Franchini v. Bangor Publishing Co., Inc. ( 2024 )

United States Court of Appeals
For the First Circuit
No. 23-1633
THOMAS C. FRANCHINI,
Plaintiff, Appellant,
v.
BANGOR PUBLISHING CO., INC., d/b/a/ Bangor Daily News;
MEG HASKELL; EDWARD MURPHY; GANNETT COMPANY, INC., d/b/a
USA Today; DONOVAN SLACK; INVESTOR'S BUSINESS DAILY, INC.,
d/b/a Investor's Business Daily; MTM ACQUISITION, INC., d/b/a
Portland Press Herald and SALLY PIPES,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lynch, Circuit Judge,
and Saris, District Judge.
 Judge Torruella heard oral argument in Franchini v.
Investor's Bus. Daily, Inc., No. 19-1389, 2024 WL 229053 (1st Cir.
Jan. 17, 2024), an interlocutory appeal in this case, and
participated in the initial semble thereafter. His death on
October 26, 2020, ended his involvement in this case. The
remaining two panelists issued this opinion pursuant to 28 U.S.C.
§ 46(d).
 Of the District of Massachusetts, sitting by
designation.
Raymond W. Belair, with whom Belair & Associates, P.C., was
on brief, for appellant.
Clifford H. Ruprecht, with whom Roach Ruprecht Sanchez &
Bischoff was on brief, for appellees Gannett Company, Inc., and
Donovan Slack.
Russell B. Pierce, Jr., with whom Norman, Hanson & DeTroy,
LLC was on brief, for appellee Investor's Business Daily.
Christopher T. Uphouse, with whom Eaton Peabody was on brief,
for appellees Bangor Publishing Co., Inc., and Meg Haskell.
Cynthia L. Counts, with whom Rachel Wertheimer, Verrill Dana
LLP and FisherBroyles LLP were on brief, for appellees MTM
Acquisition, Inc., Edward Murphy, and Sally Pipes.
July 17, 2024
LYNCH, Circuit Judge. Dr. Thomas C. Franchini, the
former Chief of Podiatry at the Department of Veterans' Affairs
Maine Healthcare System at Togus ("VA Togus"), appeals from the
district court's grant of joint motions for summary judgment to
defendant publishers Bangor Publishing Co., Inc., d/b/a Bangor
Daily News; Gannett Company, Inc., d/b/a USA Today; Investor's
Business Daily, Inc., d/b/a Investor's Business Daily ("IBD"); and
MTM Acquisition, Inc., d/b/a Portland Press Herald; and reporters
Meg Haskell, Edward Murphy, Donovan Slack, and Sally Pipes.
Franchini brought suit against the defendants alleging
that articles the defendants had written and published, which
described malpractice allegations as to his medical treatment of
veterans at VA Togus, were libelous and/or defamatory. Franchini
v. Bangor Publ'g Co., 560 F. Supp. 3d 312, 316 (D. Me. 2021).1
He argues on appeal that the district court (1) should
have denied the defendants' motion for summary judgment because
there were at least genuine issues of material fact as to whether
he was a voluntary or involuntary public figure and (2) should not
have dismissed his Second Amended Complaint ("SAC") for failure to
plead actual malice. We hold on the undisputed facts that the
1 In addition to his allegations of libel and/or
defamation against all defendants, he also alleged that all
defendants had caused negligent infliction of emotional distress
and that Gannett and Slack had engaged in fraudulent or negligent
misrepresentation. Id. Franchini has not appealed the dismissal
of those claims.
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district court correctly found that Franchini was a voluntary
public figure and that he failed to plead actual malice in his
SAC. We affirm the judgment of the district court.
I.
We describe the undisputed facts of record. The U.S.
Department of Veterans' Affairs ("VA") is responsible for
"administer[ing] the laws providing benefits and other services to
veterans and the dependents and the beneficiaries of veterans."
38 U.S.C. § 301(b). Both before and during Franchini's employment
at VA Togus, the VA's struggle to provide quality medical care
nationally to all veterans who seek it had been the subject of
vigorous public debate. That has been true since at least the
1990s.2 Within Maine specifically, media coverage since the late
2 The district court referred in its opinion to a
systematic literature review of more than 200 articles "comparing
the quality of medical and surgical care provided by the VA to
relevant non-VA healthcare facilities and systems," which noted
that "[t]he quality of care provided by the VA has been subject to
debate since, and well before, the VA's system transformation
starting in the mid-90s. Media and entertainment vehicles have,
rightly or wrongly, not infrequently portrayed VA care in less
than optimal light, although there have been notable exceptions."
Paul G. Shekelle et al., Comparison of Quality of Care in VA and
non-VA settings: A Systematic Review, at iv (Sept. 2010),
https://pubmed.ncbi.nlm.nih.gov/21155199/ [https://perma.cc/6ZGN-
QBAV]. The court also noted in its opinion the following articles:
Associated Press, Rating Group Finds Veterans' Hospitals Lagging
in Quality, N.Y. Times, June 4, 1990, at A21 (reporting that
"veterans' hospitals were at least 20 percent more likely than
others to fall below quality standards in emergency services,
special care, surgery and anesthesia, surgical case review,
alcohol and drug treatment planning and fire safety"); Robert Pear,
Report Outlines Medical Errors in V.A. Hospitals, N.Y. Times, Dec.
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1990s and early 2000s has highlighted the quality of care available
at VA Togus, Maine's only VA hospital.3 Congress, too, became
concerned about the quality of care at VA Togus. In the mid-
2000s, federal lawmakers publicly discussed the VA's challenges in
providing healthcare to veterans in Maine. On March 10, 2004, Tom
Allen, a then-Representative to the U.S. House from Maine, stated
that "the crisis facing VA health care," created by insufficient
funding and increased demand, was "amplified" for "[v]eterans in
19, 1999, at 1 ("Federal investigators have documented almost 3,000
medical mistakes and mishaps in less than two years at veterans
hospitals around the country [between June 1997 and December 1998],
and more than 700 patients have died in those cases, the Department
of Veterans Affairs says in a new report."); David Stout, Bush
Promises Help to Veterans Who Face Health-Care Backlog, N.Y. Times,
Aug. 20, 2001 (quoting President George W. Bush as stating,
"[c]urrently, there are about 600,000 pending applications" to
receive VA healthcare, "of which 53,000 have been pending over a
year"); Milt Freudenheim, V.A. Health Care Strained by Big Wave of
Enrollees, N.Y. Times, Apr. 6, 2002, at A1 (noting that "in some
parts of the country, thousands of [veterans] are waiting years to
see a V.A. doctor"); Susannah Rosenblatt, VA Health System Failing,
Survey Says, L.A. Times, July 15, 2003, at 18 (reporting
"[v]eterans are waiting six months or more for medical care as a
severely overburdened Veterans Affairs health system fails to keep
pace with growing demand").
3 The district court noted in its opinion the
following articles: Doug Kesseli, Veterans Seek Service
Improvements, Bangor Daily News, May 15, 2004, at C1; Josie Huang,
For Veterans, Health Care on Hold; VA Staffing Shortages, Limited
Space and a Spike in Enrollment Force Many to Wait a Year for a
First Exam, Portland Press Herald, Jan. 19, 2003, at 1B; VA’s
Uneven Health, Bangor Daily News, March 19, 2002, at A8; Michael
O’D. Moore, Doctors, Veterans Voice Medical Care Concerns, Bangor
Daily News, Aug. 3, 2000; Bill Nemitz, For Some Veterans, The
Battles Go On, Portland Press Herald, May 30, 1999; Paul Kane,
Hearing Reveals Togus Problems, Bangor Daily News, Sept. 26, 1998.
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rural States, such as Maine," who also must "travel hundreds of
miles to the nearest VA facility." On August 22, 2005, the U.S.
House of Representatives' Committee on Veterans' Affairs
Subcommittee on Health ("Health Subcommittee") met in Bangor,
Maine, and discussed the "challenges the VA confronts in providing
care for veterans in the state," challenges which included "budget
cuts," "staff shortages," and "significant delays in . . .
orthopedic care." On October 3, 2007, in a hearing before the
U.S. Senate Special Committee on Aging, Senator Susan Collins spoke
about the VA's challenges in providing health care to veterans in
Maine, including the need for funding to "ensure that it has the
specialists that many of our veterans need."
