Kevorkian v. AMA, Docket No. 203985

• Decision Date: 02 November 1999
• Docket Number: Docket No. 203985,Docket No. 204049.
• Citation: 602 N.W.2d 233,237 Mich. App. 1
• Parties: Jack KEVORKIAN, Plaintiff-Appellee, v. AMERICAN MEDICAL ASSOCIATION, M. Roy Schwarz, M.D., James S. Todd, M.D., Mark T. Wolfe and Kirk B. Johnson, Defendant-Appellants, and Michigan State Medical Society and William E. Madigan, Defendants. Jack Kevorkian, Plaintiff-Appellee, v. American Medical Association, M. Roy Schwarz, M.D. James S. Todd, M.D., Mark T. Wolfe and Kirk B. Johnson, Defendants, and Michigan State Medical Society and William E. Madigan, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

602 N.W.2d 233

237 Mich. App. 1

Jack KEVORKIAN, Plaintiff-Appellee, v. AMERICAN MEDICAL ASSOCIATION, M. Roy Schwarz, M.D., James S. Todd, M.D., Mark T. Wolfe and Kirk B. Johnson, Defendant-Appellants, and Michigan State Medical Society and William E. Madigan, Defendants.

Jack Kevorkian, Plaintiff-Appellee, v. American Medical Association, M. Roy Schwarz, M.D. James S. Todd, M.D., Mark T. Wolfe and Kirk B. Johnson, Defendants, and Michigan State Medical Society and William E. Madigan, Defendants-Appellants.

Docket Nos. 203985, 204049.

Court of Appeals of Michigan.

Submitted January 6, 1999, at Detroit.

Decided August 6, 1999, at 9:05 a.m.

Released for Publication November 2, 1999.

Fieger, Fieger & Schwartz, P.C. (by Geoffrey Nels Fieger and William J. McHenry), Southfield, for Jack Kevorkian.

Butzel Long (by Richard E. Rassel, James E. Stewart, and Laurie J. Michelson) Detroit, and Sidley & Austin (by Jack R. Bierig, Richard J. O'Brien, and Eric S. Mattson), Chicago, IL, for American Medical Association and others.

Kerr, Russell and Weber, P.L.C. (by Richard D. Weber, Patrick McLain, and Patrick J. Haddad), Detroit, for Michigan State Medical Society and William E. Madigan.

Before: MARKMAN, P.J. and JANSEN and J.B. SULLIVAN¹, JJ.

J.B. SULLIVAN, J.

Defendants American Medical Association (AMA); M. Roy Schwarz, M.D.; James S. Todd, M.D.; Mark T. Wolfe; Kirk B. Johnson; Michigan State Medical Society (MSMS); and William E. Madigan were granted leave to appeal from the trial court's denial of their motions for summary disposition pursuant to MCR 2.116(C)(8). We reverse and remand.

On February 9, 1996, plaintiff Jack Kevorkian, possibly the best known and most controversial proponent of assisted suicide, filed suit against defendants, alleging that he had been defamed. Specifically, plaintiff claimed that on October 10, 1995, defendant Johnson, acting as general counsel on behalf of defendant AMA, published a letter to Michigan Attorney General Frank Kelley and to defendants Madigan and MSMS stating that plaintiff "perverts the idea of the caring and committed physician," "serves merely as a reckless instrument of death," "poses a great threat to the public," and engages in "criminal practices." Plaintiff further alleged that defendants Todd and Wolfe, defendant AMA's executive vice president and public information officer, respectively, issued a news release alleging "continued killings" and "criminal activities" by plaintiff. Plaintiff also alleged that defendant Schwarz, defendant AMA's vice president for professional standards, published false and defamatory statements to the media calling plaintiff "a killer." Finally, plaintiff alleged that defendants MSMS and its executive director, defendant Madigan, published and distributed the statements made by the other defendants.

All defendants moved for summary disposition, arguing that the statements were constitutionally protected expressions of opinion. Plaintiff argued that false statements of fact and accusations of criminal conduct are not constitutionally protected as opinions. On May 21, 1997, the trial court entered its opinion and order denying defendants' motions. The trial court concluded that the statements at issue were statements of fact and therefore not constitutionally protected, and that they constituted libel per se because referring to plaintiff as both a criminal and a killer in the same document could lead to the inference that plaintiff was a murderer.

This Court reviews a trial court's decision regarding a motion for summary disposition de novo. Hawkins v. Mercy Health Services, Inc., 230 Mich.App. 315, 324, 583 N.W.2d 725 (1998). MCR 2.116(C)(8) permits summary disposition when a plaintiff has failed to state a claim on which relief can be granted, and therefore determines whether the plaintiff's pleadings allege a prima facie case. Garvelink v. Detroit News, 206 Mich.App. 604, 607, 522 N.W.2d 883 (1994). The motion may be granted only where the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. Id., p. 608, 522 N.W.2d 883. When addressing defamation claims, appellate courts must make an independent examination of the record to ensure against forbidden intrusions into the field of free expression. Ireland v. Edwards, 230 Mich.App. 607, 613, 584 N.W.2d 632 (1998). Summary disposition is an essential tool in the protection of First Amendment rights. Id., n. 4.

