REBECCA MCNEIL, et. al.,
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`Plaintiffs,
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`v.
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` Case No. 2:20-cv-258
` JUDGE EDMUND A. SARGUS, JR.
` Magistrate Judge Kimberly A. Jolson
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`Case: 2:20-cv-00258-EAS-KAJ Doc #: 36 Filed: 03/17/21 Page: 1 of 13 PAGEID #: 1097
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF OHIO
`EASTERN DIVISION
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`MOUNT CARMEL HEALTH SYSTEM, et. al.,
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`Defendants.
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`OPINION AND ORDER
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`The matter before the Court is Defendants Mount Carmel Health System (“Mount
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`Carmel”), Trinity Health Corporation (“Trinity Health”), and Edward Lamb’s (collectively
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`“Defendants”) Motion to Dismiss. (ECF No. 21.) Plaintiffs Rebecca McNeil, Beth Macioce-
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`Quinn, Earlene Romine, Edward Wright, Brandi Wells, Akeela Bowens, Chad Readout, Jessica
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`Sheets, and Deron Lundy (collectively “Plaintiffs”) have responded, (ECF No. 22), and
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`Defendants have replied. (ECF No. 23.) For the reasons stated below, Defendants’ Motion to
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`Dismiss (ECF No. 21) is GRANTED in part and DENIED in part.
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`I.
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`Plaintiffs are nine former employees of Mount Carmel who worked with and around the
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`“now-publicly-vilified” Dr. William S. Husel. (Compl. at ¶ 1, ECF No. 8.) They have sued
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`Defendants asserting, inter alia, a cause of action for defamation.1 (Notice of Removal, ECF No.
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`1; Compl. at PageID# 512, ECF No. 8.) Because Defendants move to dismiss Plaintiffs’
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`1 Plaintiffs assert other causes of action that are not the subject of Defendants’ motion. (Compl. at PageID# 523,
`524, 526, ECF No. 8.)
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`defamation cause of action under Federal Rule of Civil Procedure 12(b)(6), the allegations in the
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`Complaint are taken as true and are as follows:
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`During the years that Plaintiffs worked with and around Dr. Husel, some of the patients
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`who were admitted to ICUs suffered from grave medical conditions, and occasionally the families
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`of these patients would request for life support to be withdrawn so that the patient’s suffering might
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`be abated. (Id. at ¶ 2.) In preparation for cases like these, the staff of these ICUs developed policies
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`and procedures designed to alleviate patient suffering and provide care until the end. (Id. at ¶¶ 3,
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`169.) These policies and procedures were approved by senior management at Mount Carmel and
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`remained practically unchanged from 2014 until 2018. (Id. at ¶ 3.) They did not, however, include
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`any policies or guidelines for “dosing of pain medication in connection with palliative extubation.”
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`(Id. at ⁋ 141 (emphasis removed).)
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`Mount Carmel had a system in place whereby employees could submit a “voice report”
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`detailing any work-related concern. (Id. at ¶ 209.) On October 26, 2018, Katie Barga, the Vice
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`President of Risk Management at the hospital, submitted a voice report expressing concern over
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`Dr. Husel prescribing 1000 mcg of fentanyl during a palliative extubation of a patient the previous
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`night. (Id. at ¶ 219.) On November 19, 2018, a second voice report was filed regarding Dr. Husel’s
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`ordering of 1000 mcg of fentanyl for use on a patient prior to palliative extubation. (Id. at ¶¶ 230,
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`235.) A few days later, on November 21, a pharmacist filed a third and final voice report, this one
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`concerning Dr. Husel’s written order of 2000 mcg of fentanyl for use on a patient with a significant
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`opioid tolerance. (Id. at ¶¶ 264, 266.) That day, a meeting was held, including Katie Barga, Sean
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`McKibben (President and Chief Operating Officer), Janet Whittey (Chief Pharmacy Officer),
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`Mavis Kramer (Director of Patient Care Services), Dina Bush (Chief Nursing Officer), Dr. Larry
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`Swanner (Vice President of Medical Affairs), and Plaintiff Romine. Following the meeting,
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`2
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`McKibben instructed Dr. Swanner to place Dr. Husel on leave. (Id. at ¶ 268.) Dr. Swanner let Dr.
