Ioppolo v. Rumana et al

Filing 130

RULING on 111 Motion to Dismiss and 9 Motion to Dismiss. Accordingly, it is hereby ordered that defendants' motions to dismiss are GRANTED. Signed by Judge James J. Brady on 8/12/2011. (LSM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

ANTHONY S. IOPPOLO, M.D
CIVIL ACTION
VERSUS
NO. 06-193-JJB
CHRISTOPHER RUMANA, M.D., ET AL
RULING ON MOTIONS TO DISMISS
Before the Court is a Motion to Dismiss (doc. 9) and a Renewed Motion to
Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) (doc. 111) filed by
Defendants American Association of Neurological Surgeons and the American
Association of Neurosurgeons (collectively, the ―AANS‖). Plaintiff Dr. Anthony S.
Ioppolo (―Ioppolo‖) has filed opposition. This Court has jurisdiction pursuant to 28
U.S.C. § 1332.

Venue is proper as the events giving rise to this litigation

occurred in this District. For the reasons stated herein, the Court will GRANT
Defendants‘ Motions to Dismiss.
Background
I.

Facts

Ioppolo was retained to provide expert medical opinion testimony in a
Florida medical malpractice suit entitled, Jones v. Tallahassee Memorial
Healthcare, Inc., et al, 2nd Circuit, Leon County, Fla. #98-6986 (―the underlying
case‖). During the proceedings, Ioppolo provided deposition testimony as well as
testimony at trial. At trial, the Court accepted Ioppolo as an expert in the field of
neurological surgery and he was allowed to provide the court with his opinion.
1

Prior to verdict, the defendants in the underlying case, Drs. Christopher Rumana
(―Rumana‖), Mark Cuffe (―Cuffe‖), and representatives of another defendant
neurosurgeon (who was deceased by the time of trial), settled the claims lodged
against them.
Ioppolo alleges that, following the conclusion of the Jones trial, Rumana
and Cuffe wrote a letter to the AANS criticizing his ―ethics, honesty, integrity, and
professionalism.‖ Specifically, the letter accused Ioppolo of giving false and
misleading testimony during the proceedings of the underlying Jones case.
After receipt of the letter, the AANS convened a committee of its members
known as the Professional Conduct Committee (―PCC‖) to investigate the
allegations advanced by Rumana and Cuffe. In a report outlining its provisional
findings, the PCC recommended the imposition of sanctions against Ioppolo.
Ioppolo discovered that Rumana and Cuffe violated the AANS‘s by-laws by
sending a copy of the PCC‘s preliminary findings to several entities where he
maintained

professional

relationships:

Louisiana

Worker‘s

Compensation

Corporation (where he served as medical director), Vista Surgical Hospital
(where he served as medical director), and the Neuromedical Center (where he
holds professional connections). Ioppolo further asserts that Rumana and Cuffe
sent another written communication to the Louisiana Board of Medical Examiners
on March 7, 2005 and that he learned on April 18, 2005, that Rumana and Cuffe
made another complaint about him to the American College of Surgeons.

In April 2005, after reviewing the PCC‘s recommendation, the AANS
Board of Directors approved and adopted the PCC‘s report at its annual meeting
in New Orleans. In light of the outcome, Ioppolo alleges that he urged the Board
to require Rumana and Cuffe to stop circulating the provisional findings of the
PCC and to retract their statements. The Board did not honor his request and did
not intervene.
II. Procedural History
On February 9, 2006, Ioppolo filed suit in the 19th Judicial District Court
against Rumana, Cuffe, The American College of Surgeons, The American
Association of Neurological Surgeons, Inc., and The American Association of
Neurosurgeons. In his Complaint, Ioppolo alleged that the actions of the
defendants constituted defamation, abuse of process, abuse of personal rights,
and intentional infliction of emotional distress. Defendants removed the case to
this Court on the basis of diversity jurisdiction on March 10, 2006.
On March 29, 2006, the AANS moved to dismiss Ioppolo‘s Complaint on
the grounds that he had not alleged any facts to support his claims of
defamation, abuse of process, abuse of personal rights, and intentional infliction
of emotional distress against them. The next day, Rumana and Cuffe followed
suit, and also filed a joint Motion to Dismiss.
On April 18, 2006, Ioppolo requested that this court grant a temporary
restraining order suspending the discussion of his appeal at the AANS‘ annual
meeting, which discussion was being held in New Orleans on the following

