Reilly v. Associated Press & Others

• Decision Date: 31 October 2003
• Docket Number: No. 01-P-1619.,01-P-1619.
• Citation: 59 Mass. App. Ct. 764
• Parties: Mark T. REILLY v. THE ASSOCIATED PRESS & others. 1
• Court: Appeals Court of Massachusetts

Page 1

Mark T. REILLY

v. THE ASSOCIATED PRESS & others.¹

No. 01-P-1619.

Court of Appeals of Massachusetts.

March 5, 2003.

October 31, 2003.

Libel and Slander. Newspaper. Practice, Civil, Summary judgment.

Civil action commenced in the Superior Court Department on May 6, 1998.

The case was heard by Richard F. Connon, J., on motions for summary judgment.

Edward M. Reilly (John L. Kerr with him) for the plaintiff.

M. Robert Dushman for Boston Herald, Inc., & others.

Hilary Lane (Michael G. Bongiorno with her) for Associated Press.

Present: Porada, Smith, & Cypher, JJ.

CYPHER, J.

The plaintiff, Mark T. Reilly, a veterinary doctor, appeals from an order of the Superior Court granting the defendants' motions for summary judgment and dismissing his complaint for defamation. Reilly filed the complaint in response to certain print and broadcast media publications including an article that was published on May 21, 1995, on the front page of the Sunday edition of the Boston Herald (Herald). The Herald story (which we reprint as an appendix to the opinion) related details regarding Reilly's alleged negligence in caring for a six-year old West Highland terrier named "Zeke." After the Herald ran the story, the Associated Press (AP) picked it up and released a condensed version of it to its members. For the reasons set forth below, we reverse summary judgment as to the Herald defendants (except for Patrick Purcell, see note 1, supra) and affirm summary judgment as to the AP.

1. Facts.

We take the facts in the light most favorable to Reilly and make an independent examination of the record as a whole. See Dulgarian v. Stone, 420 Mass. 843, 847 (1995); Ravnikar v. Bogojavlensky, 438 Mass. 627, 628 (2003).

At around 4:00 P.M. on Saturday, October 1, 1994, Reilly, the on-call veterinarian for the Barnstable Animal Hospital, received a telephone call from Erica Palermo, who explained that her West Highland terrier "Zeke" had been vomiting since noon. Reilly asked her to bring the dog in for an examination, but Palermo refused. At 6:00 P. M., Palermo called again and told Reilly that Zeke was still vomiting. The Palermos agreed to bring Zeke to the hospital, and Reilly saw him at 6:45 P. M.

After the examination, Reilly diagnosed the dog as suffering from pancreatitis and advised the Palermos that Zeke needed intravenous fluids and should be hospitalized. Joseph Palermo stated he could not leave Zeke alone overnight. Reilly then administered subcutaneous vitamins and fluids and instructed the Palermos to withhold food for the next twenty-four hours. Reilly further instructed the Palermos to feed Zeke a bland diet after the twenty-four hours had passed. Reilly could not order blood tests as there was no technician on duty at the time to help him draw the blood and the courier services were closed.

That night, the Palermos paged Reilly two more times. In the first call, at 9:00 P. M., they informed him that the dog's temperature was 103 degrees and that he was still vomiting. Reilly offered to hospitalize the dog but again Joseph Palermo refused. In the second call, at around midnight, they informed Reilly that Zeke's temperature was 104.2 degrees but that the vomiting had stopped. Reilly told the Palermos that the lack of vomiting was a good sign and that if the Palermos wanted to have the dog monitored, they should hospitalize him instead of calling every few hours.

The next day at approximately 8:00 A. M., Reilly called the Palermos to check on Zeke's condition. Joseph Palermo stated that Zeke was fine and that the vomiting had stopped. Reilly, who was the only horse veterinarian on call on Cape Cod that weekend, then told Palermo that he often received horse calls on Sunday and might not be immediately available but that, if need be, he could be paged through an answering service.

Sunday was Reilly's day off. After taking care of the animals at the hospital, Reilly returned home, read the newspaper, and then left to play a round of golf with his father, brother, and coworkers. While on the golf course, Reilly kept his pager and cell phone on his person. At noon, the Palermos called Reilly's answering service and left a message stating that Zeke seemed well and that he was eating. Thus, the Palermos had disregarded Reilly's orders from the previous day which were not to feed the animal for twenty-four hours. About thirty to forty-five minutes later the Palermos called again. Reilly immediately returned their page, and the Palermos informed him that Zeke was acting "mopey." They agreed to meet Reilly at the hospital at 2:15 P.M. or 2:30 P.M. (the exact time is in dispute).

