A federal judge has rejected arguments made by an orthopedic surgeons’ professional association to overturn a jury verdict that found a doctor who served as a plaintiffs expert witness had been depicted in a false light in an article in the organization’s trade journal.
Dr. Steven R. Graboff, an orthopedic surgeon, alleged that he was placed in a false light by an article published in the newsletter of the American Academy of Orthopaedic Surgeons and the American Association of Orthopaedic Surgeons. The piece reported on Graboff’s suspension from the organization.
U.S. District Judge Joel H. Slomsky of the Eastern District of Pennsylvania rejected several arguments seeking judgment as a matter of law and a decision to overturn a jury verdict finding that the association placed Graboff in a false light with its article. The jury awarded Graboff $196,000 in damages.
The jury returned a defense verdict on breach of contract and intentional interference with prospective contractual relations, according to court papers.
Graboff was suspended from membership in the academy in June 2009, Slomsky said.
Graboff was hired by Francis T. Colleran of The Colleran Firm to provide expert evidence in a Philadelphia Court of Common Pleas medical malpractice case, Slomsky said.
Graboff’s "name was widely disseminated in the legal community because he was one of few experts willing to testify on behalf of plaintiffs against other orthopedic surgeons," Slomsky said. "Plaintiff was also retained by insurance carriers as a defense expert in personal injury actions."
After Graboff was suspended from the association, Graboff’s client base was diminished "and not one of his 500 attorney and insurance carrier clients has retained him since the publication of the article," Slomsky said. "Prior to the publication, plaintiff did work for Allstate Insurance, USAA Insurance and Travelers Insurance. After the publication, these insurers refused to retain plaintiff. The annual loss associated with these three accounts is approximately $500,000."
Graboff also is questioned about his suspension from the association every time he testifies as an expert witness, Slomsky said.
"When viewing the evidence in the light most favorable to plaintiff, there is substantial evidence to demonstrate that Dr. Graboff earned his livelihood as an expert witness," Slomsky said in rejecting one of the defendant’s arguments that Graboff did not show that it was economically necessary for him to be an association member. "Based on the evidence in this case, when an expert like Dr. Graboff, who was practically offering his expert services full-time, is a member of the AAOS, it is necessary to maintain that membership in order to continue to practice his chosen profession. … A person should not be forced to earn a living in an occupation different from the one which is the source of his livelihood. This is what happened to Dr. Graboff."
Graboff’s expert report was labeled "draft report" because he still needed additional materials to finalize the report, but The Colleran Firm whited out that mark when sharing the report with the defense during settlement negotiations, Slomsky said.
The jury also returned a $196,000 verdict against the Colleran defendants, and those defendants then settled with the plaintiff last year, Slomsky said.
A grievance was filed against Graboff by the defendant in the state-court medical malpractice case, Dr. Menachem Meller, with the association for alleged violations of the association’s standards of professionalism for orthopedic expert witness testimony.
During the association’s disciplinary process, Graboff was not allowed to present evidence that the plaintiff law firm had whited out the "draft report" label on his report, including a letter from Colleran stating that the report had been altered, because the association’s rules require that evidence be submitted prior to the hearing, Slomsky said.
Graboff was found to have violated the association’s expert witness standards and that his suspension from the association for two years was warranted, Slomsky said. An article about the suspension was published in an association bulletin, including on the association’s publicly available website.
One of the areas in which the article allegedly placed Graboff in a false light was when the article stated that the association’s committee on professionalism found no written documentation that Graboff considered the report’s opinions to be preliminary, while Graboff testified that there was "ample written evidence that the report was a draft," according to the opinion.
In the underlying case, a 66-year-old diabetic man claimed that his leg had to be amputated above the leg because wires in his leg installed to stabilize his leg from a femur fracture got infected and were not removed.
Another area in which the article allegedly placed Graboff in a false light was that the article stated that the wires were embedded in the man’s bones, while Graboff testified that he did not know that the wires were embedded in the bone when he drafted his preliminary report stating that not removing the wires was malpractice.
"Overall, the evidence shows, and a reasonable jury could find, that the article gives the false impression through manipulation of facts that plaintiff was dishonest, reckless or an inaccurate expert, which would be highly offensive to a reasonable person," Slomsky said.
Counsel for the association, Daniel E. Rhynhart and Christopher M. Guth of Blank Rome, made four arguments in seeking for Slomsky to order a new trial: one, liability for false light requires finding both that the statements in the article were false and that the statements portrayed Graboff in a false light; two, there was not evidence that the article portrayed Graboff in a false light; three, the association was privileged to publish the article; and four, the doctrine of judicial nonintervention in the affairs of voluntary associations requires judgment against Graboff’s false-light claim, including that Graboff failed to demonstrate that it was economically necessary for him to be a member of the association.
Falsity is not required in Pennsylvania to prove false-light invasion of privacy, Slomsky said. Instead, only showing that the defendant recklessly selectively printed or broadcast true statements or pictures in a manner that created a false impression is necessary, the judge said.
Rhynhart said April 4 that they are considering their options.
Graboff’s counsel, Clifford E. Haines of Haines & Associates, did not respond to a request for comment April 4.
(Copies of the 48-page opinion in Graboff v. The Colleran Firm, PICS No. 13-0802, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •