Rinsley v. Brandt, 76-132-C5.

• Decision Date: 15 December 1977
• Docket Number: No. 76-132-C5.,76-132-C5.
• Citation: 446 F. Supp. 850
• Parties: Donald B. RINSLEY, M.D., Plaintiff, v. Anthony BRANDT and William Morrow and Company, Inc., a corporation, Defendants.
• Court: U.S. District Court — District of Kansas

446 F. Supp. 850

Donald B. RINSLEY, M.D., Plaintiff, v. Anthony BRANDT and William Morrow and Company, Inc., a corporation, Defendants.

No. 76-132-C5.

United States District Court, D. Kansas.

December 15, 1977.

John E. Wilkinson, Topeka, Kan., for plaintiff.

Donald Patterson, Topeka, Kan., for William Morrow & Co., Inc.

Grant M. Glenn, Topeka, Kan., Sam L. Colville, Kansas City, Mo., for Brandt.

MEMORANDUM AND ORDER

ROGERS, District Judge.

In 1975, defendant William Morrow and Company, Inc. hereinafter referred to as "Morrow" published a book entitled "Reality Police" which was authored by defendant Brandt and contained many references to plaintiff Rinsley which were less than complimentary. The publication of this book resulted in plaintiff's filing of this action, which originally contained three causes of action: (1) libel, (2) invasion of privacy, and (3) violation of civil rights protected by 42 U.S.C. §§ 1985 and 1986.

An idea of the claims presented in the complaint may be garnered from the following paragraphs of said complaint:

8. In said book, authored by Defendant Brandt and published by Defendant Morrow, and entitled "Reality Police", the Plaintiff and his activities as a licensed physician and certified medical specialist and as a member of the professional staff of a hospital for children located in Topeka, Kansas, were discussed in detail.

9. Said discussion of Plaintiff and his professional activities connected with the treatment of patients was replete with falsehoods, distortions, and errors of fact, all of which ascribed to Plaintiff conduct, characteristics and conditions incompatible with the proper conduct of his lawful profession; these falsehoods, distortions and errors of fact included, but were not limited to the following assertions:

(a) that Plaintiff practiced his profession in an unauthorized and pejorative fashion;

(b) that Plaintiff practiced his profession in a manner based upon his own subjective views, ideas and theories — hence, in a manner which bore no relationship to known or accepted professional standards and knowledge;

(c) that Plaintiff practiced his profession, and conducted himself in such manner as to be accountable and responsible to no one, including his superiors, supervisors, and professional colleagues in the hospital where he practiced, as well as the duly constituted authorities of the State of Kansas;

(d) that, as a result and effect of Plaintiff's administrative control over subordinate professional and paraprofessional staff members of the hospital where he practiced, said professional and paraprofessional staff members were caused, induced and expected to interact with and treat hospital patients and their families in a manner similar to that falsely ascribed to Plaintiff, i. e., cruelly, sadistically, unethically, irresponsibly, unaccountably, and outside the bounds of known and accepted professional standards and knowledge.

In particular, plaintiff takes offense at a case history mentioned in the book which involved a young girl. The book, according to the complaint, states that "`Rinsley's staff drove her crazy' (p. 226) and contributed to her death by neglect in her care and treatment." Another passage of the book asks: "What does it take to put a stop to such a man? How many more children must die?"

This action now comes before the Court upon three motions: (1) Defendant Morrow's motion for dismissal and/or partial summary judgment (Doc. # 20); (2) Defendant Brandt's motion for summary judgment (Doc. # 40); and (3) Defendant Morrow's motion for summary judgment (Doc. # 51).

By Order of December 2, 1977, this Court dismissed plaintiff's third cause of action based on 42 U.S.C. §§ 1985 and 1986. Therefore, only the libel and invasion of privacy claims remain before the Court.

LIBEL

Defendants lodge three contentions against plaintiff's libel claim: (1) the claim is barred by the statute of limitations; (2) plaintiff is a "public official" or "public figure"; and (3) punitive damages are not recoverable in a libel action. We dismiss plaintiff's libel claim on the basis of the statute of limitations defense and therefore need not address the other two arguments.

The parties agree that the controlling statute of limitations relative to the libel claim is K.S.A. § 60-514, which states:

The following actions shall be brought within one (1) year. (1) An action for libel or slander.

This action was filed on August 17, 1976. The complaint alleges that plaintiff discovered the statements made about him in "Reality Police" "on or about" August 20, 1975. Thus, if the statute of limitations did not begin to run until plaintiff discovered his claim, this action would be timely. Unfortunately for plaintiff, the discovery accrual rule is not applicable.

