Anthony Ioppolo v. Christopher Rumana

Case: 13-30920 Document: 00512751476 Page: 1 Date Filed: 08/29/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-30920 August 29, 2014
Lyle W. Cayce
Clerk
ANTHONY S. IOPPOLO, Medical Doctor,
Plaintiff-Appellant,
v.
CHRISTOPHER RUMANA, Medical Doctor; AMERICAN ASSOCIATION OF
NEUROLOGICAL SURGEONS; MARK CUFFE, Medical Doctor;
AMERICAN ASSOCIATION OF NEUROSURGEONS,
Defendants-Appellees.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:06-CV-193
Before DAVIS, ELROD, and COSTA, Circuit Judges.*
PER CURIAM: **
Dr. Anthony Ioppolo appeals the district court’s dismissal of his
defamation and related claims against two fellow physicians and the American
Association of Neurosurgeons, a private professional organization. We affirm
the district court’s judgment.
* Judge Costa participated by designation in the oral argument of this case as a United
States District Judge for the Southern District of Texas. Since that time he has been
appointed as a Fifth Circuit Judge.
** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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I.
Plaintiff, Dr. Anthony Ioppolo (“Ioppolo”), a neurosurgeon in Baton
Rouge, Louisiana, testified as an expert for the plaintiff in a Florida medical
malpractice case in 2003. Drs. Mark Cuffe (“Cuffe”) and Christopher Rumana
(“Rumana”) operated a neurological clinic in partnership with Dr. Eric Vogter,
the principal defendant in the Florida case. 1 Following a settlement between
the parties in the Florida proceedings, Drs. Rumana and Cuffe filed a
complaint against Dr. Ioppolo with the American Association of Neurosurgeons
(the “AANS”), alleging unprofessional conduct as it related to his expert
testimony. Ioppolo, Rumana, and Cuffe are all members of the American
Association of Neurological Surgeons (“AANS”), a private, voluntary
association of neurosurgeons. The AANS encourages its members to testify as
expert witnesses, as long as the testimony is in accordance with its Expert
Witness Guidelines.
The Guidelines provide that the testimony be “truly expert, impartial
and available to all litigants.” Pursuant to the AANS bylaws, any active
member in good standing “may prefer charges alleging that a Member is failing
to maintain a good professional standing.” Such a charge must be made in
writing and state the basis of the charge. The written charge must be delivered
to the Secretary of the Board of Directors, who is then required to forward a
copy to the Professional Conduct Committee (“PCC”). Thereafter, the PCC
“shall call on the members who bring the charges . . . to determine whether a
hearing on the charges is warranted, and shall give the respondent an
opportunity to respond in writing before such a decision is made.” No action
1 Dr. Vogter died during the pendency of the Florida litigation.
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can be taken by the PCC against a member without giving that member an
opportunity for a hearing. If the PCC determines that a hearing is necessary,
the respondent member is entitled to conduct a self-defense or be represented
by counsel. After the hearing, the PCC prepares its findings and
recommendations in a written report submitted to the Board of Directors.
Before the Board takes action on the PCC’s report, the respondent member has
an opportunity to comment on the report. If the outcome before the Board is
unfavorable to the respondent member, he has an opportunity to appeal the
Board’s decision.
After the medical malpractice trial, Rumana and Cuffe preferred such a
charge against Ioppolo by letter to the AANS criticizing his “ethics, honesty,
integrity, and professionalism.” The letter accused Ioppolo of giving “false and
misleading testimony” during the trial in Florida. Upon receiving the letter,
the AANS convened the PCC to investigate the allegations made by Rumana
and Cuffe. A hearing was conducted in October 2004 where Ioppolo, Rumana,
and Cuffe were all present. In December 2004, the PCC found that Ioppolo’s
conduct was “unprofessional” and “egregious,” and recommended imposing
sanctions against Ioppolo, subject to review by the Board of Directors of AANS
at its annual meeting in April 2005. On April 15, 2005, the Board, after
reviewing the PCC report and the CAT scan films of the patient in the Florida
malpractice litigation, unanimously approved the two-year suspension
recommended by the PCC.
On March 7, 2005, before the Board decision but after the PCC report
was furnished to the parties, Rumana and Cuffe wrote to the Louisiana Board
of Medical Examiners, seeking to file a formal charge of unprofessional conduct
with that organization against Ioppolo. In addition, on April 15, 2005 (the day
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of the Board’s decision), Rumana and Cuffe distributed a copy of the PCC’s
preliminary findings to Louisiana Worker’s Compensation Corporation
(“LWCC”) where Ioppolo served as medical director. Ioppolo also alleges that
Rumana and Cuffe sent copies to Vista Surgical Hospital (where Ioppolo served
as medical director), and the Neuromedical Center in Baton Rouge, Louisiana
(Ioppolo’s former workplace).
In February 2006, Ioppolo sued the AANS, Rumana, Cuffe, and the
American College of Surgeons in state court. Ioppolo asserted claims of
defamation, abuse of process, abuse of personal rights, and intentional
infliction of emotional distress (“IIED”). Defendants removed the case on the
basis of diversity jurisdiction under 28 U.S.C § 1332.
In March 2006, the AANS, Rumana, and Cuffe filed motions to dismiss
for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. In April 2006, Ioppolo was granted a temporary restraining
order to prevent the AANS from publishing the fact that it had suspended
Ioppolo’s membership in the organization while his case was pending in the
district court. In July 2006, all parties agreed to a preliminary injunction.
Two years later, in July 2008, the district court heard arguments on the
pending motions to dismiss, at which time it denied the motions filed by
Rumana and Cuffe, and deferred ruling on the motion by the AANS. The court
also instructed Ioppolo to amend his complaint against the AANS, or his claims
against the AANS would be dismissed. In August 2008, Ioppolo filed a Second
Amended Complaint against the AANS, alleging the same four causes of
action. The AANS responded with a motion to dismiss the complaint.
In August 2011, the district court granted the AANS’s motion to dismiss,
finding that Ioppolo had failed to state a claim for defamation, abuse of process,
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abuse of rights, or IIED. This left for resolution the claims against Drs.
