Opinion
No. 11–P–2092.
2012-10-23
Timothy J. O'BRIEN v. Mark L. CHRETIEN & another.
By the Court (CYPHER, BERRY & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a three-day trial, the jury found that the defendant defamed the plaintiff and intentionally interfered with his prospective employment. The defendant moved for a judgment notwithstanding the verdict (JNOV), or in the alternative, for a new trial. The judge denied the defendant's motion, reasoning that the jury's verdict could have been based on any one of three separate statements by the defendant. These included a statement indicating that a “no trespass” order had been issued against the plaintiff and that the plaintiff lost his “medical control” or “medical clearance.” The sole issue raised by the defendant on appeal is the denial of his motion for a JNOV. The governing standard directs us as to review the evidence in a manner that is most favorable to the plaintiff, drawing every reasonable inference that is possible in his favor. Phelan v. May Dept. Stores Co., 443 Mass. 52, 55, 819 N.E.2d 550 (2004). Viewed this way, the jury were warranted in finding that the plaintiff is a paramedic who started working for American Medical Response (AMR) in 1999. In November of 2007, following a patient complaint, Berkshire Medical Center, Inc., (BMC) asked AMR “not to have [the plaintiff] come to [BMC] as a paramedic .” There is no evidence, however, that a no trespass order ever issued against the plaintiff, or that the plaintiff's medical clearance was ever revoked. In late 2007, the plaintiff applied for a number of positions including one with the Westfield fire department. The defendant, an employee of BMC, was personally familiar with the plaintiff and spoke about him in reply to inquiries from potential employers. On January 25, 2008, the defendant met with William Phelon, the deputy chief of the Westfield fire department, who was doing a background check on the plaintiff. Ray Webb, the charge nurse at BMC's emergency room on the day of the meeting, was also present. The defendant answered Phelon's questions about the plaintiff.
We use the phrases “medical clearance” and “medical control” interchangeably, as do the parties. Because we conclude that the jury could properly find that the defendant made the defamatory statements about the no trespass order and the loss of the plaintiff's medical clearance, we need not discuss the defendant's other statements.
AMR investigated a complaint about the plaintiff's alleged oral outburst in the ambulance, found no inappropriate behavior, and did not discipline him.
As a result of the meeting, Phelon came to believe that BMC had issued a no trespass order against the plaintiff and that the plaintiff's medical control had been revoked. He gave the Westfield fire commission his notes of this meeting, which listed a no trespass order, and made clear to them at a subsequent meeting that the plaintiff was not permitted to be under the medical control of BMC. Although the plaintiff had a higher civil service score than the second candidate and there were no issues with his paramedic skills, the Westfield fire commission hired the second candidate for the open position. Unable to get a paramedic job in the Pittsfield area, the plaintiff took a position with AMR in Holyoke, where he continued to work at the time of the 2011 trial.
1. Defamation. “To prove defamation, the plaintiff must establish that the defendant was at fault for the publication of a false statement regarding the plaintiff, capable of damaging the plaintiff's reputation in the community, which either caused economic loss or is actionable without proof of economic loss.” Dragonas v. School Comm. of Melrose, 64 Mass.App.Ct. 429, 437, 833 N.E.2d 679 (2005) (quotation omitted).
Although Phelon could not remember whether the defendant's exact words were “no trespass order,” the jury were entitled to believe that Phelon's notes, to which he referred during his testimony, and which he made as a result of the meeting with the defendant, contained such language and accurately reflected what he had been told. As to the revocation of medical control, although at trial the defendant twice urged Phelon to agree that he was not sure whether he was told that the plaintiff's clearance had been revoked, Phelon declined to do so, stating, “I believe I was told that” and “I was told that.” Neither the use of the phrase “I believe” by Phelon nor his statements that he did not remember the exact words, required the jury to reject his testimony about the substance of the defendant's remarks. The defendant argues that Phelon's acknowledgement during cross-examination that he did not remember which of “these items” were said by the defendant and which were said by Webb, amounted to an affirmative repudiation of his prior testimony identifying the defendant as the one who made the defamatory statements, and that as a result, the jury had no right to believe the prior testimony. The general rule is that it is for the jury to determine which of the conflicting statements of a witness to believe. Sullivan v. Boston Elev. Ry. Co., 224 Mass. 405, 406, 112 N.E. 1025 (1916). Merely extracting a witness's agreement with an assertion made by the cross-examining counsel is not sufficient to show affirmative repudiation. The cases relied on by the defendant—Krasnow v. Fenway Realty Co., 352 Mass. 781, 227 N.E.2d 501 (1967), and Osborne v. Boston Consol. Gas Co., 296 Mass. 441, 444, 6 N.E.2d 347 (1937)—are readily distinguishable because in both cases, a witness definitely adhered to one version of the events in preference to the other. Here, by contrast, on redirect, Phelon reaffirmed his belief that it was the defendant who said that the plaintiff was not permitted to bring patients to BMC. Moreover, where “these items” were not identified, the jury did not have to conclude that Phelon was not sure of the source of information he received at the meeting .
Phelon's preceding testimony was that the statement about a patient's complaint was made by “one or the other.” Phelon did not say that about the other statements.
The defendant's additional claim rests on the assumption that his allegedly defamatory statement (that there was a no trespass order) was “substantially true,” because the plaintiff was effectively barred from going to BMC. From this the defendant reasons that the plaintiff suffered no harm because he would not have been hired by Westfield in any case. Putting aside the speculative nature of this argument, it was not included in the defendant's motion for a directed verdict, and is not properly before us. See Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 115, 731 N.E.2d 1075 (2000). See also Mass.R.Civ.P. 50(a), 365 Mass. 814 (1974) (a motion for a directed verdict must contain the specific grounds on which it is based).
2. Intentional interference with prospective business relations . To succeed on this claim, the plaintiff had to show “that (1) he had an advantageous relationship with a third party (e.g., a present or prospective contract or employment relationship); (2) the defendant knowingly induced a breaking of the relationship; (3) the defendant's interference with the relationship, in addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed by the defendant's actions.” Blackstone v. Cashman, 448 Mass. 255, 260, 860 N.E.2d 7 (2007). Defamation constitutes improper means. See Cavicchi v. Koski, 67 Mass.App.Ct. 654, 658, 855 N.E.2d 1137 (2006). The defendant's argument that there was no evidence of a nexus between his statements about the plaintiff and the Westfield fire department's decision not to hire the plaintiff is based on the unwarranted assumption that the defendant did not make a defamatory statement to Phelon. Moreover, it is not supported by any citations to relevant legal authorities. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Commonwealth v. Hrycenko, 417 Mass. 309, 319, 630 N.E.2d 258 (1994). Based on the evidence presented at trial and discussed above, there was ample basis for the jury's decision to find the defendant liable on this count.
Judgment affirmed.
Order denying motion for judgment notwithstanding the verdict or for new trial affirmed.