Ioppolo v. Rumana et al

Filing 173

ORDER granting in part and denying in part 164 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 166 Motion for Partial Dismissal. Signed by Judge James J. Brady on 10/16/2012. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
ANTHONY S. IOPPOLO, MD,
CIVIL ACTION
VERSUS
No. 06-193-JJB
CHRISTOPHER RUMANA, MD,
MARK CUFFE, MD, AMERICAN
ASSOCIATION OF NEUROLOGICAL
SURGEONS & AMERICAN COLLEGE
OF SURGEONS
RULING ON DEFENDANTS’ MOTION TO DISMISS
This matter is before the Court on renewed motions to dismiss by
Defendants Mark J. Cuffe, M.D. (“Cuffe) and Christopher Rumana, M.D.
(“Rumana”). (Doc. 164 & Doc. 166). Plaintiff Anthony S. Ioppolo, M.D. (“Ioppolo”)
filed a memorandum in opposition, (Doc. 170), to which Defendants Cuffe and
Rumana have filed replies. (Doc. 171 & Doc. 172). Oral argument is not
necessary. The Court has removal jurisdiction pursuant to 28 U.S.C. § 1332. For
the reasons stated herein, the Court grants in part and denies in part.
I.
Ioppolo filed this action for defamation, abuse of process, abuse of
personal rights, and intentional infliction of emotional distress against Rumana,
Cuffe, American College of Surgeons (“ACS”), American Association of
Neurological Surgeons, Inc. (“AANS”), and American Association of
Neurosurgeons (“AAN”) in the 19th Judicial District Court. Rumana and Cuffe are
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the only remaining defendants. In Ioppolo’s complaint, he alleged that he
provided expert medical opinion testimony in a Florida medical malpractice suit
brought against several defendants, including Rumana and Cuffe. After the trial,
Rumana and Cuffe allegedly wrote a letter to the AANS criticizing Ioppolo’s
testimony and accusing him of giving “false and misleading testimony.” (Doc.
170-1, p. 2). After receiving the letter, AANS assembled a Professional Conduct
Committee (“PCC”) to investigate the allegations. The PCC recommended the
imposition which proposed sanctions against Ioppolo, which was to be reviewed
by AANS’s Board of Directors at its annual meeting in April of 2005.
Prior to the April 2005 meeting, Rumana and Cuffe allegedly violated the
AANS’s by-laws by sending copies of the PCC’s preliminary findings to several
institutions where Ioppolo maintained professional relationships, including two for
which Ioppolo was the medical director. Ioppolo contends that Rumana and Cuffe
sent a letter to the Louisiana Board of Medical Examiners on March 7, 2005, and
on April 18, 2005, he learned that Rumana and Cuffe had made a complaint
about him to the American College of Surgeons.
In April of 2005, the AANS Board of Directors approved and adopted the
PCC’s report. Ioppolo asserts that he requested the Board to require Rumana
and Cuffe to cease circulating the provisional findings, but the Board did not
honor his request. Ioppolo alleges that these communications caused and
continue to cause harm to his professional reputation and he has suffered mental
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anguish, pain, loss of business opportunity, loss of enjoyment of life, humiliation
and public embarrassment.
Rumana and Cuffe filed a joint motion to dismiss pursuant to F.R.C.P.
12(b)(6), and AANS also filed a separate motion to dismiss pursuant to F.R.C.P.
12(b)(6). On July 17, 2008, the motion was set for a hearing before the late
Judge Tyson. The Court orally denied Rumana and Cuffe’s joint motion to
dismiss. (Doc. 144). The Court deferred ruling on AANS’s motion to dismiss, and
granted Ioppolo leave to amend his complaint. (Doc. 110).
On August 6, 2008, Ioppolo filed an amended complaint. (Doc. 109). In his
amended complaint, Ioppolo expanded upon his abuse of process, abuse of
personal rights, and intentional infliction of emotional distress claims. Ioppolo
argued that Rumana and Cuffe told the PCC numerous statements that were
false and/or hearsay, and that the PCC relied upon these statements in making
their final conclusions. Additionally, Ioppolo amended Paragraph 6B, which
states “AANS defamed plaintiff through the publication of its ‘Report of the
Professional Conduct Committee’ . . . . dated December 28, 2004.” (Doc. 109, p.
2-3). Prior to this amended complaint, there was no indication as to when the
report was published.
In August 2011, this Court granted defendant AANS’s motion to dismiss
pursuant to F.R.C.P. 12(b)(6) on the grounds that Ioppolo failed to state a claim

