlets would be willing to make such reports only if they were free from liability. Id. “Whether the occasion was privileged was matter of law to be determined by the judge.” Joyce v. Globe Newspaper Co., 355 Mass. 492, 498 (1969).
The privilege applies to reports by news media outlets of official government action, including police action, such as the fact of an arrest, a search warrant issued, or a crime charged; but it does not apply to witness statements to police, whether appearing in an official police report or not, where no official police action is taken. Such reports to police are unverified hearsay. See generally Jones v. Taibbi, 400 Mass. at 795-796, and cases cited. The Herald article reports no police investigation or action following up on Foley’s statements in the police report.
Such unconfirmed hearsay, upon which no police action was taken, has neither the authority nor the importance to the public that other documents or statements shielded by the fair report
Finally, the Herald contends (and the motion judge agreed) that statements in the article about the misfiled or stolen “doctored” records and anonymous telephone calls were not “of and concerning” Reilly because he was not identified in the article as the individual responsible for the reported acts. Again, we disagree.
“[A] plaintiff may establish that the defendant’s words were of and concerning the plaintiff by proving at least that the defendant was negligent in publishing words which reasonably could be interpreted to refer to the plaintiff.” New England Tractor-Trailer Training of Conn., Inc. v. Globe Newspaper Co., 395 Mass. at 479. See Eyal v. Helen Bdcst. Group, 411 Mass. 426, 430-431 (1991). One could draw from the various passages about the SSVA records and the anonymous telephone calls that Reilly, the only person identified in the article with interests adverse to the Palermos, had a hand in both. See ibid. A defamatory comment is made “of and concerning” the person to whom the reader or recipient, correctly or mistakenly but reasonably, understands it was intended to refer. “While the plaintiff need not prove that the defendant ‘aimed’ at the plaintiff, he . . . must prove that the defendant was negligent in writing or saying words which reasonably could be understood to ‘hit’ the plaintiff.” New England Tractor-Trailer Training of Conn., Inc. v. Globe Newspaper Co., 395 Mass. at 478.
The allegations of missing, altered records and anonymous threatening telephone calls “hit” Reilly — or so a jury could find. The article’s statements about these events were interlaced
Thus, Reilly has satisfied by summary judgment standards the first element of his defamation claim by establishing issues of material fact whether the Herald defendants made false statements of fact to third parties of and concerning him. We briefly examine the remaining elements of the defamation claim against the Herald and then examine the claim against the AP.
2. Defamatory statements. “The determination whether the communication complained of is capable of a defamatory meaning is for the court.” Jones v. Taibbi, 400 Mass at 792. The statements made in the article are capable of conveying a defamatory meaning. Once the court has determined that a statement is capable of a defamatory meaning, it is for a jury to decide whether the statement was so understood by its recipient. Ibid. A jury could find such statements exposed Reilly to public hatred, ridicule and contempt, “discrediting [him] in the minds of any considerable and respectable class of the community.” Disend v. Meadowbrook Sch., 33 Mass. App. Ct. 674, 675 (1992).
Statements suggesting that one lacks a necessary professional characteristic are defamatory. See Morasse v. Brochu, 151 Mass. 567, 578 (1890); Ravnikar v. Bogojavlensky, 438 Mass. at 630. Furthermore, statements about Zeke’s misfiled, altered records and about the telephone calls, if a jury found them to impugn criminal conduct by Reilly, are defamatory per se. See Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 853 (1975); Jones v. Taibbi, 400 Mass. at 795-796. Thus, the statements are capable of a defamatory meaning.
3. Negligent publication. The Herald reporter did not contact Reilly before writing the story and then reported that Reilly “declined to speak publicly.” However, Reilly produced evidence that he had contacted the Herald approximately one week before the story was published, asked at that time to be
4. Damages. Statements that prejudice one’s professional standing or that charge one with a crime are actionable without proof of actual damages. See Ravnikar v. Bogojavlensky, 438 Mass. at 630. The article’s statements prejudice Reilly’s professional reputation and standing; they also come close to suggesting possible criminal activity on his part. Furthermore, Reilly’s answers to interrogatories offer evidence of actual damages in the form of economic damages and emotional suffering exacted by the article’s publication. Thus, there are questions of fact for a jury on the issue of damages.
To conclude, summary judgment in favor of the Herald defendants (with the exception of the publisher) should not have been granted because Reilly, in his summary judgment materials, has established issues of fact as to each of the four elements of his defamation claim.
