Opinion
Nos. CV 065003578S, CV 075012114S
November 30, 2010
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT
These two libel actions arise out of the publication by the defendant newspaper of articles written by the defendant reporters. For reasons discussed herein, the claims are brought in two separate actions. Each of the defendants filed a motion for summary judgment as to the claims made against them. As the arguments by all defendants are largely identical, the motions will be addressed in a single ruling to be filed in both pending matters.
The plaintiff in these actions seeks damages and other relief as a result of alleged libelous statements contained in three articles published by the defendant in its newspaper, The Connecticut Post, and written by either defendant Tepfer or defendant Brown. The defendants seek summary judgment as to all counts of both complaints raising both procedural and substantive defenses. The plaintiff has filed opposition to the motions asserting that his claims are not procedurally barred and that, at the very least, there are genuine issues of material fact as to the defendants' special defenses. For the reasons set forth below, the motion for summary judgment filed by Connecticut Newspapers Publishing Co., Inc. is GRANTED. The motion for summary judgment filed by Daniel Tepfer is GRANTED. The motion for summary judgment filed by Marian Gail Brown is GRANTED.
Procedural Background
The plaintiff filed the first of these actions by writ, summons and complaint dated June 9, 2006. The complaint and summons purported to name as defendants Connecticut Newspapers Publishing Co, Inc. (hereinafter, "CNP") as well as two of its reporters, Daniel Tepfer and Marian Gail Brown. The Return Date was July 25, 2006. Thereafter, a return of service was filed which was dated and attested to on July 7, 2006 and which provided in its entirety:
Then and by virtue hereof and by direction of the plaintiff, I left a verified true and attested copy of the original Writ, Summons and Complaint with and in the hands of GARY SCAPPINI, Special Assistant, CT CORPORATION SYSTEM, Agent for Service for the defendant CONNECTICUT NEWSPAPERS PUBLISHING, CO. INC, A/K/A CONNECTICUT POST in said town of Hartford.
The within is the original Writ Summons and Complaint with my doings thereon endorsed.
The Marshal's return of service is silent as to the date on which he received the writ, summons and complaint, or the method by which it was delivered to him. The return does not indicate any effort to make service upon the named individual defendants, Tepfer and Brown. There is no dispute that service was never made upon Tepfer or Brown. There is no other evidence that service was ever attempted with respect to Tepfer or Brown.
On August 25, 2006, Tepfer and Brown, appearing through counsel, filed a motion to dismiss any claims against them as they had never been served. While the motion to dismiss was pending, the plaintiff filed an "Application for Order of Notice and Continuance" on October 11, 2006, in which he acknowledged that Tepfer and Brown had not been served but sought an opportunity to provide them with "actual notice" by way of publication. On December 8, 2006, the Court (Hiller, J.) denied the application stating: "The Marshal's return does not indicate efforts for personal service. Second work addresses for both [defendants Brown and Tepfer] are contained on the summons."
Shortly thereafter, on December 12, 2006, the Court (Arnold, J.) granted the motion to dismiss as to Tepfer and Brown. Thus, as to this action, CNP is the only remaining defendant. The operative complaint, dated March 20, 2008, includes three counts of libel and one count of negligent infliction of emotional distress. Count one arises out of an article written by Tepfer and published on June 20, 2004. Count two arises out of an article written by Tepfer and published on July 9, 2004. Count three arises out of an article written by Brown and published on December 23, 2005. Count four alleges negligent infliction of emotional distress as a result of the libel identified in counts one through three.
Following the granting of the motion to dismiss, further pleadings resulted in a revised complaint dated March 20, 2008.
The plaintiff filed the second action (Dkt. No. CV075012114S) by writ, summons and complaint dated October 1, 2007. It was given a return dated of November 27, 2007. The summons purports to name CNP, Tepfer and Brown as defendants. The complaint is virtually identical to the complaint filed in the first action. The Marshal's return of service reflects that Tepfer was served "in hand" on October 15, 2007 and Brown was served "in hand" on November 6, 2007. The return is silent as to any effort to serve CNP and does not reflect that CNP was in fact served. There is no dispute that CNP was not served with the second complaint.
Thereafter, appearing through counsel, on December 13, 2007, CNP filed a motion to dismiss the second action in light of the fact that it was not served upon CNP. The motion was granted on February 25, 2008. Thus, the only remaining defendants in the second action are Brown and Tepfer. The operative complaint includes three counts of libel and one count of negligent infliction of emotional distress. Counts one and two pertain to defendant Tepfer as the author of the June 20, 2004 and July 9, 2004 articles. Count three pertains to defendant Brown as the author of the December 23, 2005 article. Count four alleges negligent infliction of emotional distress as a result of the libel and pertains to both defendants.
Following the granting of the motion to dismiss, further pleadings resulted in a "substitute complaint" dated May 16, 2008.
Additional facts will be set forth as necessary, to include the specific nature of the articles and the matters reported therein, those statements which are alleged to be false and libelous, the sources from which the articles derived as well as other historical aspects to these claims.
The Issues Raised by Motion for Summary Judgment
The defendants seek summary judgment raising both procedural and substantive claims. Specifically, CNP asserts that count one of the complaint (in Dkt. No. CV06 XXX) is barred by the statute of limitations as untimely. Tepfer asserts that counts one and two of the complaint (in Dkt. No. 07 XXX) are barred by the statute of limitations. Brown does not assert a statute of limitations defense.
Additionally, all defendants seek summary judgment as to their special defenses. Specifically, they aver that there is no genuine issue of material fact that: (1) the alleged libelous statements are true or substantially true; (2) the articles are protected by the "fair report" privilege; (3) the claim fails under the "incremental harm" doctrine; (4) the plaintiff has not alleged actual malice as required in order for him to prevail; (5) the emotional distress claim, being wholly derivative of the libel claims, must therefore also fall.