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for defamation, abuse of process, abuse of personal rights, and intentional
infliction of emotional distress. (Doc. 130).
This Court found that Ioppolo failed to state a claim for defamation against
AANS. 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 of greater) on the part of the publisher; and (4)
resulting injury.
Cyprien v. Bd. of Supervisors for the Univ. of La. Sys., 2008-1067 (La. 1/21/09);
5 So.3d 862, 866. This Court found that Ioppolo failed to show that “AANS itself
published any defamatory statements relating to the disciplinary proceeding . . .
to anyone outside of the association.” (Doc. 130, p. 7). Because the publication
element had not been met, the Court granted AANS’s motion to dismiss on this
claim.
This Court also found that Ioppolo had failed to state a claim for abuse of
process. To establish a cause of action for abuse of process, two elements must
be proven: “(1) the existence of an ulterior purpose [and] (2) a wilful act in the
use of the process not proper in the regular prosecution of the proceeding.”
Succession of Cutrer v. Curtis, 341 So.2d 1209, 1213-14 (La. App. 1 Cir. 1977).
Furthermore, “abuse of process is the misuse of legal process for an ulterior
purpose.” Id. (citation omitted). This Court found that the “actions taken by the
AANS amount to an internal enforcement of its own rules and regulations,” and
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this is not the type of process “as contemplated by the abuse of process test.”
(Doc. 130, p. 11). This Court also found that even if the PCC and AANS
investigation did constitute process, the claim still fails because Ioppolo did not
“allege[] specific facts that the AANS acted with an ulterior motive.” (Doc. 130, p.
11). Therefore, this Court dismissed Ioppolo’s abuse of process claim.
This Court also dismissed Ioppolo’s abuse of personal rights claim against
AANS. The doctrine of abuse of rights applies when one of the following
conditions is met:
(1) The predominant motive for exercise of the right is to
cause harm; (2) there is no serious or legitimate motive
for exercise of the right; (3) the exercise of the right
violates moral rules, good faith, or elementary fairness;
or (4) the exercise of the right is for a purpose other
than that for which it was granted.
Steier v. Heller, 723 So.2d 787, 791 (La. App. 2 Cir. 1999). This Court found that
Ioppolo had failed to allege any facts that would support finding a cause of action
under one of the four possible conditions for abuse of personal rights claim, and
dismissed this claim against AANS.
Finally, this Court also dismissed Ioppolo’s claim of intentional infliction of
emotional distress against AANS. In order to recover for intentional infliction of
emotional distress, a plaintiff must show
(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
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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 Court found that
on the face of Ioppolo’s amended complaint, Ioppolo had failed to allege
sufficient facts to meet any of the elements.
Rumana and Cuffe both filed renewed motions to dismiss pursuant to
F.R.C.P. 12(b)(6). (Doc. 164 & Doc. 166). Both Rumana and Cuffe argued that
all of the claims that Ioppolo alleges have prescribed as a matter of law. In
addition, both Rumana and Cuffe urged that this Court should apply its reasoning
in granting AANS’s motion to dismiss with respect to abuse of process, abuse of
personal rights, and intentional infliction of emotional distress on the grounds that
Ioppolo failed to state a claim. Moreover, Cuffe argued that Ioppolo failed to state
a defamation claim because the statements were found to be true, and truth is an
