Saltmarshall v. VHS Children's Hosp. of Mich., Inc., Case Number 18-10887

• Citation: 402 F.Supp.3d 389
• Decision Date: 22 August 2019
• Docket Number: Case Number 18-10887
• Parties: James Lee SALTMARSHALL, Plaintiff, v. VHS CHILDREN'S HOSPITAL OF MICHIGAN, INC. and Scott Langenberg, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

402 F.Supp.3d 389

James Lee SALTMARSHALL, Plaintiff,

v.VHS CHILDREN'S HOSPITAL OF MICHIGAN, INC. and Scott Langenberg, Defendants.

Case Number 18-10887

United States District Court, E.D. Michigan, Southern Division.

Signed August 22, 2019

Lillian F. Diallo, Larry R. Polk, Leagal Warriors, PLLC, Detroit, MI, Marvin D. Wilder, Wilder Legal Group PLC, Novi, MI, for Plaintiff.

Chloe C. Streetman, Erin E. Alman, Kitch Drutchas Wagner Valitutti & Sherbrook, Jennifer W. Greenman, The Kitch Law Firm, Detroit, MI, Daniel R. Corbet, Corbet, Shaw, Essad & Bonasso, PLLC, Warren, MI, for Defendants.

OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR RECONSIDERATION, VACATING IN PART OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT, GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, DISMISSING AMENDED COMPLAINT, AND DISMISSING MOTIONS IN LIMINE AS MOOT

DAVID M. LAWSON, United States District Judge

In its last opinion and order, the Court dismissed much of plaintiff James Lee Saltmarshall's amended complaint, in which he alleged that he was wrongfully accused of sexually assaulting and murdering his infant daughter. See Saltmarshall v. Prime Healthcare Servs. , 2019 WL 3213717 (E.D. Mich. July 11, 2019). The only surviving count was for defamation against a physician and his hospital. Those defendants have moved for reconsideration, contending that the doctor's false statements did not actually identify Saltmarshall as the murderer, and the doctor's statement, which was made to a police officer, was absolutely privileged under Michigan common law. The second argument, supported by caselaw that the defendants neglected to bring to the Court's attention in their earlier motion briefs, has merit. Therefore, the Court will grant reconsideration, grant summary judgment on the remaining claim, and dismiss the case.

I.

The facts of the case were discussed at length in the Court's opinion on the defendants' motion for summary judgment. See Saltmarshall , 2019 WL 3213717, at *1-11. The plaintiff was accused of sexually assaulting and murdering his infant daughter, Janiyah, based on, at least in part, statements made by defendant Dr. Scott Langenberg to Lt. Jeffrey Twardzik, a police officer for the City of Inkster. Janiyah had been transferred to Children's Hospital of Michigan in Detroit, where she was found to be in grave condition. Dr. Helene Tigchelaar examined her in the emergency room, placed her in critical care, and described her condition as an "apparent non-survivable injury."

Defendant Langenberg, who was present when resuscitation efforts initially were performed, was the doctor at Children's Hospital responsible for Janiyah's care while on the surgical service. Langenberg, who had met Lt. Twardzik at the hospital, later sent him a text message, which contained the false information upon which the defamation claim is based:

Baby has skull fractures

, brain swelling on CT (likely will meet brain death criteria). Lung bruising, anterior anal laceration. We have some other studies pending.

This is non-accidental trauma. The perpetrator murdered this child.

Nice meeting you. Scott

Scott Langenberg, M.D. Children's Hospital of Michigan

PageID.3741, 4158. Langenberg followed that message with another one the next morning asking if Janiyah's mom and dad were in custody.

The defendants argued that Saltmarshall's state-law claims were barred by the immunity conferred by Michigan's Child Protection Law (CPL), which requires "a physician ... who has reasonable cause to suspect child abuse or child neglect [to] make an immediate report ... of the suspected child abuse or child neglect." Mich. Comp. Laws § 722.623(1)(a). The CPL states that "[a] person acting in good faith who makes a report, cooperates in an investigation, or assists in any other requirement of this act is immune from civil or criminal liability that might otherwise be incurred by that action." Mich. Comp. Laws § 722.625. The Court denied summary judgment to Dr. Langenberg (and therefore to Children's Hospital as well) because the evidence was sufficient to question his good faith when he made an accusation of murder:

A jury could conclude that he took an active role in encouraging prosecution, despite his lack of accurate evidence, medical or otherwise. He offered an opinion to the police that the child suffered "non-accidental trauma," falsely asserted that the infant had skull fractures

when he had not even seen any

imaging studies, and declared that the plaintiff "murdered this child," when she had not even been pronounced dead. He later acknowledged that no fractures were confirmed, based on a final x-ray reading, but he never informed Lt. Twardzik of that correct information. And when asked at his deposition why he thought Janiyah was murdered, Dr. Langenberg testified that he used the word in a "medical" sense, when there in fact is not any "medical sense" of that legal and colloquially inflammatory term. Finally, he took it upon himself the following morning to send another text to Lt. Twardzik, this time asking if Janiyah's mom and dad were in custody. There is enough evidence in the record at this stage of the proceedings to rebut the presumption that defendant Landenberg was acting in good faith when he interacted with the police in this case.