Zeke walked into the appointment and slept on the examining table. During the ninety-minute examination, Reilly took X-rays from four different views and gave the dog subcutaneous fluids and vitamins, an injection of amoxicillin, and an injection of cimetidine. Reilly concluded again that the dog was suffering from pancreatitis. He explained the disease to the Palermos and instructed them, as he had done previously, not to feed Zeke. He gave them a pamphlet, special food, and a prescription for antibiotics. Reilly again offered to hospitalize Zeke, but again the Palermos refused. Reilly then told the Palermos that, unlike the Barnstable Animal Hospital, the South Shore Veterinary Associates (SSVA) in Weymouth provided twenty-four hour monitoring for animals.

At 8:30 P. M., the Palermos called Reilly again, and Reilly recommended that they take Zeke to SSVA. About an hour and one-half later, the Palermos arrived at SSVA. Zeke died shortly after their arrival there. The Palermos refused to have an autopsy performed on Zeke.

The Palermos promptly filed a malpractice suit against Reilly and a complaint with the Board of Registration in Veterinary Medicine (the board). The board conducted an informal hearing in March 1995. On May 15, 1995, the board issued a letter to Reilly stating it had found grounds to refer the case to the Division of Registration's legal unit to initiate formal disciplinary action.

Pursuing their cause in the court of public opinion, the Palermos contacted a number of local papers, several of which ran the story. Eventually, the Herald too showed interest in the story. Meanwhile, Reilly, having heard that the Herald might write a story, called the newspaper and told his version of events to Jack Sullivan, an editor. In response to Reilly's request to be interviewed, Sullivan told Reilly that the Herald always reported both sides of an issue and that, in any event, the Herald did not plan to run a story about Zeke. Sullivan assured Reilly that if the Herald did write a story, then someone from the newspaper would contact Reilly for an interview.²

On May 21, 1995, shortly after Reilly contacted the newspaper, the Herald published the story about Zeke's death that prompted this lawsuit. The reporter did not contact Reilly for an interview. The story's headline, "Bereaved pet owners doggedly seek justice," aptly sums up the flavor of the piece. The inside subheadline further exclaimed: "Vet played golf instead of treating dog." The article also reported that Zeke's medical records had "disappeared" from the SSVA. These included records from the Barnstable Animal Hospital, which had been sent over to the SSVA sometime after Reilly treated Zeke. The records were later found "misfiled" and (in Mr. Palermo's words, as quoted in the article) "doctored to imply that Reilly made a more complete diagnosis on the first day of Zeke's illness." The article quoted a source stating that no one knew what had happened to the records but that Reilly once had interned at the SSVA. The article further reported that the Palermos and the SSVA received threatening telephone calls regarding the case from an unidentified individual.

Reilly claims that, as a result of the story, his professional reputation throughout the Cape Cod community has been shattered. He received threatening telephone calls, lost clients, and lost his job at the Barnstable Animal Hospital.

On June 6, 1996, the board dismissed the charges against Reilly after concluding that there was insufficient evidence that Reilly had committed either malpractice or misconduct. The board issued a letter of warning to Reilly stating that in the future, he should order prompt laboratory tests and provide aggressive fluid therapy.

On this essential core of facts, the motion judge granted summary judgment for the media defendants.

2. Discussion.

"[The] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates ... that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case." Dulgarian v. Stone, 420 Mass. at 846, quoting from Symmons v. O'Keeffe, 419 Mass. 288, 293 (1995). With regard to the Herald, its reporter, and its editor, the Superior Court judge concluded that there were no disputed issues of material fact and that Reilly failed to meet his burden of proof as to defamation for any of the statements in the article. The judge also granted summary judgment in favor of Patrick J. Purcell, the publisher of the Herald. With regard to the AP, the judge concluded that the reverse wire defense protected the AP from Reilly's complaint. We examine the claims regarding each defendant.

A. The Herald, its reporter, and its editor.

To withstand the Herald's summary judgment motion, Reilly needed to show evidence establishing disputed issues of material fact that: (1) the Herald made a false statement or statements "of and concerning" Reilly to a third party; (2) the statement or statements could damage Reilly's reputation within the community; (3) the Herald was negligent in making the statement or statements;³ and (4) the statement caused economic harm or is actionable without proof of economic harm. See New England...