B. The Associated Press. By contrast, we think summary judgment properly entered for the AP based on the reverse wire service defense, so-called, where the Herald story, which the AP republished, was not inherently implausible, improbable, or inconsistent. In Appleby v. Daily Hampshire Gazette, 395 Mass. 32, 38 (1985), the Supreme Judicial Court adopted the wire service defense, concluding that “no jury could reasonably find
To an extent, the AP and its member newspapers and other media outlet members share a symbiotic relationship: the AP employs its own staff to research and write original news wire stories but also frequently relies upon member newspapers as additional wire sources. The same applies to the AP’s member newspapers. While the AP’s resources may be greater than a small local newspaper’s, it cannot afford to verify every news item originating from every one of its member publications and still disseminate news promptly. See Appleby v. Daily Hampshire Gazette, 395 Mass. at 38-39; Winn v. Associated Press, 903 F. Supp. at 579. To operate efficiently, newspapers must be able to trust wire services, and wire services must be able to trust newspapers for original, nonwire service generated material. For purposes of the reverse wire service defense, we draw no distinction between fast-breaking news stories of national or international import and local, human interest or news features, arguably concerning “lesser” events. It would pose an impermissible burden upon the media and the courts to force
The Herald is recognized as a reputable news source. Nothing on the face of the article appears “inherently improbable or inconsistent.” The article at least appears accurate and adequately researched. Hence, the AP was not negligent in republishing it.
The responsibility for accurate, nondefamatory reporting lies with the newspaper that published the original story, not with the wire service that “demonstrated ordinary care in preparing and transmitting the article.” Winn v. Associated Press, 903 F. Supp. at 580. Thus, Reilly’s claims for defamation lie with the Herald, not with the AP.
3. Conclusion. There are genuine issues of material fact that we have discussed as to the truth or falsity of various factual statements in the article. Reilly produced evidence suggesting that he did not (1) play golf instead of treating Zeke, (2) lie to the Palermos about it, (3) make threatening telephone calls, or (4) steal or alter documents. Because Reilly may be able to prove that certain statements in the article were negligently published defamatory falsehoods, we reverse summary judgment as to the Herald. We affirm summary judgment as to the AP.
So ordered.
Appendix.
Bereaved pet owners doggedly seek justice.
By Tom Mashberg
Joe and Erica Palermo were determined not to take their beloved Zeke’s death lying down, even after the doctors and bureaucrats insisted in writing that nothing could have been done to save the little guy.
But when you’re a childless couple and you adore your four pets like doting parents — and you believe that the medical care you paid good money for was uncaring and incompetent — you’re like a dog on a bone: You don’t give up.
Not until the animal clinic and the veterinarian in question have been
When you’re Erica and Joe Palermo of East Falmouth, you love your West Highland terriers like children, and you don’t want fellow dog owners to go through what you did.
“This should never happen to another pup — Zeke is dead because of lazy treatment by a vet who decided to play golf instead of doing his job,” said Joe Palermo, 46, who owns an Italian specialty shop in Hatchville. “He was so special, our little guy.”
The veterinarian on the hot seat, Mark T. Reilly, 31, of Barnstable, has declined to speak publicly on the case, and so has Barnstable Animal Hospital, where Reilly works. Reilly has stated in court papers that he did no wrong.
But this past Monday, the Massachusetts Board of Registration in Veterinary Medicine, the state oversight panel that heard the Palermo case in mid-March, ruled that “the board finds grounds to refer this case to the Division of Registration Legal Unit to initiate formal disciplinary action” against Reilly. Action is pending.
Zeke’s case began last Oct. 1, a Saturday, when the 6-year-old pooch began ailing and then throwing up. At 4 p.m., the Palermos phoned Barnstable Animal Hospital, a clinic that had long cared for their four terriers.
Their usual vets, co-directors David Romeiser and John Leach, were not on duty, but Reilly, whom they did not know, advised them to withhold feeding for 24 hours. Things worsened, however, and by 6 p.m. the Palermos took Zeke in to see Reilly.
“He said Zeke had pancreatitis, and that the disease would run its course,” Palermo said. “He sent us home, but Zeke’s temperature kept going way up.”
Palermo called Reilly twice more that night, at 9 p.m. and midnight, to say Zeke’s temperature was 105.6 — 3.6 degrees above normal. Reilly urged him not to worry; he said he would see Zeke in the morning.
At 8 the next morning, Reilly called to say that he had been summoned on an “emergency horse call.” He said he could see Zeke at noon. The truth, Reilly later admitted, was that he had gone to play golf, using an old vets’ excuse. He was not on hand at the hospital until 2:30, by which time, Palermo says, “Zeke could barely stand.”
By now, Palermo said, the mood had soured between him and Reilly. The vet gave Zeke a shot of ampicillin, an antibiotic, and sent him home, telling the Palermos that it would make no sense to leave the dog overnight in a
“I trusted this hospital not to have a doctor on duty who couldn’t handle things,” Palermo said. “I do wish I’d taken Zeke to another hospital sooner.”
It was Reilly, during a final phone call at 9:30 that evening, who asked Palermo to go to South Shore Veterinary Associates in Weymouth. “Zeke died in the waiting room there at 10,” Palermo said. “It ripped us apart.”
Palermo says the doctors at South Shore told him that Zeke had a massive septic infection that required huge doses of antibiotics to control. They said a blood test should have been taken sooner.
Determined to pressure Reilly for answers, the Palermos requested the medical records on Zeke from South Shore as the first step in a $50,000 lawsuit. South Shore had received the final records on Zeke from the Bamstable clinic.
Michael Foley, business manager at South Shore, told Palermo that Zeke’s records had “disappeared” from his office files.
Yet Foley also filed a report with the Weymouth Police stating that he had received three anonymous phone calls, each saying: “The dog’s dead; stop helping Palermo. I have the records; he has no proof.”
In his statement, Foley said he had no clue as to a source of the calls, or any cause for the lost record, but that “Dr. Mark Reilly, who is being investigated, used to work at South Shore when he was an intern.”
The Palermos also received an anonymous call from someone threatening to “toss poisoned meat” to their surviving dogs.
Palermo says he urged his lawyer, Gregory M. Downs of Sandwich, to pursue the lawsuit, and at a mid-March session before the State Registry Department, he and Reilly confronted each other.
“It was there he admitted that he played golf that day,” Palermo said. “But he still insisted that his diagnosis was on target, and there of course was no proof either way.”
Several Massachusetts vets also attended the proceedings, which were presided over by Dr. Edward A. Leonard, chairman of the veterinary board. Palermo was told by the registration panel to await a ruling within a year.
Frustrated, Palermo publicized a $1,000 reward for Zeke’s lost medical records, and Foley added an offer of a day off for any South Shore staffer who might find them. In early May, Foley says Zeke’s records turned up — “misfiled” at South Shore.
Palermo says those records were doctored to imply that Reilly made a more complete diagnosis on the first day of Zeke’s illness. Reilly denies this. In any event, once the missing records were forwarded to the state overseers, in early May, they sped up their ruling, issuing the May 15 letter promising “formal disciplinary action.”
Palermo says his goal in suing is to recoup his legal costs, with any added proceeds going to local animal shelters. He noted that the disciplinary letter recommended “negotiating a consent agreement with Dr. Reilly” —• presumably a voluntary and temporary suspension of his veterinarian’s license.
“For Zeke’s sake and the sake of dog lovers, I want this to be resolved fairly,” he said. “A vet is a sacred person for a lot of us. That message has to get out.”
Months previously, the reporter had called Reilly’s lawyer, but he made no further effort to speak with Reilly before writing the story. The reporter did not attempt to contact Reilly directly.
Reilly is not a public figure for whom a claim of defamation would require a showing of actual malice by the defendant. See and compare Lyons v. New Mass Media, Inc., 390 Mass. 51, 55-57 (1983). Rather, Reilly is a private figure. See Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 858 (1975). He need only prove the negligent publication of a defamatory falsehood to recover actual damages. Jones v. Taibbi, 400 Mass. 786, 799 (1987).
Massachusetts has not recognized the neutral reportage privilege. Hence, the Herald may be held liable for quoted defamatory falsehoods if they were published negligently. Lyons v. New Mass Media, Inc., 390 Mass. at 59 n.3. See generally Keyes, Freedom Without Responsibility: Do Massachusetts
For example, “Zeke is dead because of lazy treatment.” The caption on an accompanying photograph also states, “The [Palermos] believe Zeke . . . died due to neglect by their veterinarian.”
The article quotes Palermo as follows:
“ ‘He said Zeke had pancreatitis, and that the disease would run its course,’ Palermo said. ‘He sent us home, but Zeke’s temperature kept going way up.’... He was not on hand at the hospital until 2:30, by which time, Palermo says, ‘Zeke could barely stand.’. . . The vet gave Zeke a shot of ampicillin, an antibiotic, and sent him home, telling the Palermos that it would make no sense to leave the dog overnight in a cage.”
