State ex rel. Suriano v. Gaughan

• Decision Date: 05 December 1996
• Docket Number: No. 23555,23555
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Joseph SURIANO, Jr., and the Ohio County Education Association, an Association, Relators, v. Honorable Martin J. GAUGHAN, Judge of the Circuit Court of Ohio County, and Thomas J. Romano, M.D., Respondents.

Page 548

480 S.E.2d 548

198 W.Va. 339

STATE of West Virginia ex rel. Joseph SURIANO, Jr., and the

Ohio County Education Association, an Association, Relators, v. Honorable Martin J. GAUGHAN, Judge of the Circuit Court of

Ohio County, and Thomas J. Romano, M.D., Respondents.

No. 23555.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 29, 1996.

Decided Dec. 5, 1996.

[198 W.Va. 342] Syllabus by the Court

1. "Prohibition will lie to prohibit a case from proceeding to trial when the remedy of appeal is manifestly inadequate to protect against the chilling effect of allowing a suit to proceed because the complaint, as a matter of constitutional law, contains insufficient allegations to warrant interference with a citizen's right to free speech under the First Amendment to the United States Constitution and Article III, Section 7 of the West Virginia Constitution." Syl. Pt. 1, Long v. Egnor, 176 W.Va. 628, 346 S.E.2d 778 (1986).

2. Under West Virginia law, a libel plaintiff's status sets the standard for assessing the defendant's conduct. Plaintiffs who are public officials or public figures must prove by clear and convincing evidence that the defendants made their defamatory statement with knowledge that it was false or with reckless disregard of whether it was false or not. Private figures need only show that the defendants were negligent in publishing the false and defamatory statement.

3. A libel plaintiff is a limited purpose public figure if the defendant proves the following:

(1) the plaintiff voluntarily engaged in significant efforts to influence a public debate--or voluntarily assumed a position that would propel him to the forefront of a public debate--on a matter of public concern;

(2) the public debate or controversy and the plaintiff's involvement in it existed prior to the publication of the allegedly libelous statement; and

(3) the plaintiff had reasonable access to channels of communication that would permit him to make an effective response to the defamatory statement in question.

4. The law of libel takes but one approach to the question of falsity, regardless of the form of the communication. It overlooks minor inaccuracies and concentrates upon substantial truth. Minor inaccuracies do not amount to falsity so long as the substance, the gist, the sting, of the libelous charge be justified. A statement is not considered false unless it would have a different effect on the mind of the reader from that which the pleaded truth would have produced.

5. "A statement of opinion which does not contain a provably false assertion of fact is entitled to full constitutional protection." Syl. Pt. 4, Maynard v. Daily Gazette Co., 191 W.Va. 601, 447 S.E.2d 293 (1994).

Rebecca A. Baitty, Rebecca A. Baitty, P.A., Sarasota, FL, Sean P. McGinley, DiTrapano & Jackson, Charleston, for Relators.

John Preston Bailey, Alan G. McGonigal, Bailey, Riley, Buch & Harman, L.C., Wheeling, for Respondent Thomas J. Romano, M.D.

CLECKLEY, Justice:

In this original proceeding for a writ of prohibition, ¹ the relators, the Ohio County Education Association [hereinafter the

[198 W.Va. 343] OCEA] and Joseph Suriano, Jr., former president of the OCEA, request that we prohibit the respondent, the Honorable Martin J. Gaughan, Judge of the Circuit Court of Ohio County, from holding further proceedings in the underlying libel action filed by Thomas J. Romano, M.D. The alleged defamatory statements were contained in a newspaper advertisement and a newspaper article in which the OCEA and then-president Suriano criticized Dr. Romano's withdrawal from West Virginia state insurance programs and other changes in public employees' health benefits occasioned by the Omnibus Health Care Act of 1989. We issued a rule to show cause and now grant the writ of prohibition.

I. FACTUAL AND PROCEDURAL HISTORY

In 1989, the West Virginia Legislature enacted the Omnibus Health Care Act of 1989, codified in W. Va.Code, 16-29D-1 et seq. (1989). The relevant part of this Act required physicians and health care providers who provided services to patients having insurance through one of West Virginia's state insurance programs (Public Employees Insurance Agency [hereinafter PEIA], ² Workers' Compensation, Medicaid, and Division of Rehabilitation Services) to provide services to patients covered by any and all state insurance programs. ³ Prior to the passage of this legislation, physicians were not required to accept "all or none" of the state's insurance programs; rather, medical providers could choose to accept only one or some of these insurance recipients and decline to accept as patients other state insureds.

In the present case, the respondent herein and plaintiff below, Thomas Romano, M.D., ⁴ had provided services to state insureds covered by the PEIA and Workers' Compensation state insurance programs. Following the passage of this legislation, however, Dr. Romano determined that he would not provide services to any patient covered by any of West Virginia's four state insurance programs. Consistent with the procedures implemented by PEIA in the wake of this new legislation, Dr. Romano notified PEIA that he was withdrawing from the program and that he would no longer be a participating provider with regard to PEIA insureds. ⁵ Dr. Romano did, however, obtain authorization from PEIA to continue seeing patients, who were PEIA insureds, on a private basis. Under Due to the statewide withdrawal of health care providers from participation in state insurance programs occasioned by the Omnibus Health Care Act, PEIA sent a memorandum, dated December 7, 1989, to its insureds listing the withdrawing doctors. This memo also notified state employees of the effective date of these physicians' withdrawals and when their services would no longer be covered by PEIA. Among those physicians listed were Dr. Romano and approximately eleven other physicians practicing in or around Ohio County, West Virginia.

[198 W.Va. 344] this arrangement, these patients would be personally responsible to pay Dr. Romano's treatment fees, and neither Dr. Romano nor the patient would be permitted to submit these claims for reimbursement by PEIA.

The relators herein, and defendants below, the Ohio County Education Association [hereinafter OCEA] and Joseph Suriano, Jr., then-president of the OCEA, discussed the PEIA memo at the OCEA's regular monthly meeting in December, 1989. ⁶ Individual members of the OCEA, angered by their perceived exodus of Ohio County physicians from the state insurance programs, ⁷ determined that they would place an advertisement in two local Wheeling, West Virginia, newspapers, the Wheeling Intelligencer and the Wheeling News Register, to inform current and retired state employees about the physicians withdrawing from the state insurance programs. The advertisement read as follows:

This advertisement apparently was published three consecutive days, one of which was December 18, 1989.

On December 19, 1989, the Wheeling News Register published an article regarding an anticipated rally by the Ohio County teachers and other state employees, planned for that evening, to oppose the Omnibus Health Care Act. The rally was scheduled to coincide with the announcement of changes in PEIA premium rates by Sally Richardson, then-director of PEIA. The article discussed the OCEA advertisement and listed the physicians named therein, noting their particular fields of practice. Additionally, the article quoted Suriano as saying, " 'Certain public employees need to know who is not treating them now[.] We felt that the teachers needed to know that. Maybe this will shake those doctors up[.] They should honor their professional code. We would not turn away one of their children.' "

In response to the OCEA advertisement and Suriano's comments in the subsequent newspaper article, Dr. Romano wrote to Suriano requesting that he and the OCEA apologize, in writing, to Dr. Romano and retract their statements. Both Suriano and the OCEA refused to rescind their statements.

[198 W.Va. 345] On February 1, 1990, Dr. Romano, through counsel, again requested a written and public apology and a retraction, and again Suriano and the OCEA refused to apologize. Then, on approximately March 27, 1990, Dr. Romano filed a civil action against Suriano and the OCEA, in the Circuit Court of Ohio County, alleging that the newspaper advertisements and Suriano's published comments constituted defamation and libel. Suriano and the OCEA filed a motion to dismiss and a motion for summary judgment, but the circuit court denied both motions on March 10, 1995. Although the relators state that Dr. Romano repeatedly sought a trial date during the three-year pendency of their motions, it seems that Dr. Romano has not attempted to set a trial date or otherwise proceed with this case since its re-assignment to Circuit Judge Martin J. Gaughan following the retirement of Circuit Judge George Spillers in March, 1995. However the relators fear that Dr. Romano may, in fact, attempt to proceed with this matter. Therefore, the relators request this Court to prohibit Circuit Judge Gaughan and Dr. Romano from scheduling this case for trial or otherwise proceeding with this matter.

II. DISCUSSION

Before this Court, the relators Suriano and the OCEA contend that Dr. Romano is a limited purpose public figure and that he cannot prove they acted with "actual malice". The relators maintain further that the newspaper advertisement and quoted statements were not defamatory and did not constitute libel. By contrast, Dr. Romano responds that he is a private individual, not a public figure, and that the relators acted negligently in publishing these statements. Moreover, he submits the relators' advertisement and statements were defamatory and libelous. After a brief discussion of the standard for issuing a writ of prohibition, we will address the relators' issues.

A. Standard for Issuing Writ of Prohibition

Prior...