finding nothing grossly irresponsible in statement made about plaintiff ophthalmologist accused of unnecessary eye surgeries because, “[t]o the contrary, [the plaintiff's] actions could more accurately be described as a carefully circumscribed effort to bring the general problem of unnecessary eye surgery to the public's attention”Summary of this case from Ratajack v. Brewster Fire Dep't
July 14, 1992
Appeal from the Supreme Court, Erie County, James B. Kane, Jr., J.
Connors Vilardo (Lawrence Vilardo and Kevin A. Ricotta of counsel), for Kenneth V. Klementowski, appellant.
Borins, Halpern Stromberg (Harold Halpern of counsel), for Buffalo Ophthalmologic Society, Inc., appellant. Offerman, Mahoney, Cassano, Pigott, Greco Whalen (Francis Offermann, Jr., of counsel), for respondents.
Plaintiff, John H. Park, M.D., a licensed ophthalmologist, describes himself as a "pioneer" or "champion" of new techniques in eye surgery. In the early 1980's, Dr. Park appeared on local radio and television stations in Buffalo to discuss cataract surgery and corneal transplants. Dr. Park also invited all three network affiliate television stations in Buffalo to do a story on outpatient cataract surgery performed at his office. Apparently Channel 7 agreed with Dr. Park's assessment of his work as "newsworthy" and broadcast a story on him on August 10, 1982.
After the feature on Dr. Park aired, defendant Kenneth Klementowski, M.D., wrote a letter to Channel 7 reporter Cindy DiBiasi, expressing his displeasure with the story. Dr. Klementowski alerted DiBiasi to a State Health Department investigation of allegations that Dr. Park performed unnecessary eye surgery and engaged in other unethical or illegal conduct. Upon learning of the State Health Department investigation, DiBiasi decided to do another story on Dr. Park. The result was a four-part series, entitled "The Park Probe", broadcast on Channel 7's 6 o'clock news on November 9 through 12, 1982.
At issue before us are statements made by defendants Buffalo Ophthalmologic Society, Inc. (Society) and Dr. Klementowski during the first segment of "The Park Probe." At the time of the broadcast, Dr. Klementowski was the Society's president. "The Park Probe" began with Channel 7 reporter DiBiasi discussing the State Health Department investigation. Dr. Klementowski then states, "Members of the Buffalo Ophthalmologic Society have been called to testify and give statements about * * * this problem. We just want to try to bring it to a head. I guess we all have what you might want to call a rotten apple." A resolution adopted by the Society appeared on the screen, and the segment highlighted by Channel 7 stated: "`[We share] the concern being expressed in the community about possible unnecessary or inappropriate eye surgery.' This is a serious charge".
Plaintiffs, Dr. Park and his professional corporation, commenced an action for libel against the Society and Dr. Klementowski based upon the quoted statements. Following discovery, both defendants moved for summary judgment dismissing the complaint against them. We conclude that Supreme Court erred in denying defendants' motions.
In Immuno AG. v Moor-Jankowski ( 77 N.Y.2d 235, 256, cert denied ___ US ___, 111 S Ct 2261), the Court of Appeals reaffirmed "the particular value of summary judgment, where appropriate, in libel cases" because of the potential chilling effect of protracted litigation on free expression (see also, Karaduman v Newsday, Inc., 51 N.Y.2d 531, 545, rearg denied 52 N.Y.2d 899; Rinaldi v Holt, Rinehart Winston, 42 N.Y.2d 369, 384, rearg denied 42 N.Y.2d 1015, cert denied 434 U.S. 969). We conclude that there are several grounds which make summary disposition appropriate in this action.
