MURTAGH, MD v. ST MARY'S REGIONAL HEALTH CENTER et al

Filing 42

OPINION AND ORDER ON MOTION TO DISMISS; granting in part and denying in part 30 Motion to Dismiss By JUDGE NANCY TORRESEN. (dfr)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JAMES MURTAGH, M.D.,
Plaintiff,
v.
ST. MARY’S REGIONAL HEALTH
CENTER, ST. MARY’S HEALTH
SYSTEM, IRA SHAPIRO, M.D. and
JOHN DOE 1 through 10 and JANE
DOE 1 through 10,
Defendants.

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) Docket no. 1:12-cv-00160-NT
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OPINION AND ORDER
ON MOTION TO DISMISS
This case comes before the Court on Defendants St. Mary’s Regional Health
Center, St. Mary’s Heath System, and Ira Shapiro, M.D.’s (“Defendants”) motion
to dismiss the First Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6) for
failure to state claims for which relief may be granted (ECF No. 30). For the reasons
discussed below, the Defendants’ motion is GRANTED in part and DENIED in part.
BACKGROUND
Plaintiff James Murtagh, M.D. brought this complaint against the
Defendants following a brief stint of employment as a locum tenens physician at St.
Mary’s Regional Health Center (the “Hospital”). According to the First Amended
Complaint, Murtagh, through Vista Staffing Solutions, Inc. (“Vista”), obtained a
temporary placement as a pulmonary physician at the Hospital for a term that
began on April 22, 2010, and that was supposed to extend at least through July 31,
2010, and possibly blossom into a permanent position. Murtagh claims that, with

the reasonable expectation of an offer of permanent employment, he worked
overtime and that he garnered positive and encouraging feedback from
management personnel about the quality of his patient care and his relationships
with Hospital personnel. But Murtagh was terminated from his position on May 12,
2010, after less than three weeks on the job.
Murtagh alleges that while working for the Hospital he “observed a series of
unethical and possibly illegal activities taking place in the Hospital including
unnecessary medical procedures and services,” First Am. Compl. ¶ 12, and that the
conduct “involved patient care and was a condition or practice related to Pulmonary
Medicine and Critical Care Medicine that placed the health and safety of patients at
risk.” First Am. Compl. ¶ 63. He claims that he both reported these potential abuses
to the appropriate agencies but also first made disclosures “to the Hospital’s Risk
Management Offices to provide an opportunity to take corrective action.” First Am.
Compl. ¶ 63. Murtagh claims that Shapiro, the Hospital’s Chief Medical Officer,
somehow became aware of Murtagh’s reports and terminated his placement in
retaliation for Murtagh’s whistleblowing activities. Murtagh also claims that after
his employment began, Shapiro learned that Murtagh had been a whistleblower in
a previous engagement at Emory University Medical School and that Shapiro
preemptively terminated Murtagh’s employment in fear that the Hospital’s illegal
activities would be disclosed by Murtagh.
Following his termination, Murtagh attempted to meet with Shapiro to
discuss the Hospital’s reasons for his termination but was rebuffed. According to

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Murtagh, Shapiro finally responded to Murtagh’s queries several days later,
explaining only that Murtagh’s termination was not a “corrective action,” but that
he was let go on a “strictly contractual basis.” First Am. Compl. ¶ 20. Murtagh
alleges that Shapiro then falsely informed Murtagh’s other prospective employers
and/or medical staffing agencies that Murtagh had been dismissed from the
Hospital for unsatisfactory performance. As a result of these false representations,
Murtagh claims, Vista discontinued its contractual relationship with Murtagh and
he was also “denied several positions for which he had applied and for which he was
well qualified by training and experience.” First Am. Compl. ¶ 27.
The First Amended Complaint alleges six counts against the Defendants:
Count I (breach of contract), Count II (tortious interference with prospective
economic advantage), Count III, (defamation and false light), Count IV (enforcement
of rights of a third-party beneficiary), Count V (violation of 26 M.R.S.A. § 630) and
Count VI (wrongful discharge and retaliation against a whistleblower). The
Defendants move to dismiss all counts of the First Amended Complaint.
LEGAL STANDARD
Rule 8 of the Federal Rules of Civil Procedure requires that a complaint
contain “a short and plain statement of the claim showing that the pleader is
entitled to relief” and that “[e]ach allegation must be simple, concise, and direct.”
Fed. R. Civ. P. 8(a)(2) and 8(d)(1). The First Circuit has set forth, consistent with
Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007), the “proper handling of a motion to dismiss” under Rule 12(b)(6):