Standard of Review
A party seeking summary judgment has the very heavy burden of demonstrating the absence of any genuine issue of material facts which, under applicable principles of law, entitle him to judgment as a matter of law. PB § 17-44; Appleton v. Board of Education, 254 Conn. 205 (2000). Conversely, the party opposing such a motion must provide an evidentiary foundation to show the existence of a genuine issue of material fact. Id. This evidentiary foundation must be demonstrated with counter-affidavits and concrete evidence. Pion v. Southern New England Telephone, 44 Conn.App. 657, 663 (1997). A party's conclusory statements may not be sufficient to establish the existence of a disputed material fact, even if in affidavit form. Gupta v. New Britain General Hospital, 239 Conn. 574, 583 (1996).
Summary judgment may be granted where the plaintiff's claim is barred by the applicable statute of limitations. Doty v. Mucci, 238 Conn. 800, 806 (1996). Summary judgment is appropriate on statute of limitation grounds when the material facts concerning the statute of limitations are not in dispute. Burns v. Hartford Hospital, 192 Conn 451, 452 (1984).
Summary judgment is also encouraged, where appropriate, in defamation cases in view of the chilling effect such costly litigation (even if ultimately successful) could have on the exercise of constitutional rights and the press obligation to fully and fairly report matters of public concern. Dow v. New Haven Independent, Inc., 41 Conn.Sup. 31 (1987).
An intimidated press is a threat to our democracy. Of course, the constitutional rights of freedom of the press must not be allowed to infringe on the constitutional right that all courts be open to redress an injury. Conn. Const., art. I, § 10. An appropriate vehicle to accommodate a balance between these rights is a motion for summary judgment. "Our courts should resolve free speech litigation more expeditiously whenever possible. The perpetuation of meritless actions, with their attendant costs, chills the exercise of press freedom."
Dow v. New Haven Independent, Inc. supra., 41 Conn.Sup. at 47, quoting, Maressa v. New Jersey Monthly, 89 N.J. 176, 196 (1982).
Statute of Limitations as to Count One against CNP (Dkt. No. CV 06 XXX)
The statute of limitations for bringing a libel action is two years "from the date of the act complained of." Conn. Gen. Stat. § 52-597. Count One alleges libel based upon the publication of an article on June 20, 2004. Thus, it was incumbent upon the plaintiff to commence the action' within two years of that date. In Connecticut, it is well established that an action is "commenced" for purposes of tolling the statute of limitations when it is served on the defendant. Lacasse v. Burns, 214 Conn. 464 (1990); Broderick v. Jackman, 167 Conn. 96, 99 (1974); Rana v. Ritacco, 236 Conn. 330, 337 (1996). In this matter, the Marshal's return reflects that the complaint was served on July 7, 2006, which is outside the two-year window.
However, the plaintiff counters that Conn. Gen. Stat. § 52-593a, "saves" this cause of action. Section 52-593a provides that if a complaint is "personally delivered" to a Marshal within the applicable statute of limitations period, the statute of limitations will not be a bar to the action if it is thereafter served within 30 days of such personal delivery Section 52-593a(b) further provides:
In any such case, the state marshal making service shall endorse under oath on such state marshal's return the date of the delivery of the process to such state marshal for service in accordance with this section.
In opposition to the motion for summary judgment, the plaintiff filed an affidavit in which he states that he mailed the writ, summons and complaint to the Marshal on June 9, 2006. Thus, he argues, § 52-593a is satisfied. The defendant, CNP, argues that placing the papers in the mail is not "personal delivery" and that the statute is not satisfied.
While the appellate courts of this state have not spoken on the issue, there appears to be unanimity among superior court judges who have been asked to decide the issue, that the writ, summons and complaint may be mailed to the marshal. However, the act of mailing the papers, alone, does not satisfy the statute. At issue is not the plaintiff's choice of delivery method, but whether the marshal personally received the papers within the applicable statute of limitations period. See, Zarillo v. Peck, 33 Conn.Sup. 676, 679 (1976); Romaine v. Town of Greenwich, 20 Conn. L. Rev. 693 (November 21, 1997) (Karazin, J.).
All that [the statute] requires . . . is that the process be personally delivered. It does not require that the delivery be made by the plaintiff, his attorney, or any particular individual. The person making the delivery has no statutory role to perform respecting the delivery. He is neither required nor permitted to endorse his doings on the return. In addition, the statute does not detail the manner of making delivery . . . Although delivery by mail is not mentioned in the extension statute, such delivery is not precluded. The fact that the extension statute becomes operative only where the process has been delivered before the running of the statute of limitations, and the fact that the serving officer is required to attest to the date of delivery suggest that the purpose of the statute is to ensure that the process is received on time by the Officer . . . Thus, where a delivery of process is to be made by mail, it has not been personally delivered until it has been received in person by the serving officer, at which point he can so attest.
Zarillo v. Peck, 33 Conn.Sup. at 678-79.
Zarillo was a decision of the Appellate Session of the Superior Court on an appeal from the then Court of Common Pleas.
Therefore, the plaintiff was permitted to mail the process to the marshal and can rely on § 52-593a if the process was received by the marshal before the running of the statute of limitations. See, Tayco Corp. v. Planning and Zoning Commission, 294 Conn. 673 (2010) (The plaintiff must deliver the writ, summons and complaint to the marshal before the expiration of the limitations period). The clear purpose of § 52-593a(b) is to ensure that receipt. Here, the marshal's return is silent as to how or, more importantly, when he received the process from the plaintiff. Thus, the return of service does not comply with the provisions of § 52-593a(b).
