
    MUCCI v. DAYTON NEWSPAPERS, INC. 
    Court of Common Pleas of Ohio, Montgomery County.
    Decided June 20, 1995.
    
      
      William, G. Knapp III, for plaintiff.
    
      Robert P. Bartlett, Jr., for defendant.
   Jeffhey E. FROElich, Judge.

On July 25, 1994, the plaintiff, Thomas J. Mucci, D.O., filed a complaint against Dayton Newspapers, Inc. (“DNI”) complaining of articles published by DNI on or about June 2, 1994. The complaint alleges that DNI published articles in its newspaper “imputing a general want of professional skill and/or knowledge on the part” of Mucci, “which were blatantly false and incorrect with reference to Dr. Mucci’s affiliation with Grandview and Southview Hospitals,” and that impute “a general want of knowledge and ability on the part of Dr. Mucci, his incompetence as a physician, his lack of affiliation with Grandview and Southview Hospitals”; further, that such statements are “wholly false” and that Dr. Mucci has been, as a result, injured and disgraced in his profession and shall continue to be injured.

DNI filed an answer with general and specific denials and raising various defenses. DNI has filed a motion for summary judgment with attached affidavits. Mucci has responded with a memorandum and affidavit and DNI filed a motion contra. Additionally, the court heard oral arguments from counsel for both parties.

Summary judgment is proper pursuant to Civ.R. 56(C) when (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274.

“The burden of demonstrating that no genuine issue exists as to any material fact falls upon the moving party requesting a summary judgment.” Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47. Civ.R. 56(C) places a duty upon the trial court to consider all appropriate materials before ruling on a motion for summary judgment and to view the facts in the light most favorable to the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 604 N.E.2d 138.

Once this burden has been met, a motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 111, 570 N.E.2d 1095, 1098-1099. In opposing a summary judgment motion, the nonmoving party may not rest upon the mere allegations or denials of its pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Reynoldsburg Motor Sales v. Columbus (1972), 32 Ohio App.2d 271, 274, 61 O.O.2d 310, 312-313, 289 N.E.2d 909, 911-912.

After adequate time for discovery and upon a motion for summary judgment which meets the test of Harless, supra, an entry of summary judgment is appropriate if the party against whom summary judgment is sought fails to make a showing on an element to that party’s case on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett (1986), 477 U.S. 317, 324, 106 S.Ct. 2548, 2553-2554, 91 L.Ed.2d 265, 274. In showing that there is a genuine issue for trial, only disputes over facts that might affect the outcome of the suit (i.e., material facts) may preclude summary judgment. Anderson v. Liberty Lobby (1986), 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211-212.

Summary judgment must be denied where a genuine issue of material fact exists, where competing inferences may be drawn from undisputed underlying evidence, or where the facts present are uncertain or indefinite. Duke v. Sanymetal Products Co., Inc. (1972), 31 Ohio App.2d 78, 60 O.O.2d 171, 286 N.E.2d 324. All doubts or conflicts in the evidence must be construed most strongly in favor of the party against whom the judgment is sought. Morris v. Ohio Cas. Ins. Co. (1988), 35 Ohio St.3d 45, 517 N.E.2d 904.

It is with this standard of review that the motion for summary judgment must be considered.

It is not disputed and the court finds that Mucci was a “private figure” for the purposes of the DNI article. Further, it is not disputed and the court finds that the subject matter of the articles — the quality of emergency medical care — is a public issue of community concern.

Generally, in order to establish a defamation action, the plaintiff must establish (1) that a false statement of fact was made concerning him; (2) that the statement was defamatory; (3) that the statement was published; (4) that he suffered injury as a proximate result of the publication; and (5) that in publishing the statement, DNI acted with the requisite degree of fault. Hersch v. E.W. Scripps Co. (1981), 3 Ohio App.3d 367, 3 OBR 430, 445 N.E.2d 670. See, also, 3 Restatement of the Law 2d, Torts (1977), Section 558.

There is no doubt that certain fact statements were published. Further, especially given the standard and presumptions applicable at the summary judgment stage of a case, there is a genuine issue as to whether certain fact statements (ie., that Mucci was no longer in the Dayton area and that Mucci was no longer associated with Grandview and Southview) which were made in the publication were false.

The question of injury also cannot be resolved by summary judgment at this time. Although the plaintiff has not produced any independent evidence of injury, the nonmoving party (Mucci) must produce evidence on such issue for which he bears the burden of production at trial only once the moving party (DNI) meets its burden of producing evidence that no genuine issue exists as to such material fact. Harless, supra; Wing, supra. The moving party herein has not produced any evidence that there was no damage to plaintiff. Admittedly, potentially proving a negative is difficult, but that is the burden for summary judgment on this issue.

The remaining questions for the court’s consideration are whether the movant has met its burden concerning the alleged defamatory nature of the statements and its lack of culpability in publishing the statements.

Concerning the question of whether the material is defamatory, the Restatement of Torts states, “A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from association or dealing with him.” Id. at Section 559.

The court cannot find that the defendant’s report that the patient died from a cut artery was either false or defamatory. The movant has produced evidence demonstrating that a reasonable jury could decide that this was, in fact, the cause of death. The plaintiff has produced no evidence to the contrary on this issue for which he would bear the burden of production at trial. The mere allegations and denials in the answer or the memorandum contra the motion for summary judgment are not sufficient evidentiary material. In Philadelphia Newspapers, Inc. v. Hepps (1986), 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783, the Supreme Court held that a private-figure plaintiff bears the burden of establishing material falsity, at least when the speech involves issues of public concern and a media defendant, both of which are present in this case.

The material fact in this case is whether Mucci’s negligence proximately caused the death of a patient and not whether this was caused by the inadvertent cutting of an artery rather than the failure properly to diagnose the cause of the patient’s cardiovascular distress. While this distinction is understandably extremely important to Mucci and other medical providers, the alleged error is similar to the newspaper’s misreporting which artery was cut, proximately resulting in death.

Errors in terminology do not prevent the published report from being substantially true. For example, a violation of the securities laws technically incorrectly described as fraud was found not actionable in Orr v. Argus-Press Co. (C.A.6, 1978), 586 F.2d 1108. In Brewer v. Dungan (1983), 21 Media L.Rep. (BNA) 1926, 1993 WL 441306, the newspaper reported that plaintiff had been convicted of “felony assault,” whereas she had only been convicted of misdemeanor aggravated assault. The court held that the “gist” or “sting” of the publication would be no different if the conviction had been correctly characterized. Herein, whether the negligence was cutting the artery or failure properly to diagnose, the “sting” of the publication would be no different.

The arguably incorrect facts that Mucci was no longer in the Dayton area and that he was no longer associated with Grandview and Southview Hospitals are not in themselves defamatory. Mucci, however, contends that the entire article, including headline, incorrect statements, placement, etc., must be read together to determine its defamatory character. As a matter of law, it is legally possible for an article (or a series of related articles) to present false facts which in and of themselves are not defamatory or actionable, but, when taken as a whole, constitute defamation. Scott v. The News-Herald (1986), 25 Ohio St.3d 243, 25 OBR 302, 496 N.E.2d 699, held that the totality of the circumstances must be examined to determine whether a published statement is constitutionally protected. See, generally, Milkovich v. Lorain Journal Co. (1990), 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1. Although Scott dealt with the determination of fact versus opinion, the analysis is the same. “It is for the court to decide as a matter of law whether certain statements alleged to be defamatory are actionable or not.” Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, 372, 6 OBR 421, 423, 453 N.E.2d 666, 669. Herein, as stated above, the facts reported, while arguably incorrect, are not themselves defamatory (e.g., plaintiff has moved from the Dayton area, the negligence was cutting an artery). Nonetheless, their synergistic effect could result in actionable defamation.

This is not to say that truth is not an absolute defense, but it must be the “truth” of the entire published report. Words innocent on their face may, when placed in context, convey a defamatory meaning. The classic example is the statement that John Smith was seen walking into a hotel room with Mary. On its face, the statement does not communicate anything tending to injure reputation. If, however, there is added to the statement the fact that John Smith is married to someone other than Mary, the inference that the ordinary reasonable recipient may draw — that John is involved in an adulterous relationship with Mary— becomes defamatory. Kerr v. Kerr (1909), 134 A.D. 141, 142, 118 N.Y.S. 801, 801 (the average reader will assume that they “saith not a pater noster there”). The United States Supreme Court has never hinted that defamation accomplished through implication should be treated any differently from any other form of defamation which is all recipient based. See, generally, Franklin & Bussel, The Plaintiff's Burden in Defamation: Awareness and Falsity (1984), 25 Wm. & Mary L.Rev. 825.

