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Blanchard v. Steward Carney Hospital, Inc.

Appeals Court of Massachusetts, Suffolk

February 24, 2016

Lynne Blanchard & others [1]
Steward Carney Hospital, Inc., & others. [2]

         Argued January 14, 2015

Page 98

          Civil action commenced in the Superior Court Department on May 24, 2013.

         A special motion to dismiss was heard by Linda E. Giles, J.

          Jeffrey A. Dretler ( Katharine A. Crawford & Joseph W. Ambash with him) for the defendants.

          Dahlia C. Rudavsky (Ellen J. Messing with her) for the plaintiffs.

         Present: Katzmann, Sullivan, & Blake, JJ.


          [46 N.E.3d 81] Katzmann, J.

          In this case we consider whether the defendants' special motion to dismiss the plaintiffs' defamation claim pursuant to G. L. c. 231, § 59H, widely known as the " anti-SLAPP" [3] statute, was properly denied. The central question is whether, during a period of crisis when Steward Carney Hospital (Carney Hospital or hospital) faced the loss of its license to operate an in-patient adolescent psychiatric unit (unit) because of purported patient abuse and neglect, statements quoted in a newspaper made by the president of the hospital, and an electronic mail message (e-mail) the president sent to hospital staff announcing the dismissal of unnamed employees in the unit under review, constituted protected petitioning activity. A judge in the Superior Court denied the motion because she found that the statements upon which the claim was based did not qualify as protected petitioning activity and, therefore, the defendants could not seek protection of the anti-SLAPP statute. We conclude that the statements quoted in the newspaper constitute protected petitioning activity, but that the internal e-mail does not. Accordingly, we affirm in part and reverse in part.


          The key facts of this case, as derived from the judge's decision below, the newspaper articles at issue, affidavits by those involved in the investigation, testimony in a related arbitration proceeding (see note 4, infra ), and relevant reports, are as follows. The plaintiffs are all registered nurses (RNs) who had been working in the unit for a number of years. In April, 2011, complaints were made concerning four incidents of alleged patient abuse or neglect within the unit. None of the alleged incidents involved abuse or neglect of a patient by any of the plaintiffs (or any other RN). The incidents were reported to the Department of Mental Health (DMH), the Department of Public Health (DPH), and the Department of Children and Families

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(DCF) by unit RNs or other staff. The unit is licensed by DMH and DPH. After the April complaints, the agencies, especially DMH, were regularly on site to investigate the incidents and to determine whether to revoke the license to operate the unit. The director of licensing at DMH reported making unannounced visits on different occasions, including weekends and holidays, [46 N.E.3d 82] so that she could " see in fact what was happening."

         In late April, 2011, in response to the incidents, Carney Hospital placed all mental health counselors, all regularly assigned unit RNs (including the plaintiffs), and two managers on paid administrative leave. The hospital then hired Attorney Scott Harshbarger and his law firm, Proskauer Rose, LLP (Proskauer defendants), to conduct an overall management review of the unit and make recommendations. Harshbarger interviewed unit staff, including each of the plaintiffs. The plaintiffs identified specific issues that affected patient care and areas for improvement. On May 13, 2011, Harshbarger made an oral report of his conclusions to the hospital's then president, William Walczak; Harshbarger submitted his written report on May 26, 2011. In the report, which made no specific allegations of abuse or neglect against any of the individual plaintiffs or any member of the nursing staff, Harshbarger recommended that the hospital " rebuild" the unit by replacing all of its personnel. The report cited " serious weaknesses" in the supervisory and managerial structure of the unit, including, inter alia, " lack of a clear reporting structure, lack of accountability, oversight of patient care and quality, patient and staff safety concerns, and a flawed and rarely invoked disciplinary process." The report cited a " code of silence" as one of the underlying sources and causes of operational and performance dysfunction. " This code results in a failure to report issues or concerns, and to reinforce a general attitude that reporting can trigger retaliation, intimidation, and/or be ignored or unsupported by others." The report concluded that " it would be prudent to replace the current personnel in order to ensure quality care" for the patients.