Our appellate courts have not spoken on the extent to which a plaintiff must comply strictly with the provisions of Section 52-593a(b). The superior court opinions on this issue vary. The majority permit a plaintiff to cure an otherwise defective return of service with either affidavits establishing the date of delivery or by filing an amended return of process to include that information. Derby v. Garafalo, Judicial District of Ansonia-Milford, Dkt. No. CV 08-5004821S, (March 24, 2010) (Bellis, J.). See also, Sanabria v. Ashmead, Superior Court, Judicial District of New London, Docket No. CV 09 5010404 (December 17, 2009) (Cosgrove, J.) [ 49 Conn. L. Rptr. 29]; Tate v. Lerner, Superior Court, Judicial District of Waterbury, Docket No. CV 09 5011864 (September 23, 2009) (Brunetti, J.) [ 48 Conn. L. Rptr. 483]; Minney v. Dasent, Superior Court, Judicial District of New London, Docket No. CV 06 5000642 (October 23, 2006) (Hurley, J.T.R.) [ 42 Conn. L. Rptr. 229]; Desimini v. Bristol Hospital, Inc., Superior Court, Judicial District of New Britain, Docket No. CV 05 4003250 (January 12, 2006) (Domnarski, J.) [ 40 Conn. L. Rptr. 611]. Others have required strict compliance with the provisions at the time the service is made. See, e.g., Cronin v. Minnefield, Superior Court, Judicial District of Waterbury, Docket No. CV 08 5008698 (January 16, 2009, Alvord, J.) [ 47 Conn. L. Rptr. 122] (holding that applicability of savings provision was contingent upon compliance with subjection (b)); Renz Construction Corp. v. Kirschner, Superior Court, Judicial District of Fairfield, Docket No. CV 96 0329403 (July 15, 1996) (Moran, J.) [ 17 Conn. L. Rptr. 205] (§ 52-593a was not available to plaintiff because return of service did not contain an endorsement as to date of delivery); Buck v. Esman, Superior Court, Judicial District of Hartford, Docket No. CV 365584 (November 19, 1993) (O'Neill, J.) [ 10 Conn. L. Rptr. 413] (reading subsections (a) and (b) together and concluding that compliance with subsection (b) is mandatory); Kelly-Kroen v. Dock Street Associates, Superior Court, Judicial District of Stamford/Norwalk, Dkt. No. CV 128559 (July 21, 1993) (Lewis, J.).
While this court is inclined to accept the majority viewpoint that the defect in this return of service could have been addressed through an amended return or subsequent evidence as to the date of delivery, no such evidence has been put forth. The plaintiff provided an affidavit which states that the papers were mailed to the Marshal on June 9, 2006. They were not served until July 7, 2006. He has failed to provide any amended return or affidavit of the Marshal which confirms receipt prior to June 20, 2006, a prerequisite to the invocation of Section 52-593a. See, Tayco v. Planning and Zoning Commission, supra. In each of those cases in which Section 52-593a(b) was construed liberally so as to allow the defective return of service to be cured, the court had either affidavits or an amended return of service confirming that the provisions of the saving statute had been met. Under those circumstances, the suits were permitted to go forward.
Once the defendant has raised the statute of limitations as a defense and has established, conclusively, that service was made outside the period within which an action must have been commenced, it becomes incumbent upon the plaintiff to establish that the action is saved by application of Section 52-593a. A plaintiff relying upon a "saving" statute must demonstrate compliance with its provisions. Vissichio v. Hollenbeck, 18 Conn.App. 515, 519 (1989); Isaac v. Mount Sinai Hospital, 210 Conn. 721, 728 (1989). The plaintiff here has failed to do so.
Summary Judgment as to count one of the complaint against CNP is GRANTED.
Statute of Limitations: Counts One and Two as against Tepfer (CV07-XXX)
As set forth above, the second complaint was served on defendant Tepfer on October 15, 2007. It alleges libel in connection with the June 20, 2004 and July 7, 2004 articles written by Tepfer. As such, it is clearly commenced outside the two-year statute of limitations for causes of action sounding in libel. Conn. Gen. Stat. § 52-579.
The plaintiff counters that this cause of action is "saved" by the so-called accidental failure of suit statute, Conn. Gen. Stat. § 52-592, which provides in pertinent part:
(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action.
(Emphasis added). He argues that this action was commenced within one year of the dismissal of the initial complaint in which Tepfer was identified as a defendant though never served. The dismissal in the first action entered December 12, 2006 and this action was served within one year of that date.
The defendant argues however, that the plaintiff cannot rely on Section 52-592 because he never "commenced" the first action against Tepfer, and therefore there is no "original action" to be saved by operation of the statute. He relies upon Davis v. Family Dollar Store, 78 Conn.App. 235 (2003), appeal dismissed 271 Conn. 655 (2004). In Davis, the plaintiff prepared a writ, summons and complaint and gave it to the Marshal to be served within the applicable statute of limitations. The Marshal did not serve the complaint and eventually returned it to the plaintiff. Thereafter, the plaintiff served a second writ, summons and complaint on the defendant, invoking § 52-592 because the statute of limitations had run. The Appellate Court affirmed the trial court's entry of summary judgment, recognizing and resolving a split of opinion within the superior court.
