Trover v. Paxton Media Group

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION

CIVIL ACTION NO. 4:05CV-014-H

DR. PHILIP C. TROVER

PAXTON MEDIA GROUP, L.L.C.

PLAINTIFF

DEFENDANT

MEMORANDUM OPINION

Plaintiff Philip Trover has brought claims of defamation, false light invasion of privacy,

intentional infliction of emotional distress, and tortious interference with business relations

against Defendant Paxton Media Group, based on Defendant’s publication in March 2004 of a

series of articles in The Messenger, its newspaper in Madisonville, Kentucky. In a prior opinion,

the Court dismissed most of Plaintiff’s defamation claims. What remains of Plaintiff’s complaint

is a single defamation claim as to certain aspects of the March 6 article and other state law tort

claims pertaining to all of the articles. Defendant has moved now for summary judgment on all

of these remaining claims.

The motion requires the Court to define the extent to which the First Amendment limits

Plaintiff’s enforcement of a legal remedy for defamation under Kentucky law. The Supreme

Court and the Sixth Circuit have only vaguely sketched out the extent to which the First

Amendment may protect speech concerning one who involuntarily finds himself part of a

particular public controversy. This Court must take their limited offerings and apply the doctrine

to the hard facts of this case. After doing so, the Court concludes that Plaintiff did not

voluntarily or involuntarily become a limited purpose public figure for First Amendment

purposes. Therefore his defamation claim may proceed to trial under a negligence standard,

since material disputed facts remain as to this underlying claim. For the reasons discussed

below, the Court also will deny the motion as to Plaintiff’s false light invasion of privacy claim

arising from the March 6, 2004 article. The Court will grant the motion as to the remainder of

Plaintiff’s claims.

The events surrounding this case were discussed at length in the Court’s prior opinion,

making only a brief recapitulation necessary here. In January 2004, Dr. Neil Kluger, an

oncologist on the staff of the Regional Medical Center (“RMC”) wrote a letter to the RMC’s

Chief of Staff and Medical Executive Committee, in which he listed numerous concerns

regarding the work of Plaintiff, who was then a radiologist at RMC. In his letter, Dr. Kluger

recommended that the RMC terminate Plaintiff’s clinical privileges. Dr. Kluger also filed

complaints with the Kentucky Division of Health Services and the Kentucky Board of Medical

Licensure, in which he included the allegations made in his letter to RMC.

The Division of Health Services, the Board of Medical Licensure, and RMC all initiated

investigations into Plaintiff’s work. The Division of Health Services determined that RMC was

at risk of losing its Medicare and Medicaid certification. RMC suspended Plaintiff’s clinical

privileges to read and interpret diagnostic imaging. Several patients filed lawsuits against

Plaintiff and RMC claiming harm due to misreading of their diagnostic imaging.

On March 3, 2004, the Trover Foundation (“the Foundation”), which owned and operated

RMC, took out a full-page advertisement in The Messenger to print “A Letter to the

Community,” in which it discussed “concerns [that] have been raised about a physician’s

interpretation of some patient x-rays and mammograms,” and assured readers that “[t]he doctor

whose radiology work has been challenged is no longer reading x-rays or mammograms pending

completion of the review.” Defendant’s Second Motion for Summary Judgment, Exhibit 1. The

Foundation also discussed the measures it was taking to remedy any concerns and deficiencies in

care. Id.

On March 18, 2004, after reviewing RMC’s “Plan of Correction,” the Center for

Medicare and Medicaid Services (“CMS”) notified RMC that it was no longer at risk of losing

its Medicare and Medicaid funding. Nevertheless, RMC revoked Plaintiff’s clinical privileges in

April 2004, and terminated his employment just over a week later. In July 2005 the Board of

Medical Licensing prohibited Plaintiff from practicing medicine in Kentucky.

Various media outlets reported these events, and Plaintiff’s claims focus on articles

published in The Messenger on March 3, 4, 5, 6, 13, 18, and 31. In its February 14, 2007,

opinion, this Court found that the March 3, 4, 5, and 13 articles could not form the basis for a

defamation claim, since they were at a minimum substantially true. Similarly, the Court found

that the March 18 and 31 articles could not form the basis for a defamation claim since they were

protected by the “fair reporting” privilege under Ky. Rev. Stat. § 411.060. Finally, the Court

found that the March 6 article’s assertion that Plaintiff was responsible for RMC being at risk of

losing its Medicare and Medicaid certification could not form the basis of a defamation claim.

Defendant’s latest motion raises delicate issues about the viability of the remaining

claims, particularly those for defamation. Defendant argues that the First Amendment protects

its actions from suit under a state negligence standard because Plaintiff is a public figure.

II.

To make out a prima facie case of defamation under Kentucky law, a plaintiff must prove

the existence of (1) defamatory language, (2) about the plaintiff, (3) which is published, and (4)

which causes injury to reputation. Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 793 (Ky.

2004). For private figures, Kentucky law only requires that plaintiffs show the alleged defamer’s

negligence. McCall v. Courier-Journal & Louisville Times Co., 623 S.W.2d 882, 886 (Ky.

1981). State defamation laws inevitably conflict with the First Amendment where directed

against public figures or those deeply intertwined with a public controversy. Gertz v. Robert

Welch, Inc., 418 U.S. 323, 342 (1974) (“Some tension necessarily exists between the need for a

vigorous and uninhibited press and the legitimate interest in redressing wrongful injury”); Curtis

Publ’g Co. v. Butts, 388 U.S. 130, 153 (1967) (acknowledging “the antithesis between civil libel

actions and the freedom of speech and press”); N.Y. Times Co. v. Sullivan, 376 U.S. 254, 269–70

(1964). Over the years the Supreme Court has defined a compromise between legitimate state

defamation remedies for its citizens to protect their good name and the protection of equally

important discussion of public issues and the individuals involved. See Wolston v. Reader’s

Digest Ass’n, 443 U.S. 157, 163–64 (1979) (summarizing the Court’s efforts to do so). In some

areas its definition has been more precise than in others.

Without doubt, the First Amendment restricts state law defamation claims against public

officials and other public figures by requiring a showing of actual malice to recover. See Curtis

Publ’g Co., 388 U.S. at 162 (Warren, C.J., concurring in result).1 The theory is that even though

1As noted in Gertz, Chief Justice Warren’s concurring opinion, which received the support of five members
of the Court, “stated the principle for which [Curtis Publ’ng Co. and its companion case] stand–that the New York
Times test reaches both public figures and public officials.” Gertz, 418 U.S. at 337 n.7.

an “erroneous statement of fact is not worthy of constitutional protection, it is nevertheless

inevitable in free debate.” Gertz, 418 U.S. at 340. Because the punishment of mere error would

inevitably chill the exercise of constitutionally protected freedom of speech concerning those in

public life, the heightened standard of proof is deemed essential in such circumstances. N.Y.

Times Co., 376 U.S. at 271–72 (internal citations omitted). The Supreme Court has justified this

heightened requirement because public figures “usually enjoy significantly greater access to the

channels of effective communication and hence have a more realistic opportunity to counteract

false statements than private individuals normally enjoy.” Gertz, 418 U.S. at 344. Also, they

have ordinarily chosen to “run[] the risk of closer public scrutiny . . . [and they] invite[] attention

and comment” by virtue of their status. Id.

The Supreme Court has identified two types of public figures.2 The first and perhaps

most readily understood type is the so-called “all-purpose” or “general purpose” public figure.

Such individuals are designated as a public figure “for all purposes and in all contexts,” since

they have achieved “pervasive fame or notoriety.” Gertz, 418 U.S. at 351.

The second type of public figure, the so-called “limited purpose public figure,” is found

“[m]ore commonly,”id., but is less amenable to straightforward characterization. Such

individuals are otherwise private figures, but have become involved in “a particular public

controversy” and are considered public figures to that controversy only. Id.; see also Warford v.

2The Sixth Circuit appears to echo the Supreme Court and divide public figures into two categories: all-
purpose and limited-purpose. See, e.g., Clark v. Am. Broad. Cos., Inc., 684 F.2d 1208, 1217–19 (6th Cir. 1982). In
contrast, the Fourth Circuit divides public figures into three categories: all-purpose, limited-purpose, and
involuntary. Wells v. Liddy, 186 F.3d 505, 532 (4th Cir. 1999). The Sixth Circuit’s approach, to the extent it seems
to identify involuntary public figures as a subset of limited purpose public figures, appears to this Court to be the
approach most faithful to Gertz. See Gertz, 418 U.S. at 351 (noting that “designation [as a public figure] may rest
on either of two alternative bases”); see also Wolston, 443 U.S. at 164–65 (1979) (identifying only two categories of
public figures and examining the voluntariness question as part of the limited purpose public figure analysis).

