Rosner v. Field Enterprises, Inc., 1-87-1137

• Decision Date: 18 June 1990
• Docket Number: No. 1-87-1137,1-87-1137
• Citation: 151 Ill.Dec. 154,564 N.E.2d 131,205 Ill.App.3d 769
• Parties: , 151 Ill.Dec. 154 Mitchell M. ROSNER, D.P.M., Plaintiff-Appellee, v. FIELD ENTERPRISES, INC., Pamela Zekman, Larry Cose, Gilbert Jimenez, Gene Mustain, Pat Smith, Norma Sosa, and John H. White, jointly and severally, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 131

564 N.E.2d 131 205 Ill.App.3d 769, 151 Ill.Dec. 154 Mitchell M. ROSNER, D.P.M., Plaintiff-Appellee,
v.
FIELD ENTERPRISES, INC., Pamela Zekman, Larry Cose, Gilbert
Jimenez, Gene Mustain, Pat Smith, Norma Sosa, and
John H. White, jointly and severally,
Defendants-Appellants. No. 1-87-1137. Appellate Court of Illinois,
First District, First Division. June 18, 1990. Supplemental Opinion on Denial
of Rehearing Dec. 24, 1990.

[205 Ill.App.3d 776] [151 Ill.Dec. 157]

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Isham, Lincoln & Beale, Chicago (A. Daniel Feldman, Daniel S. Hefter, Margaret S. Determan, of counsel), for defendants-appellants.

Foss, Schuman, Drake & Barnard, Chicago (George C. Pontikes, of counsel), for plaintiff-appellee.

Justice MANNING delivered the opinion of the court:

The present matter comes before this court as a permissive interlocutory appeal filed by defendants, Field Enterprises, Inc., former publisher of the Chicago Sun-Times, and several of its employees: Pamela Zekman, Larry Cose, Gilbert Jimenez, ¹ Gene Mustain, Pat Smith, Norma Sosa, John H. White and Chris Bockelmann ("defendants"), pursuant to Supreme Court Rule 308. (107 Ill.2d R. 308.) The appeal primarily concerns the issue of whether or not the actual malice standard applies to the underlying libel action. In the libel suit, plaintiff, Mitchell M. Rosner, a podiatrist, seeks damages against defendants, maintaining that he has been defamed in his profession as a result of a series of newspaper articles and photographs which were published by defendants in February 1980. The relevant facts are as follows.

Commencing in 1979, the defendants, Chicago Sun-Times, along with WLS-TV, ² conducted an eight-month investigation on automobile accident insurance fraud. Reporters and investigators from the two news organizations, with the cooperation of the Chicago Police Department and Allstate Insurance Company, posed as non-injured or only slightly injured accident victims and sought the treatment and services of various "accident chasers," doctors, lawyers, clinics, chiropractors and hospitals.

On October 25, 1979, as part of the investigation, defendants Pat Smith and Larry Cose, posing as victims of an automobile accident, went to the law offices of Harold Pope. Mr. Pope referred them to Dr. B.E. Graham who was located at 71st and Crandon--The Holy Name Medical Center.

Later that day, Cose and Smith visited the Holy Name Medical [205 Ill.App.3d 777] Center. The receptionist gave them some medical forms to complete and then led the reporters to the clinic's waiting area. Next, they went one at a time into Dr. Rosner's office, who reviewed the forms, tested their reflexes and inquired if they had any foot problems. Rosner then told the reporters that another

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[151 Ill.Dec. 158] doctor would see them shortly. The reporters were thereafter called individually into a separate examination room by Dr. Betty Graham, where she examined and sent them to the office of Dr. Patrick Maloney. Allegedly, Dr. Maloney examined the reporters, instructed them to take time off from work and prescribed heat treatments for them.

On December 3, 1979, Gilbert Jimenez accompanied Willie Chriesman and Gene Mustain, who was using the pseudonym "John White," to the law offices of Basil Elias to see John Rusniak. Mr. Rusniak interviewed the reporters and then purportedly telephoned Dr. Graham and told her that Chriesman, Mustain and two other persons had been involved in a car accident.

Later that afternoon, Chriesman went to the Holy Name Medical Center. First, he completed a medical form. After a brief wait, Dr. Rosner called him into an examination room, reviewed his chart and tested his reflexes. Then, Dr. Graham examined Chriesman and advised him to come in every day for treatments. Dr. Maloney then called Chriesman into his office and told him to come in every day for treatments.

The next day, December 4, 1979, Mustain and Pat Smith, who had altered her appearance and used the pseudonym "Ann Connor," visited Holy Name Medical Center. After a few minutes, Dr. Rosner called Mustain into his examination room. Rosner asked Mustain about the accident and his injuries, tested his reflexes and told him that Dr. Graham would see him next.