An action is commenced not when the writ is returned but when it is served upon the defendant . . . Because the writ of summons and complaint were never served on the defendant, the original action did not commence, and therefore, § 52-592 does not authorize another action to be filed or to extend any statute of limitations . . . Although the statute is remedial, the language is clear and unambiguous . . . Without the commencement of an original action, no action exists for the statute to save. Id. at 241-42. (Citations omitted) (Emphasis added). Subsequently, the Supreme Court recognized that § 52-592 clearly contemplates the failure of an action for insufficient service, and that to determine that no "original action" was "commenced" under certain circumstances would run contrary to both the language and clear remedial and legislative intent behind § 52-592. Rocco v. Garrison, 268 Conn. 541, 550-51 (2004). In Rocco, the plaintiff filed a personal injury action in federal court, invoking the court's diversity jurisdiction because the defendant lived in Pennsylvania. The complaint was filed prior to the running of the statute of limitations. Thereafter, the plaintiff sent, by certified mail, the summons and complaint to the defendant. It was received by the defendant four days before the expiration of the statute of limitations. The mailing also included a waiver form pursuant to the Federal Rules of Civil Procedure, through which the defendant could waive formal service. The defendant did not execute the waiver and service was not affected within the applicable statute of limitations. The case was dismissed. Within one year of the dismissal, relying upon § 52-592, the plaintiff commenced a state court action against the defendant.
The Supreme Court held that the plaintiff had "commenced" an action in federal court for purposes of the saving statute. In so holding, the court determined that "the term `commenced,' as used in § 52-592 to describe an initial action that `has failed . . . to be tried on its merits because of insufficient service'; . . . cannot be construed to mean good, complete and sufficient service of process." Id. at 552. Notably, in Rocco, the defendant was served, though not in a timely fashion. Additionally, the defendant had actual notice of the suit before the statute of limitation expired. Further, the defendant received that notice along with what was essentially an alternative to formal service, the waiver. Had the waiver been executed, formal service would not have been required. Under these circumstances, the court found that the plaintiff had properly invoked § 52-592.
Although the Court in Rocco, concluded that "commencement" of an action did not require "good, complete and sufficient service," it is silent on the impact of no service. However, Davis v. Family Dollar Store, discussed supra., does address that situation.
At the time Rocco was decided in April 2004, the Supreme Court had granted certification in Davis and therefore had Davis under consideration. Davis was argued before the Supreme Court several months after Rocco was decided. Ultimately the Supreme Court dismissed the Davis case as an improvident grant of certification, thereby leaving extant the Appellate Court decision in that case.
This court must therefore decide whether this matter is more akin to that presented in Rocco, or whether it is more akin to that presented in Davis. This court believes that this case is controlled by the holding in Davis. When the first action was filed, there was no service at all upon Tepfer. There is no indication of any attempted service upon Tepfer. As the court noted when it denied the plaintiff's request for Order of Notice, the summons itself provided an alternative work address for Tepfer. There is no evidence or reason to conclude that Tepfer was aware of the claims prior to the expiration of the statute of limitations. Tepfer did not appear through counsel until well past the expiration date.
Putting the defendant's name on a summons is a meaningless act when absolutely nothing is done to effectuate service. This Court does not believe that such a situation falls within the parameters of Rocco. See also, St. John v. Westfield, LLC, Judicial District of New Haven, Dkt. No. CV 10-6008585S (August 17, 2010) (Corradino, J.T.R.) [ 50 Conn. L. Rptr. 486] (Where defendant was never served in connection with the first complaint filed against other defendants, and even though the complaint clearly contained allegations against the defendant and even though he appeared for the purpose of seeking a dismissal, the saving statute was not available as no "initial action" had been commenced); Jiminez v. DeRosa, Judicial District of New Haven, Dkt. No. CV 075013800, (November 4, 2009) (Alander, J.) [ 48 Conn. L. Rptr. 839] (court discusses the holdings of both Rocco and Davis and concludes that where good faith efforts, based upon reasonable reliance of government records, to effectuate service were made but ultimately unsuccessful, an initial action had been "commenced" and could therefore be saved).
The court recognizes that in Davis, the writ, summons and complaint were never served and simply returned to the plaintiff. However, the defendant here should not be penalized nor have the statute of limitations rendered meaningless as to him because the plaintiff here did serve and commence an action against CNP.
For the foregoing reasons, the motion for summary judgment as to counts one and two filed by defendant Tepfer is GRANTED.
Special Defenses
All defendants seek summary judgment as to their special defenses. Primarily, they argue that there is no issue of fact that the statements complained of are true or substantially true, or alternatively that the articles are protected by the "fair report" privilege. Additional background and facts are necessary.
The defendants include several additional bases, procedural and substantive, upon which summary judgment should be granted. The court does not reach these issues.
The plaintiff is a former plastic surgeon. In 1998, he brought suit against Glenn and Laura Siglinger, the parents of a former patient who was, at the time of treatment, a minor child. This matter was docketed in the Judicial District of Fairfield. The plaintiff sought to recover money allegedly due him as a result of his treatment of the Siglinger's daughter. The Siglingers, however, had health insurance which covered the daughter's care and which paid to the plaintiff $1,980.80. The plaintiff claimed that the fee for his services was $6,385.00 and therefore sought the difference between the insurance payout and his fee. His complaint sounded in breach of contract, quantum meruit and unjust enrichment. The Siglingers filed special defenses as well as a counterclaim alleging violations of the Connecticut Unfair Trade Practices Act by the plaintiff in his efforts to collect over and above the insurance policy payment.