Rumana and Cuffe.
In July 2012, Rumana and Cuffe each filed a “renewed” motion to dismiss
Ioppolo’s claims against them pursuant to Rule 12(b)(6). The district court
granted the motions with respect to Ioppolo’s claims for abuse of rights, abuse
of process, and IIED. The court also dismissed Ioppolo’s defamation claim with
respect to the initial publication of the PCC report because the claim was time
barred under Louisiana’s one-year prescriptive period. 2 The court declined to
dismiss Ioppolo’s defamation claim with respect to the subsequent publications
by Rumana and Cuffe because they fell within the one-year prescriptive period.
Following the district court’s ruling on the motions to dismiss, the only
surviving claims were Ioppolo’s claims for defamation with respect to Rumana
and Cuffe’s later publication of the PCC Report in March and April 2005. In
January 2013, Cuffe filed a motion for summary judgment as to this claim.
Rumana filed his own motion in March 2013. The district court granted both
motions.
Ioppolo appeals from the district court’s dismissal of each of his four
claims.
II.
We review a district court’s dismissal under Rule 12(b)(6) of the Federal
Rules of Civil Procedure de novo, 3 construing all factual allegations in the light
most favorable to the plaintiffs. 4 We accept as true all the facts pleaded in the
2 The report was initially published in December 2004, and Ioppolo filed suit in February
2006.
3 Kopp v. Klein, 722 F.3d 327, 333 (5th Cir. 2013) (citing Atchafalaya Basinkeeper v. Chustz,
682 F.3d 356, 357 (5th Cir. 2012)).
4 Id. (citing Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999)).
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complaint. 5 For a complaint to state a claim, the non-moving party must plead
enough facts to state a claim to relief that is plausible on its face. 6
“This court reviews a district court's grant of summary judgment de
novo, applying the same standards as the district court.” 7 “Summary
judgment is warranted if the pleadings, the discovery and disclosure materials
on file, and any affidavits show there is no genuine [dispute] as to any material
fact and that the movant is entitled to judgment as a matter of law.” 8 “Without
weighing the evidence, assessing its probative value, or resolving any factual
disputes . . . we merely search the record for resolution-determinative factual
disputes.” 9 We must draw all reasonable inferences in favor of the nonmoving
party and may not make credibility determinations. 10
III.
A.
We turn first to Ioppolo’s claims for abuse of process and abuse of right.
“Abuse of process involves the misuse of a process already legally issued
whereby a party attempts to obtain a result not proper under the law.” 11 To
prevail on an abuse of process claim in Louisiana, a plaintiff must prove each
of two elements: (1) the existence of an ulterior purpose; (2) a willful act in the
5 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
6 Chustz, 682 F.3d at 358.
7 Barker v. Hercules Offshore, Inc., 713 F.3d 208, 212 (5th Cir. 2013) (quoting Greater Hous.
Small Taxicab Co. Owners Ass’n v. City of Houston, 660 F.3d 235, 238 (5th Cir. 2011)).
8 Greater Hous. Taxicab, 660 F.3d at 238 (alteration in original).
9 F.D.I.C. v. Myers, 955 F.2d 348, 349 (5th Cir. 1992) (citing Kennett-Murray Corp. v. Bone,
622 F.2d 887 (5th Cir. 1980)).
10 Arismendez v. Nightingale Home Health Care, Inc., 493 F.3d 602, 606 (5th Cir. 2007)
(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).
11 Glotfelty v. Hart, 2013-0870 (La. App. 1 Cir. 12/27/13); 2013 WL 6858285; Goldstein v.
Serio, 496 So. 2d 412, 415 (La. Ct. App. 1986).
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use of the process not proper in the regular prosecution of the proceeding. 12
The district court concluded that the AANS proceedings did not
constitute a “process” in this context under Louisiana law. We agree. Louisiana
courts have never considered the “process” element of a cause of action for
abuse of process “anything other than legal process, or court process.” 13
Rather, under Louisiana law:
[A]buse of process is the misuse of legal process for an ulterior
purpose. It consists in the malicious misuse or misapplication of
that process after issuance to accomplish some purpose not
warranted or commanded by the writ. It is malicious perversion of
a legally issued process whereby a result not lawfully or properly
obtainable under it is attempted to be secured. 14
There is no evidence to suggest that the AANS proceedings are anything other
than the mechanism of a private professional organization to enforce its ethical
and professional standards. Therefore, Ioppolo has failed to state a claim for
abuse of process under Louisiana law because he has not alleged the use of any
qualifying “process.”
The abuse of rights doctrine is a civil law concept which is rarely used in
Louisiana, 15 and applies only when one of the following conditions are met: (1)
the predominant motive for exercise of the right is to cause harm; (2) there is
no serious or legitimate motive for exercise of the right; (3) the exercise of the
12 Nathans v. Vuci, 443 So. 2d 690, 694–95 (La. Ct. App. 1983) (citing Succession of Cutrer v.
Curtis, 341 So. 2d 1209, 1213–14 (La. Ct. App. 1976), writ denied, 343 So. 2d 201 (La. 1977)).
(“[T]he mere issuance of process is not actionable as an abuse of process; there must be use
of the process, and that use must of itself be without the scope of the process, and hence
improper....” (citation omitted)).
13 Almerico v. Dale, 05-749 (La. App. 5 Cir. 3/28/06); 927 So. 2d 586, 594.
14 Id. (quoting Succession of Cutrer, 341 So. 2d at 1214) (emphasis added). See also Mini-
Togs, Inc. v. Young, 354 So. 2d 1389, 1390 (La. Ct. App. 1978) (“A legal and legitimate use of
process, to effect the result which such process is designed by law to accomplish, is not an
abuse thereof.” (citation omitted) (emphasis added)).
15 See Steier v. Heller, 31-733 (La. App. 2 Cir. 5/5/99); 732 So. 2d 787, 790–91.
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right violates moral rules, good faith, or elementary fairness; or (4) the exercise
of the right is for a purpose other than that for which it was granted. 16 The
district court dismissed Ioppolo’s abuse of rights claim for failure to state a
claim. The court determined Ioppolo failed to allege facts which would support
a cause of action for any of the four conditions above.
