Franchini v. Bangor Publ'g Co.

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: LYNCH, Circuit Judge.
• Citation: 109 F.4th 13
• Docket Number: 23-1633
• Decision Date: 17 July 2024
• Parties: Thomas C. FRANCHINI, Plaintiff, Appellant, v. BANGOR PUBLISHING CO., INC., d/b/a/ Bangor Daily News; Meg Haskell; Edward Murphy; Gannett Company, Inc., d/b/a USA Today; Donovan Slack; Investor's Business Daily, Inc., d/b/a Investor's Business Daily; MTM Acquisition, Inc., d/b/a Portland Press Herald and Sally Pipes, Defendants, Appellees.

109 F.4th 13

Thomas C. FRANCHINI, Plaintiff, Appellant, v. BANGOR PUBLISHING CO., INC., d/b/a/ Bangor Daily News;Meg Haskell; Edward Murphy; Gannett Company, Inc., d/b/a USA Today;Donovan Slack; Investor's Business Daily, Inc., d/b/a Investor's Business Daily;MTM Acquisition, Inc., d/b/a Portland Press Herald and Sally Pipes, Defendants, Appellees.

No. 23-1633

United States Court of Appeals, First Circuit

July 17, 2024

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. George Z. Singal, U.S. District Judge]

Raymond W. Belair, with whom Belair & Associates, P.C., was on brief, for appellant.

Clifford H. Ruprecht, with whom Roach Ruprecht Sanchez & Bischoff was on brief, for appellees Gannett Company, Inc., and Donovan Slack.

Russell B. Pierce, Jr., with whom Norman, Hanson & DeTroy, LLC was on brief, for appellee Investor's Business Daily.

Christopher T. Uphouse, with whom Eaton Peabody was on brief, for appellees Bangor Publishing Co., Inc., and Meg Haskell.

Cynthia L. Counts, with whom Rachel Wertheimer, Verrill Dana LLP and FisherBroyles LLP were on brief, for appellees MTM Acquisition, Inc., Edward Murphy, and Sally Pipes.

Before^* Lynch, Circuit Judge, and Saris,^** District Judge.

LYNCH, Circuit Judge.

Dr. Thomas C. Franchini, the former Chief of Podiatry at the Department of Veterans' Affairs Maine Healthcare System at Togus ("VA Togus"), appeals from the district court's grant of joint motions for summary judgment to defendant publishers Bangor Publishing Co., Inc., d/b/a Bangor Daily News; Gannett Company, Inc., d/b/a USA Today; Investor's Business Daily, Inc., d/b/a Investor's Business Daily ("IBD"); and MTM Acquisition, Inc., d/b/a Portland Press Herald; and reporters Meg Haskell, Edward Murphy, Donovan Slack, and Sally Pipes.

Franchini brought suit against the defendants alleging that articles the defendants had written and published, which described malpractice allegations as to his medical treatment of veterans at VA Togus, were libelous and/or defamatory. Franchini v. Bangor Publ'g Co., 560 F. Supp. 3d 312, 316 (D. Me. 2021).¹

He argues on appeal that the district court (1) should have denied the defendants' motion for summary judgment because there were at least genuine issues of material fact as to whether he was a voluntary or involuntary public figure and (2) should not have dismissed his Second Amended Complaint ("SAC") for failure to plead actual malice. We hold on the undisputed facts that the district court correctly found that Franchini was a voluntary public figure and that he failed to plead actual malice in his SAC. We affirm the judgment of the district court.

I.

We describe the undisputed facts of record. The U.S. Department of Veterans' Affairs ("VA") is responsible for "administer[ing] the laws providing benefits and other services to veterans and the dependents and the beneficiaries of veterans." 38 U.S.C. § 301(b). Both before and during Franchini's employment at VA Togus, the VA's struggle to provide quality medical care nationally to all veterans who seek it had been the subject of vigorous public debate. That has been true since at least the 1990s.² Within Maine specifically, media coverage since the late 1990s and early 2000s has highlighted the quality of care available at VA Togus, Maine's only VA hospital.³ Congress, too, became concerned about the quality of care at VA Togus. In the mid-2000s, federal lawmakers publicly discussed the VA's challenges in providing healthcare to veterans in Maine. On March 10, 2004, Tom Allen, a then-Representative to the U.S. House from Maine, stated that "the crisis facing VA health care," created by insufficient funding and increased demand, was "amplified" for "[v]eterans in rural States, such as Maine," who also must "travel hundreds of miles to the nearest VA facility." On August 22, 2005, the U.S. House of Representatives' Committee on Veterans' Affairs Subcommittee on Health ("Health Subcommittee") met in Bangor, Maine, and discussed the "challenges the VA confronts in providing care for veterans in the state," challenges which included "budget cuts," "staff shortages," and "significant delays in . . . orthopedic care." On October 3, 2007, in a hearing before the U.S. Senate Special Committee on Aging, Senator Susan Collins spoke about the VA's challenges in providing health care to veterans in Maine, including the need for funding to "ensure that it has the specialists that many of our veterans need."

Public discussion of the quality of VA care nationally and in Maine continued into the next decade in both newspaper articles and congressional hearings.⁴ Then VA Undersecretary for Health David Shulkin said in a prepared statement, "[t]he year 2014 was one of the most significant times in VA's history. To say that we had a crisis on our hands would be an understatement." A prepared statement by Carl Blake, Associate Executive Director for Government Relations at Paralyzed Veterans of America, given at a January 2015 Health Subcommittee hearing titled "Examining the Quality and Cost of VA Healthcare," "recognize[d] that there is much debate underway about the quality of care being delivered at VA medical facilities around the country."

In April 2004, Franchini, a board-certified foot and ankle surgeon, was hired and began work at VA Togus, holding the title of Chief of the Department of Podiatry ("COP"). Franchini previously served as a surgical podiatrist and active-duty officer with the Navy from August 1992 to August 2002, after which he served six additional years in the Naval Reserve, and was a clinical professor at Fletcher Allen Medical Center in Vermont from 2002 to 2003. While in the Navy, he attained the rank of lieutenant commander and participated in more than 4,800 surgeries.

Franchini testified that he had sought employment at VA Togus "[b]ecause of the honor" and to improve his "retirement scenario." The podiatry department at VA Togus during Franchini's tenure consisted of Franchini, two other podiatrists who "were a lot older than [he] was", a podiatry technician and a scheduling clerk who was shared with two other departments. It was the busiest of VA Togus's departments providing surgical services, treating more than 5,000 patients annually.

Franchini alleges the COP title was "nominal, ceremonial and non-supervisory" and that he "was never in any 'leadership' position, never had any supervisory responsibilities, policy making position or any other control beyond that of any staff podiatrist." The testimony of two other former VA Togus podiatrists, one of whom also held the position of COP, supports this assertion. Franchini also testified that he "was not running anything" as COP, that all real authority lay with Dr. Robert Sampson, VA Togus's Chief of Surgery, and that Franchini's role was only to act as Dr. Sampson's "eyes and ears at different committee meetings and different committees."

Even accepting those allegations as true, documents in the record show that on paper, the VA New England Healthcare System's Performance Plans for a COP for the fiscal years 2006 and 2007 contained "Performance Measures" and "Key Core Competencies,"⁵ which formed a performance review framework for Franchini's performance reviews by Dr. Sampson in those years. In fiscal year 2006, Franchini himself also provided Dr. Sampson a list of eight "performance bullets" detailing his accomplishments as COP, which were incorporated into a three-step "special advancement for performance" for Franchini resulting in an approximately $10,000 pay raise for him. According to Franchini, Dr. Sampson also provided oral instructions to Franchini about his role as COP when he first started, which were "to see patients, see patients well, make them happy, and play well in the sandbox."

In 2009, Franchini was removed from the COP position and became a Staff Podiatrist.⁶ A proficiency report covering the period from 2008 to 2009 prepared by Dr. Sampson and approved by Dr. Timothy Richardson, VA Togus's chief of medical staff, gave Franchini an overall rating of "low satisfactory," with a "low satisfactory" rating in "clinical competency," which "includes examination, diagnosis, therapeutic ability, effectiveness in emergencies, patient management, consultations, specialty skills and record keeping." The "narrative summary" section stated, "[d]uring this evaluation period Dr. Franchini seemed to lose some of his enthusiasm for the mission of treating veterans. His position was changed from Chief of Podiatry to Staff Podiatrist."

On December 10, 2009, Dr. Richardson received a written communication from a VA staff compensation and pension disability manager raising concerns about the quality of care being provided by a staff podiatrist at VA Togus. As a result, the VA began a review of Franchini's performance in early 2010.

On March 29, 2010, Dr. Sampson and Dr. Richardson asked Franchini to "voluntarily suspend performance of all surgical procedures" as they performed "a focused review of 25 patients" whom Franchini had treated; Franchini testified that he continued working as a podiatrist at VA Togus after this meeting. On April 28, 2010, Franchini was summarily suspended and placed on a leave of absence by the VA Togus Professional Standards Board.

Dr. Richardson informed Franchini in a June 17, 2010, letter that:

[a] focused review of the surgical care provided by you was initiated following several Veteran complaints of poor surgical outcomes and a concern by a medical staff provider that Veterans had undergone surgery after "minimal evaluation." The Chief of Surgery reviewed 25 randomly selected medical records and identified significant deficiencies in the clinical care that you provided. You were notified regarding this preliminary review on March 29, 2010; and you were informed that additional reviews would be performed.

Another VA doctor's review "identified deficiencies similar to those identified by Dr. Sampson." After...