Schaffer v. Zekman, 1-89-0238

Decision Date30 March 1990
Docket NumberNo. 1-89-0238,1-89-0238
Citation196 Ill.App.3d 727,143 Ill.Dec. 916,554 N.E.2d 988
Parties, 143 Ill.Dec. 916, 17 Media L. Rep. 1931 Dr. Michael SCHAFFER, Plaintiff-Appellant, v. Pam ZEKMAN, Gary Cummings and CBS, Inc., Defendants-Appellees.
CourtUnited States Appellate Court of Illinois

Rooks, Pitts and Poust, (Lee Hettinger, of counsel), Robert Maloney, Chicago, for plaintiff-appellant.

Jenner & Block, Chicago (Linda Lindstrom and Susan Theiss, of counsel), for defendants-appellees.

Justice HARTMAN delivered the opinion of the court:

Dr. Michael Schaffer (Schaffer), plaintiff, brought an action against defendants Pam Zekman (Zekman), Gary Cummings (Cummings), and CBS, Inc. (CBS) (sometimes jointly, defendants) alleging defamation and false-light invasion of privacy. Defendants' motion to dismiss Schaffer's second amended complaint (complaint), pursuant to section 2-615 of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-615) (section 2-615), was granted with prejudice by the circuit court, from which Schaffer appeals.

Schaffer is chief toxicologist employed by the Cook County Medical Examiner. Defendant Zekman is an investigative reporter for WBBM-TV, a television station owned and operated by defendant CBS. Defendant Cummings, formerly the vice president and general manager of WBBM-TV, died on October 31, 1987.

Schaffer's actions for defamation (libel) and invasion of privacy (false-light) stem from a WBBM-TV broadcast aired February 28, 1985, wherein Cummings, in an editorial entitled "Clean Up the Medical Examiner's Office," referred to a series of reports previously broadcast by Zekman that described "how evidence was mishandled by the Medical Examiner's Office." Nine months earlier, in May of 1984, in the second of a four-part series 1, Zekman had disclosed that toxicologists, unnamed, in the Medical Examiner's Office "made two mistakes" while handling evidence in the infamous Tylenol-cyanide murder cases: in testing for the presence of cyanide in the Tylenol capsules recovered after the deaths, they failed to retain a portion of the specimen in its original form in the event retesting became necessary; and, they used contaminated water in analyzing the samples. Zekman then stated:

"The Medical Examiner's Chief Toxicologist Michael Schaefer [sic] would not agree to an on-camera interview. But he defended his lab's actions during the Tylenol crisis. He said that at the time, he was not aware of the FDA's ability to analyze the samples. And he said he thought there was enough residue in the empty capsules for the FDA to use. Schaefer [sic] said the water used in his tests was as chemically pure as needed. And he accused law enforcement agencies of using the Medical Examiner's Office as a scapegoat."

Accompanying Schaffer's above-quoted comments, CBS displayed in the video portion a close-up image of Schaffer to the viewing audience. Also during the report, a former assistant attorney general characterized the handling of the evidence as "unprofessional" and "slipshod," and suggested it "hopelessly crippled part of" any subsequent prosecution.

In the 1985 editorial, Cummings expressed concern that the Cook County Board of Commissioners was not taking steps to correct the "scandal" in the Medical Examiner's Office, "apparently" in the hope that "everybody will forget" the problem. Cummings concluded the editorial by calling upon the Board of Commissioners to fire Dr. Robert Stein, the Chief Medical Examiner. In the course of the entire broadcast, Cummings never mentioned Schaffer by name nor identified him or the position of "toxicologist"; neither did he explicitly refer to the Tylenol murder investigation.

Schaffer brought an action against defendants, alleging defamation (count I) and invasion of privacy (count II). According to count I: on February 28, 1985, CBS broadcast Cummings' editorial, in which he remarked "It was nine months ago * * * that Pam Zekman and the Channel 2 investigative team told how evidence was mishandled by the Medical Examiner's Office." The Complaint further alleged Cummings' statement was "of and concerning" Schaffer; at the time the statement was published, the Medical Examiner's Office employed only two toxicologists, including Schaffer, who was chief toxicologist; a substantial portion of the television audience reasonably understood the statement to refer to Schaffer; Schaffer's professional reputation was disgraced and injured; the statement was false; and, defendants published the statement knowing it was false or with reckless disregard for its truthfulness.

Count I then asserted Cummings' statement made reference to, and was understood by a substantial portion of the television audience to whom it was published to refer to, the second segment of the four-part series presented in 1984 by Zekman which described the notorious Tylenol murders. According to Schaffer, Zekman therein claimed no prosecution would occur in those deaths "because the Medical Examiner's Office ruined samples of the poison."