Public discussion of the quality of VA care nationally
and in Maine continued into the next decade in both newspaper
articles and congressional hearings.4 Then VA Undersecretary for
Health David Shulkin said in a prepared statement, "[t]he year
2014 was one of the most significant times in VA's history. To
4The court also noted in its opinion the following
articles: Charles Eichacker, Veterans Look Ahead to a Future with
Trump, Portland Press Herald, Nov. 13, 2016, at 2B; Michael
Shepherd, Pingree: VA Should Fire Contractor Managing Troubled
Care Program, Bangor Daily News, Apr. 28, 2016; Michael Shepherd,
Many Maine Veterans Still Waiting for Timely Health Care, Bangor
Daily News, Jan. 28, 2016; Michael Shepherd, Watchdog Ties Togus
to National VA Scandal, Portland Press Herald, June 18, 2015, at
1A; Michael Shepherd, New Togus Patients Wait Longer, Morning
Sentinel (Waterville, Me.), May 16, 2014. Congressional hearings
were held in January 2015 and April and September 2016.
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say that we had a crisis on our hands would be an understatement."
A prepared statement by Carl Blake, Associate Executive Director
for Government Relations at Paralyzed Veterans of America, given
at a January 2015 Health Subcommittee hearing titled "Examining
the Quality and Cost of VA Healthcare," "recognize[d] that there
is much debate underway about the quality of care being delivered
at VA medical facilities around the country."
In April 2004, Franchini, a board-certified foot and
ankle surgeon, was hired and began work at VA Togus, holding the
title of Chief of the Department of Podiatry ("COP"). Franchini
previously served as a surgical podiatrist and active-duty officer
with the Navy from August 1992 to August 2002, after which he
served six additional years in the Naval Reserve, and was a
clinical professor at Fletcher Allen Medical Center in Vermont
from 2002 to 2003. While in the Navy, he attained the rank of
lieutenant commander and participated in more than 4,800
surgeries.
Franchini testified that he had sought employment at VA
Togus "[b]ecause of the honor" and to improve his "retirement
scenario." The podiatry department at VA Togus during Franchini's
tenure consisted of Franchini, two other podiatrists who "were a
lot older than [he] was", a podiatry technician and a scheduling
clerk who was shared with two other departments. It was the
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busiest of VA Togus's departments providing surgical services,
treating more than 5,000 patients annually.
Franchini alleges the COP title was "nominal, ceremonial
and non-supervisory" and that he "was never in any 'leadership'
position, never had any supervisory responsibilities, policy
making position or any other control beyond that of any staff
podiatrist." The testimony of two other former VA Togus
podiatrists, one of whom also held the position of COP, supports
this assertion. Franchini also testified that he "was not running
anything" as COP, that all real authority lay with Dr. Robert
Sampson, VA Togus's Chief of Surgery, and that Franchini's role
was only to act as Dr. Sampson's "eyes and ears at different
committee meetings and different committees."
Even accepting those allegations as true, documents in
the record show that on paper, the VA New England Healthcare
System's Performance Plans for a COP for the fiscal years 2006 and
2007 contained "Performance Measures" and "Key Core Competencies,"5
5 These included "[m]aintain[ing] effective
relations with the public and media, which results in a positive
image of VA in the network or the community"; "[o]perat[ing] an
effective program to receive, evaluate and resolve patient-
initiated complaints"; "[t]rack[ing] data to identify and correct
systemic issues"; "improv[ing] veteran and family satisfaction
with VA care by promoting patient centered care and excellent
customer service"; "[a]llocat[ing] resources, staff, equipment and
plant, in an effective manner responding to changes in budget plan,
construction issues, VHA and Network priorities, etc."; and
"[b]alanc[ing] various stakeholder needs, including those of
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which formed a performance review framework for Franchini's
performance reviews by Dr. Sampson in those years. In fiscal year
2006, Franchini himself also provided Dr. Sampson a list of eight
"performance bullets" detailing his accomplishments as COP, which
were incorporated into a three-step "special advancement for
performance" for Franchini resulting in an approximately $10,000
pay raise for him. According to Franchini, Dr. Sampson also
provided oral instructions to Franchini about his role as COP when
he first started, which were "to see patients, see patients well,
make them happy, and play well in the sandbox."
In 2009, Franchini was removed from the COP position and
became a Staff Podiatrist.6 A proficiency report covering the
period from 2008 to 2009 prepared by Dr. Sampson and approved by
Dr. Timothy Richardson, VA Togus's chief of medical staff, gave
Franchini an overall rating of "low satisfactory," with a "low
satisfactory" rating in "clinical competency," which "includes
examination, diagnosis, therapeutic ability, effectiveness in
emergencies, patient management, consultations, specialty skills
and record keeping." The "narrative summary" section stated,
"[d]uring this evaluation period Dr. Franchini seemed to lose some
patients, staff, affiliates, Labor Partnership and Veteran Service
Organizations to optimize outcomes."
6 Franchini maintains that he was removed because he
"didn't want to do committee meetings anymore" on Dr. Sampson's
behalf.
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of his enthusiasm for the mission of treating veterans. His
position was changed from Chief of Podiatry to Staff Podiatrist."
On December 10, 2009, Dr. Richardson received a written
communication from a VA staff compensation and pension disability
manager raising concerns about the quality of care being provided
by a staff podiatrist at VA Togus. As a result, the VA began a
review of Franchini's performance in early 2010.
On March 29, 2010, Dr. Sampson and Dr. Richardson asked
Franchini to "voluntarily suspend performance of all surgical
procedures" as they performed "a focused review of 25 patients"
whom Franchini had treated; Franchini testified that he continued
working as a podiatrist at VA Togus after this meeting. On April
28, 2010, Franchini was summarily suspended and placed on a leave
of absence by the VA Togus Professional Standards Board.
Dr. Richardson informed Franchini in a June 17, 2010,
letter that:
[a] focused review of the surgical care
provided by you was initiated following
several Veteran complaints of poor surgical
outcomes and a concern by a medical staff
provider that Veterans had undergone surgery
after "minimal evaluation." The Chief of
Surgery reviewed 25 randomly selected medical
records and identified significant
deficiencies in the clinical care that you
provided. You were notified regarding this
preliminary review on March 29, 2010; and you
were informed that additional reviews would be
performed.
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Another VA doctor's review "identified deficiencies similar to
those identified by Dr. Sampson." After both reviews were
"presented to the [VA Togus] Professional Standards Board,"
Franchini was notified on April 28, 2010, "of its decision to
'summarily suspend' [his] privileges," "that aspects of [his]
clinical practice did not appear to meet accepted standards of
practice and could potentially constitute an imminent threat to
patient welfare," and "that issues of possible incompetence in
performing granted privileges would require further
investigation." Franchini was then "placed on administrative
leave with pay." After a third VA doctor reviewed Franchini's
record of care and concurred with the other doctors, concluding
"that the majority of the cases he reviewed were 'below the
standard of care,'" the Professional Standards Board recommended
"revocation of [Franchini's] clinical privileges and [his] removal
from Federal service." Franchini was given notice of this. The
June 17, 2010, letter informed Franchini that he "ha[d] the right
to reply to this notice orally or in writing, or both orally and
in writing, and to submit any affidavits and other documentary
evidence in support of [his] reply, showing why this notice [wa]s
inaccurate and any other reasons why [his] removal should not be
effected." On October 29, 2010, Franchini, in a reply letter from
his attorney, argued against the revocation of his privileges, and
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referred to and incorporated "review[s] by two health care
providers who specialize in foot and ankle surgery."
Rather than continue to fight his removal, on November
8, 2010, Franchini resigned from VA Togus. The official VA
notification of personnel action recording Franchini's
resignation, dated November 8, 2010, noted that Franchini's stated
"reason for resignation" was "personal reasons," but that the
"agency finding" was he had
resigned after receiving written notice on
[June 16, 2010,] of proposal to []separate[]
for A) repeated surgical cases in which non-
operative alternatives were not employed
resulting in inadequate informed consent for
surgery and probable unnecessary surgical
procedures; B) repeated surgical cases in
which pre-operative evaluation was either
missing, inadequate, or contradicted by
studies performed; again making it probable
that unnecessary surgery was performed; C)
repeated surgical cases in which
post-operative follow-up care was inadequate;
D) repeated examples of inadequate surgical
procedures leading to poor outcomes, and no
evidence of patient disclosures when
indicated.