There is no authority for the proposition that a cause of action governed by K.S.A. § 60-514 does not accrue until discovered. An examination of K.S.A. § 60-513(a)(3) indicates that the Kansas legislature will apply the discovery accrual rule when it desires to do so. Such a decision is within the province of the legislature. McCoy v. Wesley Hospital & Nurse Training School, 188 Kan. 325, 331, 362 P.2d 841 (1961). The one year statute of limitations for libel and slander in Kansas begins to run upon "publication", not discovery. Vaughan v. Hornaman, 195 Kan. 291, 298, 403 P.2d 948 (1965). See also 50 Am.Jur.2d Libel and Slander § 390, pp. 911-12 (1970); 53 C.J.S. Libel and Slander § 156, p. 238 (1948).

The time of "publication" relative to a book is when the book is released for sale in accord with trade practice. 50 Am.Jur.2d, supra, at § 394, p. 915; Annot., 42 A.L.R.3d 807, 828-829 (1972). The facts in this case are undisputed that "publication" of the book in question was effected before August 1, 1975 — more than one year before the filing of this action. See Landis affidavit.

To bolster his position that the discovery accrual rule should be followed, plaintiff cites Tom Olesker's Exciting World of Fashion, Inc. v. Dun & Bradsteet, Inc., 61 Ill.2d 129, 334 N.E.2d 160 (1975) and Kelley v. Rinkle, 532 S.W.2d 947 (Tex.1976). Both these cases involved claims of false credit reporting. The courts in those cases applied the discovery accrual rule as a matter of policy, noting that frequently publication in those situations would not be discovered by a plaintiff until long after a statute of limitations had run. Thus, those cases are easily distinguishable from a situation, such as we have here, where the alleged defamation emanates from a mass media source. In Tom Olesker's Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc., supra, 334 N.E.2d at 161, the Supreme Court of Illinois recognized:

It has been generally held that in defamation cases the cause of action accrues and the statute of limitation begins to run on the date of publication of the defamatory material. cites omitted

After explaining the rationale for applying the discovery rule to false credit reporting cases, the court stated:

We would note that cases involving defamation by credit reporting agencies can be readily distinguished from those involving alleged defamations through so-called mass media publication. In claimed libels involving, for example, magazines, books, newspapers, and radio and television programs, the publication has been for public attention and knowledge and the person commented on, if only in his role as a member of the public, has had access to such published information. In addition and more importantly, a credit reporting agency does not enjoy the constitutional protections given massmedia publications. Grove v. Dun & Bradstreet, Inc. (3d Cir. 1971), 438 F.2d 433.

The same distinction between defamation by credit reporting and defamation by mass media was made in Kelley v. Rinkle, supra, 532 S.W.2d at 949:

We would not apply the discovery rule where the defamation is made a matter of public knowledge through such agencies as newspapers or television broadcasts.

Failing to convince us that the discovery rule should be adopted as the test for accrual of a cause of action, plaintiff's only hope is to persuade us that a new cause of action should arise with the sale of each separate book. Plaintiff does argue for the "multiple publication" rule over the "single publication" rule.

The majority rule, it appears to us, is clearly that the "single publication" rule, under which any single integrated publication, such as an edition of a book, is treated as a unit giving rise to only one cause of action. Annot. supra, 42 A.L.R.3d 807. The best authority in Kansas, which is admittedly none too good, is the prognostication of a Connecticut federal court that Kansas, if squarely faced with the question, would adopt the "single publication" rule. Fouts v. Fawcett Publications, 116 F.Supp. 535, 537 (D.Conn.1953). We join in this prognostication.

Plaintiff's briefs contain long policy arguments assailing the short statute of limitations and arguing that every plaintiff should be given a "realistic opportunity" to file a lawsuit to vindicate his claims. The argument against the short statute of limitations falls upon the Court's deaf ears; such an argument is appropriately directed only at the Kansas legislature. Similarly, plaintiff's argument that every plaintiff should be given a "realistic opportunity" to file suit rings hollow, for this plaintiff admittedly sat on his claim for just three days short of one year before filing suit. Plaintiff had every opportunity to file a timely action in this case.

We therefore conclude that the libel claim presented in plaintiff's complaint is barred by the statute of limitations and must be dismissed.

PRIVACY

Turning to plaintiff's privacy claim, defendant alleges the following contentions: (1) plaintiff is a "public figure" who cannot bring an action for invasion of privacy; (2) this action is barred by the statute of limitations; and (3) punitive damages are not...