Lexington Herald-Leader Co., 789 S.W.2d 758 (Ky. 1990) (adopting and explaining the line of

United States Supreme Court First Amendment cases up to and including Gertz, as well as those

applying Gertz). This group is further divided into two subsets. Most limited purpose public

figures are designated as such because they “voluntarily inject[]” themselves into the particular

public controversy. Gertz, 418 U.S. at 351. The Supreme Court also suggested that

“[h]ypothetically, it may be possible for someone to become a public figure through no

purposeful action of his own,” but then immediately cautioned that these so-called “involuntary

public figures must be exceedingly rare.”3 Id. at 345. It is these ill-defined far reaches of First

Amendment protection that this Court must carefully explore in order to determine whether

Plaintiff is one of the “exceedingly rare” involuntary public figures.

In the wake of Gertz the D.C. Circuit staked out an aggressive position, expanding First

Amendment jurisprudence under the involuntary public figure concept.4 That circuit said that

where a plaintiff “was a central figure, however involuntarily, in the discrete and specific public

controversy with respect to which he was allegedly defamed. . . .[he] was an involuntary public

figure for the very limited purpose of discussion of” the public controversy at issue, despite

having taken no voluntary action to become a public figure. Dameron v. Wash. Magazine, Inc.,

3 The Supreme Court has adhered to this admonition on subsequent occasions by declining to find
involuntary public figures in two cases. See Hutchinson v. Proxmire, 443 U.S. 111, 135 (1979) (“those charged with
defamation cannot, by their own conduct, create their own defense by making claimant a public figure”); Wolston v.
Reader’s Digest Ass’n, Inc., 443 U.S. 157, 166–67 (1979) (noting that one is not made into a public figure simply by
being “dragged unwillingly into [a public] controversy. . . .[or] just by becoming involved in or associated with a
matter that attracts public attention”).

4The D.C. Circuit was not the first post-Gertz court to consider the idea of treating a plaintiff as a public
figure who had not voluntarily assumed a public role, see, e.g., Carson v. Allied News Co., 529 F.2d 206 (7th Cir.
1976), but the D.C. Circuit’s holding in Dameron v. Wash. Magazine, Inc., 779 F.2d 736 (D.C. Cir. 1985) is
considered a leading case expanding upon the involuntary public figure idea.

779 F.2d 736, 742–43 (D.C. Cir. 1985); see also Waldbaum v. Fairchild Publ’ns, Inc., 627 F.2d

1287, 1298 (D.C. Cir. 1980) (“Occasionally, someone is caught up in the controversy

involuntarily and, against his will, assumes a prominent position in its outcome. Unless he

rejects any role in the debate, he too has ‘invited comment’ relating to the issue at hand.”).

Defendant asks this Court to adopt Dameron’s rather expansive view of the public figure

doctrine and apply it here.

The reviews of Dameron, however, are mixed. The Fourth Circuit has expressed the

most persuasive concern about Dameron’s breadth. It concluded that Dameron risked

contravening Gertz’s rejection of the idea that private persons become public figures whenever

the allegedly defamatory statements about them involve matters of public interest. Wells, 186

F.3d at 539. The court based its view on Gertz’s “two rationales” for allowing greater First

Amendment protection for statements about public figures: (1) the fact that “the public figure

can take better advantage of the free press and has an easier time resorting to self help because

notoriety guarantees better access to the media and channels of communication,” and (2) that

“the public figure has taken actions through which he has voluntarily assumed the risk of

publicity.” Id. Based on these premises, the Fourth Circuit concluded that faithfulness to Gertz

required a narrower involuntary public figure inquiry than expounded in Dameron. It re-framed

the inquiry, giving some consideration to the nature of the plaintiff’s actions:

First…the defendant must demonstrate to the court that the plaintiff
has become a central figure in a significant public controversy, and
that the allegedly defamatory statement has arisen in the course of
discourse regarding the public matter….Second…the defendant
must demonstrate that the plaintiff has taken some action, or failed
to act when action was required, in circumstances in which a
reasonable person would understand that publicity would likely
inhere.