absolute defense, or in the alternative, because Cuffe had a “reasonable belief in
the truth of [his] assertions,” there can be no malice on Cuffe’s part. (Doc. 164-1,
p. 9-10). Additionally, Cuffe raised the defense of privilege. (Doc. 164-1).
Rumana did not address the substantive elements of a defamation claim in his
motion.
Ioppolo filed an opposition, arguing that Rumana and Cuffe’s motions
should be denied because they were procedurally improper, prevented by the
“law-of-the-case doctrine,” and the substantive law mandates denial. (Doc. 170).
Furthermore, Ioppolo argued that the reasoning applied to AANS should not
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apply to Rumana and Cuffe, because there is a distinction between a “defendant
doctor and an administrative body.” (Doc. 170, p. 1-2). Ioppolo contended that he
was not ordered to amend his complaint with respect to Rumana and/or Cuffe,
but with respect to AANS. Because this Court had already denied Rumana and
Cuffe’s motions to dismiss, and his claims against them have not changed since
the original motion to dismiss was denied, Ioppolo argued that Rumana and
Cuffe should be prevented from “re-test[ing] a complaint already found to be
sufficient.” (Doc. 170, p. 4).
Ioppolo further argued that the “law-of-the case doctrine” prevented reargument and multiple 12(b) motions are barred. Ioppolo addressed the
substantive elements of each claim, propounding reasons as to why he has
sufficiently stated a claim. Finally, Ioppolo urged that none of his claims have
prescribed. Ioppolo argued that because he “did not know about the defamatory
remarks at the time they were made, nor was the injury inflicted immediately
apparent to him,” his action was timely. (Doc. 170, p. 19). Ioppolo cited Wiggins
v. Creary for the proposition that an “original author of a libelous publication is not
to be held liable for the voluntary republication of it by others” but “an exception
exists where the republication is the natural and probable consequence of the
defendant’s act.” Wiggins v. Creary, 475 So.2d 780, 782 on reh’g (La. App. 1 Cir.
1985). Ioppolo argued that each republication of the defamatory statements by
the AANS was a natural and probable consequence of Rumana and Cuffe’s
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initial defamatory statements. Ioppolo argued that in order for the defamation
claim to have prescribed, this Court would have to assume that he knew of the
initial defamation “made at an unknown time” by Rumana and Cuffe, and he
knew of the “defamation contained in the PCC report of December, 24, 2004.”
(Doc. 170, p. 20). Finally, Ioppolo contended that he did not know when the
defamatory statements were made and because all subsequent publications
were the “natural and probable consequence” of Rumana and Cuffe’s actions,
Rumana and Cuffe are still liable for those publications, which have not
prescribed. (Doc. 170, p. 20).
Ioppolo also argued that his abuse of process, abuse of rights, and
intentional infliction of emotional distress claims have not prescribed. Ioppolo
asserted that his abuse of process cause of action did not arise until April of 2005
because that was when Rumana and Cuffe “use[d] the AANS process for
sanctioning members.” (Doc. 170, p. 20). Although Ioppolo only addressed the
abuse of process argument, the Court assumes that Ioppolo intended for this
also to apply to his abuse of rights claim because this argument fell under a
heading listing both claims. Finally, Ioppolo asserted that his intentional infliction
of emotional distress claim has not prescribed because Rumana and Cuffe “did
not abate their outrageous personal crusade of aggression” until March or April of
2005. (Doc. 170, p. 21).