In what can fairly be characterized as a strong judicial rebuke of the plaintiff's effort to collect the alleged "balance due," the court (Rush, J.) entered judgment against the plaintiff on his complaint and in favor of the defendants on their CUTPA counterclaim. Gianetti v. Siglinger, Dkt. No. CV 98 0349830, Judical District of Fairfield (April 26, 2004) (Rush, J.) [ 36 Conn. L. Rptr. 869], aff'd. 279 Conn. 130 (2006). The court reviewed the plaintiff's contractual obligations as a member of the Greater Bridgeport Individual Practice Association, Inc with Physicians Health Services (the insurance provider for the Siglingers). Id. at 1-2. The court concluded that the GBIPA member agreement unequivocally prohibited the plaintiff from seeking any monies from a PHS patient, over and above either a co-pay or the funds paid by PHS for the services rendered. Id. at 3. The court also took note of another suit brought by the plaintiff in which the court held that he was bound by his agreement with PHS as to fair and reasonable charges and that he could not engage in "balance billing" for covered services for PHS insureds. Id. at 2, citing, Gianetti v. Mulrooney, 1995 Ct.Sup. 8318, Judicial District at Bridgeport, July 10, 1995 (Tobin, J.). The court further noted a previous case brought by the plaintiff, Gianetti v. Fischetti, Dkt. No. CV 980352010S, Judicial District of Fairfield, aff'd., 64 Conn.App. 902 (2001), in which the trial court accepted the conclusions of the Attorney Trial Referee and entered judgment in favor of the defendant, a former patient and PHS insured who the plaintiff had sued in an effort to collect the difference between the amount of his bill, and the amount paid by PHS. Thus, the court concluded that the plaintiff was contractually prohibited from seeking further recompense from the Siglingers. Id. at 3.
The facts set forth are those contained in Judge Rush's decision.
The court then proceeded to find that the plaintiff's "balance billing" and litigation to enforce "balance billing" was a violation of the Connecticut Unfair Trade Practices Act. The court held:
While this case was pending, the plaintiff was aware of the following: (1) his contract with GBIPA prohibited balance billing; (2) he received written notice that balance billing was prohibited; (3) Judge Tobin ruled he was bound by the provisions of his agreement . . . (4) the ATR, the Court, and the Appellate Court had ruled against his claims . . . and (5) the provisions of General Statutes § 20-7f(b) and § 38a-193(c)(1). Despite such knowledge, the plaintiff continues to assert the claims made in this lawsuit. Accordingly this court finds that the actions of the plaintiff constitute an Unfair Trade Practice both in instituting the present action and in continuing to maintain the present action.
Id. at 3. The court then went on to note the existence of 146 cases deemed "inactive" in the data base of the Fairfield Judicial District in which the plaintiff appeared pro se, a number of which appeared to include balance billing issues. The court also noted an additional 45 active cases in which the plaintiff appeared pro se. Concerned that those cases might also involve a balance billing issue, the court ordered its memorandum of decision to be filed in all pending cases in which the plaintiff appeared pro se. The court finally awarded both attorneys fees and punitive damages against the plaintiff on the CUTPA counterclaims. The total award of damages to the Siglingers was $39,970.00. Id. at 4-5.
The plaintiff had also sued the Siglinger's attorney. The court found in favor of the attorney as to the plaintiff's complaint as well as his CUTPA counterclaim and awarded damages totaling an additional $25,656.30.
There is therefore no dispute, that balance billing and the bringing of an action to collect a "balance bill" as outlined in the Siglinger decision was deemed illegal by the court.
The trial court's decision was dated April 26, 2004.
On June 20, 2004, CNP published an article written by defendant Tepfer in which Tepfer reports on Judge Rush's decision in the Siglinger case. The article contains a report of interviews with several former patients who had been sued by the plaintiff, an interview with Siglinger; an interview with a representative of Health Net (the successor in interest to PHS). The article also includes a report of an interview with the Attorney General as well as an interview with the plaintiff in which his viewpoint is given. Reportedly, the Attorney General stated that he was considering bringing legal action against the plaintiff for possible CUTPA violations with respect to both Medicaid patients as well as those who had managed care health plans.
Thereafter, by complaint dated July 7, 2004, the State of Connecticut, by and through the Attorney General and on behalf of the Commissioner of Consumer Protection brought a complaint against the plaintiff alleging CUTPA violations. The complaint was brought in the Judicial District of Fairfield. It contained multiple allegations as to the manner by which the plaintiff allegedly violated CUTPA. It sought injunctive relief; fines; restitution and other legal and equitable relief.
Commensurate with the bringing of the lawsuit, the AG's office issued a written press release dated July 8, 2004. It states that the Attorney General and the Commissioner of the Department of Consumer Protection "filed a lawsuit today against a Bridgeport plastic surgeon who illegally billed and sued patients for payments in excess of the co-payments and deductibles allowed under their managed health care plans or Medicaid. This balance billing violates the Connecticut Unfair Trade Practices Act." The press release further states: "Dr. Charles D. Gianetti sued almost 200 patients after they refused to pay illegally excessive bills. About 45 suits are pending and 146 are inactive or resolved."
This physician treats his patients with an unconventional all-purpose cure — he sues them, Blumenthal said. Gianetti's victims are patients who did not legally owe the money he charged, because they had paid their insurance premiums or relied on Medicaid for the full costs of treatment . . . Dr. Gianetti sought to bully patients into paying more than he had agreed to charge in his contracts with insurers and Medicaid. This abusive practice is intolerable — and ought to be treated with tough legal medicine in court . . . These callous acts of fraud hurt not only the immediately affected individuals but all of us as well, in the form of higher insurance premiums that are passed down to consumers.
Continuing its coverage of this situation, on July 9, 2004, CNP published an article written by Tepfer which reports on the filing of the lawsuit by the AG's Office, titled "Suit accuses doctor of overbilling." The article repeats certain portions of the June 20, 2004 article, includes quotes from the press release and further discloses that a report received from the Department of Public Health shows that the plaintiff's medical license was "revoked" in 2001. The article also includes a description of allegations of misconduct made by the Department of Public Health against the plaintiff with respect to his treatment of a patient with facial wounds at St. Vincent's Medical Center.