Then, Dr. Rosner called Smith into his examination room. He inquired if she had hurt her feet or legs and tested her reflexes. Allegedly, "Dr. Rosner felt Pat Smith's foot through her boot during this 'examination.' " He then told Smith that she would see Dr. Graham next. Dr. Graham and Dr. Maloney conducted the examinations on Smith and prescribed treatments.

Following the investigation, the defendants published a series of their findings on automobile accident insurance fraud in the newspaper between February 10, 1980, and February 27, 1980. The entire series of text and photographs, along with additional material, was then published by the Chicago Sun-Times as a special reprint booklet on March 11, 1980.

The newspaper articles and photograph upon which the complaint [205 Ill.App.3d 778] was based appeared in the Chicago Sun-Times newspapers on February 15 and 19, 1980. The February 15, 1980, article described the result of "an eight-month investigation of automobile insurance fraud, part of a series known as 'The Accident Swindlers.' " Although there was no specific mention of plaintiff in this article, next to the article was published a photograph in which a portion of the plaintiff's name and specialty were prominently displayed on a building in the background. The photograph itself pictures two men standing next to the building and the caption thereunder reads:

"SHOP TALK? Jack Curtin (right) talks with Lloyd Washington outside Holy Name Medical Center, 7101 S. Crandon. Curtin runs a lawyer's accident office on the South Side and this series has already reported how he coaches accident 'victims' to exaggerate injuries in order to inflate insurance settlements. Washington is a known ambulance chaser."

The February 19, 1980, article, inter alia, made the following references to plaintiff:

(1) "Things weren't any more professional at Holy Name Medical Center, 71st and Crandon, where a podiatrist 'examined' one reporter's feet by feeling through her boots."

(2) "All were either examined or asked about foot problems by a podiatrist, Dr. Mitchell M. Rossner (sic). He sent each along to chiropractor Betty E. Graham, a 30-year-old Haitian who performs the actual examinations."

(3) "The Rossner (sic)-Graham-Maloney triple threat went into action again when Chriesman, Smith and Mustain returned to Holy Name more than a month later."

(4) "When Sun-Times and WLS reporters visited Holy Name several weeks

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[151 Ill.Dec. 159] later, Maloney refused to see them. Graham, Dekens, and Rossner (sic) were said to be unavailable."

Plaintiff filed an original and first amended complaint. After motions to strike and dismiss were sustained, plaintiff filed his second amended complaint, which is currently pending before the court below. In response thereto, defendants filed an answer, affirmative defenses, and thereafter, a motion for judgment on the pleadings. Both parties filed memoranda in support of and in response to the motion for judgment on the pleadings.

After the briefings, Judge O'Brien in a December 1982 opinion, denied the motion for judgment on the pleadings as to all publications, excepting the February 15, 1980, publication, as of the date of its original publication.

In August 1986, after the close of discovery, defendants moved for [205 Ill.App.3d 779] summary judgment. In support of their motion, they filed a memorandum of law, affidavits of six reporters and portions of deposition transcripts. Defendants argued that this case is governed by the actual malice standard, and that the record disclosed that plaintiff could not, as a matter of law, prove actual malice. In January 1987, plaintiff filed his memorandum of law in response to the summary judgment motion. However, no affidavits or other materials were filed in support of the response. In February 1987, the circuit court denied defendants' motion for summary judgment, finding that the actual malice standard did not apply to this case, and that there was a genuine issue of material fact as to whether or not defendants had reasonable grounds to believe that the publications as to plaintiff were true. On April 9, 1987, the circuit court denied defendants' motion for reconsideration of the order denying summary judgment but granted their alternative motion for a finding pursuant to Rule 308. The proceedings in the circuit court were stayed pending resolution of this matter on appeal.

To take an appeal under Rule 308, which governs permissible interlocutory appeals, it is necessary for the trial court to make a written finding that its order involves a question of law as to which there is substantial ground for a difference of opinion, and that an immediate appeal would materially advance the ultimate termination of litigation. (See Ill.Rev.Stat.1987, ch. 110A, par. 308(a); Moore v. Mankowitz (1984), 127 Ill.App.3d 1050, 83 Ill.Dec. 199, 469 N.E.2d 1133.) The circuit court, having made the requisite finding, this court accepted the interlocutory appeal to review the questions certified to us.

The two questions of law certified by the circuit court pursuant to Rule 308 for our review are:

(1) "Whether Farnsworth v. Tribune Co. (1969), 43 Ill.2d 286, 253 N.E.2d 408 and Chapski v. The Copley Press (1982), 92 Ill.2d 344 [65 Ill.Dec. 884], 422 N.E.2d 195, require the application of the 'actual malice' standard to this libel suit on the ground that it concerns a newspaper story about Dr. Rosner's professional practice?" and

(2) "If the actual malice standard does not apply, whether there is a genuine issue of material fact presented as to whether the defendants had reasonable grounds for their belief in the truth of their publication where the defendants have filed...