Ioppolo contends that the AANS, Rumana, and Cuffe abused their rights
under the AANS bylaws by pursuing the complaint against him as a result of
his expert testimony. However, he fails to adequately brief this argument on
appeal. 17 For this reason, Ioppolo has waived any argument with respect to his
claim for abuse of rights, and we affirm the district court’s dismissal for the
reasons stated by the district court.
B.
Next, we address Ioppolo’s claim for Intentional Infliction of Emotional
Distress (“IIED”). Under Louisiana law, a plaintiff claiming IIED must
establish three elements: (1) that the conduct of the defendant was extreme
and outrageous; (2) that the emotional distress suffered by the plaintiff was
severe; and (3) that the defendant desired to inflict severe emotional distress
16 Id. at 791. (citing Mass. Mut. Life Ins. Co. v. Nails, 549 So. 2d 826 (La. 1989)).
17 Our opinion in United States v. Scroggins provides a helpful and accurate summation of
our law on this issue:
A party that asserts an argument on appeal, but fails to adequately brief it, is
deemed to have waived it. It is not enough to merely mention or allude to a
legal theory. We have often stated that a party must “press” its claims. At
the very least, this means clearly identifying a theory as a proposed basis for
deciding the case—merely “intimating” an argument is not the same as
“pressing” it. In addition, among other requirements to properly raise an
argument, a party must ordinarily identify the relevant legal standards and
any relevant Fifth Circuit Cases. We look to an appellant’s initial brief to
determine the adequately asserted bases for relief.
599 F.3d 433, 446–47 (5th Cir. 2010) (citations and quotations omitted). Ioppolo mentions
this claim only twice early in his brief. He fails to address it substantively, or refer to it at
all, in his argument that the district court’s 12(b)(6) ruling was in error.
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or knew that severe emotional distress would be certain or substantially
certain to result from his conduct. 18 “It is not enough that the defendant has
acted with intent which is tortuous, or that he maliciously intended to inflict
emotional distress.” 19 “The conduct must be so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious and utterly intolerable in a civilized community.
Liability does not extend to mere insults, indignities, threats, annoyances,
petty oppressions, or other trivialities.” 20
The district court dismissed Ioppolo’s IIED claim as to each defendant,
finding that his allegations did not rise to the “high level of ‘extreme and
outrageous’ conduct” to constitute IIED under Louisiana law.
Ioppolo contends that the allegations in his Second Amended Complaint
meet the pleading requirements because he “precisely pled” each of the
elements of IIED in his petitions and complaints against each defendant,
sometimes using the exact language of the required elements. This contention
is incorrect. “[A] plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do . . . .” 21
Therefore, we must examine whether the alleged actions of the defendants are
“extreme and outrageous” so as to state a claim for IIED under Louisiana law.
Rumana and Cuffe filed a complaint with the AANS, which was their
right as members of the organization. Ioppolo complains, however, that
18 White v. Monsanto Co., 585 So. 2d 1205, 1209 (La. 1991).
19 James v. Woods, No. 14-216, 2014 WL 1896760, *4 (E.D. La. May 12, 2014) (citing Nicholas
v. Allstate Ins. Co., 765 So. 2d 1017, 1022 (La. 2000)).
20 White, 585 So. 2d at 1209.
21 Twombly, 550 U.S. at 555 (citation omitted).
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Rumana and Cuffe participated in the proceedings before the PCC by giving
false and misleading testimony to the committee. Ioppolo further alleges that
Rumana and Cuffe then distributed the report of the PCC to Ioppolo’s
employers, colleagues, and the Louisiana State Board of Medical Examiners,
prior to review by the Board of Directors of the AANS. Lastly, Ioppolo alleges
that the AANS refused to police the abuses of its members, Rumana and Cuffe,
and therefore became complicit in their conduct, and refused to communicate
with the entities and individuals who received the PCC report prematurely
sent out by Rumana and Cuffe.
The defendants’ actions did not rise to the level of “extreme” or
“outrageous,” and the district court did not err in dismissing Ioppolo’s IIED
claim. The AANS, Rumana, and Cuffe merely followed a procedure established
by the AANS for its members to report on potentially unprofessional conduct
of a fellow member of the organization. The alleged violation of that procedure
is Rumana and Cuffe’s distribution of the PCC Report prior to the decision of
the Board of Directors. This conduct, even if it were tortuous, is not sufficient
to state a claim for IIED. 22 Liability for IIED requires much more than
tortuous conduct—it requires conduct that goes “beyond all possible bounds of
decency” which can be “regarded as atrocious and utterly intolerable in a
civilized community.” 23 The alleged conduct of defendants does not rise to this
level. Therefore, we affirm the district court’s dismissal of Ioppolo’s IIED claim.
C.
Finally, we turn our attention to Ioppolo’s claim for defamation.
“Defamation is a tort which involves the invasion of a person’s interest in his
22 See James, 2014 WL 1896760, at *4 (citing Nicholas, 765 So. 2d at 1022).
23 White, 585 So. 2d at 1209.
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or her reputation and good name.” 24 In order to state a cause of action for
defamation, a plaintiff must establish four elements: “(1) a false and
defamatory statement concerning another; (2) an unprivileged publication to a
third party; (3) fault (negligence or greater) on the part of the publisher; and
(4) resulting injury.” 25 Because this is a case against a private individual, the
fault required to establish liability is negligence. 26
“Defamatory words are, by definition, words which tend to harm the
reputation of another so as to lower the person in the estimation of the
community, to deter others from associating or dealing with the person, or
otherwise expose a person to contempt or ridicule.” 27 Under Louisiana law,
there are two categories of defamatory words: words that are defamatory per
se, and words that are susceptible of defamatory meaning. 28 “Words which
expressly or implicitly accuse another of criminal conduct, or which by their
very nature tend to injure one’s personal or professional reputation, even
without considering extrinsic facts or surrounding circumstances, are
considered defamatory per se.” 29 When a plaintiff proves publication of words
that are defamatory per se, the elements of falsity and fault are presumed, and
the burden shifts to the defendant to rebut this presumption. 30 Injury may also
24 Cyprien v. Bd. of Sup’rs ex rel. Univ. of La. Sys., 08-1067 (La. 1/21/09); 5 So. 3d 862, 866
(quoting Costello v. Hardy, 03-1146 (La. 1/21/04); 864 So. 2d 129, 139).