Franchini's resignation letter dated November 8, 2010, stated that
his resignation was "not an admission of any wrongdoing on [his]
part" and was due instead to his "concerns about [his] own health
and the cost (both personal and financial) of proceeding with a
hearing." Franchini then entered private practice in the Bronx,
New York.
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VA Togus Director Brian G. Stiller responded in a
November 19, 2010, letter which informed Franchini that his
resignation letter had been received and notified him that VA Togus
was "making a review of the concerns raised regarding [his]
clinical practice" and that the results of this review would inform
whether VA Togus would report Franchini "to the appropriate State
Licensing Boards."
On November 27, 2012, VA Togus sent letters to the State
Licensing Boards of Maine, New York, Rhode Island, Vermont, and
Washington, D.C., to inform them that "there [wa]s substantial
evidence that [Franchini] so significantly failed to meet
generally-accepted standards of clinical practice so as to raise
reasonable concerns for the safety of patients when during his
clinical practice as a podiatrist, he made multiple diagnostic and
treatment errors."
This, in turn, triggered further congressional inquiry.
In a January 23, 2013, letter to Eric Shinseki, then Secretary of
the VA, Jeff Miller, the Chairman of the U.S. House Committee on
Veterans' Affairs, stated that, "[a]s the leaders of the U.S. House
of Representatives Committee on Veterans' Affairs, we are very
concerned about how the Department of Veterans Affairs (VA) has
characterized the podiatry issue at the VA Maine Healthcare System
in Togus, Maine," and asked for additional information on this
matter. On March 1, 2013, Robert Petzel replied on behalf of
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Secretary Shinseki, noting that an October 17, 2012, "internal
clinical document" recommended that the VA "notify those Veterans
identified as having potential, probable, or actual harm after a
careful review of their medical records," due to medical care
provided to them by "a podiatrist previously employed at" VA Togus
and "offer them in-person, follow-up examinations . . . . intended
to determine the extent of harm, if any, that may have been caused
by the former VA [Togus] podiatrist." A "record review of the VA
[Togus] podiatrist's clinical care . . . identified 286 total
patients who required additional clinical evaluation," at which
point the "VA began to notify patients and provided a consolidated
report of events to Congressional Committees and offices."
VA Togus then notified before 2013 the twenty-five
patients involved in its 2010 review of Franchini that they may
have received substandard care from him. In 2013, the VA sent a
"second wave" of letters to more of Franchini's former patients.
On April 29, 2014, The Forecaster, a Maine publication,
published a story by David Harry titled, "South Portland veteran
fights VA to file damage claim," in which one of Franchini's former
patients, Kenneth Myrick, alleged Franchini had provided him with
"substandard care" and "said he also fear[ed] 80 or more other
patients treated by Franchini [wer]e also suffering because of the
care they received." The article discussed whether Myrick would
be able to recover damages through a federal tort claim and stated
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"legal precedent is not on his side" due to the time elapsed
between his receipt of treatment and attempt to seek relief. The
article also described how Myrick was contacted in 2013, "almost
2 1/2 years after [Franchini] left" VA Togus, by Dr. Richardson
and other hospital administrators at VA Togus "to discuss the Dr.
Franchini podiatry disclosure case," and that another VA Togus
doctor concluded after subsequent re-evaluation that "the lack of
success of [Myrick's surgical treatment] is due to a sub-standard
performance of the procedure." It further discussed inquiries
Myrick made to Senator Collins' office. Franchini testified that
he had contacted Harry to "ask[] him to remove [the article]" or
"redact[] [his] name" "because it was filled with lies," a request
which Harry refused. The Forecaster did not remove or disavow the
article. Franchini has not named The Forecaster or Harry as
defendants in this action.
Between 2014 and 2017, seven of Franchini's former
patients, including Myrick, brought claims against the United
States under the Federal Tort Claims Act in the District of Maine,
seeking damages as a result of the treatment each had received
from Franchini at VA Togus (the "FTCA cases"). See Wood v. United
States, No. 14-cv-00399, 2016 WL 11580579 (D. Me. Feb. 2, 2016);
Mansir v. United States, 299 F. Supp. 3d 203 (D. Me. 2018);
Prescott v. United States, No. 14-cv-00551, 2018 WL 1036387 (D.
Me. Feb. 23, 2018); Myrick v. United States, No. 15-cv-00045, 2018
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WL 1037641 (D. Me. Feb. 23, 2018); Korsiak v. United States, No.
15-cv-00220, 2018 WL 1037640 (D. Me. Feb. 23, 2018); Downs v.
United States, No. 15-cv-00525, 2018 WL 1036388 (D. Me. Feb. 23,
2018); Carpenter v. United States, No. 18-cv-00128, 2019 WL 1006230(D. Me. Feb. 28, 2019).7 All of these suits are public records,
as were the congressional proceedings. Multiple public filings in
the FTCA cases named Franchini and identified him:
• an exhibit titled "Institutional Disclosure of Adverse
Event," in which the VA documented its 2013 disclosure of
"sub-standard care" that Franchini provided to the veteran
bringing suit, April Wood;8
• the March 10, 2017, deposition testimony by former VA Togus
medical director Ryan Lilly acknowledging that "Dr.
Franchini's care" of six of the seven FTCA plaintiffs "fell
below the acceptable standards;"9
7 Of the FTCA Cases, Carpenter and Korsiak were
dismissed for lack of jurisdiction and the remaining cases settled.
See Carpenter v. United States, No. 18-cv-00128, 2019 WL 2871140,
at *4 (D. Me. July 3, 2019); Korsiak v. United States, No. 15-cv-
00220, 2018 WL 1037640, at *8 (D. Me. Feb. 23, 2018).
8 This exhibit was first docketed on April 6, 2015.
See Exhibit Ex A: Institutional Disclosure of Adverse Event, Wood,
2016 WL 11580579 (No. 14-cv-00399).
9 This deposition was first docketed on August 30,
2017. See Exhibit 8 Lilly Depo Transcript, Wood, 2016 WL 11580579(No. 14-cv-00399).
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• an exhibit titled, "VA Issue Brief," which chronicled
Franchini's resignation from VA Togus and subsequent actions
taken by the VA to investigate instances of substandard care
he provided;10
• the January 20, 2017, deposition testimony of Dr. Sampson, in
which he testified that he knew Franchini was a "dangerous
surgeon" after he had concluded his initial review of twenty-
five of Franchini's cases;11 and
• a declaration from VA Director of Risk Management Yuri Walker
in which she reiterated her conclusion from her April 30,
2012, Memorandum for the Record that "it appeared in some
instances that Dr. Franchini was 'actively falsifying some
medical records'" and clarified "that conclusion was based
entirely upon the review team's review of patient medical
records, and nothing else."12
Further, Franchini was initially named a defendant in Carpenter
before the United States was substituted for him individually.
10This exhibit was first docketed on August 30, 2017.
See Exhibit 4 Issue Brief, Wood, 2016 WL 11580579 (No. 14-cv-
00399).
11 This deposition was first docketed on August 30,
2017. See Exhibit 5 Sampson Depo Transcript, Wood, 2016 WL
11580579 (No. 14-cv-00399).
12 This declaration was first docketed on September
27, 2017. See Affidavit of Yuri Walker, Wood, 2016 WL 11580579(No. 14-cv-00399).
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On February 2, 2016, the federal district court of Maine
issued an order in the then-pending FTCA cases which referenced
Franchini by name sixty-four times. See Wood, 2016 WL 11580579.
This order addressed a pending motion to dismiss for lack of
subject matter jurisdiction, and explicitly stated that the court
"reach[ed] no conclusions as to whether Dr. Franchini's treatment
of the plaintiffs was negligent, as the plaintiffs claim." Id. at
*1.
Franchini stated he learned of the FTCA cases in late
February 2016 when his then-employer presented this order to him
after discovering it via the employer's internet search. His
employer then terminated Franchini's employment. Franchini stated
this was due to the employer's concern that it would generate "bad
publicity" for his practice.
In May 2016, Franchini, acting pro se, sent the Maine
federal district court a "Request" to "remove the link of [his]
name to" the February 2016 Order because "a google search based on
[his] name" yielded the Order. The district court denied
Franchini's request, stating the "Order ha[d] been in the public
domain for approximately three months," "Dr. Franchini[']s name
appears numerous times in each of the parties['] briefs which are
part of the public record of this proceeding," and "[h]is name is
also associated with this proceeding in documents that are
available on the internet and easily identified through the use of
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a search engine." The court concluded that "[t]he relief that Dr.
Franchini has requested will not disassociate his name from this
proceeding," and further was "not otherwise persuaded that good
cause exists for the same." Franchini also submitted a sworn
declaration in the FTCA litigation on September 19, 2017, denying
that he had ever "lied to a patient about" or "fraudulently
concealed" information on any patient's condition and asserting he
never "provided substandard care."13 Both of those submissions by
Franchini became part of the public record.
Even before he filed the declaration in the named cases,
Franchini created a blog on June 27, 2016, entitled "Foot and Ankle
Forum." His first blog post, published that same day, began with
the sentence, "[t]his is an overview on events in my life and what
it has on what occurred [i]n the VA system." In the post, he
stated that he "worked at the VA in Maine [f]or 6 years and 7
months," where he received "[m]ultiple salary raises" and "dozens
of accolades from patients as well as coworkers." He explicitly
addressed the VA's investigation of him, stating that "[a]fter 6
years of positive work with no complaints from anyone . . . one
patient complained which le[]d to a review," which "focused in on
[his] notes" and "never allowed [him] to explain." Franchini
13 Franchini testified that this affidavit was both
requested and prepared by John Osborn, the Assistant United States
Attorney defending the government in the FTCA cases, and that
Franchini "reviewed it to make sure everything was correct."
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stated that "after over a year" of investigation he "rebutted all
issue[s]," and that "then based on th[e] fact that [the VA] could
not [f]ind something that was wrong other than brief note taking[,]
[t]hey thought it would be a good idea to contact over [a] hundred
people [t]hat [he] did surgery on and ask them if there was a
problem." He stated that this outreach inspired former patients
who "we[]re silent for years" to "c[o]me forward" because "they
thought that this could be [b]eneficial[] in some w[a]y now [that]
they had issues." He stated that he "wanted [it] to be explained
[h]ow can anyone resurrect issues after a prolonged period of
[t]ime" and then stated that "these old complaints were unable to
proceed" due to "statute of limitation or a statute of repose."
He went on to state that "people change[,] [w]e get older heavier
weaker stronger sicker healthier" and "[t]hat is why there is a
limitation [b]ecause life gets in the way of events of this nature"
and "[w]hat is good today cannot be a guarantee that th[r]ough[]out
your life things change." He concluded the blog post by asking
for "[y]our thoughts."
Franchini testified that his "sole purpose" in creating
the "Foot and Ankle Forum" blog was "to set the record straight,
to deny the allegations that were set forth in the" February 2016
Order, and "to counteract" the allegations in case any potential
employers saw the order "when [he] was seeking a new job."
However, when asked why he "continued to blog on a variety of other
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topics all related to podiatry," he stated "the other blogs were
just for content."
Franchini made a total of eleven blog posts on the blog
from June 2016 to October 2016 which detailed his thoughts on the
state of healthcare in the United States and his political views.
In a blog post on June 28, 2016, he wrote that he "[w]ill start
writing daily on topics of interest" and that "[t]oday will be the
first in a series of topics which will [i]nclude medicine surgery
politics religion etc." He again asked the audience for "[y]our
thoughts." On the same day, he wrote another blog post titled "Dr
Thomas C Franchini thoughts on jobs in podiatry" in which he sought
"[y]our thoughts" from "f[e]llow doctors on podiatry and in general
medicine decline in the United States."14
In November 2017, the House Committee on Veterans'
Affairs Subcommittee on Oversight and Investigations held a
14Franchini testified that he had attempted to take
down and delete the blog after making a final entry in "late
October [or] November" 2016 but realized that it was still
accessible in October 2017 "after the libel publications," and he
successfully deleted it. On October 12, 2017, the June 27, 2016,
blog post received a comment from an individual claiming to have
"worked side by side with Dr. Franchini" at a naval hospital "years
ago" and who "found him to be a great surgeon, extremely
compassionate about treating patients." Franchini claims "no one
ever read th[e] blog before the publication of the defamatory
stories." The record shows that the blog was directly quoted in
the first of the allegedly defamatory articles to be published,
which indicates the blog was accessed by that article's author,
and that the blog was accessible as late as February 8, 2018, and
had five followers at that time, when it was downloaded.
- 21 -
hearing titled "Examining VA's Failure to Address Provider Quality
and Safety Concerns" at which Myrick read a statement into the
congressional record regarding the care he received, stating that
"trust and faith in the VA . . . . have been shattered for myself
and the 87 other Maine veterans who received substandard care from
Dr. Thomas Franchini at Togus Medical Center in Augusta, Maine."
During this same hearing, then-U.S. Representative Bruce Poliquin
of Maine described allegations by Myrick, Wood, and other former
patients against Franchini, in a statement regarding Poliquin's
concern about mismanagement of malpractice allegations at VA
Togus. Later on in the hearing, Poliquin stated, "Thomas
Franchini. Make sure everybody knows who he is."
In the fall of 2017, several publications ran stories
about VA Togus healthcare which were critical of Franchini's
practice there and which form the basis of the instant suit. On
October 1, 2017, defendant MTM Acquisition, Inc. published in the
Portland Press Herald an article written by defendant Murphy
titled, "Maine veterans given substandard care are told it's too
late to sue" ("Portland Press Herald article"). This article
described what was in the federal court public record in the FTCA
cases and several of the plaintiffs' allegations of substandard
care against Franchini, focusing on the allegations made by Wood.
It also referenced Walker's testimony in the FTCA cases that
Franchini had falsified records and cited a VA spokesman who had
- 22 -
stated that Franchini had "resigned from the VA after the agency
told him to step down or he would be fired in early 2010." The
article stated that Franchini had declined to comment for the
article through a representative of his office in New York. The
article directly quoted excerpts from Franchini's blog. The
article discussed the allegations against Franchini within the
context of the broader controversies surrounding the VA generally
and VA Togus in particular, stating, "[t]he suits come against a
backdrop of sharp criticism of the Department of Veterans Affairs
over the standards of care given to veterans, including issues
such as monthslong wait lists for care and mismanagement that led
to veteran deaths," "[v]ets and politicians have been critical of
the quality of the care provided by the VA nationwide," and "[i]n
2016, care at Togus was rated 2 on a 5-point scale, with 1 the
lowest rank and 5 the highest."
On October 11, 2017, defendant Gannett Company, Inc.
published in its newspaper USA Today an article co-written by
defendant Slack and Michael Sallah titled, "VA conceals shoddy
care and health workers' mistakes" ("USA Today article"). This
article detailed how the VA as a whole responded to problems it
identified while investigating its medical providers, stating that
"[a] USA TODAY investigation found the VA -- the nation's largest
employer of health care workers -- has for years concealed mistakes
and misdeeds by staff members entrusted with the care of veterans."
- 23 -
As part of USA Today's investigation, the article stated it had
reviewed "hundreds of confidential VA records, including about 230
secret settlement deals never before seen by the public." It
specifically reported on the VA's review of Franchini's care, and
the allegations made against him, stating that "the VA concluded"
he had "made mistakes that harmed veterans" in "88 cases" yet he
had been allowed by the VA to "quietly resign and move on to
private practice." It also connected Franchini's case to other
problems faced by the VA, noting that "[t]he VA has been under
fire in recent years for serious problems . . . including
revelations of life-threatening delays in treating veterans in
2014 and efforts to cover up shortfalls by falsifying records."
The USA Today article included comments that Franchini
made in an interview with Slack. It stated:
In an interview with USA TODAY, Franchini
denied making mistakes and said he never got
to respond to all of the VA's findings. When
the VA placed Franchini on leave after finding
problems with a small sample of his cases in
2010, his attorney submitted two outside
reviews saying the VA's findings were not
backed up by the medical records.
The VA eventually reviewed nearly 600 of his
surgeries from his six years at Togus. The
56-year-old podiatrist said several doctors
were in the operating room with him, and no
concerns were raised at the time.
Since leaving the VA, Franchini said, he has
performed numerous surgeries without
complications.
- 24 -
"If I was so bad, I would be bad all the time,"
he said.