In a libel action it is for the court to determine, in the first instance, whether the statements at issue are reasonably susceptible of a defamatory connotation (Silsdorf v Levine, 59 N.Y.2d 8, 12, cert denied 464 U.S. 831; James v Gannett Co., 40 N.Y.2d 415, 419, rearg denied 40 N.Y.2d 990; Tellier-Wolfe v Viacom Broadcasting, 134 A.D.2d 860; Bee Publs. v Cheektowaga Times, 107 A.D.2d 382, 386). The statements must be considered in the context of the entire publication and tested in terms of their effect upon the average listener or reader (see, James v Gannett Co., supra, at 419-420; Tellier-Wolfe v Viacom Broadcasting, supra).
In our view, the Society's resolution, which expresses concern about the problem of unnecessary eye surgery, is not reasonably susceptible of the defamatory meaning ascribed to it by plaintiffs. Even assuming that the trier of fact would find the Society's statement to be made of and concerning the plaintiff, it does not contain the hidden factual premise that plaintiff was actually performing unnecessary or inappropriate eye surgery. Rather, the average viewer would interpret the highlighted portion of the resolution as an innocuous expression of concern by a professional organization about the general problem of "`possible unnecessary or inappropriate eye surgery.'" Consequently, the Society's statement is not defamatory and it is entitled to summary judgment dismissing the complaint.
A different analysis applies to Dr. Klementowski's remark, "I guess we all have what you might want to call a rotten apple." Taken in context, the statement is susceptible of the defamatory meaning that Dr. Park is unfit or unethical in his profession. Our inquiry, however, does not end with the conclusion that the statement may be defamatory, for we must also determine if the statement is merely a nonactionable expression of opinion (see, Steinhilber v Alphonse, 68 N.Y.2d 283, 286; Silsdorf v Levine, 59 N.Y.2d 8, 13, supra).
Whether the "rotten apple" remark is an expression of fact or opinion is a question of law for the court (see, Silsdorf v Levine, supra, at 13; Rinaldi v Holt, Rinehart Winston, 42 N.Y.2d 369, 381, supra; Parks v Steinbrenner, 131 A.D.2d 60, 62). While we recognize that the distinction between fact and opinion is often difficult to draw, we conclude that Dr. Klementowski's comment falls squarely on the opinion side of the line. His reference to a "rotten apple" is vague, ambiguous, indefinite and incapable of being objectively characterized as true or false (see, Amodei v New York State Chiropractic Assn., 160 A.D.2d 279, 280, affd 77 N.Y.2d 890 [chiropractor accused of "`unprofessional conduct'"]; Hollander v Cayton, 145 A.D.2d 605, 606 [statements that plaintiff physician was "`immoral'", "`unethical'" and had "`mismanaged cases'"]; see also, Steinhilber v Alphonse, 68 N.Y.2d 283, 287, supra [plaintiff a "`scab'"]; O'Loughlin v Patrolmen's Benevolent Assn., 178 A.D.2d 117, 118 [police officer a "`disgrace to the entire police service'"]; DRT Constr. Co. v Lenkei, 176 A.D.2d 1229, lv denied 79 N.Y.2d 753 [developers called "`profit hungry land abusers'"]; Lukashok v Concerned Residents, 160 A.D.2d 685, 686 [developer accused of "`terrorism'", "`malicious'" use of legal system]; Schwartz v Nordstrom, Inc., 160 A.D.2d 240, 241, lv denied 76 N.Y.2d 711 [shareholder accused of being a "Nazi"]; Parks v Steinbrenner, 131 A.D.2d 60, 61, supra [umpire called "`scab'", incompetent]; DePuy v St. John Fisher Coll., 129 A.D.2d 972, lv denied 70 N.Y.2d 602 [teacher called "`clown'"]; Chalpin v Amordian Press, 128 A.D.2d 81, 83 [record producer called "`an unbelievably unscrupulous character'"]).