Thereafter, the plaintiff agreed to cease any collection activity while the case brought by the Attorney General was pending. The Attorney General issued a press release dated December 22, 2005 in which the interim agreement were disclosed. The press release also reiterated the allegations of illegal billing practices by the plaintiff and includes a statement that the Attorney General's office "continues to pursue Dr. Gianetti in court, including seeking a permanent injunction preventing future aggressive billing — as well as reimbursement for patients who unwittingly paid illegal bills. We want to recover every penny illegally collected from patients."
Again, as part of its ongoing coverage of the issues, on December 23, 2005, CNP published an article written by defendant Brown regarding the interim agreement. The article contains some historical information, includes the content of the press release and covers as well the general nature of and concern regarding "balance billing."
The Complaint
Count one in each pending complaint alleges several isolated statements within the June 20, 2004 article to be both false and libelous. Specifically, the plaintiff alleges that the article falsely reported that "patients were unaware of their debts." The article however, actually states: "Most of the former patients did not find out Gianetti was seeking money from them until a process server knocked on their doors and handed them a notice they were being sued by the doctor."
The court presumes it is this statement, paraphrased by the plaintiff, which is referenced in the complaint as libel.
The plaintiff further alleges that the article was libelous: (1) to the extent it refers to him suing multiple medicaid patients; (2) to the extent it states he has sued "over 200" former patients; (3) to the extent it alleges he is "accused in court papers of unfair trade practices for billing hundreds of patients thousands of dollars after their insurance companies and Medicaid settled the bills"; and (4) to the extent it reported "if the people sued by Gianetti come to court to seek the same ruling [as was handed down in the Siglinger case] Gianetti could end up having to pay out more than $10 million dollars."
In count two of each complaint, in reference to the July 9, 2004 article, the plaintiff repeats his allegations of libel as to the statement that "patients were unaware of their debts" and to the statement "if the people sued by Gianetti came to court to seek the same ruling, [as was handed down in the Siglinger case], Gianetti could end up having to pay out more than $10 million dollars." Count two also claims as both false and libelous the statement that his medical license was revoked in 2001.
The July 9, 2004 article does not contain this statement either. It contains the same statement quoted above as appeared in the June 20, 2004 article.
In count three, the plaintiff claims several statements to be both false and libelous. First he complains that the article accused him of "roping hundreds of patients into court to pay expenses they never had any obligation to pay in the first place." He claims as false and libel the statement: "[The Attorney General's] office and the State Department of Consumer Protection are investigating the extent of the illegal collection activity." He cites as false and libelous the article's statement that "In effect, Gianetti foisted a surcharge on these patients — nearly half of whom were enrolled with Shelton-based Physicians Health Services, now known as HealthNet." Finally, he claims that "Nevertheless Gianetti maintains a medical office on Main Street in Bridgeport" to be both false and libelous.
Truth or Substantial Truth/Fair Report Privilege
The defendants argue that all of the challenged statements in each of the three counts of both complaints are true or substantially true, and therefore not actionable. Alternatively, they rely upon the fair report privilege. The challenged statements combine information from both the Siglinger decision in which certain judicial findings are made, as well as the Attorney General's complaint and press releases, in which various accusations are made. As such, the special defenses of "truth" and "privilege" comingle.
Truth
"Before a party will be held liable for libel, there must be an unprivileged publication of a false and defamatory statement. Truth is an absolute defense to an allegation of libel." Strada v. Connecticut Newspapers, Inc. 193 Conn. 313, 316 (1984) (citations omitted). Notably, our courts have held that only "substantial truth" need be shown by a defendant. Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 112 (1982); Johnson v. Whipple, 117 Conn. 599, 601-02 (1933). A defendant may show only that the "main charge, or gist, of the libel" is true. Id. If he succeeds, he does not have to further justify statements that "do not add to the sting of the charge." Id.
In other words, minor falsehoods or "errors that do not change a reader's perception of the statement do not make the statement actionable." Strada, supra, quoting, Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. at 113. "The issue is whether the libel, as published, would have a different effect on the reader than the pleaded truth would have produced." Id.
In this vein, "[f]acts do not cease to be facts because they are mixed with the fair and expectant comment of the story teller, who adds to the recital a little touch by his piquant pen." Id., quoting, Briarcliff Lodge Hotel, Inc. v. Citizen-Sentinel Publishers, Inc., 260 N.Y. 106, 118-19, 183 N.E. 193 (1932). "Minuscule `deviations from or embellishments upon' the information obtained from the primary sources relied upon . . . can be attributed to the leeway afforded an author who attempts to recount and popularize an . . . event." Strada, supra, citing, Meeropol v. Nizer, 381 F.Sup. 29, 35 (S.D.N.Y. 1974), aff'd, 560 F.2d 1061 (2d Cir. 1977), cert. denied, 434 U.S. 1013 (1978). "The author's job is not simply to copy statements verbatim, "but to interpret and rework them into the whole." Id., quoting, Ryan v. Brooks, 634 F.2d 726, 733 (4th Cir. 1980). "A fussy insistence upon literal accuracy would condemn the press to an arid, desiccated recital of bare facts." Id. (citations omitted).
The Fair Report Privilege
"The publication of defamatory matter concerning another in a report of an official action or proceeding . . . is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported." Burton v. American Lawyer Media, Inc., 83 Conn.App. 134, 138 (2004), quoting 3 Restatement (Second), Torts, Report of Official Proceeding or Public Meeting, § 611, p. 297 (1977). The basis for the privilege is the public's interest in receiving information about what occurs in official proceedings. Id. The privilege protects parties from defamation claims when they publish information that is based on governmental proceedings. The privilege exists even if the publisher does not believe the statements, and even if the statements are libel per se. Id. If the published report is accurate or a fair abridgment of the proceeding, an action cannot constitutionally be maintained for defamation. Id. The privilege can be abused however if the publisher does not give a fair and accurate report of the proceeding and is found to have acted with malice. Id.