Franchini later testified that he had "urged [Slack] to
report what [he] deemed the real story" behind the VA's
investigation into his medical practice at VA Togus. Indeed, he
went further and stated that the investigation was a "witch hunt"
that was "motivated by the corruption of Drs. Sampson and
Richardson." He also "sought to convince [Slack] not to publish
the name of [Franchini's then-current] employer." Franchini also
testified that his "principal purpose of talking to Donovan Slack
was the fact that she threatened [him] over the telephone and said
that if [he] did not speak to her, that [the article] would be
more damning" for him. However, his claim for fraudulent or
negligent misrepresentation in his First Amended Complaint ("FAC")
relied on his claim that he had "agreed to the interview subject
to the condition, inter alia, that Gannett/Slack not identify the
location of his then-current employer," a
"representation/commitment [that] was false."
In a declaration filed in opposition to the defendants'
motion to dismiss his SAC in this case, Franchini stated that when
he met with Slack, he told her that Dr. Sampson "had been directed
by his supervisor, Dr. Timothy Richardson, to find a way to get
rid of me" and that Dr. "Sampson was later forced to resign
because, despite Dr. Richardson's urging, he had been unable to
- 25 -
find anything in his review, except that my assessments were fine
and my surgical practice was also excellent, but that my notes
were too brief." He further stated that he "believe[s], but ha[s]
no personal knowledge, that Dr. Sampson may have been concerned
that I might be in a position to take over his position, because
of physical injury" due to "a chain saw accident in which some of
[Dr. Sampson's] digits were severed." He stated "concern that all
of the time wasted pursuing the baseless claims against me were
not boding well for Dr. Richardson, who was later removed for these
reasons." He stated that he told Slack "that shortly before Dr.
Richardson was removed for wasting money on pursuing me baselessly
. . . he came up with a plan to reach out to . . . hundreds of
patients on [a] 'list' [compiled by Dr. Sampson] to advise that
they may have been damaged by my surgeries and that they should
come in for 'free evaluation.'" He further stated when patients
arrived for these evaluations, "they would be solicited to make
claims -- though in reality such claims were both bogus and late
under the limitations period -- under the Federal Tort Claims Act
based on bogus assertions against me" and that "[s]ince Dr.
Richardson, to my certain knowledge, was instructed by VA personal
as early as 2009 that nearly all of the patients were beyond the
statute of limitations, he thought he had found a way to fabricate
an excuse for his fraudulent and futile campaign against me." He
stated, "[i]n my opinion [Slack] purposely avoided the truth of
- 26 -
the real story, which was the corrupt action of Dr. Richardson and
Dr. Sampson in creating a false narrative to camouflage their
corruption."
On October 26, 2017, defendant Bangor Publishing
Company, Inc. published in the Bangor Daily News an article written
by defendant Haskell titled, "'I never had anything hurt so bad':
Veteran harmed at Togus hopes revelations protect younger vets"
("Bangor Daily News article"). This article recounted the
reporting in the USA Today article and included further allegations
made by Jim Barrows, a veteran who the article described as one of
"a group of 88 vets who suffered under the care of Thomas
Franchini, a podiatrist at the Togus health center from 2004 until
his forced resignation in 2010." It reported that Franchini had
"botched" an ankle surgery he performed on Barrows in 2006 by
"neglect[ing] to remove a temporary suture" until weeks after the
surgery, which "le[ft] the operative site open to infection,
inflammation and other complications." It quoted Lilly as stating,
"Dr. Franchini resigned in 2010 in lieu of being fired." It also
reported on the difficulty of those filing lawsuits to access
relief due to statutes of limitations, as well as on changes at
the VA generally and VA Togus "to improve care and accountability,"
and actions by lawmakers "to ensure that this does not happen
again."
- 27 -
On December 22, 2017, defendant IBD published an article
written by defendant Pipes titled, "VA Negligence is Killing
Veterans" ("IBD article"), which criticized the VA for its hiring
problematic medical staff, such as "a known sexual predator," "a
dangerous felon," and "a physician with a record of more than a
dozen cases of malpractice, including the death of a patient."
"The agency seems incapable of delivering high-quality care to the
patients it serves -- or even holding its employees accountable,"
she wrote. The article also recounted the reporting from the USA
Today article. It cited Franchini as an example of how "[w]hen
administrators do find hard evidence of malpractice, they often
sweep it under the rug," and stated that "Franchini botched 88
procedures," including "sever[ing] a patient's tendon during one
surgery and fail[ing] to successfully fuse one woman's ankle in
another," leading to her leg being amputated, but that "Franchini
wasn't fired for any of these errors" and was instead allowed "to
resign and return to private practice."
II.
On January 11, 2018, Franchini filed this suit against
all defendants seeking recovery for what he alleged to be
defamatory statements made in the Portland Press Herald, USA Today,
Bangor Daily News, and IBD articles. On February 6, 2018,
Franchini filed his FAC, the operative complaint in this case.
The defendants made various motions to dismiss the FAC and seek
- 28 -
judgment on the pleadings, with all defendants moving to dismiss
Franchini's defamation claims (Counts I, II, III, and IV) and
negligent infliction of emotional distress claims (Count VI), and
the Gannett defendants also raising arguments to dismiss
Franchini's negligent and fraudulent misrepresentation claims
(Count V).
In a March 29, 2019, order, the district court granted
these motions in part and denied them in part. Franchini v. Bangor
Publ'g Co., 383 F. Supp. 3d 50, 55 (D. Me. 2019). It ruled that
(1) the matters at issue in Franchini's complaint were matters of
public concern, id. at 59, and (2) the FAC failed to allege actual
malice because Franchini had not "present[ed] facts sufficient to
allow, at the very least, a plausible inference that the speaker
'entertained serious doubts as to the truth of his publication,'"
id. (quoting St. Amant v. Thompson, 390 U.S. 727, 731 (1968)),
which is "a pre-requisite to any recovery" by a public official or
public figure, id. at 58 n.3.15 Franchini was accordingly not
entitled to punitive damages or any presumption of falsity. Id.
at 59. The court found all the defendants were entitled to
judgment as a matter of law on Count VI and the requests for
presumed damages in Counts I, II, III & IV, and that the Gannett
15 Franchini conceded that the court's finding that
his FAC failed to plead actual malice was "perfectly correct."
- 29 -
defendants were entitled to judgment as a matter of law on
Franchini's request for punitive damages under Count V. Id. at
66. It denied all the other motions.16 Id.
In September 2019, the court issued a scheduling order
to which both parties objected.17 Based on an agreement made
between the parties at a hearing on these objections, the court
then established a bifurcated discovery schedule. Phase I of
16 The district court also denied IBD's request to
dismiss Franchini's action against it pursuant to California or
Maine anti-SLAPP statutes. Id. at 65. IBD timely appealed that
decision. The court shortly thereafter ordered a stay of
proceedings as to IBD pending resolution of the appeal. On
November 13, 2020, this court held that the collateral order
doctrine permitted an interlocutory appeal of the district court's
order and certified the question to the Maine Supreme Judicial
Court ("SJC") as to whether a special motion to dismiss should be
granted pursuant to Maine's anti-SLAPP statute. Franchini v.
Investor's Bus. Daily, Inc., 981 F.3d 1 (1st Cir. 2020). On
February 10, 2022, the SJC declined to answer the certified
question. Franchini v. Investor's Bus. Daily, Inc., 268 A.3d 863(Me. 2022). On January 17, 2024, this court dismissed the
interlocutory appeal for lack of jurisdiction following the entry
of final judgment in IBD's favor. Franchini v. Investor's Bus.
Daily, Inc., No. 19-1389, 2024 WL 229053, at *2 (1st Cir. Jan. 17,
2024).
17 IBD joined the defendants' objection to the
scheduling order, and its counsel appeared at the hearing, despite
the stay in proceedings pending resolution of the interlocutory
appeal, because it considered the public figure issue separate
from the anti-SLAPP argument forming the basis of IBD's appeal.
On September 5, 2019, the district court also held that
"dismissal of all claims against Pipes is warranted due to lack of
personal jurisdiction and failure to properly serve process. See
Fed. R. Civ. P. 12(b)(2) & (5)." Franchini v. Bangor Publ'g Co.
Inc., No. 18-CV-00015, 2019 WL 4228885, at *3 (D. Me. Sept. 5,
2019). Franchini challenged this order in his notice of appeal
but failed to address this issue before this court.
- 30 -
discovery was limited to developing the necessary factual record
for the court to determine whether Franchini had a public official
or limited-purpose public figure status. Motions for summary
judgment could then follow. When this schedule was set, Franchini
expressly acknowledged that a summary judgment ruling that he is
a public official or limited-purpose public figure "would be
dispositive" as to the defamation claims and preclude the need for
Phase II proceedings. The court also extended the deadline for
amendment of the pleadings to December 20, 2019. On December 20,
2019, in accordance with this deadline, Franchini filed a SAC.18
All defendants moved to dismiss or strike the proposed SAC.
On April 15, 2020, the district court granted this motion
to dismiss. In its order, the court referenced its previous ruling
that any attempt by Franchini to amend his "claims for presumed
damages under Counts I-IV, his claims for punitive damages against
the Gannett Defendants, and Count VI" "would be futile" and
determined that the SAC still did not allege actual malice.
In December 2020, at the conclusion of Phase I of
discovery, all defendants moved for summary judgment as to Counts
I-IV on the grounds that Franchini was both a voluntary and an
18 Franchini did not file a motion for leave to explain
the purpose of this amendment but asserts on appeal before this
court that it was to "set forth the factual basis for the claim of
actual malice."
- 31 -
involuntary limited-purpose public figure. On September 3, 2021,
the district court granted the joint motion for summary judgment
in a well-reasoned opinion, holding that there was a public
controversy which pre-existed the allegedly defamatory
publications and that Franchini was a limited-purpose public
figure.19 Franchini, 560 F. Supp. 3d at 328-32.20 Franchini timely
appeals.
19 The court found that "[b]eyond Franchini's decision
to accept his leadership role at VA Togus . . . other voluntary
actions [he] took related to the controversy surrounding the care
he had provided at VA Togus bolster a finding that he voluntarily
achieved limited public figure status . . . includ[ing]: (1) his
2014 contact with the author of The Forecaster article; (2) his
2016 blogging; (3) his 2016 individual pro se filings in the FTCA
Cases; and (4) his meeting with the Defendant Slack." It noted
that Franchini "argue[d] some or all of these voluntary actions
fall under the privilege of reply," but held "[i]t is far from
apparent that this limited endorsement of the privilege of reply
applies to the fact patterns presented on the current record or
forecloses the Court from any consideration of Franchini's
voluntary actions in the 2014-to-2016 timeframe" and that "[i]n
any event, to the extent that the privilege of reply would
foreclose [its] finding that Franchini became a voluntary pubic
figure," it "consider[ed] whether Franchini may have alternatively
achieved limited public figure status involuntarily" and
determined that he had. It thus held "to the extent [Franchini]
cannot be viewed as a voluntary public figure, the Court
alternatively concludes [he] attained public figure status
involuntarily in the time period preceding the Defendants'
publications."
20 The court granted the motion for all defendants
except IBD. Id. at 333. It denied the motion for IBD without
prejudice pending the resolution of IBD's interlocutory appeal.
Id. at 326 n.30 ("To the extent that IBD has joined the pending
Motion for Summary Judgment, the Court concludes that the ongoing
stay and interlocutory appeal prevent the Court from ruling on the
merits of IBD's request for summary judgment. Thus, the Motion
shall be denied without prejudice to later renewal as to Defendant
- 32 -
III.
We review de novo the district court's determination
that a defamation plaintiff is a public figure. Lluberes v.
Uncommon Prods., LLC, 663 F.3d 6, 14 (1st Cir. 2011). In the
interest of protecting free speech, and "[d]ue in large part to
the 'profound national commitment to the principle that debate on
public issues should be uninhibited, robust, and wide-open,'"
Pendleton v. City of Haverhill, 156 F.3d 57, 66 (1st Cir. 1998)
(quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)),
the First Amendment of the U.S. Constitution imposes certain
limitations on defamation actions, see Cheng v. Neumann, No. 23-
1532, 2024 WL 3158513, at *3 (1st Cir. June 25, 2024). These
include denying recovery to any plaintiff claiming defamation who
is deemed to be a "public figure," unless the plaintiff provides
proof that the alleged defamatory statement was made with "actual
malice," Gertz v. Robert Welch, Inc., 418 U.S. 323, 327-28, 342
(1974), defined as knowledge of the statement's falsehood or
IBD only." (citations omitted)). On June 8, 2022, the district
court granted IBD's motion for relief from stay and for entry of
summary judgment, holding that "the[] legal conclusions" from its
September 3, 2021, order to the other defendants "apply with equal
force to IBD's publication and entitle IBD to summary judgment."
Further, on July 5, 2023, the district court in a
separate order affirmed the recommended decision of the magistrate
judge to affirm Gannett and Slack's motion for summary judgment on
Count V (the fraudulent or negligent misrepresentation charge).
- 33 -
reckless disregard for its truth, see St. Amant, 390 U.S. at 729,
731.
Although the public-figure status "inquiry is
'inescapably fact-specific,'" Lluberes, 663 F.3d at 14 (quoting
Mandel v. Bos. Phoenix, Inc., 456 F.3d 198, 204 (1st Cir. 2006)),
"and does not always lend itself to summary judgment," id., it is
a legal question "properly resolved by the court, not the jury,
regardless of the contestability of the predicate facts,"
Pendleton, 156 F.3d at 68. Where, as here, the appellant "do[es]
not argue that the district court based its status determination
on disputed facts," Lluberes, 663 F.3d at 14, it is "perfectly
reasonable" for the court to make the legal determination on the
undisputed facts pretrial on summary judgment, McKee v. Cosby, 874
F.3d 54, 61 (1st Cir. 2017) (quoting Mandel, 456 F.3d at 204).
Defendants bear the burden of establishing that the
plaintiff is a public figure. See Bruno & Stillman, Inc. v. Globe
Newspaper Co., 633 F.2d 583, 592 (1st Cir. 1980). In Gertz, the
Supreme Court "delineated three major classes of public figures."
Id. at 588. First, "[a]n individual becomes a 'general-purpose'
public figure if he [or she] 'achieve[s] such pervasive fame or
notoriety that he becomes a public figure for all purposes and in
all contexts.'" McKee, 874 F.3d at 61 (alteration in original)
(quoting Gertz, 418 U.S. at 351). Second, an individual becomes
a voluntary limited-purpose public figure if he or she "voluntarily
- 34 -
injects himself [or herself] . . . into a particular public
controversy and thereby becomes a public figure for a limited range
of issues." Id. (quoting Gertz, 418 U.S. at 351-52). The scope
of the voluntary public figure's limited-purpose status is
determined by the "nature and extent of [his] participation in the
particular controversy giving rise to the defamation." Id.(alteration in original) (quoting Gertz, 418 U.S. at 351-52).
Third, an individual can become an involuntary public figure
"through no purposeful action of his own," but this is "exceedingly
rare." Gertz, 418 U.S. at 345.
The district court correctly concluded that Franchini
was a voluntary limited-purpose public figure because the record
shows (1) a public controversy existed regarding the adequacy of
medical care provided by the VA, and in particular by VA Togus, to
veterans, which gave rise to the articles at issue, and (2)
Franchini voluntarily injected himself into the issues, at the
very least through his blog posts and comments made to USA Today
reporter Slack during their interview.21
A. Public Controversy
A public controversy exists when "persons actually were
discussing some specific question . . . [and] a reasonable person
would have expected persons beyond the immediate participants in
21 We have no need to and so do not reach the district
court's alternative involuntary public figure holding.
- 35 -
the dispute to feel the impact of its resolution." Lluberes, 663
F.3d at 13 (alteration and omission in original) (quoting Bruno,
633 F.2d at 591)). It "must be more than a 'cause célèbre,'" id.(quoting Time, Inc. v Firestone, 424 U.S. 448, 454 (1976)), "or 'a
matter that attracts public attention,'" id. (quoting Wolston v.
Reader's Digest Ass'n, 443 U.S. 157, 167 (1979)).22
Public controversy regarding the quality and
availability of medical treatment provided by the VA, and VA Togus
in particular, to veterans of the U.S. military existed before,
during, and after October 1, 2017, the date that the first
allegedly defamatory article was published. This controversy has
been the subject of both national and Maine media coverage, as
well as congressional hearings. Multiple Maine congressional
representatives have spoken specifically about Maine veterans'
struggles to obtain healthcare through VA Togus on the public
record. Franchini argues he "had nothing to do with the VA's
national problems" and "respectfully urge[s]" this court "to take
note of the distinction" between the public controversy over the
VA's provision of healthcare to veterans, including at VA Togus,
22 Further, the controversy must have existed before
the alleged defamation took place "to avoid improper
'bootstrapping,'" id. at 14, whereby "the defendant relies on his
own defamatory publication to manufacture a public controversy
involving the plaintiff, and thus 'by [his] own conduct, create[s
his] own defense by making the claimant a public figure,'" id. at
18 (alterations in original) (quoting Hutchinson v. Proxmire, 443
U.S. 111, 135 (1979)).