         The day that Walczak received Harshbarger's report, he sent a letter to each plaintiff terminating her for her " conduct at work." [4]

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On May 27, 2011, Walczak sent an e-mail to all hospital staff, which stated in pertinent part:

" As you all know, Carney Hospital has a rich tradition of providing excellent care to our patients. Our performance on national quality and safety standards is exceptional, and in many cases superior to competing hospitals. The reason for this performance is simple -- you[,] the employees and caregivers at Carney [Hospital], are dedicated to providing the best possible care to every patient that comes through our doors. It is your dedication that makes Carney Hospital such a special place.
" Recently, I have become aware of alleged incidents where a number of Carney [Hospital] staff have not demonstrated this steadfast commitment to patient care. I have thoroughly investigated these allegations and have determined that these individual employees have not been acting in the best interest of their patients, the hospital, or the [46 N.E.3d 83] community we serve. As a result, I have terminated the employment of each of these individuals."

         The following day, on May 28, 2011, the Boston Globe published an article stating that Walczak said he had hired Harshbarger to investigate an allegation that an employee had allegedly sexually assaulted a teenager on the locked adolescent psychiatry unit, and that Harshbarger had recommended " to start over on the unit." The article included Walczak's statement that Harshbarger's report " described 'serious concerns about patient safety and quality of care.'" The article reported that Walczak further stated, " We will have top-notch employees replace those who left. My goal is to make it the best unit in the state." In the article, a spokesman for the Massachusetts Nurses Association, a union representing the plaintiffs, said that the " hospital fired 29 employees, including 13 nurses who are members of the union."

         In June, 2011, DMH issued reports on the incidents, finding wrongdoing by a single mental health counsellor for the first three

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incidents and finding improper actions by unspecified staff for the fourth incident. In a June 22, 2011, Boston Globe article, it was reported that the firing of twenty-nine nurses and mental health counsellors at Carney Hospital followed five complaints of abuse or neglect in the adolescent psychiatry unit, not just the one complaint as initially disclosed, and that four of the complaints had been validated. While declining to provide details on the cases, Walczak was quoted in the article as stating that " [t]he Harshbarger report indicated that it wasn't a safe situation." The article explained that Walczak based his decision to fire the entire staff " on an investigation by former Attorney General Scott Harshbarger and his law firm." The article quoted a letter from the Massachusetts Nurses Association to Carney Hospital nurses as stating that the nurses " adamantly deny any allegations of wrongdoing."

         On May 24, 2013, the plaintiffs filed their defamation claims against the Proskauer defendants[5] and against Carney Hospital, two related entities, and Walczak (collectively, Steward defendants).[6] Relevant to the instant appeal, pursuant to the anti-SLAPP statute, the Steward defendants filed a special motion to dismiss count 3 of the complaint (defamation), which alleged that Walczak " made false and defamatory statements about the plaintiffs to the general public in his remarks in the Boston Globe articles of May 28, 2011, and June 22, 2011," and " made false and defamatory statements about the [46 N.E.3d 84] plaintiffs to Hospital staff in his email of May 27, 2011." The judge denied this motion,

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finding that neither Walczak's statements to the Boston Globe nor his e-mail to the hospital staff constituted protected petitioning activity. The Steward defendants now appeal from the denial of their motion.


          1. Overview.

          a. The anti-SLAPP statute.

          The anti-SLAPP statute, G. L. c. 231, § 59H, " protects the 'exercise of [the] right of petition under the constitution of the United States or of the [C]ommonwealth,' by creating a procedural mechanism, in the form of a special motion to dismiss, for the expedient resolution of so-called 'SLAPP' suits." Office One, Inc. v. Lopez, 437 Mass. 113, 121, 769 N.E.2d 749 (2002) ( Office One, Inc. ). " In the preamble to 1994 House Doc. No. 1520, the Legislature recognized that ... 'there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances.'" Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 161, 691 N.E.2d 935 (1998) ( Duracraft ). Under the " well-established [two-part] burden-shifting test," Hanover v. New England Regional Council of Carpenters, 467 Mass. 587, 595, 6 N.E.3d 522 (2014), " [t]o invoke the statute's protection, the special movant[s], [here, the Steward defendants, must] show, as a threshold matter, through pleadings and affidavits, that the claims against [them] are ... 'based on' [their] petitioning activities alone and have no substantial basis other than or in addition to [their] petitioning activities." Office One, Inc., supra at 122, citing Duracraft, supra at 167-168. Wenger v. Aceto, 451 Mass. 1, 5, 883 N.E.2d 262 (2008) ( Wenger ). This is the first prong of the test. Under the second prong, if the special movants make such a showing, the burden then shifts to the nonmoving party to demonstrate by a preponderance of the evidence that the moving party's activities were " devoid of any reasonable factual support or any arguable basis in law" and that the petitioning activities caused actual injury. Benoit v. Frederickson, 454 Mass. 148, 152-153, 908 N.E.2d 714 (2009) ( Benoit ), quoting from G. L. c. 231, § 59H.