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Rumana and Cuffe both filed reply memoranda. (Doc. 172 & Doc. 171).
Both argued that Ioppolo’s amended complaint included more factual details
relating to his abuse of rights, abuse of process, and intentional infliction of
emotional distress claims, as well as the date of the PCC report, which was
previously omitted. Additionally, both argued that the law-of-the-case doctrine is
not applicable. Finally, both argued that while the claims have prescribed,
Ioppolo failed to state causes of action for the claims, further warranting
dismissal.
II.
As a threshold matter, the Court does not find that the “law-of-the-case
doctrine” prevents this motion from being brought. The “law-of-the-case doctrine
does not operate to prevent a district court from reconsidering prior rulings,” and
it functions to “prevent unnecessary reconsideration of previously decided
issues.” Zarnow v. City of Wichita Falls, Tex., 614 F.3d 161, 171 (5th Cir. 2010).
However, this rule “yields to adequate reason.” Id. (citations omitted). Courts are
permitted to review and reconsider its prior interlocutory decisions “for any
reason it deems sufficient, even in the absence of new evidence or an
intervening change in or clarification of the substantive law.” Id. (quotations and
citations omitted). This Court orally dismissed Rumana and Cuffe’s motions to
dismiss based on the allegations in the first complaint. However, the allegations
in the second amended complaint, as well as this Court’s later ruling on AANS’s
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motion to dismiss, has provided sufficient reasons to review and reconsider its
prior decision. Additionally, the Court finds that multiple 12(b)(6) motions are not
barred in this instance because the issue of prescription has not been raised nor
addressed by this Court.
Rule 12(b)(6) provides for dismissal for “failure to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6). In order to survive a motion to
dismiss, the complaint must plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Louisiana’s law on prescription controls because a “federal court sitting in
diversity will apply state prescription periods as substantive law.” Ricard v. Essex
Ins. Co., 2009 WL 2762711, at *2 (E.D. La. 2009). Delictual actions have a one
year prescriptive period, which “commences to run from the day injury or damage
is sustained.” LSA-C.C. art. 3492. Defamation is a delictual claim, and is subject
to the one year prescriptive period. See Wiggins v. Creary, 475 So.2d 780, 781
(La. App. 1 Cir. 1985). Similarly, because abuse of process, abuse of rights, and
intentional infliction of emotional distress are tort claims, they are subject to a one
year prescriptive period. See Godfrey v. Reggie, 2011-1575 (La. App. 2 Cir.
5/2/12); 94 So.3d 82, 89; Thibaut v. Thibaut, 607 So.2d 587, 597 (La. App. 1 Cir.
1992).
Because defamation claims are subject to a one year prescriptive period,
which begins from the day injury or damage is sustained, “damages are
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sustained from the date the injury is inflicted, if immediately apparent to the
victim, even though the extent of the damages may not yet be known.” Collinson
v. Tarver Land Dev., LLC, 2012 WL 688551, at *1 (W.D. La. 2012). Furthermore,
“[k]knowledge of the damage-causing publication by the plaintiff is required for
the commencement” of the prescriptive period. Id. Finally, because defamation is
not a continuous tort, subsequent publications to a third person create a separate
cause of action. Id. While generally an “original author of a libelous publication is
not to be held liable for the voluntary republication of it by others,” the original
author will be held liable if “the republication is the natural and probable
consequence of the defendant’s act.” Wiggins, 475 So.2d at 782, on reh’g.
Here, Rumana and Cuffe argue that the PCC’s report, published on
December 28, 2004, was based on the letter that they allegedly published to the
AANS. Because the original publication of the allegedly defamatory words
occurred prior to December 28, 2004, and Ioppolo did not commence suit until
February 9, 2006, the defamation claim prescribed. Ioppolo contends that he did
not know when the initial defamation occurred because they were not
immediately apparent.
The Court finds that Ioppolo’s defamation claim against Rumana and Cuffe
has prescribed, but only with respect to the initial publication. Because the PCC
report was published on December 28, 2004, and Ioppolo’s amended complaint
alleges this, the Court assumes that Ioppolo became aware of the report’s
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findings shortly thereafter. However, the Court further finds that the alleged
subsequent publications of the preliminary report made by Rumana and Cuffe to
the Board of Medical Examiners and other institutions in March of 2005, if found
to be defamatory, are within the one year prescriptive period. Additionally, the
Court finds it is a question of fact whether subsequent republication is the natural
and probable consequence of Rumana and Cuffe’s acts, which should not be
addressed in a 12(b)(6) motion.
The Court does not find it necessary to address whether the abuse of
process claim has prescribed. The Court adopts its August 12, 2011 Ruling on
AANS’s motion to dismiss with respect to these claims. Ioppolo has failed to
allege facts to show that the PCC and AANS investigation constitutes process
under Louisiana law. Thus, the Court agrees with Rumana and Cuffe and grants
their motion to dismiss with respect to this claim.
The Court finds that the abuse of personal rights claim has prescribed. In
Ioppolo’s amended complaint, Ioppolo alleges that Rumana and Cuffe provided
false statements and/or hearsay to the PCC, which informed the PCC’s
December 28, 2004 decision. Because any potential abuse of personal rights
occurred prior to this decision, and the claim has a prescriptive period of one
year, the Court finds that this claim has prescribed. Therefore, the Court grants
Rumana and Cuffe’s motion to dismiss with respect to this claim.

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The Court finds Ioppolo has failed to allege sufficient facts to support an
intentional infliction of emotional distress cause of action. In this Court’s August
12, 2011 ruling, this Court found that the allegations “simply do not rise to the
high level of ‘extreme and outrageous’ conduct to constitute a tort under existing
Louisiana law.” (Doc. 130, p. 16). Thus, the Court grants Rumana and Cuffe’s
motion to dismiss with respect to this claim.
III.
For the foregoing reasons, Defendants’ renewed motions to dismiss (Doc.
164 & 166) are GRANTED with respect to the claims for abuse of process, abuse
of personal rights, and intentional infliction of emotional distress, and DENIED
with respect to the claim for defamation.

Signed in Baton Rouge, Louisiana on October 16th, 2012.





JAMES J. BRADY, DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA



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JAMES J. BRADY, DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

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