Id. at 539–40. Likely reflecting both the ambiguities of the foundational cases in this area and

the highly fact-specific nature of the involuntary public figure inquiry under any standard, other

cases are equally mixed. Some jurisdictions have adopted a broader, Dameron-like view of

involuntary public figures. See, e.g., Zupnik v. Associated Press, Inc., 31 F.Supp.2d 70, 73 (D.

Conn. 1998); Lewis v. NewsChannel 5 Network, L.P., 2007 WL 1585163 (Tenn. Ct. App. 2007);5

Atlanta Journal-Constitution v. Jewell, 555 S.E.2d 175, 186 (Ga. Ct. App. 2001); Daniel

Goldreyer, Ltd. v. Dow Jones & Co., Inc., 259 A.D.2d 353 (N.Y. App. Div. 1999); Weigel v.

Capital Times Co., 426 N.W.2d 43, 51 (Wis. Ct. App. 1988).6 Other jurisdictions, while

sometimes acknowledging and even purporting to apply Dameron, find that the plaintiffs before

them are not in the “exceedingly rare” category of involuntary public figures. See, e.g., Wells,

186 F.3d at 539; Wilson v. Daily Gazette Co., 588 S.E.2d 197, 208–09 (W. Va. 2003); Moss v.

Stockard, 580 A.2d 1011, 1031 n. 35 (D.C. 1990); Jacobson v. Rochester Cmty. Corp., Inc., 410

5In its Reply and at oral argument, Defendant relied heavily on Lewis, arguing that it “aptly demonstrate[s]”
the “continued viability” of the involuntary public figure analysis. Defendant’s Reply at 7. Lewis adopts a
Dameron-like approach (albeit without mentioning Dameron), but the Court notes that at best, Lewis is merely an
example from an intermediate state court outside Kentucky reading Gertz broadly, and that this Court does not
dispute the existence of the idea of involuntary public figures. Furthermore, the Court notes that in adopting the
view that “[a]n involuntary public figure…may simply be an unfortunate victim of circumstance pulled into the
whirlwind” caused by another’s improper conduct, Lewis, 2007 WL 1585163 at *26, the Tennessee Court of
Appeals articulates a broad standard aligned with that rejected by the Fourth Circuit. See Wells, 186 F.3d at 539.

6Though seemingly an adoption of a Dameron-like approach, the Eleventh Circuit’s decision in Silvester v.
Am. Broad. Cos., Inc., 839 F.2d 1491 (11th Cir. 1988) appears to have turned on the court’s conclusion that the
plaintiffs had voluntarily “thrust themselves” into the controversy. 839 F.2d at 1497. Similarly, the Third Circuit’s
decision in McDowell v. Paiewonsky, 769 F.2d 942 (3d Cir. 1985) appears to be based on the conclusion that the
plaintiff had “voluntarily assumed a position that invited attention,” 769 F.2d at 950, which seems rarely to be the
case for doctors who do not engage in self-promotional acts greater than those undertaken by Plaintiff. See
generally Tracy A. Bateman, Annotation, Who is “public figure” for purposes of defamation action, 19 A.L.R. 5th
1, § 38 (1994). Similarly, the Supreme Court has rejected the idea “that any person who engages in criminal conduct
automatically becomes a public figure for purposes of comment on a limited range of issues.” Wolston, 443 U.S. at
168.

Finally, the Seventh Circuit’s pre-Dameron decision in Carson applied only a minimally rigorous analysis
to find that “one can assume that the wife of a public figure…automatically becomes at least a part-time public figure
herself.” 529 F.2d at 210.

N.W.2d 830, 835 (Minn. 1987).

Neither the Sixth Circuit nor Kentucky courts have expressly entered the involuntary

public figure discussion. In Street v. Nat’l Broad. Co., 645 F.2d 1227 (6th Cir. 1981), the Sixth

Circuit hinted at a willingness to forego consideration of the degree to which a defamation

plaintiff voluntarily involved herself in a public controversy, but did so in dicta before holding

that such a voluntariness-free inquiry was unnecessary in the case before it. 645 F.2d at

1234–35. The Court can find no post-Dameron Sixth Circuit case discussing Dameron or more

directly addressing the idea of an involuntary limited purpose public figure.

