Blanchard v. Steward Carney Hosp., Inc.

• Decision Date: 23 September 2019
• Docket Number: SJC-12618
• Citation: 130 N.E.3d 1242,483 Mass. 200
• Parties: Lynne BLANCHARD & others v. STEWARD CARNEY HOSPITAL, INC., & others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

483 Mass. 200

130 N.E.3d 1242

Lynne BLANCHARD & others¹

v.STEWARD CARNEY HOSPITAL, INC., & others.²

SJC-12618

Supreme Judicial Court of Massachusetts, Suffolk..

Argued January 8, 2019.

Decided September 23, 2019.

Jeffrey A. Dretler, Boston, for the defendants.

Dahlia C. Rudavsky, Boston (Ellen J. Messing, Boston, also present) for the plaintiffs.

James A.W. Shaw, Jasper Groner, Boston, & Donald J. Siegel, for Massachusetts AFL-CIO, amicus curiae, submitted a brief.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

LENK, J.

This is the second time the defendants have appealed from the denial of their special motion to dismiss the plaintiffs' defamation claim, pursuant to the "anti-SLAPP" statute, G. L. c. 231, § 59H.³ See Blanchard v. Steward Carney Hospital, Inc., 477 Mass. 141, 75 N.E.3d 21 (2017) ( Blanchard I ). In Blanchard I, we augmented the anti-SLAPP framework devised in Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 160 n.7, 161, 691 N.E.2d 935 (1998) ( Duracraft ), vacated the denial of the hospital defendants' motion, and remanded the case for further proceedings. Blanchard I, supra at 155-161, 75 N.E.3d 21. On remand, the plaintiff nurses again defeated the special motion to dismiss, this time by establishing -- under the augmented framework -- that the challenged defamation claim is not a "strategic lawsuit against public participation," known as a "SLAPP" suit. See id. at 157, 75 N.E.3d 21.

On appeal, the hospital defendants maintain that the motion judge erred in applying the augmented Duracraft framework. They argue that the judge failed to determine with "fair assurance" that the entirety of the plaintiffs' defamation claim was "colorable" and that it "was not primarily brought to chill the defendants' legitimate petitioning activity." 477 Harrison Ave., LLC v. JACE Boston, LLC, 477 Mass. 162, 164, 168, 74 N.E.3d 1237 (2017). See Blanchard I, 477 Mass. at 160, 75 N.E.3d 21. The hospital defendants also contend that the judge erred in denying their request for discovery in the form of depositions of the nine plaintiff nurses. For their part, the plaintiff nurses contend that the appeal is premature. We transferred the case to this court on our own motion to apply the newly augmented framework. We affirm.⁴

1. Background. Because this is the second time the parties have been before us, we do not repeat the background of the case. See Blanchard I, 477 Mass. at 144-146, 75 N.E.3d 21. In summary, however, in the spring of 2011, all of the registered nurses and mental health counsellors who worked in the adolescent psychiatric unit (unit) of Steward Carney Hospital, Inc., were fired following reports of abuse at the unit. Id. at 142, 75 N.E.3d 21. William Walczak, then president of the hospital, issued statements "both to the hospital's employees and to the Boston Globe Newspaper Co. (Boston Globe), arguably to the effect that the nurses had been fired based in part on their culpability for the incidents that took place at the unit." Id.

The plaintiffs, nine of the nurses, filed an action against the defendants for, among other things, defamation. Id. Pursuant to G. L. c. 231, § 59H, the anti-SLAPP statute, the hospital defendants filed a special motion to dismiss the defamation claim. Id. at 142-143, 75 N.E.3d 21. A Superior Court judge denied the motion, and the hospital defendants appealed. The Appeals Court reversed in part, see Blanchard v. Steward Carney Hosp., Inc., 89 Mass. App. Ct. 97, 98, 46 N.E.3d 79 (2016), and we granted further appellate review. We concluded that Walczak's statements to hospital employees were not protected petitioning activity, i.e., they had no "plausible nexus to the hospital's efforts to sway [the government's] licensing decision."⁵ Blanchard I, 477 Mass. at 152, 75 N.E.3d 21. We therefore affirmed the denial of the anti-SLAPP motion concerning that aspect of the defamation claim.

With respect to the portion of the nurses' defamation claim that concerned Walczak's statements to Boston Globe, however, we concluded that the statements were protected petitioning activities. Id. at 150-151, 75 N.E.3d 21. In that regard, we reasoned that it could be "reasonably inferred" that the statements "were intended to demonstrate to [the government] the hospital's public commitment to address the underlying problems at the unit." Id. at 150, 75 N.E.3d 21. Although we vacated the order denying the hospital's anti-SLAPP motion, we augmented the Duracraft framework to permit a nonmoving party, here the nurses, to defeat an anti-SLAPP motion by establishing that the claim nonetheless "does not give rise to a ‘SLAPP’ suit." Id. at 160, 75 N.E.3d 21. We remanded the case for further proceedings under the augmented framework, where "the burden will shift to the plaintiff nurses to make a showing adequate to defeat the motion." Id. at 143, 75 N.E.3d 21.