          " In order to determine if statements are petitioning, we consider them in the over-all context in which they were made." North Am. Expositions Co. Ltd. Partnership v. Corcoran, 452 Mass. 852, 862, 898 N.E.2d 831 (2009) ( Corcoran ). " '[P]etitioning' has been consistently defined to encompass a 'very broad' range of activities in the context of the anti-SLAPP statute." Id. at 861, citing Duracraft, supra at 161-162. " The statute identifies five types of statements that comprise 'a party's exercise of its right of petition':

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'[1] [A]ny written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding; [2] any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding ; [3] any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive, or judicial body or any other governmental proceeding; [4] any statement reasonably likely to enlist public participation in an effort to effect such consideration; or [5] any other statement falling within constitutional protection of the right to petition government.' G. L. c. 231, § 59H." (Emphasis added.)

Cadle Co. v. Schlichtmann, 448 Mass. 242, 248, 859 N.E.2d 858 (2007) ( Cadle Co. ). [46 N.E.3d 85] The second category is of particular relevance to the instant case.

         b. Standard of review.

         As has been stated, we review the judge's decision to grant the special motion to dismiss for abuse of discretion or error of law. See Marabello v. Boston Bark Corp., 463 Mass. 394, 397, 974 N.E.2d 636 (2012); Hanover v. New England Regional Council of Carpenters, 467 Mass. at 595. We note that while this formulation appears in various anti-SLAPP decisions, there are other cases where it is absent. See, e.g., Corcoran, supra, 452 Mass. 852; Benoit, 454 Mass. 148, 908 N.E.2d 714; Ehrlich v. Stern, 74 Mass.App.Ct. 531, 908 N.E.2d 797 (2009) ( Ehrlich ). In any event, with respect to the first prong of the test -- whether conduct as alleged on the face of a complaint qualifies as protected petitioning activity -- it does not appear that the courts have deferred to the motion judge but rather have made a fresh and independent evaluation. See, e.g., Corcoran, 452 Mass. at 863-864 (discussing Cadle Co., 448 Mass. 242, 859 N.E.2d 858 [2007]); Plante v. Wylie, 63 Mass.App.Ct. 151, 160-161, 824 N.E.2d 461 (2005) ( Plante ). Where the motion judge's determination of the second prong of the two-part test does not implicate credibility assessments, it is arguable that appellate review should be similarly de novo. See, e.g., Benoit, 454 Mass. at 154 n.7 (discussing the appropriate standard of review with respect to the analysis of the second prong of the two-part test).[7]

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          We conclude that whether we review the judge's denial of the motion to dismiss de novo or with discretion, the ruling was in error with respect to the statements to the Boston Globe, but was not in error with respect to the e-mail sent to hospital employees.

         2. Standing.

         At the outset we briefly address and reject the plaintiffs' standing argument. The plaintiffs contend that the anti-SLAPP statute does not apply because Walczak is not personally aggrieved by the agencies' actions and was not petitioning them on his own behalf. Keegan v. Pellerin, 76 Mass.App.Ct. 186, 191-192, 920 N.E.2d 888 (2010), is dispositive on this issue. Here, Walczak, who engaged in petitioning activity on behalf of the hospital while he was its president, is protected by the anti-SLAPP statute because " when a nongovernmental person or entity is the petitioner, the statute protects one who is engaged to assist in the petitioning activity under circumstances similar to those this record reveals." Id. at 192, citing Plante, 63 Mass.App.Ct. at 156-157. See Office One, Inc., 437 Mass. at 121-124. See also Corcoran, 452 Mass. 852, 898 N.E.2d 831 (2009) (underlying suit named defendants' principal, whose statements were challenged, as individual defendant).[8] Walczak thus has standing.

          [46 N.E.3d 86] 3. The statements ...

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