There has never been any allegation of malice in this case.
"Generally, the determination of whether the contents of a newspaper article are privileged as fair reporting is an issue of law . . ." Id., citing, Goodrich v. Waterbury Republic-American, Inc. 188 Conn. 107, 110-11 (1982).
In Burton, the plaintiff, a lawyer, sued the publisher of a newspaper that published an article on a federal district court decision which was not very complimentary of the plaintiff and imposed sanctions upon her. The trial court compared the article in question to the court's decision and determined, based upon that analysis, that the article was a fair and accurate report of the court's decision. The plaintiff appealed claiming in the first instance that it was insufficient for the trial court to have simply compared the decision with the article. The Appellate Court affirmed that the trial court did not need to look any further than the court decision and the article in making its determination. The Court further affirmed the court's determination that the article was a fair and accurate report of the court decision.
The Court rejected the plaintiff's further claims that the article was unfair, incomplete and one-sided, and so should not be afforded privileged status. "The fair reporting privilege `requires the report to be accurate. It is not necessary that it be exact in every immaterial detail or that it conforms to that precision demanded in technical or scientific reporting. It is enough that it conveys to the persons who read it a substantially correct account of the proceedings' . . . The accuracy required is to the proceedings, not to the objective truth of the defamatory charges." Id., quoting, 3 Restatement (Second) Torts, supra, § 611, comment (f) p. 300.
Discussion
Viewed within these parameters, summary judgment as to these libel claims is unequivocally mandated. As it must, the court has reviewed very carefully all three articles. The court has reviewed the Siglinger decision; the complaint filed by the Attorney General, the press releases issued by the Attorney General, the records from the Connecticut Department of Public Health. Each of these articles, to the extent they report on the nature of allegations against the plaintiff, the findings of the court, or the content of the Department of Public Health records, are true or substantially true. While there are some inaccuracies in the statements claimed to be both false and libelous, they are insignificant. There can be no question that there would not have been any "different effect on the reader" had these inaccuracies not been included or had they been accurately reported. Further, to the extent that there remains a question as to the "truth" of the underlying allegations, the articles represent a fair and accurate report or fair abridgement of the court's decision as well as the nature of the litigation between the plaintiff and others.
Count One and Two — Both Complaints (CV06 XXXX and CV07 XXX)
Although the court has ruled that count one as to both complaints is barred by the statute of limitations, the allegations of libel as to both count one and count two overlap considerably, so count one is also addressed herein.
Count one and count two both allege that the statement that the patients were "not aware of their debts" is libel. As indicated, the articles actually state "most of the former patients did not find out Gianetti was seeking money from them until a process server knocked on their doors and handed them a notice they were being sued by the doctor." Preliminarily, how or whether former patients had prior knowledge of the plaintiff's claims is wholly tangential to the focus of the article, which was Judge Rush's determination that balance billing was illegal as a violation of CUTPA as well as the Attorney General's rising interest in the plaintiff's activity. As such, even if this particular statement is false, the article remains substantially true.
Further, the article includes anecdotal information from several former patients who thought their fees had been paid until they learned that they were being sued by the plaintiff. The plaintiff does not contest the accuracy of those portions of the article or claim them to be libel. Whether the same situation occurred with "most" of his former patients is inconsequential. This statement is not actionable.
Both count one and count two refer to the plaintiff suing multiple medicaid patients. The plaintiff states that this is false and libelous because he only sued one medicaid patient. However, the June 20, 2004 article also includes the interview of a patient who did not have insurance and so was covered by the State Department of Social Services. She was reportedly sued for a balance bill of $12,000. Again, the plaintiff does not challenge the accuracy of the anecdotal support for the statement he claims to be false. Further, the June 20, 2004 article also includes a quote from the Attorney General's office as saying "We are very troubled by the claims made against patients for amounts above Medicaid and managed-care charges."
Of note, the plaintiff admitted in his response to requests for admissions that he "sued patients who were insured by Medicaid for amounts in addition to payments Gianetti received from Medicaid for medical services provided to those patients."
The statement is substantially true, the only issue being the number of suits, or in the alternative a fair report of the Attorney General's statement. The statement is not actionable.
Count one next alleges libel in the statement that the plaintiff sued "more than two hundred former patients." This statement is substantially true. The Siglinger decision identified 191 cases which may have implicated the plaintiff's balance billing practice. The plaintiff admits to suing over 100 former patients. The discrepancy in the number of suits is immaterial. This statement is not actionable.
Count one alleges libel in the statement that the plaintiff is "accused in court papers of unfair trade practices for billing hundreds of patients thousands of dollars after their insurance companies and Medicaid settled the bills." While this statement goes beyond the precise holding in Siglinger, it fairly reports the import of the court's decision. After finding the plaintiff in violation of CUTPA, the court went on to note the existence of 191 other cases which may implicate the same issues as presented in Siglinger. In ordering its memorandum of decision to be filed in each of those cases, the court was addressing the very real possibility that in fact, the plaintiff had committed "unfair trade practices by billing [191] patients, thousands of dollars after their insurance companies and Medicaid settled the bills." The statement is a fair report of the Siglinger decision.
It should be noted that within three weeks of the publication on June 20, 2004, the plaintiff was, in fact, "accused in court papers of unfair trade practices by billing [almost 200] patients, thousands of dollars after their insurance companies and Medicaid settled the bills," as each of those allegations were contained in the Attorney General's complaint.
