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Media Alerts - Steven R. Graboff v. Colleran Firm - Third Circuit
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February 22, 2014
  Steven R. Graboff v. Colleran Firm - Third Circuit
Headline: Third Circuit holds that publication of factually correct statements that convey a false impression can be actionable as defamation or as false light invasion of privacy

Area of Law: Defamation

Issues Presented: Whether a jury verdict that defendant's published statements were not false, but did cast the plaintiff in a false light, supported a finding of defamation, false light invasion of privacy, or both?

Brief Summary: The Third Circuit addressed a defamation and false light invasion of privacy case between an orthopaedic surgeon, Dr. Graboff, and his professional organization, the AAOS (the American Academy of Orthopaedic Surgeons and the American Association of Orthopaedic Surgeons). Following a grievance proceeding filed by another organization member, the AAOS found that Dr. Graboff violated its professional standards and suspended his membership for two years. Pursuant to its bylaws, the AAOS then published an article detailing the grievance proceeding, but excluded both Dr. Graboff's exculpatory statements and the full context surrounding the grievance. Dr. Graboff sued the AAOS, alleging defamation and false light invasion of privacy. A jury found that the AAOS did not publish any false statements, but did cast Dr. Graboff in a false light. The District Court read these responses as verdicts for the AAOS on the defamation claim but against them on the false light claim. The AAOS appealed. The Third Circuit found, applying Pennsylvania law, that publication of a factually correct statement that conveys a false impression can be actionable as both defamation (if the statements had a grievous effect on one's reputation)or actionable as false light invasion of privacy (if the statements would be highly offensive to a reasonable person). Accordingly, the Third Circuit found that District Court erred in applying the jury's responses. However, that error was harmless because the jury assessed damages for defamation and false light invasion of privacy together. Therefore, the Third Circuit affirmed the District Court's order denying the AAOS's judgment as a matter of law and judgment notwithstanding the verdict.

Extended Summary: This case is an extension of an AAOS (the American Academy of Orthopaedic Surgeons and the American Association of Orthopaedic Surgeons) grievance proceeding. The AAOC is a voluntary professional organization for orthopaedic surgeons, which includes professional standards that allow for member grievance procedures. An AAOS member, Dr. Menachem Meller, initiated such a proceeding against another member, Dr. Steven R. Graboff. Dr. Meller claimed that Dr. Graboff wrote an inaccurate expert medical report based on incomplete information that was used against Dr. Meller in a medical malpractice suit. Dr. Graboff's report clearly stated it was a draft only and that Dr. Meller departed from reasonable and acceptable standards of medical care. The law firm representing plaintiff in the medical malpractice case, unbeknownst to Dr. Graboff, whited out the draft report designation and used the report to obtain a settlement from Dr. Meller. Dr. Meller subsequently filed an AAOS grievance against Dr. Graboff, alleging that he had provided false testimony in violation of AAOS professional standards. The AAOS Board heard two hearings, wherein Dr. Meller showed Dr. Graboff x-rays from the plaintiff in that case that he had not seen when he prepared his expert report. Dr. Graboff admitted that his report was flawed as a result, and Dr. Meller had satisfied the appropriate standards of care. He also told the Board that his report was only preliminary and he did not expect it to be used in litigation. The AAOS determined that Dr. Graboff had violated its professional standards and suspended him from membership for two years. Pursuant to its bylaws, the AAOS published a summary of the proceedings against Dr. Graboff in AAOS Now, a publication available to members and the public. The article described the malpractice case and the AAOS proceedings but did not mention Dr. Graboff's exculpatory testimony that he considered the draft preliminary, that it had been altered, and that it was improperly used to settle the case. The article was available online and appeared in online searches of Dr. Graboff's name.
Dr. Graboff subsequently filed suit against AAOS alleging that the article was both defamatory and a false light invasion of privacy. Dr. Graboff testified at trial about the article and its exclusion of certain facts, as well as the negative professional impact the article had on his career. A jury concluded that the AAOS had not made false statements in the article, but had made statements that portrayed Dr. Graboff in a false light. The District Court treated these findings as returning a verdict in favor of Dr. Graboff on the false light invasion of privacy claim and in favor of the AAOS on the defamation claim. The AAOS moved for judgment as a matter of law notwithstanding the verdict, which the District Court denied.
On appeal, the Third Circuit addressed the question of whether the jury's findings that the article did not contain false statements precluded the District Court from treating the jury's answers to the jury instructions to support the entry of judgment in favor of Dr. Graboff on his false light invasion of privacy claim. The AAOS argued that the jury's finding that the article contained no false statements about Graboff was incompatible with its finding that the same article portrayed Graboff in a false light. In effect, the AAOS argued that since the jury found it did not make false statements about Graboff, it could not have made statements portraying him a false light. The Third Circuit dismissed this argument, and further, found that the District Court erred in its treatment of the jury's answers because the answers supported findings that the AAOS was liable for both defamation and false light invasion of privacy.
The Court applied Pennsylvania law to define defamation and false light invasion of privacy. The Third Circuit noted that it was not aware of any Pennsylvania Supreme Court case on the point, but inferior courts have concluded that defamation may be established where a statement, viewed in context, creates a false implication. The Court further commented that it had no knowledge of the Pennsylvania Supreme Court addressing the contours of falsity in the false light invasion of privacy context. However, the Superior Court has defined falsity broadly in that context, and a plaintiff can establish falsity by showing that a defendant selectively printed true statements in a manner which created a false impression. The Third Circuit noted that the Superior Court drew this broad definition of falsity from defamation law, and therefore, falsity regarding a defendant's statements carried the same meaning in defamation and false light invasion of privacy contexts. Thus, publication of factually correct statements that convey a false impression could be actionable as defamation if the statements had a grievous effect on one's reputation, or actionable as false light invasion of privacy if the statements would be highly offensive to a reasonable person.
The Third Circuit next addressed the AAOS incompatible jury verdict argument. The Court stated that it should read the verdict to reconcile the inconsistencies, which the District Court failed to do. The jury's responses supported a finding of liability for both defamation and false light invasion of privacy, since it was not necessary for the jury to find a statement was untrue for there to be recovery on a defamation claim. When viewed this way, the verdict was not inconsistent. The District Court erred in treating the answers as finding for the AAOS on defamation claim. However, the Third Circuit held the error was harmless because the jury assessed damages for both claims as a single unit. Therefore, the Third Circuit affirmed the District Court's order, denying AAOS's motion for judgment as a matter of law and for judgment notwithstanding the verdict.
To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/132229p.pdf

Panel (if known): Jordan, Vanaskie, Greenberg, Circuit Judges

Argument Date: December 20, 2013

Date of Issued Opinion: February 20, 2014

Docket Number: No. 13-2229

Decided: Affirmed

Case Alert Author: Shannon Zabel

Counsel: Clifford E. Haines, Esq., Lauren A. Warner, Esq. for Appellee; Daniel E. Rhynhart, Esq., Christopher M. Guth, Esq. for Appellants.

Author of Opinion: Judge Greenberg

Circuit: Third Circuit

Case Alert Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 02/22/2014 10:12 AM     3rd Circuit  

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