This is really no different from the distinction between libel per se and libel per quod, long recognized in Ohio law. In Becker v. Toulmin (1956), 165 Ohio St. 549, 60 O.O. 502, 138 N.E.2d 391, the court held that it is the sole function of the court where a publication innocent on its face is claimed to be libelous by innuendo to determine whether such claim can be so reasonably justified as to present a question for the jury. Id. at 557, 60 O.O. at 506-507, 138 N.E.2d at 397-398. In libel per quod, the offending language is susceptible of an innocent interpretation as well as a libelous meaning, but the innuendo or implication is defamatory. Similarly, as stated above, it is legally possible for individual, nondefamatory, even true facts to be positioned or laid out in such a fashion that, by implication or innuendo, they become libelous either per se or per quod.

This situation is analogous to the question of whether a finding of actual malice may be supported by the cumulative impact of the facts, none of which standing alone would constitute actual malice, but which allegedly, in their aggregate effect, support a finding of knowing or reckless falsity. For example, in Ball v. E.W. Scripps Co. (Ky.1990), 801 S.W.2d 684, the Kentucky Supreme Court upheld a finding of actual malice based on evidence of the manner in which the articles were laid out, evidence of the reporter’s personal feelings of bias and hostility toward the plaintiff, and evidence of the newspaper’s failure to publish a retraction.

Therefore, given the allegations, the affidavit, the articles, and the manner the articles and facts were presented, the court cannot say that there is no genuine issue of material fact as to whether the publication was defamatory.

The sole remaining issue, concerning the nature of the fault requirement on the publisher and the manner in which this must be proved, was discussed in Embers Supper Club, Inc. v. Scripps-Howard Broadcasting Co. (1984), 9 Ohio St.3d 22, 9 OBR 115, 457 N.E.2d 1164, and clarified by Lansdowne v. Beacon Journal Publishing Co. (1987), 32 Ohio St.3d 176, 512 N.E.2d 979, and the plethora of cases cited therein. The Supreme Court held that in private-figure defamation actions, where a prima facie showing of defamation is made by a plaintiff, the plaintiff must prove by clear and convincing evidence that the defendant failed to act reasonably in attempting to discover the truth or falsity or defamatory character of the publication. Id. at 180, 512 N.E.2d at 983-984. The court noted that this higher standard of proof is required because in “normal” civil suits where the preponderance of evidence standard is'employed, it is no more serious in general for there to be an erroneous verdict in the defendant’s favor than for there to be an erroneous verdict in the plaintiff’s favor. However, citing Gertz v. Welch, Inc. (1974), 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789, and Rosenbloom v. Metromedia, Inc. (1971), 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296, the court noted that in libel cases an erroneous verdict for the plaintiff must be viewed as more serious, and thus “more” proof is constitutionally necessary.

However, as stated by Justice Douglas in his concurring opinion in Lansdowne, the average juror will probably not perceive any material distinction between proof by a preponderance and proof by clear and convincing evidence. “The difference between this standard and the preponderance standard is too subtle to be meaningful to the average juror, and perhaps even to some judges. A jury inclined to hold a media defendant liable will not be prevented from doing so by the clear and convincing evidence standard.” Id. at 183, 512 N.E.2d at 986. The plaintiff swears that the reporter did not call him or other readily available sources, that the reporter admitted to being under time pressure, and that DNI (in a “damned-if-I-do, damned-if-I-don’t” choice) ran a correction, thereby implicitly acknowledging that its publication was incorrect and it could have obtained the correct information. Since the nonmoving party (in whose favor all doubts or conflicts in the evidence must be construed most strongly) has produced some admissible evidence from which competing inferences may be drawn and, since as stated above, the legal difference between “preponderance” and “clear and convincing” is not one which can enter into a summary judgment decision, the court cannot say at this time that there is no genuine issue as to the material fact of whether the movant acted reasonably in attempting to discover the truth or falsity or defamatory- character of the publication.

However, as with malice, if courts are too expansive in permitting findings of defamation to be supported by cumulative evidence, then there is a danger that the integrity of the constitutional standard will be undermined. That is, it is possible that a publisher could act reasonably and publish facts that are true and/or nondefamatory and still defame by implication in the mind of a reader. Therefore, this gestalt defamation cannot be evaluated as “normal” defamation. To do so would place an almost impossible burden on a publisher to determine how its technically truthful and/or nondefamatory reporting would be received by the public.

DNI has the opportunity to collect facts and to make a good faith and reasonable effort to determine the truth of specific facts prior to their being reported. If these specific facts are false and defamatory and the publisher can be shown by clear and convincing evidence to be negligent, then it is responsible to the party injured. However, to protect against what in essence would be strict liability for defamation by implication, courts have established an added “burden” in such cases. For example, the Michigan Supreme Court in Locricchio v. Evening News Assn. (1991), 438 Mich. 84, 476 N.W.2d 112, relying largely on the principles set forth in Philadelphia Newspapers, Inc., supra, held that a private plaintiff must show a material omission which, if published, would have rendered the statement nondefamatory.

Similarly, where there is a recognized possibility of a defamatory inference from a factually accurate report (see, e.g., White v. Fraternal Order of Police [D.C.Cir.1989], 707 F.Supp. 579, affirmed in part and reversed in part on other grounds, 909 F.2d 512), these courts have added an additional requirement for liability that there be some sort of affirmative evidence suggesting that the defendant intended or endorsed the defamatory inference. White, supra, 707 F.Supp. at 520. Unless it is the defendant’s intent to defame the subject of its article or it acts with utter disregard for the manner in which these facts are presented which result in the defamation, it is not responsible for such effect.

In summary, regarding the culpability required of a publisher in situations of synergistic defamation or defamation by implication, insinuation or innuendo involving a public issue and a media defendant, the plaintiff must show more than mere negligence. The plaintiff must show that the defendant either intentionally defamed him or acted with utter disregard for the defamatory or nondefamatory manner in which the facts were presented.

The right to a “good name” (see Proverbs 22:1 or Othello, act III, scene iii, lines 158-164) must be balanced with the “right of the public to receive suitable access to social, political, esthetic, moral and other ideas and experiences.” Unfortunately, this weighing may result in some private individuals’ being defamed in the minds of some of the public. At the same time, strict liability, especially in situations of factually correct and/or nondefamatory publications which become false and defamatory because of their cumulative implication or interpretation, is neither fair nor, in cases involving public issues and a media defendant, constitutionally permissible.

The question still remains as to whether this suit is subject to summary judgment. “State of mind” has usually been conceptualized as a jury question not easily susceptible, of summary judgment determination. See, generally, 10 Wright & Miller, Federal Practice and Procedure (1973), 590-592, Section 2730. Further, as stated by Chief Justice Berger in Hutchinson v. Proxmire (1979), 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411, “the proof of ‘actual malice’ calls defendant’s state of mind into question * * * and does not readily lend itself to summary disposition.” Id. at 120, 99 S.Ct. at 2680, 61 L.Ed.2d at 422, fn. 9. As stated above, the nonmoving party must make a showing on this necessary element. In the case sub judice, there is no allegation in the complaint that the defendant intentionally defamed Mucci and, in fact, it is not clear that there is even an allegation of negligence, although this suggestion can be found in the plaintiffs summary judgment memorandum.

In conclusion, the court finds that DNI has not met its summary judgment burden of demonstrating that there is no factual issue concerning whether it made a false statement, whether the material was published, whether it was negligent, or whether the plaintiff was injured. However, the court finds that there is no genuine issue even pled as to whether DNI intentionally defamed Mucci or acted with utter disregard for the manner in which these facts were presented and, therefore, finds that the defendant has met its summary judgment burden of demonstrating that it did not act with the constitutionally required degree of fault.

The motion of the defendant for summary judgment is sustained. This is a final appealable order and there is no just cause for delay.

So ordered. 
      
      . Perhaps a more contemporary example is the report that "John Doe, treasurer of XYZ Company, was fired from the company. An audit has determined that thousands of dollars are missing from the company’s tills.” While all of these facts — that he was treasurer, that he was fired and that money is missing — could be true, the juxtaposition conveys the meaning that John Doe was fired because he wrongfully took money from the company, which may be false.
     
      
      . See Smolla, Law of Defamation (1994), 3-39.
     
      
      . There is some indication in the more esoteric libel cases that "implication,” "insinuation,” and "innuendo” carry different meanings. For example, "implication” and "insinuation” are said to connote the understanding the average reader may be expected to draw from the face of the communication alone, while "innuendo" refers specifically to the defamatory meaning a reader may be expected to draw from the communication because of the extraneous facts known to the reader, but not contained in the communication. See, for example, Pierce v. Capital Cities Communications, Inc. (E.D.Pa.1977), 427 F.Supp. 180. For this decision, these words are used interchangeably.
     
      
      . Red Lion Broadcasting Co. v. FCC (1969), 395 U.S. 367, 390, 89 S.Ct. 1794, 1807, 23 L.Ed.2d 371, 389.
     
      
      . See, e.g., Peck v. Tribune Co. (1909), 214 U.S. 185, 29 S.Ct. 554, 53 L.Ed. 960.
     