Opinion
SUCV201301914B
12-07-2017
Lynne BLANCHARD et al.[1] v. STEWARD CARNEY HOSPITAL, INC. et al.[2]
MEMORANDUM AND ORDER ON DEFENDANTS’ SPECIAL MOTION TO DISMISS PURSUANT TO G.L.C. 231, § 59H UPON REMAND FROM THE SUPREME JUDICIAL COURT
Joseph F. Leighton, Jr., Associate Justice
This case is before the court on remand from the Supreme Judicial Court for a determination of whether the plaintiffs’ defamation claim against the defendants is a legitimate law suit filed to recover damages for harm suffered as a result of allegedly tortious conduct or a so-called SLAPP suit designed to chill the defendants’ legitimate petitioning activity. The SJC recently reviewed a decision of this Court (Giles, J.) denying defendants’ Special Motion to Dismiss the claims at issue pursuant to G.L.c, 211, § 59H, the Massachusetts anti-SLAPP Statute (the " Statute"). See Blanchard v. Steward Carney Hosp., 477 Mass. 141 (2017). In a holding relevant to the instant motion. the SJC established a new framework for the resolution of Special Motions to Dismiss under the Statute and remanded part of the motion for consideration under that framework. Applying the new standard to the totality of the circumstances in the record before the court, I find that the plaintiffs have met their burden to establish that their defamation claim is not a SLAPP suit because it was filed primarily to seek redress for the harm alleged, not to interfere with the defendants’ right to petition. For this reason, as explained below, the defendants" motion is DENIED.
BACKGROUND
The following facts are drawn from the Record Appendix originally filed in the Appeals Court and cited by both parties in their memoranda pertaining to the instant motion on remand.
The plaintiffs are registered nurses who formerly worked in the Adolescent Mental Health Unit (the " Unit") at Steward Carney Hospital (" Steward Carney" or the " Hospital"). In April of 2011, incidents of suspected patient abuse on the Unit were reported to the Department of Mental Health (" DMH"), Department of Public Health (" DPH"), and the Department of Children and Families (" DCF"). The DMF and DCF investigated the reports and the DMH stopped admissions to the Unit and ordered some patients to be removed in order to decrease the census. DMH also indicated that it was considering revoking the Hospital’s license to operate the Unit.
The Hospital retained former Massachusetts Attorney General, Scott Harshbarger (" Harshbarger"), to investigate the incidents and make recommendations as to how Steward Carney should handle the situation. As part of his investigation, Harshbarger interviewed Hospital staff who had contact with the Unit, including the plaintiffs. In May of 2011, in written Preliminary Findings, and orally, he recommended that the Hospital " blow up" the Unit and " start anew." Based on that recommendation, the Hospital fired all mental health counselors and nurses assigned to the Unit, including the plaintiffs, effective May 26, 2011.
Following the terminations, William Walczak (" Walczak"), the hospital CEO, sent an email to all hospital staff to inform them about the actions taken. He also responded to media inquiries about the terminations.
The plaintiffs are members of the Massachusetts Nurses Association (the " MNA"), who grieved their terminations under the applicable collective bargaining agreement. The grievances ended up in arbitration. Two separate sessions were scheduled with five of the plaintiffs participating in the first session and four scheduled to participate in the second. In March 2013, after the first session hearings were complete, but before any decision was entered, the parties engaged in settlement negotiations but did not settle. On April 20, 2013, the arbitrator found in favor of the MNA and directed the Hospital to reinstate the nurses to their prior jobs on the Unit with back pay and benefits.
On May 25, 2013, the plaintiffs filed the instant suit alleging, among other claims, defamation based upon Walczak’s in-house email to the staff of the Hospital described above and his remarks, which were included in two Boston Globe articles.
On October 8, 2013, all nine plaintiffs, the MNA and the Hospital settled the grievances. Under the settlement the plaintiffs received back-pay and benefits from the date of their termination through August 15, 2013. They also received money in lieu of reinstatement. As a result of the settlement, the second arbitration never occurred.
After being served with the complaint in the instant matter, the Hospital brought an anti-SLAPP Special Motion to Dismiss the defamation claims, arguing that the email and the published remarks were both petitioning activity related to the re-licensure of the Unit by the state. The motion was denied by this court (Giles, J.) on March 5, 2014 and the Hospital appealed.
The Appeals Court reversed this court’s decision in part. See Blanchard v. Steward Carney Hosp., Inc., 89 Mass.App.Ct. 97, 98 (2016). Thereafter, the Supreme Judicial Court granted the parties’ applications for further appellate review and held that Walczak’s statements to the Boston Globe were petitioning activity covered by the Statute, but that the internal Hospital email was not an exercise of the Hospital’s right to petition and, thus, was not subject to anti-SLAPP protection. The Court then announced a new augmented framework for the analysis of Special Motions to Dismiss, under which the non-moving party may prevail if it can establish that its claim was not brought primarily to chill the moving party’s legitimate petitioning activity. The Court remanded the case for consideration of the Hospital’s motion and plaintiffs’ opposition under the augmented framework.
ANALYSIS
The anti-SLAPP statute, G.L.c. 231, § 59H, " was enacted by the Legislature to provide a quick remedy for those citizens targeted by frivolous lawsuits based on their government petitioning activities." Kobrin v. Gastfriend, 443 Mass. 327, 331 (2005). In Kobrin, the Supreme Judicial Court noted that the anti-SLAPP statute " had its genesis as a legislative attempt to protect private citizens when exercising their constitutional right to speak out against development projects or other matters of concern to them and their communities and to seek government relief." Kobrin, 443 Mass. at 337. The SJC has also noted that " SLAPP suits [are] generally meritless suits brought by large private interests to deter common citizens from exercising their political or legal rights or to punish them from doing so." Duracraft v. Holmes Prods. Corp., 427 Mass. 156, 161 (1998). The Court has also recognized that the language of the statute supports its application to cases beyond the basic example described in Duracraft . See Baker v. Parsons, 434 Mass. 543, 549 (2001) (stating that the legislative history indicates that the anti-SLAPP statute was intended to go beyond the " typical" case).
By its decision in the instant case, however, the SJC has limited the application of the statute to cases primarily motivated by an intent to interfere with petitioning activity. The augmented framework announced in Blanchard adds an additional test to apply when evaluating an anti-SLAPP motion, so as " to distinguish between meritless claims targeting legitimate petitioning activity and meritorious claims with no such goal." Blanchard, 447 Mass. at 157.
The now augmented framework for analyzing an anti-SLAPP statute is as follows. First, the moving party must make a threshold showing through the pleadings and affidavits that the claims against it are " based on" the petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities. Duracraft, 427 Mass. at 167-68. If such a showing is made by the moving party, the burden shifts to the non-moving party to show " (1) the moving party’s exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law, and (2) the moving party’s acts caused actual injury to the responding party." G.L.c. 231, § 59H. The SJC’s decision in this case adds an additional element to the analytical framework. The non-moving party may now defeat an anti-SLAPP motion to dismiss by establishing " that its suit was not ‘brought primarily to chill’ the special movant’s legitimate exercise of its right to petition." Blanchard, 477 Mass. at 159, quoting Duracraft, 427 Mass. at 161. The nonmoving party must persuade the court that its " primary motivating goal in bringing its claim, viewed in its entirety, was ‘not to interfere with and burden [the moving party’s] ... petition rights, but to seek damages for the personal harm to [it] from [the moving party’s] alleged ... [legally transgressive] acts." Blanchard, 447 Mass. at 160 (internal quotation and citation omitted).
In this case, the plaintiffs specifically acknowledge that they do not base their opposition to the Special Motion on remand upon either of the two prongs to the original Duracraft framework. See " Plaintiffs’ Opposition, Pursuant to SJC Remand to Steward’s Special Motion to Dismiss, and showing that Plaintiffs’ Claim is not a SLAPP Suit, " at 6 n.2.
Thus, the court will address only the new element of the anti-SLAPP analysis. The Plaintiffs may defeat the Special Motion to Dismiss if they can demonstrate that their defamation action in response to Walczak’s comments published in the Boston Globe was not primarily brought to chill the Hospital’s legitimate petitioning activity." Blanchard, 477 Mass. at 160. To apply this standard,
[T]he motion judge, in the exercise of sound discretion, is to assess the totality of the circumstances pertinent to the nonmoving party’s asserted primary purpose in bringing its claim. The course and manner of proceedings, the pleadings filed, and affidavits " stating the facts upon which the liability or defense is based, " ... may all be considered in evaluating whether the claim is a " SLAPP" suit. A necessary but not sufficient factor in this analysis will be whether the nonmoving party’s claim at issue is " colorable or ... worthy of being presented to and considered by the court" ... i.e., whether it " offers some reasonable possibility" of a decision in the party’s favor.Id. at 160-61 (citations omitted).
Starting with the " necessary but not sufficient factor, " I find that the plaintiffs’ defamation claim is colorable. The facts demonstrate that the allegedly false published comments were of and concerning the plaintiffs and were of a type that reasonably exposed them to public hatred, ridicule, or contempt. See Draghetti v. Chmielewski, 416 Mass. 808, 811 (1994). The comments published in the newspaper implicated the plaintiffs in patient abuse and described their work as unacceptable ad as contributing to an unsafe medical environment.
In addition, I find that plaintiffs’ primary purpose in asserting the claim for defamation is to recover for the harm allegedly caused by the Hospital. Without doubt, this determination is the most challenging task for the court on remand because insight into any party’s primary purpose is difficult to come by, especially at the motion to dismiss stage of the proceedings. I have considered the entire record and taken note of the parties’ arguments as to whether, and to what extent, the plaintiffs cooperated with Harshbarger’s investigation. I have taken note that the plaintiffs exercised restraint in public comment during the investigation, and I have considered the fact that the claim was filed in reaction to statements that do not constitute petitioning (the emails) as well as the statements published in the Globe, which were a form of petitioning. I have taken into account both sides of the dispute about economic damages as a plausible motivating factor, especially in light of the settlement agreement related to the grievance. I have also considered the plaintiffs’ well-established right to sue for reputational damage and emotional distress related to the allegedly false published comments. Based on all of the above, I find that the plaintiff’s’ petition for damages as a result of alleged defamation is legitimate and should be allowed to proceed. I find that this claim is not a so-called SLAPP suit because I find that the plaintiffs’ primary motivation in bringing it was to seek relief from allegedly tortious harm, not to interfere with the defendants’ petition rights.
CONCLUSION
Plaintiffs’ Special Motion to Dismiss Pursuant to the Anti-SLAPP Statute is DENIED on remand from the Supreme Judicial Court.