On remand, the judge denied the hospital defendants' request to conduct discovery in the form of depositions of the nine plaintiff nurses. Then, applying the augmented Duracraft framework to the hospital's anti-SLAPP motion, he considered the pleadings and affidavits in the over-all context of the nurse's defamation claim and the record before him. Following the path outlined in Blanchard I, he determined that the plaintiff nurses' defamation claim was colorable. The judge then concluded that the claim was not a SLAPP suit, because it was not brought primarily to chill the hospital defendants' exercise of the right to petition.

The hospital defendants again appealed from the denial of their anti-SLAPP motion, as is their right. See Fabre v. Walton, 436 Mass. 517, 521-522, 781 N.E.2d 780 (2002), S.C., 441 Mass. 9, 802 N.E.2d 1030 (2004). Under the augmented Duracraft framework, they argue that the judge failed to apply the "fair assurance" standard articulated in Blanchard I to evaluate the nature of the plaintiff nurses' defamation claim. They also contend that the judge erred in determining that the plaintiffs' defamation claim is colorable and that it was "not primarily brought to chill [the hospital defendants'] legitimate petitioning activities." Blanchard I, 477 Mass. at 160, 75 N.E.3d 21. Finally, the hospital defendants maintain that the judge erred in denying their request for discovery in the form of depositions in support of their special motion to dismiss. For the reasons described below, we reject each of those claims.

2. The augmented Duracraft framework. When an anti-SLAPP motion is filed, the burden-shifting framework devised in Duracraft, and augmented in Blanchard I, applies. See Blanchard I, 477 Mass. at 147-148, 159-160, 75 N.E.3d 21. In applying the framework, "the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based." G. L. c. 231, § 59H. See Blanchard I, supra at 160, 75 N.E.3d 21. We review the judge's ruling for an abuse of discretion or error of law. See Blanchard I, supra ; Baker v. Parsons, 434 Mass. 543, 550, 750 N.E.2d 953 (2001).

a. Threshold stage. At the threshold stage, the moving party -- the party alleging it has been the target of a SLAPP suit (here, the hospital defendants) -- bears the burden of establishing by a preponderance of the evidence that the putative SLAPP suit (i.e., the nurses' defamation claim) was "solely based on [the moving party's] own petitioning activities." Blanchard I, 477 Mass. at 159, 75 N.E.3d 21. See Cardno ChemRisk, LLC v. Foytlin, 476 Mass. 479, 484, 68 N.E.3d 1180 (2017). There is no dispute, in this case, that the hospital defendants successfully met their burden at the threshold stage. See Blanchard I, supra at 151, 75 N.E.3d 21.

b. Second stage. If the threshold is crossed, the burden shifts to the nonmoving party (here, the plaintiff nurses) to demonstrate that the anti-SLAPP statute does not require dismissal of the claim. See Blanchard I, 477 Mass. at 159-160, 75 N.E.3d 21. As augmented in Blanchard I, there are two alternative paths that the nonmoving party may use to satisfy this second stage burden. See id. at 160, 75 N.E.3d 21. Evidence that is insufficient for purposes of the first path may, of course, be considered in connection with the second path.

i. First path. The parameters of the first path echo the language of the anti-SLAPP statute. See Duracraft, 427 Mass. at 165, 691 N.E.2d 935. As outlined in Duracraft, the nonmoving party (here, the plaintiff nurses) must establish by a preponderance of the evidence, see Baker, 434 Mass. at 544, 750 N.E.2d 953, that "(1) the moving party's [ (the hospital's) ] exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law and (2) the moving party's [ (the hospital's) ] acts caused actual injury to the responding party [ (the nurses) ]." G. L. c. 231, § 59H. Proving that the moving party's petitioning activity was, in essence, a sham presents a "high bar." Blanchard I, 477 Mass. at 156 n.20, 75 N.E.3d 21. The nurses, in this case, do not attempt to make that showing. Id.

ii. Second path. Under the newly augmented Duracraft framework, a nonmoving party (here, the nurses) that cannot demonstrate that the moving party (here, the hospital defendants) engaged in sham petitioning nonetheless may defeat a special motion to dismiss its claim by following an alternative second path. See Blanchard I, 477 Mass. at 160, 75 N.E.3d 21. This second path requires the nonmoving party (here, the nurses) to demonstrate, "such that the motion judge may conclude with fair assurance," id., two elements: (a) that its suit was "colorable"; and (b) that the suit was not " ‘brought primarily to chill’ the special movant's [ (the hospital's) ] legitimate exercise of its right to petition," i.e., that it was not retaliatory. Id. at 159-161, 75 N.E.3d 21, quoting Duracraft, 427 Mass. at 161, 691 N.E.2d 935. See Sandholm v. Kuecker, 2012 IL 111443, ¶ 57, 356 Ill.Dec. 733, 962...