Monday. The Court held oral arguments on Plaintiff‘s Application for Temporary
Restraining Order on April 24, 2006. In that hearing, the Court denied Plaintiff‘s
request on the grounds that he still had the possibility to win his appeal before
the Board scheduled for that later that day. In doing so, the Court reasoned that
Plaintiff could not prove one of the necessary elements to grant a preliminary
injunction—namely, he could not prove that he would suffer irreparable injury if
the injunction was not granted.
Later that day, Ioppolo‘s appeal to the general membership failed. The
membership of the AANS upheld the PCC‘s findings, and as a result, the AANS
suspended Dr. Ioppolo‘s membership in the organization.
The next day, on April 25, 2006, Ioppolo requested a second temporary
restraining order to prevent the AANS from ―instituting, reporting or in any way
publishing the sanctions which it seeks to impose during the pendency of this
case and until such time as the case can be heard.‖ This time, the Court granted
injunctive relief and ordered him to submit a TRO for the Court‘s signature every
ten days until July 19, 2006.

On July 18, 2006, all parties consented to a

preliminary injunction.
The Court heard oral arguments on the pending Motions to Dismiss on
July 17, 2008. During these proceedings, the Court denied the Motion to Dismiss
filed by Rumana and Cuffe and deferred ruling on the Motion to Dismiss by the
AANS. In doing so, the Court allowed Ioppolo leave to amend his complaint to
address the AANS‘s dismissal arguments.

On August 6, 2008, Plaintiff filed a Second Amended Complaint against
the AANS for defamation, abuse of process, abuse of personal rights, and
intentional infliction of emotional distress. Again, the AANS moved to dismiss
Plaintiff‘s amended complaint on August 22, 2008. The Court now addresses the
merits of the claims raised by the AANS in its Motion to Dismiss.
Standard of Review
Pursuant to Federal Rule of Civil Procedure 12(6), on a motion to dismiss
for failure to state a claim, the Court accepts all well-pleaded facts in the
complaint as true and liberally construes all factual allegations in the light most
favorable to the plaintiff.1 The Supreme Court has recently had occasion to revisit
the Rule 12(b)(6) standard in ways that are relevant to the Court's consideration
of the instant case, and the Court finds it useful to quote at length:
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must
contain a "short and plain statement of the claim showing that the
pleader is entitled to relief." As the Court held in [Bell Atlantic
Corp. v.] Twombly, [550 U.S. 544, 554, 127 S. Ct. 1955, 167 L.
Ed. 2d 929 (2007)] the pleading standard Rule 8 announces does
not require "detailed factual allegations," but it demands more
than
an
unadorned,
the-defendant-unlawfully-harmed-me
accusation. A pleading that offers "labels and conclusions" or "a
formulaic recitation of the elements of a cause of action will not
do." Nor does a complaint suffice if it tenders "naked assertion[s]"
devoid of "further factual enhancement."
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to "state a claim to
relief that is plausible on its face." A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to
1

See Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999); Lowrey v. Tex. A & M Univ. Sys., 117 F.3d
242, 247 (5th Cir. 1997).

draw the reasonable inference that the defendant is liable for the
misconduct alleged. The plausibility standard is not akin to a
"probability requirement," but it asks for more than a sheer
possibility that a defendant has acted unlawfully. Where a
complaint pleads facts that are "merely consistent with" a
defendant's liability, it "stops short of the line between possibility
and plausibility of 'entitlement to relief.'
Ashcroft v. Iqbal, 550 U.S. 129.
Discussion
AANS argues that Ioppolo‘s Complaint fails to sufficiently support his
claims for defamation, abuse of process, abuse of personal rights, and intentional
infliction of emotional distress with factual assertions. The failure to do so, AANS
argues, warrants a dismissal pursuant to Rule 12(b)(6) for failure to state a claim.
In light of this assertion, the Court now addresses the merits of each claim raised
by the parties.
I.

Defamation
The Court turns first to Plaintiff‘s defamation claims. Ioppolo alleges that

the AANS defamed him by ―knowingly and maliciously adopt[ing] the falsehoods
and misrepresentations presented by Rumana and Cuffe and [making] them [its]
own.‖ Reply to Motion to Dismiss, p. 14. This maliciousness, Ioppolo contends,
is demonstrated by the organization‘s decision to ―push forward‖ with its
proceedings despite its knowledge that the allegations of Rumana and Cuffe
were ―false and abusive.‖ Plaintiff additionally alleges that the AANS defamed
him through the publication of its Report of the Professional Conduct Committee
PCC Report.