25 Id.26 Kennedy v. Sheriff of E. Baton Rouge, 05-1418 (La. 7/10/06); 935 So. 2d 669, 679. (“. . . [W]e
decline the invitation to adopt a New York Times standard of liability in cases involving
private individuals and matters of public concern, and instead adopt the negligence standard
set forth in the RESTATEMENT (SECOND) OF TORTS § 580B.”)
27 Costello, 864 So. 2d at 140 (citations omitted).
28 Id. at 674–75 (citation omitted).
29 Id. at 675 (citations omitted).
30 Id. (citation omitted).
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be presumed. 31 On the other hand, when the words are not defamatory per se,
a plaintiff must prove all elements of his claim. 32
The district court adjudicated Ioppolo’s defamation claims in three
separate rulings. In August 2011, the court dismissed Ioppolo’s defamation
claim against the AANS for lack of publication because Ioppolo’s complaint
only alleges that the AANS published the report to its membership, not to third
parties. Ioppolo fails to respond to the district court’s ruling in his principal
brief, but contends in his reply brief that the AANS is responsible for the
subsequent publication of the PCC report by Rumana and Cuffe because it “is
a juridical entity and is only capable of acting through its members.” After
careful review, we agree with the district court’s conclusion. The AANS
followed its own internal protocol when it distributed the PCC Report to its
membership. Pursuant to AANS procedure, the PCC Report was required to
be distributed to the membership once Ioppolo appealed the decision to the
Board of Directors. This distribution exclusively within the organization, and
pursuant to the organization’s rules, is comparable to an intra-corporate
communication among employees within the course and scope of their
employment. Under Louisiana law, such statements are not “publicized” to
third persons so as to constitute publication in a defamation claim. 33
The Louisiana case of Doe v. Grant illustrates this point. 34 In that case,
the plaintiff, also a physician, performed an angioplasty procedure on a patient
who died. 35 An Ad Hoc Committee of plaintiff’s peers reviewed the case and
31 Id. (citation omitted).
32 Id. (citation omitted).
33 See, e.g., Bell v. Rogers, 29-757 (La. App. 2 Cir. 8/20/97); 698 So. 2d 759.
34 See 01-0175 (La. App. 4 Cir. 1/29/03); 839 So. 2d 408.
35 Id. at 412.
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submitted its findings to a Medical Executive Committee (“MEC”). 36 The MEC
concluded that plaintiff’s performance was below the standard of care and
unprofessional, and summarily suspended plaintiff from practicing medicine
in the hospital. 37 The Board of Trustees of the hospital upheld the MEC’s
decision to suspend the plaintiff. 38 In response, the plaintiff brought
defamation claims against his employer, the hospital, as well as his co-
employees. 39 In his complaint, plaintiff pointed to three incidents which he
claimed constituted “publication” of the allegedly defamatory statements
contained in the report: a) a doctor sharing the contents of the report with
hospital staff; b) hospital administration telling nursing staff and others that
plaintiff’s privileges had been suspended; and c) a fellow doctor informing the
Board of Trustees that the MEC had reaffirmed its decision to summarily
suspend the plaintiff. 40 The court in Grant reasoned that these incidents did
not amount to publication because they were necessary to ensure the safety of
the patients at the hospital, and to inform other doctors and nurses that
plaintiff’s privileges had been suspended. Thus, the court concluded that these
communications were protected. 41
The PCC Report in the instant case is comparable to the communications
in Grant. Both involved the findings of professional committee hearings and
the suspension of privileges. Both contained statements which were damaging
to a physician’s professional reputation. In each case, the communications were
distributed only to the parties as provided in the organization’s rules, and were
36 Id. at 412–13.
37 Id. at 413.
38 Id.39 Id.40 Id. at 416.
41 Id.13
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necessary to ensure effective operation of the organization. We agree with the
district court’s conclusion that Ioppolo failed to allege the required publication
by the AANS, and his defamation claim against the AANS was properly
dismissed.
We now turn to Ioppolo’s defamation claim against Rumana and Cuffe.
The district court dismissed as time barred that part of Ioppolo’s defamation
claim against Rumana and Cuffe related to the first distribution of the PCC
Report. The PCC Report was initially distributed on December 28, 2004, and
Ioppolo filed suit more than one year later, on February 9, 2006. Ioppolo’s
claims based on this distribution are therefore time barred on their face under
Louisiana’s one-year statutory limit. 42 However, this does not absolve Rumana
and Cuffe from liability for defamation. As discussed in detail below, Rumana
and Cuffe later republished the PCC Report to third parties in March and April
2005, less than one year before Ioppolo filed suit. Under Louisiana law, “each
and every publication or communication to a third person constitutes a
separate cause of action.” 43 Therefore, Ioppolo maintains a timely cause of
action for defamation against Rumana and Cuffe based on their subsequent
distribution of the letter and the PCC Report.
In its third and final ruling addressing the defamation claims, the
district court, on summary judgment, dismissed Ioppolo’s claims against
Rumana and Cuffe based on their distribution of the PCC Report to the
Louisiana State Board of Medical Examiners (“LSBME”) and the LWCC.
Ioppolo argues that this distribution constitutes defamation. According
42 See Lyons v. Knight, 10-1470 (La. App. 3 Cir. 5/11/11); 65 So. 3d 257, 260 (citing LA. CIV.
CODE ANN. art. 3492).
43 Reed v. Baton Rouge Crime Stoppers, 11-0618, *2 (La. App. 1 Cir. 11/9/11); 2011 WL
5419678.