In a case decided after Dameron, the Kentucky Supreme Court devoted significant

attention to the First Amendment cases developing the public/private figure distinction, yet made

no mention of Dameron and only noted the idea of involuntary limited purpose public figures in

passing through a discussion of “Gertz and its progeny.” Warford, 789 S.W.2d at 771. The

court framed the limited purpose public figure test as follows:

We must first look to a point in time before the defamatory
statements generated their own controversy and ask: (1) in what
particular and identifiable public controversy (2) did [plaintiff] by
some voluntary act involve himself to the extent that he either
assumed a role of public prominence, or was in a position to
influence others or the outcome of the controversy, and (3) did
[plaintiff] enjoy regular and continuing access to the media.

Id. at 766. The criteria above are to be “weighted…differently in specific cases,” id. at 767, and

as Gertz instructs, courts must consider “‘the nature and extent of an individual’s participation in

the particular controversy giving rise to the defamation.’” Id. (citing Gertz, 418 U.S. at 352).7

7Citing Gertz, the Sixth Circuit has held that the “nature and extent” inquiry “is determined by considering
three factors: first, the extent to which participation in the controversy is voluntary; second, the extent to which there
is access to channels of effective communication in order to counteract false statements; and third, the prominence of
the role played in the public controversy.” Clark, 684 F.2d at 1218; Street, 645 F.2d at 1234. Given that the

Bearing all this in mind, this Court concludes that a Wells-type inquiry provides the

better approach for determining those rare circumstances where one may involuntarily become a

public figure for First Amendment purposes. The involuntary public figure doctrine’s “origins in

one sentence in Gertz” do not justify the D.C. Circuit’s dramatic expansion of it. Wells, 186

F.3d at 538. Moreover, it is telling that at each post-Gertz opportunity to declare a plaintiff an

involuntary public figure the Supreme Court has declined to do so. See, e.g., Hutchinson, 443

U.S. 111; Wolston, 443 U.S. 157. Thus, the Dameron formula seems far too expansive because

it would dramatically increase the number of public figure status plaintiffs, making those

instances anything but “exceedingly rare.”

No one can deny that a public controversy did exist at the time the March 6, 2004 article

was published.8 RMC’s owners had acknowledged the investigations and remedial measures

responding to Plaintiff’s work at RMC and the media had reported on it prior to March 6. The

remedial measures were ongoing and still a source of concern to the community. Plaintiff’s

private actions were at the heart of what became a public controversy for RMC.

Nevertheless, the pertinent facts here weigh against finding Plaintiff to be even an

involuntary public figure. Plaintiff at no point voluntarily involved himself in the controversy

and he was not originally the focus of the story. Moreover, Plaintiff did not act in a manner

designed to attain publicity or in a way to assume the risk of publicity, and Plaintiff was not a

person with unusual access to the media. Thus, on balance, Plaintiff does not fit within Wells’s

formulation for that “exceedingly rare” group of involuntary public figures. On the facts here,

Warford formulation of the public figure inquiry appears to incorporate these considerations, there appears to be no
divergence between the Sixth Circuit’s approach and Kentucky’s approach.

8The March 6, 2004, article did not, as in Hutchinson, create the controversy.

the Court will not characterize Plaintiff as a public figure.

Defendant suggests that by declining to designate Plaintiff a public figure, the Court is

essentially saying that Defendant “simply should not have reported on anything relating to the

RMC controversy.” Defendant’s Second Motion for Summary Judgment at 27. While the Court

acknowledges the general point, with all due respect it disagrees with Defendant’s severe view

of the consequences of not following Dameron. True, by declining to extend the protections of

the actual malice standard to articles about Plaintiff appearing in The Messenger, the Court

necessarily requires that the media be more cautious in reporting a particular story. The lower

standard does expose Defendant to some greater risk, particularly the risk associated with trial

where the evidence is less than conclusive. But this does not prevent the media from carefully

reporting the story as it would any other. More important, the Wells standard does not chill

“uninhibited, robust, and wide-open” public debate in the press, N.Y. Times Co., 376 U.S. at 270.

On the contrary, this Court has struck a faithful balance between “private personality and

reputation [and] the need to assure the freedoms of speech and press that breathing space

essential to their free exercise.” Street, 645 F.2d at 1233–34.

