Franchini v. Bangor Publishing Co., Inc.
| Decision Date | 03 September 2021 |
| Docket Number | Docket no. 1:18-cv-00015-GZS |
| Parties | Thomas FRANCHINI, Plaintiff, v. BANGOR PUBLISHING CO., INC., et al., Defendants. |
| Court | U.S. District Court — District of Maine |
Jens-Peter W. Bergen, Law Office of Jens-Peter W. Bergen, Kennebunk, ME, Raymond W. Belair, Pro Hac Vice, Belair & Evans LLP, New York, NY, Thomas J. Greco, Williams & Greco, P.A., Biddeford, ME, for Plaintiff.
Bernard J. Kubetz, Eaton Peabody, Bangor, ME, Karen Frink Wolf, Verrill Dana LLP, Portland, ME, for Defendants Bangor Publishing Co. Inc., Meg Haskell.
Andrea T. Holbrook, Duane Morris LLP, Karen Frink Wolf, Verrill Dana LLP, Portland, ME, Cynthia L. Counts, Pro Hac Vice, Fisher Broyles LLP, Atlanta, GA, for Defendants Edward Murphy, MTM Acquisition Inc.
Clifford Ruprecht, Roach Ruprecht Sanchez & Bischoff PC, Karen Frink Wolf, Verrill Dana LLP, Portland, ME, for Defendants Gannett Company Inc., Donovan Slack.
Russell Pierce, Norman, Hanson & Detroy, Karen Frink Wolf, Verrill Dana LLP, Portland, ME, for Defendant Investors Business Daily Inc.
ORDER ON JOINT MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendants’ Joint Motion for Summary Judgment (ECF No. 138). Via this Motion, Defendants ask the Court to answer a threshold legal question relating to Counts I–IV of Plaintiff's Amended Complaint (ECF No. 6). Having reviewed the Motion and the related submissions filed by the parties (ECF Nos. 132–37, 141–45, 147–48, 159, 161), the Court GRANTS IN PART and DENIES IN PART the Motion.
To put the pending motion in its proper context, the Court begins with a brief recitation of the procedural history of this matter. In early 2018, Plaintiff Thomas Franchini filed the present action against four publishers and four reporters, alleging defamation, negligent infliction of emotional distress, and negligent or fraudulent misrepresentation. Defendants subsequently moved to dismiss and/or for judgment on the pleadings. In March 2019, the Court granted these motions in part and denied them in part. See generally Franchini v. Bangor Publ'g Co., 383 F. Supp. 3d 50 (D. Me. 2019). Franchini's claim for negligent infliction of emotional distress (Count VI) was dismissed, and his claim for negligent or fraudulent misrepresentation (Count V) was limited to actual pecuniary damages. See id. at 63–64. To the extent that one Defendant, Investor's Business Daily, Inc. ("IBD"), sought dismissal under Maine's anti-SLAPP statute, the Court denied this request.1 See id. at 64–65.
As to the defamation claims (Counts I–IV), the Court held that (1) Franchini had not pleaded facts allowing for an inference of actual malice; and (2) the serious issues Defendants’ articles raised about the healthcare being provided at the VA Maine Healthcare System at Togus ("VA Togus" or "Togus") were of public concern. Id. at 59–60. These holdings foreclosed punitive damages and any common-law presumption of falsity. However, Franchini's claims for actual damages survived, as the undeveloped record did not allow the Court to then determine whether "Plaintiff [was] a public official or limited public figure." Id. at 59.
Following this decision, discovery in this matter was bifurcated.2 (See 10/9/19 Endorsement Order (ECF No. 92).) In Phase I, which has now concluded, discovery was limited to the threshold issue of Plaintiff's "status as a public official or limited purpose public figure." (Id. ) In December 2020, all remaining Defendants jointly filed the present motion for summary judgment on this threshold issue.