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to Ioppolo, the following statements by Rumana and Cuffe in their letter were
defamatory: (1) that Ioppolo gave “false testimony which was not supported by
any medical literature in this case”; (2) that Ioppolo was “a biased expert, not
an impartial one”; (3) that Ioppolo’s testimony that there was an extradural
clot compressing the spinal cord was incorrect, highly damaging, and
substandard for a neurological surgeon; (4) that the verdict in the Florida case
“threatened to bankrupt the Tallahassee Neurological Center . . .”; (5) that
Ioppolo offered an overoptimistic prognostication which was “misleading to the
jury”; (6) that Ioppolo’s trial testimony was “scientifically baseless and
irresponsible advocacy”; and (7) that the PCC considers Ioppolo’s conduct
unprofessional and egregious. Additionally, Ioppolo contends that several
statements contained within the PCC report were also defamatory upon
publication to third parties. Ioppolo also argues that the statements by
Rumana and Cuffe are defamatory per se because they bear negatively on his
“professionalism, knowledge as a physician, propensity for truthfulness,
morality, and responsibility as an expert.”
We affirm the district court’s dismissal for the following reasons. First,
the PCC Report itself is a statement of opinion, not fact. The First Amendment
provides “a defense against defamation actions for expressions of opinion about
matters of public concern made without knowing or reckless falsity.” 44 The
PCC Report was rendered after the committee heard evidence, resolved
conflicts, made credibility calls, and reached a decision similar to an opinion
issued by a court. (The PCC decision was affirmed by the Board of Directors on
appeal.) The Report is littered with phrases and statements which clearly
44Mashburn v. Collin, 355 So. 2d 879, 885 (La. 1977). See also Bussie v. Lowenthal, 535 So.
2d 378 (La. 1988).
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indicate it is a statement of opinion. 45 Moreover, the veracity and reliability of
expert medical testimony given during trial is a matter of public concern
because it is a critical part of the efficient administration of justice. 46 Second,
the letter distributed by Rumana and Cuffe to the LSBME and LWCC which
accompanied the PCC Report is almost entirely a summary of the PCC Report,
and often repeats or paraphrases language in the Report. Specifically, the
statements above numbered 2, 3, 5, 6, are essentially identical to conclusions
reached in the PCC Report. Statements 1 and 7 are generalizations of the
PCC’s findings in its report. 47 The statement that Ioppolo’s testimony was
false, incorrect, and misleading based on his interpretation of the CT scan is
an opinion based on a physician’s expertise as a neurosurgeon. Use of the word
“false” in the statement does not change its nature, and is not substantively
different than stating that Ioppolo’s testimony was “incorrect,” “baseless,” or
“misleading.” This is true even though Drs. Rumana and Cuffe express their
45 See Bussie, 535 So. 2d at 381–83. These phrases include: “The PCC concludes that [Ioppolo]
demonstrated a lack of adequate subject matter knowledge . . .”; “we consider Dr. Ioppolo’s
trial testimony that there had been ‘little or no irreversible damage . . . to be scientifically
baseless and irresponsible advocacy”; and “we . . . consider Dr. Ioppolo’s unequivocal
testimony that there was an extradural clot compressing the cord to be incorrect, highly
damaging, and substandard for a neurological surgeon.”
46 See, e.g., Baton Rouge Waterworks Co. v. Louisiana Pub. Serv. Comm’n, 156 La. 539, 548–
49 (La. 1924) (“‘The administration of justice, the preservation of the public peace, and the
like . . . are essentially matters of public concern.” (quoting State ex rel. Saunders v. Kohnke,
109 La. 838, 846 (La. 1903)).
47 The PCC Report concluded that “Dr. Ioppolo demonstrated a lack of adequate subject
matter knowledge and acted as an advocate for the plaintiff and the plaintiff attorney rather
than as an unbiased witness.”
Rumana and Cuffe’s letter also stated that Ioppolo “was not qualified to even give
testimony in [the Florida malpractice] case by the standards of the American College of
Surgeons.” The American College of Surgeons guidelines for testimony require that an expert
be a practicing surgeon who currently practices in the area relevant to his testimony. Ioppolo
fails to mention this statement in his briefs. After reviewing the record and the ACS
guidelines, we cannot say this statement is untrue, and therefore it is not defamatory.
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views that Ioppolo’s interpretation is unquestionably and flagrantly off-base.
This is still an opinion.
Even if we assume arguendo that the PCC Report and the letter by
Rumana and Cuffe do not constitute opinion, they are still immune from a
claim for defamation if the statements are subject to a qualified privilege. “In
Louisiana, privilege is a defense to a defamation action.” 48 “The doctrine of
privilege rests upon the notion that sometimes, as a matter of public policy, in
order to encourage the free communication of views in certain defined
instances, one is justified in communicating defamatory information to others
without incurring liability.” 49 “The elements of a conditional privilege have
been described as good faith, an interest to be upheld and a statement limited
in scope to this purpose, a proper occasion, and publication in the proper
manner to the proper parties only.” 50 “The practical effect of the assertion of
the conditional or qualified privilege is to rebut the plaintiff’s allegation of fault
and to place the burden of proof on the plaintiff to establish abuse of the
privilege.” 51
Determining whether a qualified privilege exists involves a two-step
process. “First, it must be determined whether the attending circumstances of
a communication occasion a qualified privilege.” 52 Second, we determine
48 Kennedy, 935 So. 2d at 681 (citing Costello, 864 So. 2d at 141).
49 Kennedy, 935 So. 2d at 681 (citing Toomer v. Breaux, 146 So. 2d 723, 725 (La. App. 1962)).
50Hakim v. O’Donnell, 49,140, *6 (La. App. 2 Cir. 6/25/14); --- So. 3d --- (citing Kennedy, 935
So. 2d 669; Martin v. State, Dep’t of Pub. Safety & Corr., Office of State Police, 47,647 (La.
App. 2 Cir. 1/16/13); 109 So. 3d 442).
51 Dyas v. Shreveport Police Dep’t, 48,804, *11 (La. App. 2 Cir 2/26/14); 126 So. 3d 897, 904
(citing Kennedy, 935 So. 2d 669).
52Kennedy, 935 So. 2d at 682 (citing Smith v. Our Lady of the Lake Hospital, Inc., 93-2512
(La. 7/5/94), 630 So. 2d 730).
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“whether the privilege was abused, which requires that the grounds for
abuse—malice or lack of good faith—be examined.” 53 “While the first step is
generally determined by the court as a matter of law, the second step of
determining abuse of a conditional privilege or malice is generally a fact
question for the jury ‘[u]nless only one conclusion can be drawn from the
evidence.’” 54
A Louisiana court has applied the qualified privilege in “attending
circumstances” similar to this case. In Elmer v. Coplin, the defendant, an
attorney, wrote a letter to the National Conference of Bar Examiners which
accused the plaintiff, an applicant to the District of Columbia Bar, of
participating in the fraudulent misrepresentation of the assets and liabilities
of a company the plaintiff represented. 55 Despite finding that defendant’s
letter was defamatory per se after a bench trial, the court upheld the dismissal
of plaintiff’s defamation claim because defendant was protected by the
qualified privilege. 56 The Elmer court found the privilege applied even though
the defendant’s statements in that case were ultimately found in a separate
proceeding to be false. 57
In addition, Louisiana courts have held that a qualified privilege is
generally necessary for statements made when reviewing the fitness of medical
doctors to practice their profession. 58 Although the instant case does not
53 Id.54 Id. at 682.
55 485 So. 2d 171, 174 (La. Ct. App. 1986).
56 Id. at 178–80.
57 Id. at 178.
58 Smith, 639 So. 2d at 744 (“’…If a conditional privilege should ever operate, indeed if there
is one instance where society should encourage uninhibited communication, it is in the review
of the competency of medical professionals.’”) (quoting Sibley v. Lutheran Hosp. of Maryland,
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directly concern Dr. Ioppolo’s fitness to practice medicine, it does involve his
ability to provide competent expert medical testimony based upon his
qualifications as a neurosurgeon. The competency of such testimony implicates
his ability to practice, and also affects the public’s interest in the proper
administration of the judicial system. Thus, the circumstances of this case
warrant application of the qualified privilege.
Moving to the second part of the test, we find no sign of abuse of the
qualified privilege by Rumana and Cuffe. Ioppolo produced no summary
judgment evidence tending to show that Rumana and Cuffe knew their
statements were false, or acted with reckless disregard as to their truth, when
they wrote their letter and distributed it to the LSBME and LWCC. Ioppolo
asserts that Rumana and Cuffe’s initial complaint to the AANS and their
testimony during the hearing before the PCC were “misleading, speculative,
false and prejudicial in nature.” Therefore, according to Ioppolo, Rumana and
Cuffe’s letter which accompanied the PCC Report was defamatory and
constituted an abuse of the qualified privilege because it was based upon these
prior false statements.
“The conditional privilege is abused, and thus inapposite, when the
‘defendant steps outside the scope of the privilege, or abuses the occasion.” 59
The defendant abuses the privilege when he acts with knowledge of falsity, or
reckless disregard for the truth. 60 The initial complaint and testimony are not
Inc., 871 F.2d 479, 483 (4th Cir. 1989)). See also Sanders v. State ex rel. Dep’t of Health and
Hosp., 2011-0814, *11–12 (La. App. 1 Cir. 8/2/12); 2012 WL 3133694.
59Smith, 639 So. 2d 730, 744 (citing W. KEETON, D. DOBBS, R. KEETON & D. OWEN, PROSSER
& KEETON ON TORTS § 115, P. 832 (5th Ed. 1984)).
60 Kennedy, 935 So. 2d at 686.
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shown to be knowingly false. In fact, these statements were subsequently
corroborated by the PCC Report after an extensive investigation. Moreover,
Ioppolo’s allegation that the PCC Report, and the letter which accompanied it,
were based on the prior false statements of Rumana and Cuffe, fails to tell the
whole story. The PCC issued its report following an adversarial hearing during
which both sides testified and presented evidence; it was not an ex parte
proceeding. That the PCC decided in favor of Rumana and Cuffe supports the
notion that they had a reasonable basis for their allegations. The record does
not show that Rumana and Cuffe’s letter “is fabricated . . . , the product of
[their] imagination, or is so inherently improbable that only a reckless man
would have put it in circulation.” 61 Ioppolo has failed to show that Rumana
and Cuffe either knew their statements were false or acted with reckless
disregard for their truth. Thus, even assuming arguendo that the statements
made by Rumana and Cuffe in their letter are not statements of opinion, the
summary judgment record supports their argument that they were entitled to
a qualified privilege.
IV.
For the reasons stated above, we affirm the district court’s dismissal of
Dr. Ioppolo’s action against the AANS, and Drs. Rumana and Cuffe.
AFFIRMED.
61 Id. at 689 (citing Trentecosta v. Beck, 96-2388, *15 (La. 10/21/97); 703 So. 2d 552, 561).
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JENNIFER WALKER ELROD, Circuit Judge, concurring in part and
dissenting in part:
I agree with the panel opinion that the district court properly dismissed
Dr. Ioppolo’s claims for abuse of process, abuse of right, and intentional
infliction of emotional distress, as well as his defamation claim against the
American Association of Neurosurgeons (“AANS”). I write separately
because, in my view, Drs. Rumana and Cuffe were not entitled to summary
judgment on Dr. Ioppolo’s defamation claims against them.
This case arises out of the expert testimony that Dr. Ioppolo offered
against Dr. Vogter—a former business partner of Drs. Rumana and Cuffe—in
a medical malpractice case. Dr. Ioppolo offered testimony suggesting that Dr.
Vogter did not follow proper hospital policy in a case where a ten-year-old boy
ultimately became quadriplegic. Specifically, Dr. Ioppolo testified that he
reviewed CT films which showed hematoma on the boy’s CT scan. Dr.
Iopppolo further testified that the hematoma compressed the boy’s spinal cord,
and that standard hospital policy suggested that Dr. Vogter should have given
the boy steroids and performed a decompressive surgery on the hematoma.
Drs. Ioppolo, Rumana, and Cuffe were all members of the professional
association AANS. After the malpractice case settled, Drs. Rumana and Cuffe
filed a complaint against Dr. Ioppolo with the AANS’s Professional Conduct
Committee (“PCC”) regarding his testimony against Dr. Vogter. In their
complaint, they alleged that Dr. Ioppolo’s testimony was “false, inaccurate and
constituted a violation of the AANS Expert Witness Rules.” Both Drs.
Rumana and Cuffe subsequently participated in the PCC’s proceedings against
Dr. Ioppolo. According to Dr. Ioppolo, Drs. Rumana and Cuffe’s testimony
included “prejudicial and unsubstantiated allegations about the factual
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background” of the malpractice case. For example, the physicians testified
that no doctor could have seen a hematoma compressing the boy’s spinal cord
on a CT scan. Dr. Ioppolo asserts that these statements were later
incorporated into the PCC’s resulting report. The PCC report found that Dr.
Ioppolo “demonstrated a lack of adequate subject matter knowledge [in the
malpractice case] and acted as an advocate for the plaintiff’s attorney rather
than as an unbiased witness.” The AANS Board reviewed the PCC report,
and unanimously approved a two-year suspension for Dr. Ioppolo.
Before Dr. Ioppolo had a chance to make use of the appeals process
available within the AANS for such reports, Drs. Rumana and Cuffe mailed
copies of the PCC report to the Louisiana State Board of Medical Examiners
(“LSMB”) and the Louisiana Workers’ Compensation Corporation (“LWCC”).
These reports were accompanied by letters from Drs. Rumana and Cuffe
purporting to summarize the PCC report and including a number of negative
statements about Dr. Ioppolo. For example, one letter stated that “Dr. Ioppolo
gave false, misleading expert testimony;” that he “was a biased expert, not an
impartial one;” and that his testimony was “scientifically baseless and
irresponsible advocacy.” Dr. Ioppolo then filed suit against the AANS and
Drs. Rumana and Cuffe alleging, among other things, that the statements in
the report and letters were defamatory. 1
The panel opinion holds that the PCC report and the accompanying
letters sent by Drs. Rumana and Cuffe were statements of opinion, and that
1 Attacks, such as these, on an expert witness’s professional standing can also
negatively impact the ability of plaintiffs to bring medical malpractice cases by making
physicians less willing to testify against other members of their profession. See, e.g., James
A. Lowe & Mark L. Wakefield, Am. L. Prod. Liab. 3d § 68:33 (noting that finding an expert
witness in a medical malpractice case is “usually a hair-pulling experience”).
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even if they were not, the statements would still be immune from a defamation
claim because they are subject to a qualified privilege. I respectfully disagree.
“The distinction drawn between opinion and statement of fact has long
been important at common law because most states restricted the privilege of
fair comment to expressions of opinion.” Mashburn v. Collin, 355 So. 2d 879,
885 (La. 1977) (citation omitted).
Although difficult to state in abstract terms, as a practical matter,
the crucial difference between statement of fact and opinion
depends upon whether ordinary persons hearing or reading the
matter complained of would be likely to understand it as an
expression of the speaker’s or writer’s opinion, or as a statement of
existing fact.
Id. (citation omitted).
I agree with the panel opinion that the PCC report contains a number of
opinions, and that such opinions are protected from defamation claims by the
First Amendment. See id. (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254,
283 (1964)). However, not all of the statements that Dr. Ioppolo complains of
can be fairly characterized as opinions. For example, Drs. Rumana and
Cuffe’s letter to the LSMB stated that “Dr. Ioppolo gave false testimony which
was not supported by any medical literature in this case.” An ordinary person
reading this statement would likely understand this to be a statement of fact:
Either Dr. Ioppolo did, or did not, give false testimony. Only a fact can be true
or false. Indeed, as Dr. Cuffe himself notes, two of the synonyms for “false”
are “contrary to fact” and “counterfactual.” Thus, the statement that Dr.
Ioppolo gave false testimony is best characterized as a statement of fact, rather
than an opinion.
Because not all of Drs. Rumana and Cuffe’s statements were protected
opinions, I next turn to whether their statements were covered by qualified
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privilege. “[T]he analysis for determining whether a conditional privilege
exists involves a two-step process.” 2 Kennedy, 935 So. 2d at 682. “First, it
must be determined whether the attending circumstances of a communication
occasion a qualified privilege.” Id. “Attending circumstances” include the
“communication of alleged wrongful acts to the officials authorized to protect
the public” such as when a member of the public alerts the police of potentially
dangerous or criminal activity. Id. Louisiana has also recognized a qualified
privilege for “communications between an employer and the Department of
Employment Security” regarding the reasons for an employee’s termination.
Watson v. Willis–Knighton Med. Ctr., 93 So. 3d 855, 860 (La. App. 2 Cir. 2012)
(citing Kosmitis v. Bailey, 685 So.2d 1177 (La. App. 2d Cir. 1996)).
“The second step of the analysis is a determination of whether the
privilege was abused, which requires that the grounds for abuse—malice or
2 The district court incorrectly applied an earlier standard for qualified privilege
based on our decision in Rouly v. Enserch Corp., 835 F.2d 1127, 1130 (5th Cir. 1988). Since
that decision, however, the Louisiana Supreme Court has adopted a new test, which we must
apply. See Vandenbark v. Owens–Ill. Glass Co., 311 U.S. 538 (1941); Charles Alan Wright
& Mary Kay Kane, 20 Fed. Prac. & Proc. Deskbook § 61 (“[U]nder the Erie rule it is never too
late to change in conformity to some new pronouncement of state law, and a court of appeals
must rely on the latest state decisions even though they come after the federal court decision
that the appellate court is reviewing.”). As the Louisiana Supreme Court explained:
Early appellate court decisions in Louisiana characterized the conditional or
qualified privilege as applying if the communication is made (a) in good faith,
(b) on any subject matter in which the person communicating has an interest
or in reference to which he has a duty, (c) to a person having a corresponding
interest or duty. Under this formulation, which finds its genesis in Madison’s
citation of a passage from an encyclopedia, courts typically focused on the
requirements of good faith and proper publication to determine in the first
instance if the privilege applied.