This is not a case where an otherwise protected expression of opinion may be held to be actionable because the underlying facts are either unstated, falsely represented or distorted (see, Chalpin v Amordian Press, supra, at 87). The bases for the "rotten apple" remark, as set forth in the broadcast, are the uncontested facts that plaintiff was the subject of a State Health Department investigation and that local ophthalmologists expected to present evidence against him. As in Amodei v New York State Chiropractic Assn. ( 160 A.D.2d 279, 281, supra), Dr. Klementowski's statement is a "constitutionally protected expression of opinion, describing the nature of the complaints lodged against plaintiff [Dr. Park] and may not be the basis for recovery of monetary damages". Klementowski's personal expression of disapproval is not actionable (see, Behr v Weber, 172 A.D.2d 441, 443, lv denied 78 N.Y.2d 861).
We conclude that defendants are also entitled to summary judgment on the ground that Dr. Park, a public figure for the purposes of the broadcast, failed to meet his burden of presenting evidence sufficient to raise a triable issue of fact with respect to the maliciousness of defendants' statements.
"The essential element underlying the category of public figures is that the publicized person has taken an affirmative step to attract public attention" (James v Gannett Co., 40 N.Y.2d 415, 422, supra). Although a physician would not ordinarily be considered a public figure, Dr. Park stepped outside the private realm of his practice by actively seeking media attention (see, Greenberg v CBS Inc., 69 A.D.2d 693, 703-705; Cera v Gannett Co., 47 A.D.2d 797). He was not involuntarily thrust into an unwanted limelight, but rather, invited favorable publicity for his practice (see, Howard v Buffalo Evening News, 89 A.D.2d 793). Thus, under the standard established in James v Gannett Co. (supra), Dr. Park is a public figure for purposes of the "Park Probe".
As a public figure, plaintiff had the burden of presenting evidence sufficient to create a triable issue of fact with respect to whether defendants acted with actual malice (see, Mahoney v Adirondack Publ. Co., 71 N.Y.2d 31, 39; Hollander v Cayton, 145 A.D.2d 605, supra; Park v Lewis, 139 A.D.2d 961; Bee Publs. v Cheektowaga Times, 107 A.D.2d 382, 387, supra; Cera v Gannett Co., 47 A.D.2d 797, supra). Plaintiff's conjectures regarding Dr. Klementowski's "spite" over the invasion of his "turf" and a letter suggesting a dispute between the parties four years prior to the broadcast at issue are insufficient to show that, in this case, defendants acted with actual malice (see, Shapiro v Health Ins. Plan, 7 N.Y.2d 56, 64; Klein v Prial, 32 A.D.2d 925, affd 28 N.Y.2d 506).
Further, even if Dr. Park were considered to a be a private person, plaintiffs would not be relieved of their burden of presenting evidence to establish fault. The private defendants are entitled to be held to the same standard as the media defendant when the publication involves a matter of public concern (see, Pollnow v Poughkeepsie Newspapers, 107 A.D.2d 10, 16, affd 67 N.Y.2d 778). We believe that the problem of unnecessary eye surgery is a matter of public concern (see, O'Brien v Troy Publ. Co., 121 A.D.2d 794, 795; Greenberg v CBS Inc., 69 A.D.2d 693, 706, supra), and defendants are thus answerable in libel only if their conduct is found to be "`grossly irresponsible'" (Karaduman v Newsday, Inc., 51 N.Y.2d 531, 539, rearg denied 52 N.Y.2d 899, supra; Chapadeau v Utica Observer-Dispatch, 38 N.Y.2d 196, 199; Chalpin v Amordian Press, 128 A.D.2d 81, 88, supra; O'Brien v Troy Publ. Co., 121 A.D.2d 794, supra). Nothing in the record suggests that defendants' conduct could be characterized as "grossly irresponsible". To the contrary, their actions could more accurately be described as a carefully circumscribed effort to bring the general problem of unnecessary eye surgery to the public's attention.
Accordingly, we conclude that both defendants are entitled to summary judgment dismissing the complaint against them.
CALLAHAN, J.P., LAWTON, BOEHM and DAVIS, JJ., concur.
Order unanimously reversed, on the law, without costs, motions granted and complaint against defendants Klementowski and Buffalo Ophthalmologic Society dismissed.