Generally, a party is entitled to summary judgment if, on the record before the Court, it appears "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A dispute is ‘genuine’ if the evidence is such that a reasonable jury could resolve the point in the favor of the non-moving party, and a fact is ‘material’ if it has the potential of affecting the outcome of the case." Taite v. Bridgewater State Univ., Bd. of Trs., 999 F.3d 86, 93 (1st Cir. 2021) (cleaned up). The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Once the moving party has made this preliminary showing, the nonmoving party must "produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue." Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (cleaned up); see also Fed. R. Civ. P. 56(e). "Mere allegations, or conjecture unsupported in the record, are insufficient." Barros-Villahermosa v. United States, 642 F.3d 56, 58 (1st Cir. 2011) (quoting Rivera-Marcano v. Normeat Royal Dane Quality A/S, 998 F.2d 34, 37 (1st Cir. 1993) ). "As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment for the moving party." In re Ralar Distribs., Inc., 4 F.3d 62, 67 (1st Cir. 1993). "However, summary judgment is improper when the record is sufficiently open-ended to permit a rational factfinder to resolve a material factual dispute in favor of either side." Morales-Melecio v. United States (Dep't of Health and Hum. Servs.), 890 F.3d 361, 368 (1st Cir. 2018) (cleaned up). "When determining if a genuine dispute of material fact exists, [courts] look to all of the record materials on file, including the pleadings, depositions, and affidavits without evaluating the credibility of witnesses or weighing the evidence." Taite, 999 F.3d at 93 (cleaned up).
District of Maine Local Rule 56 prescribes a detailed process by which the parties are to place before the Court the "material facts ... as to which the moving party contends there is no genuine issue." D. Me. Loc. R. 56(b). This local rule further requires each statement of material fact to be "followed by a citation to the specific page or paragraph of identified record material supporting the assertion." D. Me. Loc. R. 56(f). A party opposing a motion for summary judgment must then file an opposing statement in which it admits, denies, or qualifies the moving party's statements, with citations to supporting evidence, and in which it may set forth additional facts, again with citations to supporting evidence. D. Me. Loc. R. 56(c). Ultimately, in constructing the narrative of undisputed facts for purposes of summary judgment, the Court deems any statement with a supporting record citation admitted but "may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment." D. Me. Loc. R. 56(f).
The U.S. Department of Veterans Affairs ("VA") is charged with administering "the laws providing benefits and other services to veterans and the dependents and the beneficiaries of veterans." 38 U.S.C. § 301. For decades, controversy has shrouded the VA's efforts to complete this mission as it relates to medical care. See, e.g., Paul G. Shekelle et al., Comparison of Quality of Care in VA and Non-VA Settings: A Systematic Review ("Comparison Study"), at iv (September 2010) (available at https://www.hsrd.research.va.gov/publications/esp/quality.pdf ) ( ).5
In Maine, in particular, the in-state availability of quality medical care through the VA has long been the subject of public concern and discussion. In 2004, the VA estimated that it had approximately 36,000 veterans seeking care in Maine. (R. 437.)6 A vigorous public discussion centered on the limited availability of quality care at VA Togus caused by a confluence of increasing patient numbers, reduced staffing, and delays in treatment.7 This controversy echoed a larger national discussion8 that also featured an anxiety over the quality of care provided once an appointment was obtained. See generally Comparison Study.9
As reflected in the record before the Court, on March 10, 2004, Tom Allen, then one of Maine's two U.S. Representatives, spoke of "the crisis facing VA health care" and noted how veterans in Maine faced particular challenges obtaining care from "Maine's single VA hospital, Togus." (R. 424–25.) In August 2005, the U.S. House of Representative's Committee on Veterans’ Affairs’ Subcommittee on Health ("Health Subcommittee") convened in Maine and discussed, inter alia , "what challenges the VA confronts in providing care for veterans in [Maine.]" Among the issues remarked upon were short staffing and significant delays in orthopedic care. (R. 426, 431, 438, 449.) Likewise, at an October 3, 2007 hearing before the U.S. Senate Special Committee on Aging, Senator Susan Collins also spoke of the challenges the VA faced providing care to veterans in Maine. (R. 673–74.)
Jumping ahead to the 2010s, the public conversation over VA care continued both nationally and in Maine. (See R. 771–74; 923–26.)10 In January 2015, for instance, the Health Subcommittee convened a hearing titled, "Examining the Quality and Cost of VA Healthcare." (R. 775–846; see, e.g., R. 828 ().)11 As it related to VA Togus in particular, the concern was heightened by allegations of medical malpractice.12 In ...
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