AANS counters and argues that Ioppolo‘s defamation claim must be
dismissed because he has failed to allege that the AANS itself published any
defamatory statements relating to the disciplinary proceeding in issue to anyone
outside of the association. The Court agrees.
Defamation is a tort which involves the invasion of a person's interest in his
or her reputation and good name. In order to establish a cause of action for
defamation, four elements must be proven: (1) a false and defamatory statement
concerning another; (2) an unprivileged publication to a third party; (3) fault
(negligence or greater) on the part of the publisher; and (4) resulting injury.
Cyprien v. Bd. of Supervisors for the Univ. of La. Sys., 5 So. 3d 862, 866 (La.
2009).
The Louisiana Supreme Court characterizes a statement as defamatory if
it tends to harm the reputation of another so as to lower the person in the
estimation of the community, deter others from associating or dealing with the
person, or otherwise expose the person to contempt or ridicule. Kennedy v.
Sheriff of E. Baton Rouge, 935 So. 2d 669, 674-675 (La. July 10, 2006).
Defamatory words have traditionally been divided into two categories: those that
are defamatory per se and those that are susceptible of a defamatory meaning.
Words which expressly or implicitly accuse another of criminal conduct, or which
by their very nature tend to injure one's personal or professional reputation,
without considering extrinsic facts or circumstances, are considered defamatory
per se. Id. When a plaintiff proves publication of words that are defamatory per

se, falsity and malice (or fault) are presumed, but may be rebutted by the
defendant. Injury may also be presumed. Id. When the words at issue are not
defamatory per se, a plaintiff must prove, in addition to defamatory meaning and
publication, falsity, malice (or fault) and injury. Id.
Here, Ioppolo has failed to state a claim regarding essential elements of
his defamation claim against AANS. Nothing in the record suggests that the
AANS published the Report of the Professional Conduct Committee PCC Report
to anyone outside of the AANS, therefore, Plaintiff‘s defamation claim fails.
This point is demonstrated in the Fifth Circuit‘s recent decision in Knatt v.
Hospital Service District. No. 1 of East Baton Rouge Parish, 2009 U.S. App.
LEXIS 10451 (5th Cir. La. May 12, 2009), Plaintiff Knatt, a physician, filed suit
against a hospital and certain hospital personnel arising out of the temporary
suspension of his privileges at the defendant hospital. In his Complaint, Knatt
alleged that several nurses defamed him when they made statements to hospital
personnel regarding his erratic behavior and the working condition of his
operating rooms. Id. The district court agreed and the defendants appealed.
On appeal, the Fifth Circuit affirmed the district court‘s dismissal of the
defamation claims against various nurses for lack of publication because Knatt's
complaint only alleged statements by the nurses to other hospital personnel
related to their work. The Court observed that statements made between
employees in the course and scope of their employment are not statements

communicated or publicized to third persons so as to constitute publication for a
defamation claim. Id.
The Court‘s holding in Knatt supports the AANS‘s argument that Ioppolo
has failed to state a cause of action for defamation against the AANS. Nothing in
the record supports the notion that the AANS published any defamatory
statements to a third party outside of the organization. Indeed, in Plaintiff‘s
Second Amended Complaint, he admits this point specifically:
These false, abusive and defamatory statements were published by
the AANS through its officers, boards, agents and/or
representatives, on March 4, 2005, April 18, 2005, April 5, 2006 and
April 24, 2006. . . .
These publications include a direct
communication of these knowingly false and defamatory statements
to the entire membership of the organization by the then-president of
the AANS.
Id.
Considering the Fifth Circuit‘s holding in Knatt, accepting all well-pleaded
facts in Ioppolo‘s Second Amended Complaint as true, and liberally construing all
factual allegations in the light most favorable to Ioppolo, the Court still finds that
Ioppolo has failed to state a cause of action for defamation against the AANS.
The publication element of the defamation standard has simply not been met. For
this reason, the Court dismisses Plaintiff‘s defamation claim against the AANS.
II.

Abuse of Process
In his Second Amended and Supplemental Complaint, Ioppolo argues that

all of the defendants have utilized the AANS proceedings to extra-judicially attack
and punish individuals who have testified against members and to threaten and

intimidate potential witnesses. He additionally argues that the AANS has
specifically refused to police these abuses by its members and has, therefore,
become complicit in their conduct. Second Amended Complaint, ¶ 13A.
The AANS responds and argues that Ioppolo has failed to allege specific
facts that it acted with an ulterior motive and that it failed to follow its bylaws,
procedural guidelines or other internal rules. AANS also contends that the
enforcement of its internal rules and regulations does not constitute the ―process‖
necessary to satisfy an abuse of process claim. Again, the Court agrees with the
defendant.
To prevail on an abuse of process claim in Louisiana, a plaintiff must prove
the following essential elements: "(1) the existence of an ulterior purpose; (2) a
willful act in the use of the process not proper in the regular prosecution of the
proceeding."2 These elements must both be met; "regular use of process cannot
constitute abuse, even though the use was actuated by a wrongful motive,
purpose, or intent, or by malice." Nathans v. Vuci, 443 So. 2d 690, 695 (La. App.
1st Cir. 1983).