In Smith v. Our Lady of the Lake Hospital, Inc., [639 So.2d 730 (La. 1994)], we
eschewed that approach [in favor of the two-step analysis].
Kennedy v. Sheriff of E. Baton Rouge, 935 So. 2d 669, 682 (La. 2006).
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lack of good faith—be examined.” Id. “While the first step is generally
determined by the court as a matter of law, the second step of determining
abuse of a conditional privilege or malice is generally a fact question for the
jury [u]nless only one conclusion can be drawn from the evidence.” Id. (internal
quotation marks and citations omitted); see also William Lloyd Prosser & W.
Page Keeton, Prosser & Keeton On Torts § 115 at 835 (5th ed. 1984).
Even assuming arguendo that Drs. Rumana and Cuffe met the first step
in the qualified privilege test, the district court should not have granted
summary judgment because a fact issue remains as to whether Drs. Rumana
and Cuffe abused the privilege by acting with actual malice. The practical
effect of asserting a conditional or qualified privilege is to rebut the plaintiff’s
allegations of malice and to place the burden of proof on the plaintiff to
establish an abuse of the privilege. 3 Kennedy, 935 So. 2d at 683.
Establishing an abuse of privilege requires the plaintiff to prove that the
defendants acted with actual malice—that is, with knowing falsity, or reckless
disregard for the truth. Id. at 685.
Dr. Rumana argues that he and Dr. Cuffe “had every reason to believe
the PCC report was ‘true’” because it was the result of the PCC’s evidentiary
proceeding against Dr. Ioppolo. But as Dr. Ioppolo notes, the PCC report was
based in part on Drs. Rumana and Cuffe’s own testimony. If, as Dr. Ioppolo
asserts, Drs. Rumana and Cuffe knew that their testimony and allegations
3 Dr. Ioppolo has alleged defamation per se, which would ordinarily shift the burden
to Drs. Rumana and Cuffe to prove good faith or a lack of malice. See Kennedy, 935 So. 2d
at 675 (“When words are defamatory per se, malice as well as injury are presumed, but may
be rebutted by the defendant.”). However, because Drs. Rumana and Cuffe asserted a
qualified privilege, the burden once again shifted back to Dr. Ioppolo to show malice. Id. at
683. In order to survive summary judgment, he had to put forth evidence showing an issue
of material fact on this issue.
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were untrue, then they certainly had reasons to doubt the veracity of the
resulting PCC report. In Kennedy, the Louisiana Supreme Court explained
that summary judgment was appropriate because “there is no allegation and
certainly no evidence to support a contention” that the defendants knew their
statements were false. Id. at 687–88; see also id. at 688 (“In fact, Kennedy’s
petition alleges only negligence on the part of [the defendants].”). By contrast,
the very heart of Dr. Ioppolo’s case is his contention that Drs. Rumana and
Cuffe gave the PCC false information in order to harm him.
The summary judgment record included Dr. Ioppolo’s affidavit, which
states:
At the [PCC] meeting, [Drs.] Rumana and Cuffe submitted an
extensive presentation which was misleading, speculative, false
and prejudicial in nature, and which included hearsay, matters not
in the medical records and representations which were simply
untrue.
...
Apparently emboldened by the preliminary report and in complete
disregard for the by-laws of the AANS to the appeal, [Drs.]
Rumana and Cuffe commenced a systematic disbursement of the
report of the PCC to my employers, colleagues and others, sending
facsimiles to these entities, attaching copies of the opinion which
was based upon their falsehoods and misrepresentations.
...
They included a copy of the report, though they knew that those
findings were disputed, that they were not final and that they were
not allowed [to] be made public.
The record also included the transcript of Drs. Rumana and Cuffe’s
testimony before the PCC. Dr. Ioppolo identified a number of statements that
the two doctors made, which Dr. Ioppolo claims were unsupported by any
evidence. A reasonable jury could find that that making such unsupported
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statements, and then distributing a report based on those statements,
demonstrated a reckless disregard for the truth. 4 Dr. Ioppolo also submitted
an affidavit from the President and CEO of the LWCC, Kristin Wall, stating:
I found it especially interesting that the complaints against Dr.
Ioppolo were made by the defendant doctors in that case after they
had settled their case and after he had been qualified to testify by
the court and subjected to cross-examination by the remaining
defendants.
Viewed in the light most favorable to Dr. Ioppolo, these statements
create a fact issue as to whether Drs. Rumana and Cuffe abused their qualified
privilege. In addition to these affidavits, Dr. Ioppolo’s position could also be
supported by the fact that Drs. Rumana and Cuffe chose to send out the PCC
report before Dr. Ioppolo had a chance to exhaust the AANS appeals process
and challenge the report’s findings. This refusal to wait and ensure that any
errors in the report were corrected could serve as evidence that they showed a
reckless disregard for the truth. Because more than “one conclusion can be
drawn from the evidence,” the district court should not have granted summary
judgment on Dr. Ioppolo’s defamation claim against Drs. Rumana and Cuffe.
Kennedy, 935 So. 2d at 682.
4 Dr. Ioppolo’s own affidavit alone would be sufficient to survive summary judgment.
See C.R. Pittman Constr. Co., Inc. v. Nat’l Fire Ins. Co. of Hartford, 453 F. App’x 439, 443
(5th Cir. 2011) (“[A]n affidavit based on personal knowledge and containing factual assertions
suffices to create a fact issue, even if the affidavit is arguably self-serving.”); see also Rushing
v. Kan. City S. Ry., 185 F.3d 496, 513 (5th Cir.1999) (“[M]erely claiming that the evidence is
self-serving does not mean we cannot consider it or that it is insufficient. Much evidence is
self-serving and, to an extent, conclusional.”), superseded on other grounds by Fed. R. Evid.
103(a).
27