Saltmarshall , 2019 WL 3213717, at *21.

The Court denied summary judgment on the claim of defamation per se because there were fact issues on all the elements of that claim. The Court wrote:

Dr. Langenberg accused the plaintiff — "the perpetrator" — of murder. That statement was communicated to Lt. Twardzik in a series of text messages. The defendant argues that the CPL immunizes him from that conduct, but as discussed above, it doesn't. He does not attempt to argue in his summary judgment motion that the defamation count against him should be dismissed for any other reason.

Id. at *25.

In their reconsideration motion, the defendants point out that they actually did raise other arguments that the Court did not address, namely, that (1) the plaintiff cannot establish the element of defamation per se that the statements were "concerning the plaintiff"; and (2) the allegedly defamatory statements constitute reporting suspected criminal activity to police and therefore are privileged under Michigan common law. They argue that the lack of discussion of those points warrants reconsideration.

II.

Relief under a motion for reconsideration generally is reserved to cases where the moving party shows (1) a "palpable defect," (2) that misled the court and the parties, and (3) that correcting the defect will result in a different disposition of the case. E.D. Mich. LR 7.1(h)(3). A "palpable defect" is a defect which is obvious, clear, unmistakable, manifest, or plain. Mich. Dep't of Treasury v. Michalec , 181 F.Supp.2d 731, 734 (E.D. Mich. 2002) (citations omitted). A motion for reconsideration is not intended as a means to allow a losing party simply to rehash rejected arguments or to introduce new arguments. See, e.g. Sault Ste. Marie Tribe of Chippewa Indians v. Engler , 146 F.3d 367, 374 (6th Cir. 1998) ("Thus, parties should not use [motions to reconsider] to raise arguments which could, and should, have been made before judgment issued.").

New arguments "raised for the first time in a motion for reconsideration at the district court generally [are] forfeited." United States v. Huntington Nat'l Bank , 574 F.3d 329, 331–32 (6th Cir. 2009). Old arguments re-presented will not justify reconsideration. See E.D. Mich. LR 7.1(h)(3) ("Generally ... the court will not grant motions for rehearing or reconsideration that merely present the same issues ruled upon by the court."). Instead, the moving party must show that the Court made a mistake based on the record before it and rectifying the mistake would change the outcome. E.D. Mich. LR 7.1(h)(3).

The defendants accurately assert that the Court did not consider the defendants' alternative grounds for dismissal, as described above, which were presented in the defendants' motion for summary judgment. The defendants argued that "Dr. Langenberg ... [is] entitled to summary judgment of the plaintiff's state law claims because [he is] immune from civil liability for statements made to the police about suspected criminal activity," and the "plaintiff has failed to present evidence of a defamatory statement made by defendants concerning plaintiff." See Defs.' Mot. for Summary Judgment at 23, 32, ECF No. 67, PageID.3505, 3514. The Court will address those arguments now.

A. Defamation Per Se

" ‘A defamatory communication is one that tends to harm the reputation of a person so as to lower him in the estimation of the community or deter others from associating or dealing with him.’ " TM v. MZ , 326 Mich. App. 227, 240-41, 926 N.W.2d 900, 909 (2018) (quoting Lawrence v. Burdi , 314 Mich. App. 203, 214, 886 N.W.2d 748 (2016) ). To make a claim of defamation against Dr. Langenberg, the plaintiff must offer evidence showing "(1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged communication to a third party, (3) fault amounting at least to negligence on the part of the publisher, and (4) either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by publication." Edwards v. Detroit News, Inc. , 322 Mich. App. 1, 13, 910 N.W.2d 394 (2017) (citations omitted).

The defendants contend that the plaintiff failed to put forth sufficient evidence that Dr. Langenberg's statements to Lt. Twardzik were "concerning the plaintiff," because the first set of messages to Lt. Twardzik involved medical diagnoses and did not identify the plaintiff by name or otherwise reference him. They assert that the messages merely conveyed a "belief that the injuries Janiyah sustained were ‘non-accidental’ and life-threatening, meaning whoever inflicted the injuries (the ‘perpetrator’) likely acted intentionally in...