verdicts and settlements

Date of Verdict: March 20.

Court and Case No.: C.P. Montgomery No. 98-07291.

Judge: Richard P. Haaz.

Type of Action: Defamation.

Injuries: Harm to reputation; emotional distress; past and future lost earnings.

Plaintiffs Counsel: Alan B. Epstein and Jennifer Myers Chalal, Spector Gadon & Rosen, Philadelphia.

Defense Counsel: Gregory M. Harvey, Montgomery McCracken Walker & Rhoads, Philadelphia.

Plaintiffs Expert: Thomas Eveslage, defamation, Philadelphia.

Comment: A Montgomery County jury has awarded an orthopedic surgeon $2 million, including $1 million in punitive damages, in a defamation suit against a local newspaper’s former parent company and one of the paper’s former reporters.

An eight-member jury found liable defendants Peerless Publications Inc.—the former owner of The Mercury in Pottstown, Pa.—and former Mercury reporter Erik Engquist.

Following a weeklong trial, the jury awarded plaintiff Dr. Elliot Menkowitz $800,000 for past and future lost earnings, $200,000 for harm to his reputation and $1 million in punitive damages, according to the jury sheet.

According to the plaintiff’s pretrial statement, Menkowitz filed suit against Peerless and Engquist after The Mercury published an April 1997 article, written by Engquist, which stated that Menkowitz had been suspended by Pottstown Memorial Medical Center and that his absence from the hospital had “‘spawned rampant rumors of professional misconduct regarding his treatment of an older female patient.’”

According to the plaintiff’s statement, the wording of the article “had the effect of having reasonable persons reading the article … conclude that Dr. Menkowitz engaged in improper sexual activity, abhorrent malpractice or some other form of unethical sexual conduct with the unnamed elderly female, conduct thereby undermining his ability to practice medicine.”

The plaintiff’s statement said Menkowitz was not suspended for professional misconduct with regard to his treatment of a female patient, but rather for the hospital’s belief that he was a disruptive doctor who verbally harassed his co-workers.

The defendants, however, argued in their own pretrial statement that the phrase “‘rampant rumors’” could not be defamatory and that “its use diminishes, rather than increases, the sting of the potentially defamatory reference to ‘professional misconduct.’”

The plaintiff’s statement said that Engquist had contacted Deb Bennis, PMMC’s marketing and communications manager, and asked whether she had knowledge of Menkowitz pushing or shoving an older female patient, to which she replied that she did not.

“Despite this assurance, Mr. Engquist wrote and The Mercury published an article that Dr. Menkowitz had engaged in such physical abuse of an older female patient,” the plaintiff’s statement said. “Further compounding this libelous implication of patient abuse, the article falsely referenced Ms. Bennis’ refusal to comment, intentionally omitting her statement that PMMC had no knowledge of Dr. Menkowitz shoving an elderly female patient.”

On April 17, 1997, the plaintiff’s statement said, Engquist also contacted Menkowitz’s attorney, Alan B. Epstein. Epstein told the reporter that Menkowitz’s suspension was not related to his competence as a physician or treatment of patients and that the true reason for his suspension would be revealed in the complaint in a civil rights suit that was to be filed against PMMC in federal court the next day.

But The Mercury went ahead and published the story April 18, 1997, without mentioning Menkowitz planned to challenge his suspension in federal court and falsely stating that Epstein failed to comment, according to the plaintiff’s statement.

The plaintiff’s defamation expert, Temple University journalism professor Thomas Eveslage, opined that the defendants failed to follow journalism standards and ethical publishing practices.

Menkowitz filed his federal suit against PMMC that same day and, on April 21, 1997, the plaintiff’s statement said, PMMC agreed to set aside Menkowitz’s suspension, restore him as an active member of the medical staff, give him a hearing and advise the National Practitioner Data Bank that his summary suspension had been removed pending the hearing.

In exchange, the plaintiff’s statement said, Menkowitz agreed to refrain from practicing medicine at PMMC, citing his inability to perform orthopedic surgery because of his “severe depressive reaction” to the publication of the April 18 article in The Mercury.

The defendants maintained in their pretrial statement, however, that minutes from a March 18, 1997, peer review meeting of PMMC’s medical executive committee and a March 25 meeting of the hospital’s board of directors showed that the immediate cause of Menkowitz’s suspension was an incident in which a nurse reported that Menkowitz had “‘yelled’” at a 79-year-old female patient and another male patient.

But the defendants said in a motion for post-trial relief filed March 31 that, after they presented their case at trial, Judge Richard Haaz improperly reversed his previous decision to allow the minutes of the board of directors meeting into evidence.

The defendants argued in their post-trial motion that the minutes should have been admitted under the Pennsylvania Uniform Business Records as Evidence Act and under Pennsylvania Rule of Evidence 803(6).

“Plaintiff opened the door to the admission of the board minutes by publishing a portion to the jury, such that the remainder of the document should have been admitted under the rule of completeness, Pa. R Evid. 106, as the publication of only one portion of the document was misleading to the jury and prejudicial to defendants,” the defendants said in their motion.

Counsel for the defendants, Gregory M. Harvey, said he and his clients “intend to pursue the issue created by the exclusion of a crucial document.”

Epstein said the meeting minutes “were properly excluded by the judge because they weren’t adequately identified as relating to Dr. Menkowitz or any of the issues in the case.”

— Zack Needles, of the Law Weekly