In sum, the plaintiff bears the burden of proving that the

defendant had an ulterior motive and an irregularity in the process itself.
Meeting the elements of an abuse of process claim requires Ioppolo to
demonstrate the actual use of ―process.‖ Louisiana jurisprudence suggests that
―process‖ (as the term is contemplated in an abuse of process claim) comprises
2

Wardlaw ex rel. Owen v. Whitney Nat'l Bank, 1994 U.S. Dist. LEXIS 11592, 3-4 (E.D. La. Aug. 16, 1994)
(citing Nathans v. Vuci, 443 So. 2d 690, 694 (La. App. 1st Cir. 1983) (citing Succession of Cutrer v.
Curtis, 341 So. 2d 1209, 1213-14 (La. App. 1st Cir. 1976) writ denied 343 So. 2d 201 (La. 1977))).

only legal process and/or court process.3 Looking to the facts of this case, the
PCC‘s review of the charges of unprofessional conduct involving Ioppolo, and the
subsequent appeals to the AANS Board of Directors and general membership,
do not constitute legal process or court process under Louisiana law. Never in his
Second Amended and Supplemental Complaint does Ioppolo allege that
Defendants utilized legal process, or even court process. Instead, Ioppolo makes
reference to the proceedings commenced with the AANS by Rumana and Cuffe.
The actions taken by the AANS amount to an internal enforcement of its own
rules and regulations; these proceedings do not qualify as ―process‖ as
contemplated by the abuse of process test. Therefore, the Court must dismiss
Ioppollo‘s abuse of process claim because the second element, which requires
Ioppollo to demonstrate an irregularity in the process, cannot be met.
Even if the Court were to find that the PCC and AANS investigation
constituted process under Louisiana law, Ioppolo‘s abuse of process claim still
fails because he has not alleged specific facts that the AANS acted with an
ulterior motive. For these reasons, the Court dismisses Plaintiff‘s abuse of
process claim against the AANS.
III.

3

Abuse of Personal Rights

Almerico v. Dale, 927 So. 2d 586, 594 (La. App. 5 Cir. Mar. 28, 2006). (―In reviewing Louisiana cases on
abuse of process, we find none in which the "process" part of the cause of action has been considered to
be anything other than legal process, or court process. In particular, we find no cases in which "process"
refers to a civil service disciplinary matter that has not come within purview of a court proceeding.‖)

Ioppolo alleges that the PCC abused the legitimate right to hear disputes
among members. In his Second Amended and Supplemental Complaint, he cites
the following as examples of such abuse:
Rumana and Cuffe told the PCC that they were advised by their
attorneys that if they didn‘t settle they faced impending financial
disaster because of the threat of a judgment beyond their
insurance limits. Plaintiff alleges that this statement constitutes
hearsay and that it is false. Nonetheless, the PCC relied on this
unsupported hearsay in reaching the conclusions set forth in the
PCC report.
Rumana and Cuffe told the committee that jurors in the trial were
―greatly confused by the starkly conflicting medical testimony but
they felt sorry for Ahmad Jones and were inclined to ‗find some
money for him.‘‖ This statement is also hearsay and false and
clandestine meetings with jurors by the defendants (if they
actually happened) should never have been considered in the
proceedings of the PCC. This false and prejudicial statement was
relied on by the PCC in reaching the conclusions set forth in its
Report.
The medical record in the underlying case showed that two
different doctors had seen movement in the patient‘s legs and
feet upon admission. This clear evidence that total quadriplegia
had not occurred was medically undeniable, yet it was belittled by
the committee, which ignored the medical record because
Rumana and Cuffe told the members that they had met privately
with one of the doctors who had seen the movement and that
after this meeting he said there was no movement. It is clear from
its ruling that this false and prejudicial statement had an impact
on the PCC‘s findings.
Rumana and Cuffe told the committee ―Ahmad Jones (the injured
10 year old patient in the underlying case) was…riding on a
stolen bicycle.‖ Prejudicial unsubstantiated comments such as
this, contained in their original complaint, were a thinly veiled
attempt at the character assassination of the patient and was
typical of the innuendo, prejudice, and falsehood woven

throughout the complaint and relied upon by the PCC in reaching
its conclusion.
The AANS failed to order Rumana and Cuffe to ―cease and
desist‖ in their use of the PCC Report.
The AANS failed to inform each and every third party to whom
Rumana and Cuffe sent the PCC Report that the report was not
final and had been improperly sent to them4

AANS disagrees, arguing that Ioppolo fails to set forth any basis for a claim
against it pursuant to the abuse of rights doctrine. Again, the Court agrees with
the AANS.
"To recover under a theory of abuse of rights, Plaintiff must show that he
has suffered unnecessarily some harsh consequence as a result of the
Defendant's exercising a legal right without legitimate or serious interest. Morse
v. J. Ray McDermott & Co., 344 So. 2d 1353 (La. 1977).

The Louisiana

Supreme Court has set forth four tests for determining whether a legal right has
been abused: "(1) whether the right was exercised primarily or exclusively to
harm another; (2) whether there was a serious or legitimate interest worthy of
protection; (3) whether the right was exercised in violation of moral rules, good
faith or elementary fairness; and (4) whether the right was exercised for purposes
other than for which the right was granted.‖ Ill. Cent. Gulf R.R. v. Int’l Harvester
Co., 368 So. 2d 1009 (La. 1979).

4

Second Amended Complaint, ¶¶ 13A – 13E.

Considering each example, Ioppolo has not provided the Court with any
evidence to satisfy any of the tests for abuse of rights against the AANS. He has
not alleged that (1) the AANS used a right exclusively to harm him; (2) there is no
serious or legitimate interest supporting the AANS‘s exercise of the right; (3) the
AANS acted against moral rules, good faith, or fundamental fairness in
conducting the PCC review process; or (4) that the AANS exercised its right for
any purpose other than to determine whether disciplinary action was appropriate
against him. Therefore, because the Court finds that Ioppolo has failed to state a
cause of action concerning the abuse of personal rights claim, it is hereby
dismissed.
IV.

Intentional Infliction of Emotional Distress
Ioppolo claims that he has suffered ―substantial emotional distress‖ at the

hands of his accusers and advances a claim for intentional infliction of emotional
distress against Defendants. The AANS disagrees, countering that Ioppolos
allegations merely reveal that it administered Rumana and Cuffe‘s charges of
unprofessional conduct against Ioppolo in conformance with its by-laws. Again,
the Court agrees with the defendant.
Under Louisiana law, a plaintiff alleging intentional infliction of emotional
distress must establish (1) that the conduct of the defendant was extreme and
outrageous; (2) that the emotional distress suffered by the plaintiff was severe;
and (3) that the defendant desired to inflict severe emotional distress or knew
that severe emotional distress would be certain or substantially certain to result

from his conduct. White v. Monsanto Co., 585 So. 2d 1205, 1209 (La. 1991).
The Louisiana Supreme Court has stated that the conduct must be 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. Liability does not extend to mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities. Persons must necessarily be
expected to be hardened to a certain amount of rough language, and to
occasional acts that are definitely inconsiderate and unkind. Id. ―Generally, the
case is one in which the recitation of the facts to an average member of the
community would arouse his resentment against the actor and leave him to
exclaim, ‗Outrageous.‘‖ Fletcher v. Wendelta, Inc., 999 So. 2d 1223, 1230 (La.
App. 2d Cir. 2009).
Applying these precepts of law to the facts of the instant case, the Court
finds that Ioppolo has failed to establish his right to recover from the AANS for
intentional infliction of emotional distress. Ioppolo has failed to allege (1) that the
AANS‘s conduct was extreme and outrageous; (2) that the emotional distress he
suffered was severe; and (3) that the AANS desired to inflict severe emotional
distress or knew that severe emotional distress would be certain or substantially
certain to result from its conduct. In fact, looking to the Second Amended and
Supplemental Complaint, Ioppolo merely concludes that:
As a result of the actions of defendants Drs. Rumana & Cuffe, and
the AANS, petitioner has suffered public embarrassment,
humiliation, and damage to his professional reputation, as well as,

past, present and future mental anguish and pain, and past, present
and future loss of enjoyment of life, injury to reputation and loss of
business opportunity. Therefore, petitioner is entitled to recover
compensatory damages from these defendants.
Second Amended Complaint, ¶ 12. These allegations simply do not rise to the
high level of ―extreme and outrageous‖ conduct to constitute a tort under existing
Louisiana law.
Conclusion
Accordingly, it is hereby ordered that Defendants‘ motions (docs. 9 & 111)
to dismiss are GRANTED.
Signed in Baton Rouge, Louisiana, on August 12, 2011.





JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA