Skolnick v. Correctional Medical Services, Inc.

• Decision Date: 13 March 2001
• Docket Number: No. 99 C 3155.,99 C 3155.
• Citation: 132 F.Supp.2d 1116
• Parties: Andrew A. SKOLNICK, Plaintiff, v. CORRECTIONAL MEDICAL SERVICES, INC.; Spectrum Healthcare Services, Inc.; Richard H. Miles; Louis C. Tripoli; Imaging Diagnostic Systems, Inc.; Richard J. Grable, Defendants.
• Court: U.S. District Court — Northern District of Illinois

132 F.Supp.2d 1116

Andrew A. SKOLNICK, Plaintiff, v. CORRECTIONAL MEDICAL SERVICES, INC.; Spectrum Healthcare Services, Inc.; Richard H. Miles; Louis C. Tripoli; Imaging Diagnostic Systems, Inc.; Richard J. Grable, Defendants.

No. 99 C 3155.

United States District Court, N.D. Illinois, Eastern Division.

March 13, 2001.

COPYRIGHT MATERIAL OMITTED

Ralph Edward Wilhoite, Jr., Frederick Martin Lerner, Lerner & Wilhoite, Chicago, IL, for plaintiff.

John Robert Robertson, Timothy D. Elliott, Kirkland & Ellis, Chicago, IL, for Correctional Medical Services Inc., for defendants.

OPINION AND ORDER

NORGLE, District Judge.

Before the court are: (1) the motion of Defendants, Correctional Medical Services ("CMS"), Spectrum Healthcare Services, Richard Miles, and Louis Tripoli,¹ for summary judgment on Plaintiffs claims of defamation per se [29-1]; and (2) Plaintiff's motion to strike Defendants' response to Plaintiff's Local Rule 56.1(b)(3) responsive statement of facts [45-1]. For the following reasons, Defendants' motion for summary judgment is granted and Plaintiff's motion to strike is denied as moot.

I. BACKGROUND

The short version of this diversity case is that Plaintiff, Andrew Skolnick, is an investigative journalist who wrote or contributed to several articles that were critical of healthcare in prisons in general, and of CMS in particular. The CMS Defendants, in turn, made several written responses to these articles. Not to be outdone in this water pressure contest, Skolnick sued the CMS Defendants, claiming that their responses defamed him and interfered with his business interests. Many of the underlying facts are disputed, but the material ones are not.

From November 1987 until November 1998, Skolnick was an associate editor for the Journal of the American Medical Association ("JAMA"). Skolnick's primary job at JAMA was to write approximately twenty-four stories per year for the "Medical News and Perspectives" section of JAMA. In 1997, upon the recommendation of his editor at JAMA, Marcia Goldsmith, Skolnick was selected as a Rosalynn Carter Fellow for Mental Health Journalism. As a Rosalynn Carter Fellow, Skolnick was to investigate and submit articles about medical and mental health issues in prisons.

The CMS Defendants are engaged in the business of providing prison healthcare services. In 1998, Skolnick began investigating the practices of CMS and allegations of its use of impaired or disciplined physicians in prisons. During his investigation, Skolnick consistently identified himself to CMS as an associate editor for JAMA and a Rosalynn Carter fellow. Skolnick claims he also told CMS he was working for other publications, but admits he did not identify any such publication. By mid-August 1998, Skolnick ended his communications with CMS.

Based on his research, Skolnick wrote two articles for JAMA: "Prison Deaths Spotlight How Boards Handle Impaired, Disciplined Physicians;" and "Critics Denounce Staffing Jails and Prisons With Physicians Convicted of Misconduct" (hereinafter the "JAMA articles"). JAMA planned to publish these articles in September 1998, but delayed publication until its October 28, 1998 issue.

In mid-August 1998, reporters William Allen and Kim Bell of the St. Louis Post-Dispatch asked Skolnick to assist them in completing a special report on prison healthcare. Using personal time, Skolnick went to St. Louis on September 12, 1998 to contribute to the report. Skolnick, along with Allen and Bell, wrote or contributed to three articles that were published in the September 27, 1998 edition of the paper: "Physicians with troubled pasts have found work behind bars;" "Two key posts in Alabama were filled by doctors with checkered histories;" and "Prisoner, doctor who treated him, both had drug arrests" (hereinafter the "Post-Dispatch articles"). The Post-Dispatch articles, which were critical of CMS, identified Skolnick as an author, special contributor, and Rosalynn Carter Fellow.

After publication of the Post-Dispatch articles, CMS became aware that JAMA was planning to publish the JAMA articles. On October 26, 1998, the chief medical officer of CMS, Louis Tripoli, wrote the following letter to the chief editor of JAMA:

I am the Chief Medical Officer at Correctional Medical Services, Inc., the nation's leading provider of healthcare services in correctional facilities, and have been a loyal member of the AMA for my entire professional career. It has come to our attention that JAMA's October 28, 1998 edition contains articles regarding the provision of medical services by our company. If that is the case, CMS requests the opportunity to provide further input and respond to any assertions to be made regarding our company and medical practices.

We make this request for three reasons. First, we have reason to believe that much of the background "facts" and assertions recently provided to journalists regarding CMS have been provided by plaintiff lawyers adverse to CMS as part of a campaign seeking to advance their litigation and financial interest by generating unfair and negative publicity regarding CMS and its healthcare professionals, many of whom are also AMA members. We are aware that plaintiff lawyers adverse to CMS have provided information to Andrew Skolnick of JAMA. We are certain that JAMA would not wish to be used by persons with ulterior agendas as a vehicle for the publication of inaccurate assertions regarding healthcare professionals.

Second, we have reason to believe that many of the assertions regarding CMS that may be published in JAMA have resulted from an "investigation" that included the use of questionable reporting tactics. Specifically, Andrew Skolnick repeatedly used the name of JAMA and, by implication the American Medical Association's reputation, when gathering information. However, Mr. Skolnick's stories first appeared, with his byline, in the St. Louis Post-Dispatch (September 27). Mr. Skolnick never mentioned to us that he was working on behalf of the Post-Dispatch. We trust that JAMA would not condone or reward the misleading use of the AMA's name. We would like the opportunity to discuss these issues with you further prior to any publication of assertions regarding CMS business or medical practices.

Third, our reputation as a healthcare provider and the reputations of the healthcare professionals who work for us are of central concern to us. The publication of inaccurate assertions could result in substantial personal and financial damage to the parties involved. We believe that standards of professional responsibility and courtesy between medical doctors and healthcare professionals warrant the opportunity for us to reply and respond to any purportedly negative factual assertions regarding our practices prior to publication. We also believe that the separate journalistic standards of fairness, balance and accuracy require such an opportunity. Accordingly, we request that prior to the publication of any assertions regarding CMS by JAMA, we be provided with an opportunity to be heard and to respond to any assertions regarding our company. We have no doubt that JAMA will provide us with that opportunity. Please feel free to call me directly with any questions. I look forward to hearing from you.

(Def.'s Local Rule 56.1 Ex. 10.)

On November 3, 1998, JAMA fired Skolnick. JAMA wrote a memo stating that Skolnick was terminated, in part, for contributing to the Post-Dispatch articles without informing his supervisor. Skolnick disputes this, claiming that JAMA allows its reporters to write about medical issues for non-medical publications. Skolnick alleges that the real reason JAMA fired him was negative reaction to the Post-Dispatch articles.

On November 20, 1998, Thomas Yanucci, an attorney representing CMS, sent a twenty-one page letter about the Post-Dispatch articles to the managing editor of the St. Louis Post-Dispatch. Yanucci's letter stated, in relevant part:

IV. The Newsgathering Tactics Employed by the Reporters Cast Considerable Doubt On Their Objectivity And Fairness And Establish Malice Toward CMS.

The reporters involved in the publication of the special report have employed tactics that have been repeatedly condemned by responsible media. Each of these actions is independent evidence of malice towards CMS, warranting serious reevaluation of the entire piece and proper steps going forward to guarantee fair treatment of CMS.

Failure to disclose reporter's identity. On February 27, 1998, CMS Communications Director Susan Adams received a telephone call from Andrew Skolnick. Introducing himself, Mr. Skolnick stated that he was working for the Journal of the American Medical Association ("JAMA"). Mr. Skolnick told Ms. Adams that he was working on an article for JAMA.

Based on Mr. Skolnick's representations, Ms. Adams agreed to meet Mr. Skolnick in Alabama and provide him with access to various facilities at which CMS provides healthcare services. During that meeting and tour of CMS facilities, Mr. Skolnick presented a business card identifying himself as the "Associate Editor" of JAMA. At no time did Mr. Skolnick inform Ms. Adams — or anyone else at CMS — that he was writing for or affiliated in any way with the St. Louis Post-Dispatch. CMS did not learn that Mr. Skolnick was writing for the St. Louis Post-Dispatch until his articles appeared in the September 27, 1998 edition of the paper.

CMS disagrees with your assertion that Mr. Skolnick "was completely up front" with CMS because CMS was aware of the "issues" he was working on. JAMA certainly did not think that Mr. Skolnick was "up front" about its role in the preparation of the special section; it terminated Mr. Skolnick's employment shortly after his role in the special report was brought to light. Mr. Skolnick deliberately withheld the fact that — in addition to writing JAMA — he was sharing information with the Post-Dispatch reporters and contributing stories to their special...