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`Husel know soon after that he was suspended. (Id. at ¶ 270.)
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`In December of 2018, “Mount Carmel fired Dr. Husel, put 20 staff on leave, contacted a
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`homicide detective, and called the families of 26 patients to tell each of them that their loved ones
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`had been given a ‘fatal’ dose of fentanyl (even though no such thing had occurred).” (Compl. at
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`⁋ 29, ECF No. 8.)
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`On December 7, 2018, Plaintiff Romine was told she was being placed on administrative
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`leave “while the investigation was conducted.” (Id. at ⁋ 307.) She was briefly taken off leave on
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`December 10, 2018, but was again placed on leave on December 21, 2018, after being told she
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`“had ‘impeaded’ the hospital’s own investigation.” (Id. at ⁋⁋ 324, 395–97.)
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`On January 14, 2019, the CEO of Trinity Health released a statement that began:
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`Mount Carmel Health…recently reported to authorities the findings of an internal
`investigation regarding a doctor who provided intensive care. Over the last four
`years, this doctor ordered significantly excessive and potentially fatal doses of pain
`medication for at least 27 patients who were near death. . . .”
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`(Id. at ⁋ 427.) The statement continued:
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`Following the discovery, the doctor was removed from all patient care, and his
`employment was terminated. We’re working hard to learn all we can about these
`cases, and we removed 20 other hospital staff from providing further patient care
`while we gather more facts. This includes a number of nurses who were
`administering the medication and a number of staff pharmacists who were also
`involved in the related patient care.
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`(Id.) The CEO of Mount Carmel, Edward Lamb, published a virtually identical statement that same
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`day, while at the same time issuing a video release to the public in which he stated: “[t]he actions
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`that created this tragedy were . . . carried out by a small number of people who made poor decisions.
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`[W]e can’t disregard colleagues ignoring policies and putting our patients’ safety at risk.” (Id. at
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`¶ 429.)
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`3
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`Thereafter, in late January, Plaintiff McNeil was placed on leave and ultimately terminated
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`by the hospital. (Id. at ¶ 444.) On January 30, Mount Carmel issued another public statement: “We
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`have now placed 23 colleagues on administrative leave, including members of the management
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`team.” (Id. ¶ 458.)
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`Mount Carmel and Edward Lamb then issued another statement on March 13, 2019,
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`including:
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`We have identified a total of 48 nurses and pharmacists whose actions are under
`review and whose names have been reported to the relevant nursing and pharmacy
`boards. Out of an abundance of caution, we have removed all colleagues who were
`associated with medication administration for an impacted patient. In total, 30
`colleagues are on administrative leave . . . .
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`(Id. at PageID# 541, 547). That same day Plaintiffs Bowen, Sheets, Macioce-Quinn, Wells, and
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`Lundy had been placed on administrative leave pending the outcome of the hospital’s
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`investigation. (Id. at ¶ 486.) Plaintiffs Wright and Readout were not placed on administrative leave
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`as they were former employees, (Id. at ⁋⁋ 52, 56), but they were “reported to the Board of Nursing
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`in connection with Mount Carmel’s announcement . . . .” (Id. at ⁋⁋ 636, 662).
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`After several months, Plaintiffs Romine, Macioce-Quinn, Bowens, Sheets, Wells, and
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`Lundy were terminated by Mount Carmel on July 11, 2019. (Id. at ¶ 495.) That day, Mount Carmel
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`and Edward Lamb issued a statement reading in part: “We are terminating the employment of 23
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`colleagues—including 5 physician, nursing and pharmacy management team members—effective
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`today.” (Id. at PageID# 550.)
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`II.
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`A complaint must contain “a short and plain statement of the claim showing that the pleader
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`is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 8 “does not require ‘detailed factual allegations,’”
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`but pleadings cannot consist only of “labels and conclusions,” “formulaic recitation[s] of the
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`4
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`elements of a cause of action,” or “‘naked assertion[s] devoid of “further factual enhancement.”’”
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`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
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`555, 557 (2007)). To survive a motion to dismiss for failure to state a claim for which relief can
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`be granted under Federal Rule of Civil Procedure 12(b)(6), “a plaintiff must ‘allege[ ] facts that
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`“state a claim to relief that is plausible on its face” and that, if accepted as true, are sufficient to
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`“raise a right to relief above the speculative level.”’” Mills v. Barnard, 869 F.3d 473, 479 (6th Cir.
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`2017) (citation omitted). A claim is plausible on its face “when the plaintiff pleads factual content
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`that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
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`alleged.” Iqbal, 556 U.S. at 678. Courts must “construe the complaint in the light most favorable
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`to the plaintiff and accept all [well-pleaded factual] allegations as true.” Donovan v. FirstCredit,
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`Inc., 983 F.3d 246, 252 (6th Cir. 2020) (quoting Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir.
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`2012)).
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`III.
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`To establish defamation under Ohio law, the Plaintiffs must show:
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`(1) that a false statement of fact was made, (2) that the statement was defamatory,
`(3) that the statement was published, (4) that the plaintiff suffered injury as a
`proximate result of the publication, and (5) that the defendant acted with the
`requisite degree of fault in publishing the statement.
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`Am. Chem. Soc’y v. Leadscope, Inc., 978 N.E.2d 832, 852 (Ohio 2012). When spoken, a
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`defamatory statement is slander, and when written it is libel. Gosden v. Louis, 687 N.E.2d 481,
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`488 (Ohio Ct. App. 1996). Defamation can be per se or per quod. A statement is defamatory per
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`se when it is defamatory on its face, while a statement is defamatory per quod when the defamatory
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`nature of the statement is implicit and comes in the form of an innuendo. Id.
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`To be actionable, the defamatory statement must be “of and concerning” an individual
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`plaintiff. Whiteside v. United Paramount Network, 2004-Ohio-800, ⁋ 15, 2004 Ohio App. LEXIS
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`738 (Ohio Ct. App. 2004) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 267 (1964)).
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`That is, “an individual plaintiff must be clearly identifiable to support a claim for defamation.”
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`Abramson v. Pataki, 278 F.3d 93, 102 (2d Cir. 2002) (citing New York Times Co., 376 U.S. at 288–
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`89). A plaintiff does not need to be defamed by name for the statement to be actionable. When the
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`plaintiff is unnamed, the statement is still deemed to be of and concerning the plaintiff if “recipients
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`of the communication understood it to refer to that person.” Gosden, 687 N.E.2d at 495.
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`The matter is somewhat different when the defamatory statement is made against not just
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`one person in the singular, but a number of people as a group. When the defamatory statement is
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`made against a group, the individual group members may still bring defamation actions, but only
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`under narrow circumstances. This is known as the group libel doctrine. Under this doctrine a
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`plaintiff can maintain a defamation cause of action when the defamatory statement is made against
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`a group of people, but only if the group is small enough that the defamation can reasonably be
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`understood to have been directed at the individual member, or the circumstances of the publication
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`reasonably give rise to the conclusion that the member is being particularly referenced. Frost v.
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`Nemeth, 1987 WL 18847, *3 (Ohio Ct. App. 1987) (citing Restatement (Second) of Torts § 564A
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`(1997)). These parameters essentially re-calibrate the of and concerning element to fit statements
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`that are made against a group of people rather than an individual.
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`Defendants first ask this Court to dismiss Plaintiffs’ defamation count in the entirety,
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`contending that the statements should be analyzed as group libel and deemed not of and concerning
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`the Plaintiffs. (Def. Mot. to Dismiss at 6, ECF No. 21.) Plaintiffs, on the other hand, submit that
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`their cause of action is not based on a theory of group libel, but that even if it was the action would
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`still survive. (Resp. at 9, 18, ECF No. 22.) If this is individual defamation, the issue is whether the
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`“recipients of the communication understood it to refer to that person.” Gosden v. Louis, 687
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`N.E.2d 481, 495 (Ohio Ct. App. 1996). If it is group libel, the issue is whether the circumstances
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`reasonably give rise to the conclusion that the member is being particularly referenced. Frost, 1987
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`WL 18847 at *3. In either event the goal is to determine whether the statements were made of and
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`concerning the individual Plaintiffs.
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`Starting at the beginning, Trinity Health first published a written statement on January 14,
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`2019. (Compl. at PageID# 539, ECF No. 8.) This statement is properly analyzed as group libel.
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`Indeed, the statement itself illustrates the difference between group and individual defamation.
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`Trinity Health stated, “this doctor ordered significantly excessive and potentially fatal doses of
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`pain medication for at least 27 patients who were near death and receiving intensive care.” (Id.)
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`This is a model example of a statement concerning a clearly identifiable and singular individual:
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`Dr. Husel. In contrast, further down in this publication Trinity Health stated, “we removed 20 other
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`hospital staff from providing further patient care while we gather more facts. This includes a
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`number of nurses who administered the medication and a number of staff pharmacists who were
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`also involved in the related patient care.” (Id.) The difference is plain to see. One statement
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`concerns an individual, one concerns a group. The claims brought by the group members based on
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`this publication, therefore, are analyzed using the group libel doctrine.
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`Defendants contend that the group is too large to support a defamation claim and assert
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`that Plaintiffs have not alleged that the statements were directed at them particularly. (Def. Mot.
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`to Dismiss at 12, ECF No. 21.) The Plaintiffs do not attempt to rebut the issue of group size, instead
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`submitting that the “circumstances of the publication reasonably give rise to the conclusion that
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`there is a particular reference to the Plaintiffs . . . .” (Resp. at 18–19, ECF No. 22 (quotation
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`omitted).) As Plaintiffs recognize, “it is for the court, in the first instance, to determine if the
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`alleged libel is reasonably capable of bearing an application to the plaintiffs, and only if such a
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`construction is possible will the case go to the jury for a determination of whether the publication
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`did, in fact, concern the plaintiffs.” Michigan United Conservation Clubs v. CBS News, 485
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`F.Supp. 893, 897 (W.D. Mich. 1980).
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`Trinity Health’s January 14, 2019, statement is not reasonably capable of bearing an
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`application to Plaintiffs, other than Plaintiff Romine. Defamatory publications are read within the
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`context that they are published. See Connaughton v. Harte Hanks Communication, Inc., 842 F.2d
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`825, 840 (6th Cir. 1998) (addressing whether an article was defamatory); see also Restatement
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`(Second) of Torts § 564A cmt. d. (1997). On January 14, 2019, the context did not suggest that
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`Plaintiffs, other than Plaintiff Romine, were the targets of the statement. The statement was written
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`in the past tense (“we removed”) but at that point only Plaintiff Romine was on leave. (Compare
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`Compl. at PageID# 539 with Compl. at ⁋⁋ 395–97, 445–46, 486.) Plaintiffs allege that the group
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`was well enough defined for family, friends, acquaintances, and employers to know that each
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`Plaintiff was part of the group. (Compl. at ⁋ 605, ECF No. 8.) But with respect to this publication,
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`that proposition is internally inconsistent for every Plaintiff except Romine. The group was well
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`enough defined for people to know that these publications were made of and concerning those
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`employees who were placed on administrative leave as of January 14, 2019, and that group only
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`includes Plaintiff Romine.
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`In contract to the other Plaintiffs, this statement is reasonably capable of bearing an
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`application to Plaintiff McNeil. Not only was Plaintiff Romine on leave at the time of the
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`statement, she had also been told her leave related to the investigation. (See Id. at ⁋⁋ 307, 395–97.)
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`Given these circumstances, it is plausible that Plaintiff Romine was one of the 20 hospital staff
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`referred to in Trinity Health’s statement. The statement was made “of and concerning” Plaintiff
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`Romine.
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`8
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`Trinity Health only published one additional statement: the statement it posted to its
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`website. (Compl. at PageID# 540–41.) This undated publication is similar to the statement
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`addressed above. Relevant to the of and concerning element, it states that along with removing the
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`doctor, they also “removed 20 other hospital staff from providing further patient care while we
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`gather more facts.” (Id.) Though the publication is undated, the number of removed staff in this
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`posting is the same as in the January 14 publication, and nothing in the Complaint suggests that
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`this statement concerned a different 20 staff members. Here, as before, the circumstances
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`reasonably indicate that Trinity Health was making particular reference to Plaintiff Romine, but
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`none of the other Plaintiffs, as only Plaintiff Romine was among the initial 20 staff members that
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`were placed on administrative leave. As such, this Court finds that Trinity Health’s allegedly
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`defamatory statement are reasonably capable of bearing an application to Plaintiff Romine only.
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`Turning to the statements made by Mount Carmel and Edward Lamb, the Court begins
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`again with their January 14, 2019 statements. That day Lamb issued a statement on behalf of Mount
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`Carmel that was virtually identical to Trinity Health’s January 14 statement, while also adding a
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`video wherein Lamb stated that “a small number of people” made “poor decisions.” (Compl. at
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`⁋ 429.) Hearing the “small number of people” video statement outside the context of the written
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`statement, the language is vague and the target unascertainable. (Id.) But, viewing the video
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`statement in the context of Lamb’s simultaneously issued written statement, the language becomes
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`a short-hand reference to the “20 hospital staff” who had been placed on administrative leave. (Id.
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`at PageID# 541–42, ECF No. 8.) Again, that group only includes Plaintiff Romine. These January
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`14, 2019, statements were made of and concerning Plaintiff Romine, but none of the other
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`Plaintiffs, and only Plaintiff Romine can build a defamation cause of action upon them.
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`9
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`The Court now turns to Mount Carmel’s January 30, 2019, response to the media. (Compl.
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`at PageID# 545, ECF No. 8.) The analysis remains the same for all Plaintiffs except Plaintiff
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`McNeil. By January 30, 2019, Mount Carmel had placed an additional three employees on
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`administrative leave and published a statement which provided in pertinent part: “We have now
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`placed 23 colleagues on administrative leave, including members of the management team.” (Id.)
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`Plaintiff McNeil was placed on administrative leave in late January. (Compl. at ⁋⁋ 445–46.) Given
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`the close proximity in time, the statement is reasonably capable of bearing an application to
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`Plaintiff McNeil. Put another way, it is plausible that Plaintiff McNeil was one of the 23 colleagues
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`referred to in Mount Carmel’s statement. The statement was “of and concerning” the Plaintiff.
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`Next, the Court turns to the March 13, 2019, media statement by Mount Carmel and
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`Edward Lamb. (Compl. at PageID# 547–48, ECF No. 8.) The statement provides, inter alia, that
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`Mount Carmel “[r]emoved from patient care any colleague who was in any way part of medication
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`administration for an impacted patient” and that “30 colleagues are on administrative leave . . . .”
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`(Compl. at PageID# 547–48, ECF No. 8.) In this publication Mount Carmel also stated that they
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`“have identified a total of 48 nurses and pharmacists whose actions are under review and whose
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`names have been reported to the relevant nursing and pharmacy boards.” (Id. at PageID# 548.) On
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`the day of this publication, March 13, 2019, Plaintiffs Bowens, Sheets, Macioce-Quinn, Wells,
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`and Lundy were placed on administrative leave “pending the conclusion of hospital’s Investigation
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`[sic].” (Id. at ⁋ 486.) Plaintiffs Wright and Readout allege that they were among those “reported to
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`the Board of Nursing in connection with Mount Carmel’s announcement . . . .” (Id. at ⁋⁋ 636, 662).
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`Based on these circumstances, it is plausible that Mount Carmel and Edward Lamb made this
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`statement of and concerning Plaintiffs Bowens, Sheets, Macioce-Quinn, Wells, Lundy, Wright,
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`and Readout.
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`10
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`Accordingly, no Defendant is entitled to a full dismissal of the defamation count based on
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`the group libel doctrine. The Court turns to Defendants’ second argument.
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`Defendants submit that if the Court will not dismiss the defamation count in the entirety, it
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`should nonetheless find that certain of the allegedly defamatory statements were not made of and
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`concerning Plaintiffs.2 (See Def. Mot. to Dismiss at 16, ECF No. 21.) Plaintiffs respond that such
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`a request is a premature motion in limine, and that Defendants cannot parse their statements into
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`fragments in this manner. (Resp. at 2, 19 ECF No. 22.) Both parties are correct in part.
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`Attached as Exhibit D to their Complaint, Plaintiffs included twenty statements made by
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`the Defendants at different times, which Plaintiffs allege to be defamatory. (Compl. at ⁋ 609, ECF
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`No. 8.) This Court has already addressed some of them above. It is unclear whether Plaintiffs are
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`attempting to bring numerous causes of action, each based on a different one of these statements,
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`or whether Plaintiffs are attempting to bring a single cause of action based on a collection of
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`statements. In construing this as a single cause of action, this would have a similar practical effect
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`to agreeing with Defendants’ second argument in the entirety. Therefore, for the purposes of this
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`motion the Court understands Plaintiffs to be raising a different cause of action based on every
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`allegedly defamatory statement that was separately published.
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`Many of the allegedly defamatory statements published by Defendants were not made of
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`and concerning the individual Plaintiffs. For example, Mount Carmel’s January 22, 2019, response
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`to the media is one such published statement. In the entirety this statement reads:
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`Based on what this doctor did to these near-death patients, we understand that some
`of these families may be considering legal action. We’ve apologized to these
`families, we’ve apologized publicly, and we’re continuing to cooperate with law
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`2 Defendants do not raise this argument with respect to Mount Carmel’s January 15, 2019, response to media;
`January 16, 2019, response to media; January 18, 2019, response to media; January 30, 2019, response to media; or
`February 1, 2019 media statement and response to media. (See Def. Mot. to Dismiss at PageID# 719–20, 729, 731–
`32, ECF No. 21.)
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`enforcement and other authorities. We’re also working to build additional
`safeguards so that a tragedy like this never happens again.
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`(Compl. at PageID# 543–44.) This statement was made of and concerning Dr. Husel specifically.
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`The Plaintiffs were not mentioned by name, they were not mentioned using pronouns or titles, and
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`they were not mentioned as a group. Whether this statement is contextually relevant to the
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`separately published statements of and concerning Plaintiffs is a question not presently before the
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`Court. This statement, however, is not a defamatory statement of and concerning Plaintiffs, and
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`thus it cannot serve them as the foundation for a cause of action.
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`For the same reason, the following statements by Mount Carmel were not made of and
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`concerning the individual Plaintiffs: (1) the January 24, 2019, media statement; (2) the January 25,
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`2019, response to media; (3) the February 22, 2019, media statement; (4) the February 25, 2019,
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`response to media; (5) the March 15, 2019, response to media; (6) the April 17, 2019, media
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`response; (7) the April 22, 2019, media response; and (8) the May 24, 2019, response to media.
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`(Compl. at PageID# 544–47, 549, ECF No. 8.) None of these statements makes any reference to
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`Plaintiffs. To the extent that Plaintiffs are attempting to base separate causes of action upon these
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`statements, they too are deficient.
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`However, Plaintiffs are correct that Defendants may not fragment statements that were
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`made within a single publication. To illustrate, on March 14, 2019, Mount Carmel published the
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`statement, that, inter alia, “we placed all nurses who were associated with medication
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`administration for an impacted patient on paid administrative leave until ongoing investigations
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`provide a complete understanding of individual nurse’s actions.” (Compl. at PageID# 548–49.)
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`Defendants do not address this part of the publication, focusing instead on a different sentence
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`wherein Mount Carmel expressed its sympathies for the families of the affected patients. (Def.
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`Mot. to Dismiss at PageID# 721, ECF No. 21.) As previously mentioned, an allegedly defamatory
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`statement must be read in context, which includes the context of the entire publication. See
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`Connaughton v. Harte Hanks Communication, Inc., 842 F.2d 825, 840 (6th Cir. 1998). Here, that
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`includes the sentence of this publication quoted just above, which allegedly implicates certain
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`nurses in the wrongdoing. (Compl. at PageID# 539, 548–49, ECF No. 8.) Because Defendants do
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`not address the part of the publication that is most salient to the element that they contend is
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`deficient (the of and concerning element), their argument is not well taken here. The same holds
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`true for the July 11, 2019 publication. (Id. at PageID# 549–51.)
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`IV.
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`For the reasons stated above, Defendants’ Motion to Dismiss (ECF No. 21) is GRANTED
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`in part and DENIED in part. No parties are to be dismissed.
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`IT IS SO ORDERED.
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`3/17/2021
`DATE
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` s/Edmund A. Sargus, Jr.
` EDMUND A. SARGUS, JR.
` UNITED STATES DISTRICT JUDGE
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`13
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