While Plaintiff’s remaining defamation claim appears to be an uphill fight even under a

negligence standard, no doubt disputes remain as to some material factual issues.

III.

In his Response, Plaintiff abandons his claims of false light invasion of privacy and

intentional infliction of emotional distress as to all but the March 6, 18, and 31 articles.

Plaintiff’s Response at 38. For the reasons discussed below, Plaintiff’s intentional infliction of

emotional distress claims fail as to those remaining articles, and his false light invasion of

privacy claims fail as to all but the March 6 article.

In order to make out a prima facie case of false light invasion of privacy, Plaintiff must

show that (1) the false light in which he was placed would be highly offensive to a reasonable

person, and (2) Defendant had knowledge of, or acted in reckless disregard of the falsity of the

publicized matter and the false light in which Plaintiff was placed. McCall, 623 S.W.2d at 888.

Unlike the March 3, 4, 5, and 13 articles, which the Court held were not demonstrably false, the

Court held that Defendant was shielded from defamation liability for the March 18 and 31

articles under Ky. Rev. Stat. § 411.060, the so-called “fair reporting privilege,” which only

considers whether the reports were “accurate account[s] of judicial and administrative

proceedings.” Pearce v. Courier-Journal & Louisville Times Co., 683 S.W.2d 633, 636 (Ky. Ct.

App. 1985). As the Court discussed, the privilege may only be overcome by a showing of

malicious publication. See id.

Having found that the March 18 and 31 articles were “accurate accounts,” the Court fails

to see how Plaintiff can satisfy either element of his false light claim as to those articles.

Furthermore, the scope of the fair reporting privilege should preclude recovery on alternate tort

theories once defamation claims are disallowed. See, e.g., Compuware Corp. v. Moody’s

Investors Services, Inc., 499 F.3d 520, 533 (6th Cir. 2007) (expressing unwillingness to allow

“backdoor attempt[s] to assert a defamation claim” by pleading a different cause of action based

on the same conduct that was insufficient to support a defamation claim); Boladian v. UMG

Recordings, Inc., 123 Fed. Appx. 165, 169 (6th Cir. 2005) (“A party may not skirt the

requirements of defamation law by pleading another related cause of action.”) (internal citations

omitted); Amway Corp. v. Proctor & Gamble Co., 346 F.3d 180 (6th Cir. 2003); Gray v. Cent.

Bank & Trust Co., 562 S.W.2d 656 (Ky. Ct. App. 1978).

Given that Plaintiff’s defamation claim as to some of the March 6 article survives,

however, these principles will not operate automatically to strike Plaintiff’s alternate tort claims

as to that article. The March 6 article essentially reports that Dr. Kluger’s letter “spawned”

RMC’s internal review of its Radiology Department, but on the evidence before the Court there

appears to be at the least a material issue of fact as to the elements of Plaintiff’s false light

invasion of privacy claim, since when reporting a third party’s allegations, “recklessness may be

found where there are obvious reasons to doubt the veracity of the informant or the accuracy of

his reports.” Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 688 (1989) (quoting

St. Amant v. Thompson, 390 U.S. 727, 732 (1968)) (internal quotation marks omitted).

While the topic of the March 6 article is certainly accurate, Dr. Kluger’s specific

assertions reprinted therein are less obviously so.9 Many of Dr. Kluger’s specific allegations,

which were reprinted more or less verbatim, border on outlandish and are at the very least in

dispute. Dr. Kluger’s letter unquestionably prompted RMC to investigate, but this fact does not

support an inference that no obvious reasons to doubt his veracity or accuracy on each allegation

9Such reprinted assertions include, for example, Dr. Kluger’s allegation that Plaintiff “missed a bone
fracture on an X-ray, even though the broken bone was protruding from the patient’s skin.” Complaint, Exhibit F.

ultimately reprinted by Defendant existed. Therefore the Court will allow the Plaintiff’s claim

for false light invasion of privacy as to the March 6 article to proceed.

In order to make out a prima facie case of intentional infliction of emotional distress,

Plaintiff must show (1) that Defendant’s conduct was intentional or reckless, as well as (2)

“outrageous and intolerable in that it offends against the generally accepted standards of decency

and morality; (3) that Plaintiff experienced severe emotional distress, and (4) that there was a

causal connection between Defendant’s conduct and Plaintiff’s emotional distress. Stringer v.

Wal-Mart Stores, Inc., 151 S.W.3d 781, 788 (Ky. 2004). Such claims should only proceed

where “the conduct has been so outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in

a civilized community.” Id. at 789. Comparing Defendant’s alleged actions beside the truly

shocking behavior that has been found to support a claim,10 this Court simply cannot find that

Plaintiff has succeeded in making out a prima facie case of intentional infliction of emotional

distress as to any of the articles.11

IV.

Plaintiff’s final allegation is that of tortious interference with business relations. To

make out a prima facie claim, Plaintiff must show (1) improper interference by Defendant, and

(2) “malice or some significantly wrongful conduct” by Defendant. NCAA v. Hornung, 754

10See, e.g., Stringer, 151 S.W.3d at 789–91 (listing such behavior and, more instructively, shocking
behavior that was not deemed sufficient to form the basis for an intentional infliction of emotional distress claim).

11Additionally, as noted above regarding the March 18 and 31 articles, the scope of the fair reporting
privilege should preclude recovery as to those articles on this tort theory as well. See, e.g., Compuware Corp., 499
F.3d at 533; Boladian, 123 Fed. Appx. at 169; Amway, 346 F.3d 180; Gray, 562 S.W.2d 656.

S.W.2d 855, 858–59 (Ky. 1988). Improper interference is determined with reference to the

seven factors listed in Restatement (Second) of Torts § 767: (1) the nature of Defendant’s

conduct, (2) Defendant’s motive, (3) the interests of Plaintiff with which Defendant’s conduct

interferes, (4) the interests sought to be advanced by Defendant, (5) the social interests in

protecting Defendant’s freedom of action and Plaintiff’s contractual interests, (6) the proximity

or remoteness of Defendant’s conduct to the interference, and (7) the relations between Plaintiff

and Defendant. NCAA, 754 S.W.2d at 858–59.

As a preliminary matter, “any privilege conferred by statute applies equally to actions

founded upon defamation and to actions founded upon the tort of interference with prospective

economic relations.” Gray, 562 S.W.2d at 658. This eliminates Plaintiff’s ability to proceed

with his tortious interference with business relations claim as to the March 18 and 31 articles,

given that this Court has already deemed those articles covered by Ky. Rev. Stat. § 411.060’s fair

reporting privilege.

Additionally, as noted above, the Sixth Circuit has held that “[a] party may not skirt the

requirements of defamation law by pleading another, related cause of action.” Boladian, 123

Fed. Appx. at 169 (citing Hustler Magazine v. Falwell, 485 U.S. 46, 53 (1988)). Echoing the

Supreme Court’s desire to protect “the fundamental importance of the free flow of ideas and

opinions on matters of public interest and concern,” Hustler Magazine, 485 U.S. at 50, this view

reinforces the protections built into the law of defamation and precludes Plaintiff from bringing a

“derivative” claim as to the March 3, 4, 5, and 13 articles once his defamation claims as to those

articles were dismissed. See also Compuware Corp., 499 F.3d at 533.

Finally, as to all of the articles, the evidence currently before the Court is quite simply

insufficient to satisfy the elements of a tortious interference claim even when viewed in the light

most favorable to Plaintiff. For example, any “interference” with Plaintiff’s business relations

was occasioned less by Defendant’s reports on the controversy surrounding RMC than by

Plaintiff’s actions while employed at RMC. Additionally, the “nature of Defendant’s conduct”

was the publication of newsworthy information of interest to the community, and Defendant’s

motive cannot credibly be said to have been anything other than that motivating reports of any

newsworthy issue to the public.12 And even if Plaintiff were viewed as having successfully made

out the first element of his claim, the record reveals no “malice or significantly wrongful

conduct” which would satisfy the second element of the claim. Therefore Plaintiff’s tortious

interference claims cannot go forward as to any of the articles.

The Court will issue an order consistent with this Memorandum Opinion.

cc:

Counsel of Record

12Plaintiff argues that the content of a Messenger editorial, as well as the executive editor’s assertion that he
hoped to influence public opinion in editorials, fills this evidentiary gap. The Court views this evidence as falling far
short of making out a prima facie case of tortious interference with business relations.