Aroonsakul v. Shannon

• Decision Date: 26 April 1996
• Docket Number: No. 2-95-0706,2-95-0706
• Citation: 216 Ill.Dec. 166,279 Ill.App.3d 345,664 N.E.2d 1094
• Parties: , 216 Ill.Dec. 166 Chaovanee AROONSAKUL, et al., d/b/a Alzheimer's and Parkinson's Treatment Center, Plaintiffs-Appellants, v. Kathleen SHANNON, et al., Defendants-Appellees (Pamela Zekman, et al., Defendants).
• Court: United States Appellate Court of Illinois

Page 1094

664 N.E.2d 1094

279 Ill.App.3d 345, 216 Ill.Dec. 166

Chaovanee AROONSAKUL, et al., d/b/a Alzheimer's and Parkinson's Treatment Center, Plaintiffs-Appellants, v. Kathleen SHANNON, et al., Defendants-Appellees (Pamela Zekman, et al., Defendants).

No. 2-95-0706.

Appellate Court of Illinois Second District.

April 26, 1996.

John R. Wimmer, Downers Grove, for A.P.M.C. and Dr. Chaovanee Aroonsakul.

Davis, Miner, Barnhill & Galland, P.C., Jeffrey I. Cummings and George F. Galland, Chicago, for Jacob Fox and Kathleen Shannon.

Jack Rovner & Associates, Attorneys at Law, Courtney A. Bobosky, Naperville, for appellees.

Justice THOMAS delivered the opinion of the court:

The plaintiffs, Dr. Chaovanee Aroonsakul (individually referred to hereinafter as the plaintiff) and A.P.M.C., an Illinois not-for-profit corporation, brought an action against 11 different defendants, including Pamela Zekman, Kathleen Shannon, Jacob Fox, Linda MacLennan, Adele Arakawa, and WBBM TV, alleging defamation, false-light invasion of privacy, and conspiracy to defame the plaintiffs. Pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1994)), the trial court dismissed with prejudice the plaintiffs' sole claim against Shannon, which alleged false-light invasion of privacy. The court dismissed without prejudice the sole claim against Fox, which alleged a conspiracy to defame the plaintiffs. The plaintiffs appeal the dismissal of their claims against Shannon and Fox. The claims against the other defendants remain pending.

The plaintiffs' second amended complaint alleged that the plaintiff is a physician and surgeon practicing medicine at the offices of A.P.M.C., doing business as the Alzheimer's and Parkinson's Treatment Center, in Naperville, Illinois. According to the complaint, the plaintiff invented the first effective treatment for neurodegenerative diseases in 1983. The treatment involves the plaintiff's alleged discovery that the major factor in the cause of various neurodegenerative diseases is the depletion and imbalance of hormones and that by replenishing certain hormones the diseases can be treated effectively. The plaintiff applied for a patent of her treatment in 1984 and was eventually issued seven United States patents and two foreign patents on methods of diagnosing and treating Alzheimer's disease and other diseases of the central nervous system. Since 1983, the plaintiff has treated over 400 patients with her patented method.

The second amended complaint further alleged that defendant Shannon is a neurologist affiliated with Rush-Presbyterian-St. Luke's Medical Center, which recently conducted an 11-year study to determine the effects of hormonal replacement therapy on women. According to the complaint, Shannon treated some patients with neurodegenerative diseases and was aware of the plaintiff's treatment methods.

The plaintiffs' claims for defamation and false-light invasion of privacy stem from WBBM-TV broadcasts aired November 5-6, 1992. The broadcast on November 5, 1992, was titled "Alzheimer's Investigation." It was introduced by defendant MacLennan as follows:

"Alzheimer's Disease. It is a mental disease that erases your memory, and it can be devastating. Researchers around the world are trying to find a cure, but a doctor in Naperville claims that she found a treatment ten years ago. And as Channel 2's Pam Zekman reports, she is exploiting desperate patients with false claims for her unproven cure."

Zekman then identified the plaintiff by name as the doctor and stated that "[t]he treatment is injections of massive doses of growth hormones, fertility drugs, and steroids." Zekman noted that the plaintiff "says her research shows the treatment works." MacLennan concluded the November 5, 1992, broadcast by stating:

"[The plaintiff] refused to be interviewed for our story. Tomorrow at 4:30 [Zekman] will report on how other patients with other diseases have been taken as well."

The November 6, 1992, broadcast was titled "Medical Scam." Defendant Adele Arakawa introduced this broadcast with the following:

"She's a doctor. She holds out a ray of hope for victims of incurable diseases. They have Alzheimer's, Parkinson's, MS. She says she can cure them. They pay her, then, they say, nothing happens. Channel 2's Pam Zekman tonight confronts the doctor behind the scam."

Zekman then said that the plaintiff had been charged with fraud and the State wants to revoke her medical license. Zekman described the plaintiff's treatment as a "so-called cure" involving "injections of growth hormones, fertility drugs, and steroids."