- 36 -
and the VA's investigation of the care he provided as a podiatrist
at VA Togus and allegations of substandard care levied against him
by former patients whom he treated there. This argument fails.
Franchini's actions at VA Togus are inextricably part of the
general VA healthcare controversy and the VA Togus inadequacy-of-
care issues and cannot be distinguished. Franchini was personally
and repeatedly implicated in these controversies by name,
including in the 2013 correspondence between VA officials and the
House Committee on Veterans' Affairs focusing on "a record review
of a VA [Togus] podiatrist's clinical care," the 2014 Forecaster
article, the 2014 through September 2017 public filings in the
FTCA Cases, one of which originally named him as a defendant, and
Judge Levy's February 2016 Order, see Wood, 2016 WL 11580579.
These facts demonstrate that "persons actually . . . discuss[ed]"
the quality and availability of care at VA hospitals, including VA
Togus, and Franchini's role in the issues facing VA Togus, even
before October 1, 2017. Lluberes, 663 F.3d at 13. Further, "a
reasonable person would have expected" that the dispute over
instances of alleged malpractice at VA Togus, as detailed in
congressional hearings, media coverage, and the FTCA cases, would
impact individuals outside of Congress, VA administrators, and the
FTCA cases' plaintiffs: namely, veterans in Maine seeking care,
those who care about them and care that U.S. military veterans get
adequate medical care, and the public whose tax dollars fund VA
- 37 -
Togus and provide remedies for harm caused by medical malpractice.
Id. (quoting Bruno, 633 F.2d at 591).
Franchini makes several additional arguments that
"[t]here was no public controversy," all of which also fail.
First, the fact that Franchini was no longer employed at VA Togus
by the time the allegedly defamatory articles were published and
that "[w]hile [he] was at VA Togus (2004 through November, 2010)
there was no public media coverage or reportage on any aspect of
[his] care or treatment of any patient whom he had treated" does
not, as Franchini argues, negate the existence of a public
controversy for purposes of the public figure status inquiry. The
only temporal requirement of this inquiry is that the public
controversy predate the allegedly defamatory statement at issue.
See id. at 14. Second, the fact that The Forecaster article and
FTCA case filings first reported these allegations, rather than
"the mainstream media," does not allow the inference that there
was no public controversy. That is especially so because there
"ha[d] been a tide of concern and criticism" about the adequacy of
medical care at VA Togus. See Gray v. St. Martin's Press, Inc.,
221 F.3d 243, 251 (1st Cir. 2000). Third, Franchini argues that
the discussion of the VA and VA Togus's issues and failures at
providing adequate healthcare revealed a "virtual unanimity of
opinion, not controversy." Not so. Further, unanimity of public
opinion regarding an issue of concern is, to the contrary, evidence
- 38 -
of the existence, not the absence, of public controversy. See
Pendleton, 156 F.3d at 69 (finding that a public controversy
existed regarding minority hiring at a school where "students of
all hues called for more minority teachers, a recommendation school
officials said they would heed" (internal quotation marks
omitted)). Fourth, while Franchini argues that "[t]he fact that
litigation was brought against the United States under the FTCA
based on plaintiff's alleged actions did not result in a public
controversy" because "[n]ot all litigation is of 'public or general
interest,'" quoting Firestone, 424 U.S. at 455, the FTCA cases are
easily distinguishable from Firestone, in which the court held
that the high-profile divorce of a wealthy couple was not a matter
of public controversy because "the public can have no interest
other than satisfaction of its curiosity in the outcome of a
divorce proceeding." Bruno, 633 F.2d at 590. The FTCA cases were
hardly the sole source which created the public controversies.
The many FTCvA cases revealed a pattern of alleged malpractice at
VA Togus resulting from Franchini's care.
B. Voluntary Public Figure
"Once a controversy is isolated, the critical question
then becomes whether the plaintiff has attempted to 'influence the
resolution' of that controversy." Lluberes, 663 F.3d at 14. A
plaintiff who "voluntarily inject[s] himself," Pendleton, 156 F.3d
at 69, or "thrust[s himself] into the vortex," Bruno, 633 F.2d at
- 39 -
591, of a controversy and attempts to influence its outcome, as
Franchini has done, is a voluntary limited-purpose public figure.
This circuit has found such participation where a plaintiff has
"ma[de] (and authoriz[ed] the publication of) statements bearing
on the" controversy or "s[ought] to influence public opinion"
regarding the controversy. See Pendleton, 156 F.3d at 69-70.
Actions that "invite[] public attention, comment, and criticism"
also constitute voluntary participation. See Bruno, 633 F.2d at
592 (quoting Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 274
(3d Cir. 1980)).
Here, Franchini has done voluntarily all these things.
On his public blog "Foot and Ankle forum," Franchini created eleven
blog posts between June and October 2016, and in some of which he
made statements about his role in VA Togus's adequacy-of-care
issues in providing competent healthcare to veterans. He did so
explicitly in order to "influence public opinion," Pendleton, 156
F.3d at 69, testifying that his "purpose" in creating the blog was
to "set the record straight" and "counteract" the public
allegations against him, and went even beyond that to cite broader
public issues. He also explicitly "invited public attention,
comment, and criticism," Bruno, 633 F.2d at 592 (quoting Steaks
Unlimited, 623 F.2d at 274), encouraging others to join the
discussion by including the line "your thoughts[?]" in multiple
posts. Franchini also "voluntarily injected himself" into the
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controversy, Pendleton, 156 F.3d at 69, by "urg[ing]" Slack to
report what he considered to be "the real story" behind the VA's
investigation of his actions at VA Togus and by making statements,
some of which were later published, about his actions at VA Togus
and the investigation, as well as by charging that there was
"corruption" among his superiors at VA Togus, which he alleged was
the cause of the investigation of Franchini, in an interview Slack
conducted with Franchini while writing the USA Today article.23
C. Invoking the Common Law Privilege of Reply
Franchini further argues that he was not a limited-
purpose public figure because, in his view, he simply "defend[ed]
himself public[]ly against public accusations." He cites to this
court's decision in Lluberes v. Uncommon Productions, LLC, 663
F.3d 6 (1st Cir. 2011) in his defense. But Lluberes does not
support him. In that case, the court noted that the "privilege of
reply" comes not from the First Amendment, but rather "the common
law that governed defamation suits prior to New York Times [v.
Sullivan]," and that the plaintiffs were functionally asking the
court "to graft the common-law privilege of reply onto the
constitutional public-figure analysis." 663 F.3d at 18-19. The
23Cf. Moody v. NetChoice, LLC, No. 22-277, 2024 WL
3237685, at *12 (U.S. July 1, 2024) ("However imperfect the private
marketplace of ideas, . . . a worse proposal [is] . . . the
government itself deciding when speech [i]s imbalanced, and then
coercing speakers to provide more of some views or less of
others.").
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court noted that "only one court of appeals has explicitly taken
such a step": the Fourth Circuit in Foretich v. Capital Cities/ABC,
Inc., 37 F.3d 1541 (4th Cir. 1994).24
The Lluberes court did "agree" that "an individual
should not risk being branded with an unfavorable status
determination merely because he defends himself publicly against
accusations, especially those of a heinous character." 663 F.3d
at 19 (emphasis added) (citing Pendleton, 156 F.3d at 68); see
also Pendleton, 156 F.3d at 68 ("[O]ne does not become a public
figure merely by defending oneself publicly against
accusations."). But Lluberes explicitly declined to adopt
Foretich's holding that the public-figure analysis should exclude
defensive statements altogether. Id. at 19 n.12 ("[W]e are
reluctant to adopt the reasoning of Foretich outright . . . because
this case does not require us to do so and also because its
rationale has divided scholars."). Instead, the court concluded
24 In Foretich, the plaintiffs were grandparents who
were accused by their daughter-in-law of molesting their infant
granddaughter and who made "public comments and appearances" to
rebut these accusations. 37 F.3d at 1543-44, 1557-58. Although
the Fourth Circuit "acknowledged that some of those rebuttals 'were
probably intended (at least in part) to influence the outcome of
the custody dispute,'" it found that the plaintiffs were protected
under the privilege of reply because their "primary motive was to
defend their own good names against [their daughter-in-law's]
accusations and . . . their public statements can most fairly be
characterized as measured defensive replies to her attacks, rather
than as efforts to thrust themselves to the forefront of a public
controversy in order to influence its outcome." Lluberes, 663
F.3d at 19 (quoting Foretich, 37 F.3d at 1563).