Schaffer, in Paragraph 5 of count I, alleged the following "Because the February 1985 broadcast referred specifically to the May 1984 broadcasts and because the only person identified in the May 1984 broadcasts as 'mishandling evidence' was Dr. Schaffer, and because Dr. Schaffer was the only one identified in the May 1984 broadcast as handling the evidence or performing the tests in the Tylenol case, a substantial portion of the television audience to whom the February 1985 broadcast was published reasonably understood the statement 'evidence was mishandled by the Medical Examiner's Office' to refer to Dr. Schaffer and to no one else."

At the time of Cummings' 1985 editorial, continued Schaffer, defendants knew the statements concerning the "mishandling" of evidence were false. He then prayed for monetary damages for emotional distress and public humiliation. In a second count, Schaffer alleged the broadcast invaded his privacy by placing him in a false light.

At the hearing on defendants' section 2-615 motion, argument focused on the sufficiency of the colloquium pleaded in the complaint. Finding it lacking, the circuit court granted defendants' motion. Schaffer appeals.

I.

Dr. Schaffer first contends the circuit court improperly dismissed his claim for defamation, arguing count I of the complaint sufficiently alleged that the purportedly defamatory remarks were "of and concerning" him. In reviewing the circuit court's dismissal, this court must accept as true all well-pleaded facts in the complaint and all reasonable inferences which can be drawn therefrom to determine, as a matter of law, whether the pleadings state a cause of action. (Harris Trust & Savings Bank v. Phillips (1987), 154 Ill.App.3d 574, 579, 107 Ill.Dec. 315, 506 N.E.2d 1370.) Conclusions of law or conclusions of fact not supported by allegations of specific facts will not be considered. Davis v. Keystone Printing Service, Inc. (1982), 111 Ill.App.3d 427, 433, 67 Ill.Dec. 214, 444 N.E.2d 253.

Defamatory statements may be actionable per se, or actionable per quod. A publication is defamatory per se if it is "so obviously and naturally harmful to the person to whom it refers that a showing of special damages is unnecessary" (Owen v. Carr (1986), 113 Ill.2d 273, 277, 100 Ill.Dec. 783, 497 N.E.2d 1145); the defamatory character of the statement is apparent on its face, and extrinsic facts are not necessary to explain. (Brown & Williamson Tobacco Corp. v. Jacobson (7th Cir.1983), 713 F.2d 262, 267.) Statements are actionable per quod if they necessitate extrinsic facts or innuendo to explain their defamatory meaning, and require evidence demonstrating, as a matter of fact, that some substantial injury resulted to the aggrieved person from their use. Heerey v. Berke (1989), 188 Ill.App.3d 527, 532, 136 Ill.Dec. 262, 544 N.E.2d 1037.

A.

According to Schaffer, his complaint seeks recovery for defamation per se. Statements are defamatory per se if they impute, among other things, an inability to perform or lack of integrity in the discharge of duties of office or employment; or a lack of ability in a person's trade, business, or profession. (Costello v. Capital Cities Communications, Inc. (1988), 125 Ill.2d 402, 414, 126 Ill.Dec. 919, 532 N.E.2d 790.) Here, the allegedly defamatory statement, "evidence was mishandled by the Medical Examiner's Office," implicates these categories.

The statement at issue, however, does not mention Schaffer by name, cannot be injurious to him on its face (Moore v. Streit (1989), 181 Ill.App.3d 587, 597-98, 130 Ill.Dec. 341, 537 N.E.2d 408), and is not defamatory per se as to him (Colucci v. Chicago Crime Comm'n (1975), 31 Ill.App.3d 802, 810-11, 334 N.E.2d 461). Extrinsic facts and circumstances must be pleaded to establish that the publication was defamatory as to him (colloquium), and special damages must be alleged with particularity. (Colucci, 31 Ill.App.3d at 810-11, 334 N.E.2d 461.) In light of Moore and Colucci, the statement "evidence was mishandled by the Medical Examiner's Office" cannot be said to be defamatory per se as to Schaffer. Not only is he not named therein, but the statement does not refer to him or mention toxicologists or the "chief toxicologist," nor does it allude to specific investigations conducted solely by Schaffer. At most, it refers to a group of which Schaffer is a member, the Cook County Medical Examiner's Office. Without more, the statement is not so obviously and naturally harmful to Schaffer that a showing of special damages is unnecessary. Moore, 181 Ill.App.3d 587, 130 Ill.Dec. 341, 537 N.E.2d 408.

Schaffer, himself, found it impossible to rest his claim on Cummings' editorial alone, and was forced to look outside the complete text of the editorial and refer to a series of reports aired nine months earlier, pleading extrinsic facts in paragraph 5 of the complaint to explain how Cummings' statement in...

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