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Blanchard v. Steward Carney Hospital, Inc.

Supreme Judicial Court of Massachusetts, Suffolk

May 23, 2017

LYNNE BLANCHARD & others [1]

          Heard: November 7, 2016

         Civil action commenced in the Superior Court Department on May 24, 2013. Special motions to dismiss were heard by Linda E. Giles, J.

         After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

          Jeffrey A. Dretler (Joseph W. Ambash also present) for the defendants.

          Dahlia C. Rudavsky (Ellen J. Messing also present) for the plaintiffs.

          Donald J. Siegel & Paige W. McKissock, for Massachusetts AFL-CIO, amicus curiae, submitted a brief.

          Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. [3]

          LENK, J.

         In the spring of 2011, following reports of abuse at the adolescent psychiatric unit (unit) of Steward Carney Hospital, Inc., then president of the hospital, William Walczak, fired all of the registered nurses and mental health counsellors who worked in the unit. Walczak subsequently issued statements, both to the hospital's employees and to the Boston Globe Newspaper Co. (Boston Globe), arguably to the effect that the nurses had been fired based in part on their culpability for the incidents that took place at the unit. The plaintiffs, nine of the nurses who had been fired, then filed suit against the defendants for, among other things, defamation.

         The hospital defendants[4] responded by filing a special motion to dismiss the defamation claim pursuant to G. L. c. 231, § 59H, the "anti-SLAPP" statute. A Superior Court judge denied the motion, concluding that the hospital defendants had failed to meet their threshold burden of showing that the claim was based solely on their petitioning activity. The hospital defendants filed an interlocutory appeal in the Appeals Court as of right. See Fabre v. Walton, 436 Mass. 517, 521-522 (2002) . The Appeals Court then reversed the motion judge's decision in part. See Blanchard v. Steward Carney Hosp., Inc., 89 Mass.App.Ct. 97, 98 (2016). We granted the parties' applications for further appellate review. We conclude that a portion of the plaintiff nurses' defamation claim is based solely on the hospital defendants' petitioning activity. The hospital defendants as special movants thus having satisfied in part their threshold burden under Duracraft v. Holmes Prods. Corp., 427 Mass. 156, 167-168 (1998) (Duracraft), the matter must be remanded to the Superior Court where the burden will shift to the plaintiff nurses to make a showing adequate to defeat the motion.

         Under current case law, the plaintiff nurses, as nonmoving parties, could defeat the special motion only by showing that the hospital defendants' petitioning activity upon which a portion of the plaintiff's defamation claim is based was a sham, i.e., without a reasonable basis in fact or law, a showing that the record suggests may be difficult to make. Insofar as the record also suggests the possibility that the plaintiff nurses' claim may not have been brought primarily to chill the hospital defendants' legitimate exercise of their right to petition, however, the case underscores a long recognized difficulty in the statute. It is one rooted in the fact that both parties enjoy the right to petition, including the right to seek redress in the courts. The anti-SLAPP statute is meant to subject only meritless SLAPP suits to expedited dismissal, yet it nonetheless may be used to dismiss meritorious claims not intended primarily to chill petitioning.

         Because the statute as thus construed remains at odds with evident legislative intent, and continues to raise constitutional concerns, we take this opportunity to augment the framework set forth in the Duracraft case (Duracraft framework) by broadening the construction of the statutory term "based on." While a nonmoving party may still defeat a special motion to dismiss by demonstrating that the special movant's petitioning activity is a sham, we hold that a nonmoving party's claim also is not subject to dismissal as one solely based on a special movant's petitioning activity if the nonmoving party can establish that its claim was not "brought primarily to chill" the special movant's legitimate exercise of its right to petition. See Duracraft, 427 Mass. at 161 (1998), quoting 1994 House Doc. No. 1520. On remand, the plaintiff nurses may attempt to make such a showing in satisfaction of their burden.

         1. Background.

         The unit at Steward Carney Hospital, Inc., in Boston (hospital), is licensed by the Department of Mental Health (DMH) and the Department of Public Health (DPH).[5] In April, 2011, there were four incidents involving alleged patient abuse or neglect at the unit. The hospital immediately reported these incidents to DMH, DPH, and the Department of Children and Families. DMH commenced an investigation into the incidents, and required that there be no new admissions to the unit. DMH also considered revoking the hospital's license to operate the unit pending the hospital's response to the reports of abuse.

         The hospital soon placed all but a small number of unit employees, including managers, nurses, and mental health counsellors, on paid administrative leave. It also hired Scott Harshbarger, then senior counsel at the law firm Proskauer Rose LLP, to conduct an investigation into the incidents, to recommend remedial actions, and to represent the hospital's interests in its dealings with the State agencies. Upon concluding his investigation, Harshbarger recommended to Walczak that, in light of what he termed a "code of silence" amongst the unit's staff, "it would be prudent to replace the current personnel in order to ensure quality care for these vulnerable patients."