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that even if the privilege were available, it did not apply because
"the record [wa]s clear that [the plaintiffs] took little if any
[of the actions they claimed were protected] directly in response
to" the allegedly defamatory article. Id. at 20. Lluberes further
held that even if the "article had some indirect influence on their
conduct . . . , that conduct went well beyond any reasonable
measure of self-defense." Id.
Assuming arguendo that Franchini's blog posts and his
comments to Slack would qualify as "replies," nonetheless, the
content of those posts and comments went well beyond the scope of
what was "reasonably necessary [for Franchini] to defend himself."
Id. at 18; see also Foretich, 37 F.3d at 1560-61 (holding an
individual's reply is not privileged if it "exceeds the scope of
the original attack, and says more than reasonably appears to be
necessary to protect his reputation"). Franchini's blog posts
were not limited to defending the medical treatment he provided at
VA Togus and disputing the VA's subsequent investigation and its
conclusions, but also included his thoughts on the state of
healthcare in the United States generally and his political views.
In a June 28, 2016, post, he stated his intention to "start writing
daily on topics of interest . . . [i]nclud[ing] medicine surgery
politics religion etc." When asked why he "continued to blog on
a variety of other topics all related to podiatry," he testified
"the other blogs were just for content." Even within his original
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June 27, 2016, blog post, he did not limit himself to refuting the
allegations of substandard care made against him, but also
discussed the propriety and fairness of statutes of limitation and
statutes of repose and impugned his former patients' motives in
bringing FTCA suits, which had nothing to do with whether he
himself had committed malpractice. He stated in his declaration
that he alleged to Slack during his interview that VA Togus's
investigation of him was a "fraudulent and futile campaign"
motivated by the corruption of his supervisors Dr. Sampson and Dr.
Richardson and that these supervisors were later forced to resign
from the VA due to this investigation; stated his beliefs, not
based on any "personal knowledge," that Dr. "Sampson may have been
concerned that [Franchini] might be in a position to take over his
position, because of physical injury"; and again discussed the
statute of limitations under the FTCA. He "urged" journalist Slack
to include these statements in her USA Today article in order to
tell the "real story" of the VA Togus investigation, which he had
called a "witch hunt."
We hold that Franchini is a voluntary limited-purpose
public figure.
D. Absence of Plausible Claim of Actual Malice
As a voluntary limited-purpose public figure, Franchini
is required to show that the alleged defamatory statements against
him were made with "actual malice." Gertz, 418 U.S. at 327-28,
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342. We agree with the district court that he failed to do so in
his SAC.
We review de novo the district court's determination
that the proposed SAC's new allegations failed to plead actual
malice. See Lemelson v. Bloomberg L.P., 903 F.3d 19, 23 (1st Cir.
2018); see also Schatz v. Republican State Leadership Comm., 669
F.3d 50, 55 (1st Cir. 2012). For a pleading of actual malice to
survive a motion to dismiss, the plaintiff must plead "non-
conclusory, non-speculative[] facts" "from which malice might
reasonably be inferred." Schatz, 669 F.3d at 55, 58.
"[A]ctual-malice buzzwords," such as that the defendant "had
'knowledge' that its statements were 'false' or had 'serious
doubts' about their truth and a 'reckless disregard' for whether
they were false . . . . are merely legal conclusions, which must
be backed by well-pled facts" to be sufficient. Id. at 56. Where
a plaintiff "has not 'nudged' his actual-malice claim 'across the
line from conceivable to plausible,'" the district court is right
to dismiss the complaint. Id. at 58 (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
"The standard of actual malice is a daunting one."
Howard v. Antilla, 294 F.3d 244, 252 (1st Cir. 2002) (quoting
McFarlane v. Esquire Magazine, 74 F.3d 1296, 1308 (D.C. Cir.
1996)). Because the test for actual malice is a "wholly
subjective" one, Lemelson, 903 F.3d at 24 (quoting Levesque v.
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Doocy, 560 F.3d 82, 90 (1st Cir. 2009)), rather than an objective
one, "a mere deviation from reasonably prudent conduct will not"
satisfy it, id. Nor will even "demonstrating 'an extreme departure
from professional standards.'" Howard, 294 F.3d at 252 (quoting
Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 665
(1989)). Instead, "[t]here must be sufficient evidence to permit
the conclusion that the defendant in fact entertained serious
doubts as to the truth of his publication. Publishing with such
doubts shows reckless disregard for truth or falsity and
demonstrates actual malice." St. Amant, 390 U.S. at 731.
"[F]ailure to investigate before publishing, even when a
reasonably prudent person would have done so, is not sufficient to
establish reckless disregard," Harte-Hanks, 491 U.S. at 688; see
also Curtis Publ'g Co. v. Butts, 388 U.S. 130, 153 (1967), although
"recklessness may be found where there are obvious reasons to doubt
the veracity of the informant or the accuracy of his reports,"
Harte-Hanks, 491 U.S. at 688 (quoting St. Amant, 390 U.S. at 732).
Further, while "fail[ure] to make any effort to
interview" "a key witness" can support a finding of actual malice,
see Harte-Hanks, 491 U.S. at 692, allegations of actual malice are
unlikely to succeed when an author interviews the defamation
plaintiff and includes their statement in the contested article,
see Lemelson, 903 F.3d at 24, or includes "both sides of the story"
and "countervailing facts," see Howard, 294 F.3d at 252-253, 256
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(noting also that "relatively weak" "evidence of actual malice
. . . was diluted further by the undisputed fact that [the author]
made efforts to include information in the article tending to
discredit those who circulated the rumor").
Franchini's SAC failed to meet this standard. The SAC
consists of thirteen new paragraphs pertaining to Franchini's
actual malice claim. Paragraphs 30-32 and 34 contain mere
conclusory allegations that the defendants were "provided with
evidence causing them to entertain serious doubts" and that they
"possessed information demonstrating, inter alia, that the
proposed story was . . . so inherently improbable that only a
reckless person would put them into circulation" and that they had
"obvious reasons to doubt the veracity of the informant(s)" and
"the accuracy of [their] reports." As the district court correctly
held, these "actual malice buzzwords," Schatz, 669 F.3d at 55, 58,
without more, are insufficient to allow the complaint to survive
the pleading stage.
While paragraphs 53-61 do plead specific facts regarding
Slack and Gannett, specifically that Franchini questioned the
veracity of Slack's source of information, Dr. Sampson; referred
Slack to four other doctors, whom she did not contact; and
presented her with information that Franchini claimed
"demonstrat[ed] . . . the proposed story['s] . . . inherent[]
improbab[ility]" to a level where "only a reckless person would
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put [it] into circulation," these facts fail to show that these
defendants acted with knowledge of the story's falsity or "reckless
disregard for [its] truth." St. Amant, 390 U.S. at 731. Slack
both sought out Franchini for an interview and included his
comments in the article. She also had no "obvious reasons to doubt
the veracity of [her] informant" Dr. Sampson or "the accuracy of
his reports," see Harte-Hanks, 491 U.S. at 688 (quoting St. Amant,
390 U.S. at 732), despite Franchini's questioning. The VA's
investigation of Franchini's performance at VA Togus and
conclusions that his care was substandard were well documented and
contrary to the VA's interest. Slack's decision not to interview
Franchini's other suggested sources also does not establish
recklessness. See id.; Curtis Publ'g Co., 388 U.S. at 153.
Further, because the USA Today article demonstrated due diligence
in reporting on its face, Franchini's claims that other defendants
acted recklessly by relying upon this article in their reporting
are unfounded.25
IV.
For the above reasons, we affirm the judgment of the
district court.
25 Further, because the Portland Press Herald article
was published on October 1, 2017 -- before the USA Today article
was published on October 11, 2017 -- it could not have relied on
the USA Today article's reporting.
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