Later in the piece, Zekman introduced defendant Shannon stating that "[d]octors who reviewed some [the plaintiff's] Parkinson's research say there's no evidence to substantiate her claims." The broadcast then featured defendant Shannon with the subtitle "Kathleen Shannon, Neurologist." Shannon then stated that "I look at a brochure like this and its just as outrageous as saying that toenail polish cures Parkinson's Disease, to me." Zekman then stated that "in her brochure, [the plaintiff] lists her patents for the treatment in an apparent attempt to legitimize her claim."

The plaintiffs' complaint alleged that Shannon's statement placed the plaintiff in a false light which would be highly objectionable to a reasonable person. The complaint further alleged that Shannon was aware of information that indicated that the plaintiff's treatment had some validity and that Shannon made her statements maliciously and recklessly. Additionally, the complaint alleged that Shannon's statement contributed to the decision of one of the plaintiff's patients to stop treatment and that another patient discontinued treatment after the broadcast.

Shannon filed a motion to dismiss the complaint for failure to state a cause of action. In her motion to dismiss, Shannon argued that (1) her statement was a constitutionally protected expressions of opinion; (2) her statement was not "of and concerning the plaintiffs" because the statement did not name them; and (3) the plaintiffs were required to plead special damages and failed to do so. The trial court granted Shannon's motion to dismiss. Although it did not specify its grounds for dismissing the complaint, it appears from the record that the trial court was concerned that Shannon's statement was not "of and concerning the plaintiffs."

On appeal, the plaintiffs contend that their second amended complaint stated a cause of action against Shannon for false-light invasion of privacy.

In ruling on a section 2-615 motion to dismiss, the court must accept as true all well-pleaded facts in the complaint and all reasonable inferences which can be drawn therefrom. Fellhauer v. City of Geneva, 142 Ill.2d 495, 499, 154 Ill.Dec. 649, 568 N.E.2d 870 (1991). The question presented by a motion to dismiss a complaint for failure to state a cause of action is whether sufficient facts are contained in the pleadings which, if established, could entitle the plaintiff to relief. Heerey v. Berke, 188 Ill.App.3d 527, 530, 136 Ill.Dec. 262, 544 N.E.2d 1037 (1989). In making this determination, the court is to interpret the allegations of the complaint in the light most favorable to the plaintiff. Kolegas v. Heftel Broadcasting Corp., 154 Ill.2d 1, 9, 180 Ill.Dec. 307, 607 N.E.2d 201 (1992).

We note that there are three elements necessary to establish a false-light invasion of privacy claim. Kolegas, 154 Ill.2d at 17, 180 Ill.Dec. 307, 607 N.E.2d 201. First, the allegations in the complaint must show that the plaintiff was placed in a false light before the public as a result of the defendant's actions; second, the court must determine whether a trier of fact could decide that the false light in which the plaintiff was placed would be highly offensive to a reasonable person; and, third, the plaintiff must allege and prove that the defendant acted with actual malice, that is, with knowledge that the statement was false or with reckless disregard for whether the statement was true or false. Kolegas, 154 Ill.2d at 17-18, 180 Ill.Dec. 307, 607 N.E.2d 201; see also Lovgren v. Citizens First National Bank, 126 Ill.2d 411, 418, 128 Ill.Dec. 542, 534 N.E.2d 987 (1989); Schaffer v. Zekman, 196 Ill.App.3d 727, 734, 143 Ill.Dec. 916, 554 N.E.2d 988 (1990). The tort of false-light invasion of privacy protects one's interest in being let alone from offensive publicity. Schaffer, 196 Ill.App.3d at 734, 143 Ill.Dec. 916, 554 N.E.2d 988. Due to its similarities with defamation, certain restrictions and limitations on actions for defamation may be equally applicable to claims for false-light invasion of privacy. Schaffer, 196 Ill.App.3d at 734, 143 Ill.Dec. 916, 554 N.E.2d 988. For example, the requirement in a defamation case that the statement be "of and concerning the plaintiff" is equally applicable to a false-light claim. Weinstein v. Bullick, 827 F.Supp. 1193, 1202 (E.D.Pa.1993); Schaffer, 196 Ill.App.3d at 734, 143 Ill.Dec. 916, 554 N.E.2d 988. This is so because the publicity forming the basis for the false-light claim must be reasonably capable of being understood as singling out, or pointing to, the plaintiff. Michigan United Conservation Clubs v. CBS News, 485 F.Supp. 893, 904 (W.D.Mich.1980).

Relying on Weinstein v. Bullick, 827 F.Supp. 1193, 1199 (E.D.Pa.1993), Brown & Williamson Tobacco Corp. v. Jacobson, 713 F.2d 262, 267 (7th Cir.1983), and Chapski v. Copley Press, 92 Ill.2d 344, 352, 65 Ill.Dec. 884, 442 N.E.2d 195 (1982), the plaintiffs contend that Shannon's statement, read in context, should be found to be reasonably understood as referring to the plaintiff. In response, the defendants contend that the "of and concerning" requirement cannot be satisfied by coupling the defendant's statement with the surrounding material in the broadcast where the defendant has no control or editing authority over the broadcast, citing Vantassell-Matin v....