Finally, count one alleges as false and libelous the statement "If people sued by Gianetti come to court to seek the same ruling, Gianetti could end up having to pay out more than $10 million dollars." This statement is the quintessential "touch of the [author's] piquant pen." Strada, supra. It is the "minuscule embellishments upon' the information obtained from the primary sources." Id. It is the leeway "afforded an author who attempts to recount and popularize an . . . event." Id. Indeed, the ruling in the Siglinger case awarded total damages, to include attorneys fees and punitive damages, of over $60,000. If the "same ruling" was entered in the 191 pending cases, the cost to the plaintiff would be well in excess of $10,000,000. The statement is not actionable.
The final allegation of libel in count two is the statement that the plaintiff's Connecticut medical license was revoked in 2001. In fact, his license was placed on probation as a result of allegations of misconduct. The plaintiff entered into a Consent Order which required a two-year probationary period. During that period, he retired and permitted his license to lapse. The July 9, 2004 article also included the nature of the underlying allegations of misconduct. Although his license was not "revoked," in 2001, he was placed on probation in 2001 and thereafter he ceased to hold a medical license in 2002. Given the entire gist of the article, there would have been no different impact on the reader had the article indicated that the plaintiff allowed his license to lapse while on probation, as opposed to having it revoked as a result of the allegations which placed him on probation. The statement is not actionable.
Count Three-The December 23, 2005 article-(CV06 XXXX and CV07 XXXX)
The third count challenges the statement that the plaintiff was known for "roping hundreds of his patients into court to pay expenses they never had any obligation to pay in the first place." This statement is precisely the backdrop to both the court decision in Siglinger as well as the complaint filed by the Attorney General. The Siglinger decision identifies 191 cases in which the plaintiff appeared pro se which the court identified as potentially including balance billing issues. The Attorney General's complaint identified and alleged "almost 200" suits against former patients to collect fees they did not owe. The plaintiff has admitted suing in excess of 100 former patients in an effort to collect fees he claims are due to him. The statement is not actionable.
The plaintiff claims false and libelous the statement that "Gianetti foisted a surcharge on these patients — nearly half of whom were enrolled with Shelton-based Physicians Health Services, now known as HealthNet." He objects to the words "foisted" and "surcharge." However, this statement is offered in the article as a summary of the allegations made by the Attorney General and the Department of Consumer Protection. In that vein, it fairly and accurately reports those allegations as they are contained in the press release issued December 22, 2005. The use of the words "foisted" or "surcharge" are both accurately employed, and even if colorful in nature, their use is exactly the type of leeway afforded authors. The statement is not actionable.
The plaintiff next claims to be false and libelous the statement that "[The Attorney General's] office and the State Department of Consumer Protection are investigating the extent of the illegal collection activity." The statement regarding the continuing investigation is true or privileged insofar as it derives directly from the press release dated December 22, 2005. Again, the plaintiff avers that the collection activity was not "illegal." However, the Siglinger decision found otherwise. That the plaintiff now wishes to relitigate Siglinger or challenge the merits of the Attorney General's complaint, does not alter the fact that when the article was printed, the court had so ruled and the Attorney General had so alleged. The statement is not actionable.
The plaintiff's final claim as to the third count (as to defendant Brown only) relates to the statement that he "Nevertheless, maintains a medical office on Main Street in Bridgeport." This statement is, on its face, not libel. A statement is defamatory if it would tend to harm or injure a person's reputation in the community. QSP, Inc. v. Aetna Casualty and Surety Co., 256 Conn. 343, 356 (2001). "[I]f the alleged defamatory words could not reasonably be considered defamatory in any sense, the matter becomes an issue of law for the court." Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 612 (1955). The words must be given their "natural and ordinary meaning and are taken as reasonable persons would understand them." Ventresca v. Kissner, 105 Conn. 533, 535 (1927). The words must be considered in the context of the entire article. See, Yavis v. Sullivan, 137 Conn. 253, 259 (1950). This statement is not actionable.
Although the plaintiff avers that the statement gives rise to an inference or innuendo that he was practicing medicine without a license, libel by innuendo is not recognized under these circumstances in Connecticut. Strada v. Connecticut Newspapers, Inc., supra, 193 Conn. at 322-23.
Connecticut law acknowledges that defamation by innuendo may occur where a defendant omits crucial details or fails to "present the whole picture." Strada, supra. There must have been undisclosed facts that, if disclosed, would substantively alter the tone of the statement. Id., citing Memphis Publishing Co. v. Nichols, 569 S.W.2d 412 (Tenn. 1978) (newspaper reported a woman was shot when found with another woman's husband, but neglected to include that the other woman as well as the victim's husband were present as well and the victim was an innocent bystander to the shooting). No such claim is advanced here.
Count Four-Both Complaints
As to defendant Tepfer, for the reasons recited supra, count four is barred by the two-year statute of limitations. Conn. Gen. Stat. § 52-584.
Further, insofar as Count Four, in both complaints, is entirely derivative of the libel allegations, summary judgment will enter as to these counts as well. "The use of constitutionally protected conduct to impose civil liability for emotional distress would amount to an end run around the constitutional restrictions imposed on the law of [defamation] and would impermissibly burden the First Amendment rights of the press." Cowras v. Hard Copy, 56 F.Sup.2d 207, 210 (D.Conn. 1999). "The Supreme Court has held that a plaintiff may not use a claim for emotional distress `to circumvent the established and carefully balanced framework of constitutional and state libel law.' Id., quoting, Hustler Magazine v. Falwell, 485 U.S. 46, 56 (1988). See also, Burton v. American Lawyer Media, Inc., 83 Conn.App. 134 (2004) (Summary judgment affirmed as to infliction of emotional distress claims which were predicated on alleged defamation claims for which summary judgment was entered).
Conclusion
For the foregoing reasons, the motion for summary judgment filed by CNP in Case CV 06 5003578 is GRANTED as to all counts.
The motion for summary judgment filed by Brown and Tepfer in Case CV 07 5012114 is GRANTED as to all counts.
SO ORDERED