         After reviewing Harshbarger's recommendation, Walczak informed each of the plaintiff nurses that he was terminating her employment. The following day, he sent an electronic mail (e-mail) message to all hospital employees, which began by noting that the hospital "has a rich tradition of providing excellent care to [its] patients." After providing the hospital's employees with credit for this successful commitment to patient care, the message continued, in relevant part:

"Recently, I have become aware of the alleged incidents where a number of [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 community we serve. As a result, I have terminated the employment of each of these individuals."

         In a Boston Globe article about the incidents two days after the plaintiff nurses were fired, Walczak was quoted as saying that, when he read Harshbarger's report, he "decided to replace the nurses and other staff on the unit."[6] Walczak said that the report recommended that he "start over on the unit" and that his "goal [was] to make it the best unit in the state." The article noted that Walczak "would not provide details of the alleged assault or patient safety concerns, or comment on why the entire staff was dismissed, given that the allegation involved one employee and one patient." Approximately one month later, the Boston Globe published another article on the incidents at the hospital, quoting Walczak as stating that "[t]he Harshbarger report indicated it wasn't a safe situation" and stating that the report "underscored his decision to fire the entire staff of the unit."

         In June, 2011, DMH issued its reports on each of the four incidents. The reports concerning the first three incidents concluded that there had been wrongdoing by a single mental health counsellor, while the fourth report concluded that unspecified staff on duty during the incident had acted improperly.[7]

         2. Prior proceedings.

         In May, 2013, in a five-count complaint brought against the hospital defendants, along with Harshbarger and Proskauer Rose LLP (Proskauer defendants), [8] the plaintiff nurses claimed that the hospital defendants and the Proskauer defendants had each defamed them. The plaintiff nurses alleged, in one count of their complaint, that the hospital defendants defamed them both by the e-mail message sent to hospital employees announcing their terminations, as well as by communications made to and published by the Boston Globe. The plaintiff nurses asserted that such statements falsely suggested that "after a thorough investigation, [Walczak] had determined . . . that each of the terminated plaintiffs had demonstrated inadequate commitment to patient care and that each had provided such deficient patient care that her employment had to be terminated."[9]

         In their defamation claim against the Proskauer defendants, the plaintiff nurses asserted that Harshbarger's preliminary and final written reports had defamed them by falsely suggesting that they had "adhered to a 'code of silence, '" had failed to report "a variety of problems, . . . including misconduct, " of which they were aware, and had been derelict in their duties in a number of other respects.

         Both sets of defendants responded by filing special motions to dismiss the defamation counts under the anti-SLAPP statute. See G. L. c. 231, § 59H.[10] A Superior Court judge allowed the Proskauer defendants' special motion to dismiss, but denied the hospital defendants' motion. The hospital defendants appealed.[11]The Appeals Court reversed in part, allowing the defendants' special motion to dismiss with respect to Walczak's comments to the Boston Globe, affirming the denial with respect to the e-mail message, and denying the hospital's motion for attorney's fees and costs. Blanchard, 89 Mass.App.Ct. at 98, 111 & n.14. We granted the parties' cross applications for further appellate review.

         3. Discussion

         a. The anti-SLAPP statute.

         The Legislature enacted the anti-SLAPP statute to counteract "SLAPP" suits, defined broadly as "lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." Duracraft, 427 Mass. at 161, quoting 1994 House Doc. No. 1520. See G. L. c. 231, § 59H. See also Cardno ChemRisk, LLC, v. Foytlin, 476 Mass. 479, 488 n.14 (2017) (explaining catalyst for legislation). The main "objective of SLAPP suits is not to win them, but to use litigation to intimidate opponents' exercise of rights of petitioning and speech." Duracraft, supra. To forestall such suits, the anti-SLAPP statute provides a "procedural remedy for early dismissal of the disfavored" lawsuits. Id. This remedy is the special motion to dismiss, which can be brought prior to engaging in discovery, and is intended to dispose of "civil claims, counterclaims, or cross claims" that are based solely on a party's exercise of its right to petition. See G. L. c. 231, § 59H. The statute also mandates the award of attorney's fees to successful special movants. Id.

         To prevail on such a motion, a special movant, such as the hospital defendants here, "must make a threshold showing through pleadings and affidavits that the claims against it 'are "based on" the petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities.'" Fustolo v. Hollander, 455 Mass. 861, 865 (2010), quoting Duracraft, supra at 167-168. See Fabre, 436 Mass. at 524 (special movant must demonstrate that "the only conduct complained of is . . . petitioning activity") .[12] The anti-SLAPP statute defines a party's exercise of its right to petition broadly to include:

"[1] any 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.

         If the hospital defendants are able to make a threshold showing that the plaintiff nurses' claim is based solely on the hospital defendants' petitioning activities, the burden shifts to the plaintiff nurses to establish "by a preponderance of the evidence that the [hospital defendants] lacked any reasonable factual support or any arguable basis in law for its petitioning activity, " Bakerv.Parsons, 434 Mass. 543, 553-554 (2001), and that the hospital defendants' sham petitioning ...

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