A communication is defamatory if, considering all the circumstances, it tends to so harm the reputation of an individual as to lower that individual's reputation in the community or deter third persons from associating or dealing with that individual. Ireland, supra, p. 619, 584 N.W.2d 632, citing Sawabini v. Desenberg, 143 Mich.App. 373, 379, 372 N.W.2d 559 (1985). However, not all defamatory statements are actionable. Ireland, supra, p. 614, 584 N.W.2d 632. For example, the United States Supreme Court has rejected the idea that all statements of opinion are protected and has directed that the defamatory statement must be provable as false to be actionable. Id., p. 616, 584 N.W.2d 632, citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 17-20, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990). In Milkovich, the Court by way of example distinguished the actionable statement, "In my opinion Mayor Jones is a liar," from the nonactionable statement, "In my opinion Mayor Jones shows his abysmal ignorance by accepting the teachings of Marx and Lenin." Ireland, supra, p. 616, 584 N.W.2d 632. The Court apparently intended to distinguish between an objectively verifiable event in the former case and a subjective assertion in the latter. Id., citing Milkovich, supra, pp. 21-22, 110 S.Ct. 2695. Similarly, in Ireland, we concluded that the statement that plaintiff Ireland was not a fit mother was necessarily subjective and was therefore not actionable. Id., p. 617, 584 N.W.2d 632. We note, however, that a statement may be necessarily subjective and also be objectively verifiable. A statement that plaintiff is a murderer, which the trial court found to be implied from defendant's statements, falls into that category.

The Supreme Court has also determined that defamatory statements, in order to be actionable, must state actual facts about a plaintiff, thereby protecting statements that, although factual on their face and provable as false, could not reasonably be interpreted as stating actual facts about the plaintiff. Ireland, supra, p. 617, 584 N.W.2d 632, citing Milkovich, supra, pp. 16-17, 110 S.Ct. 2695, and Hustler Magazine, Inc v. Falwell, 485 U.S. 46, 50, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988). Generally included as such protected speech are parodies, political cartoons, and satires. Ireland, supra, p. 617, 584 N.W.2d 632, citing Garvelink, supra, p. 610, 522 N.W.2d 883. In Ireland, we concluded that the statement that Ireland "never" spent time with her child was patently false and an obvious expression of disapproval of the amount of time Ireland spent with her child, but that no reasonable person would believe the statement stated actual facts about Ireland. Ireland, supra, p. 619, 584 N.W.2d 632. However, it is also clear that two completely conflicting statements can "state actual facts" about an individual. In other words, plaintiff's acts of assisted suicide, for example, can be described as murder or mercy, and any reasonable person could understand that both or neither could be taken as stating actual facts about plaintiff.

The Supreme Court has further recognized that statements must be viewed in context to determine whether they are capable of defamatory interpretation, or whether they constitute no more than "rhetorical hyperbole" or "vigorous epithet." Ireland, supra, p. 618, 584 N.W.2d 632, citing Greenbelt Cooperative Publishing Ass'n, Inc v. Bresler, 398 U.S. 6, 14, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970). Thus, some expressions of opinion are protected. Ireland, supra, p. 614, 584 N.W.2d 632, citing Milkovich, supra, pp. 18-20, 110 S.Ct. 2695; Hodgins v. Times Herald Co., 169 Mich.App. 245, 253, 425 N.W.2d 522 (1988), citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 339, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). For example, in Greenbelt, supra, a real estate developer was involved in simultaneous negotiations with the city of Greenbelt, Maryland. Because the developer was both selling land to the city and seeking a zoning variance from the city, a local newspaper printed articles reporting that community members described his bargaining position as "blackmail." The Supreme Court rejected the developer's argument that the newspaper effectively charged him with the crime of blackmail, and concluded that "even the most careless reader must have perceived that the word [blackmail] was no more than rhetorical hyperbole...." Ireland, supra, p. 618, 584 N.W.2d 632, citing Greenbelt, supra, p. 14, 90 S.Ct. 1537. In Hodgins, supra, p. 254, 425 N.W.2d 522, referring to Greenbelt, supra, we noted that "[e]xaggerated language used to express opinion, such as `blackmailer,' `traitor' or `crook,' does not become actionable merely because it could be taken out of context as accusing someone of a crime." Into this category, we would place statements that are both necessarily subjective and objectively verifiable, and statements that both do and do not state actual facts about a person.

Statements that are not protected and therefore are actionable include false statements of fact, i.e., those that state actual facts but are objectively provable as false, and direct accusations or inferences of criminal conduct. Hodgins, supra, p. 253, 425 N.W.2d 522. Language that accuses or strongly implies that someone is involved in illegal conduct crosses the line dividing strongly worded opinion from accusation of a crime. Id., p. 254, 425 N.W.2d 522. Indeed, this Court has stated that an accusation of the commission of a crime is defamatory...