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Step one: isolate and ignore statements in the complaint that simply
offer legal labels and conclusions or merely rehash cause-of-action
elements. Step two: take the complaint’s well-pled (i.e. non-conclusory,
non-speculative) facts as true, drawing all reasonable inferences in the
pleader’s favor, and see if they plausibly narrate a claim for relief.
Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012)
(citations omitted). “Plausible, of course, means something more than merely
possible, and gauging a pleaded situation’s plausibility is a ‘context-specific’ job”
that requires the Court to “‘draw on’ its ‘judicial experience and common sense.’” Id.
(quoting Iqbal, 129 S.Ct. at 1950).
“Ordinarily, a court may not consider any documents that are outside of the
complaint, or not expressly incorporated therein, unless the motion is converted into
one for summary judgment.” Alternative Energy, Inc. v. St. Paul Fire & Marine Ins.
Co., 267 F.3d 30, 33 (1st Cir. 2001) (citing Watterson v. Page, 987 F.2d 1, 3 (1st Cir.
1993)). “There is, however, a narrow exception ‘for documents the authenticity of
which are not disputed by the parties; for official public records; for documents
central to plaintiffs’ claim; or for documents sufficiently referred to in the
complaint.’” Id. (quoting Watterson, 987 F.2d at 3). “When the complaint relies upon
a document, whose authenticity is not challenged, such a document ‘merges into the
pleadings’ and the court may properly consider it under a Rule 12(b)(6) motion to
dismiss.” Alternative Energy, 267 F.3d at 33 (quoting Beddall v. State St. Bank &
Trust Co., 137 F.3d 12, 17 (1st Cir. 1998)).

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DISCUSSION
A. Count I: Breach of Contract
The Defendants claim that the Plaintiff has not adequately alleged the
existence of any contract between the Plaintiff and the Hospital that can serve as a
basis for his breach of contract claim. The Plaintiff responds: 1) that his placement
contract should be integrated with the Hospital’s contract with Vista; and 2) that
even absent a contract, he is entitled to “some form of due process review regarding
his termination” under the Hospital’s Bylaws. Pl’s Opp’n to Def’s Mot. to Dismiss 9
(ECF No. 35).
1. The Agreements
As alleged in the First Amended Complaint, the Plaintiff’s breach of contract
claim is based on an agreement for locum tenens coverage dated March 17, 2008 and
signed by the Hospital and Vista (the “Coverage Agreement”) (ECF No. 22-2).1
The Plaintiff claims he is a party to this contract, and seeks to enforce both its
notice and what he calls its “reasonable findings” requirement. Paragraph 9 of the
Coverage Agreement states:
If Client [defined as the Hospital] reasonably finds the performance of
any Professional providing Locum Tenens coverage under this
Agreement to be unacceptable for reasons of professional competence
or personal conduct, it shall give notice to VISTA and may then remove
the Professional from the placement.
The Plaintiff is not a party to the Coverage Agreement. Under Utah law,
which governs this agreement (see Coverage Agreement ¶ 13(f)), “a meeting of the

The Coverage Agreement was attached as an exhibit to the First Amended Complaint and
incorporated therein.
1

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minds on the integral features of an agreement is essential to the formation of a
contract.” Nielsen v. Gold’s Gym, 78 P.3d 600, 602 (Utah 2003) (quoting Richard
Barton Enters. v. Tsern, 928 P.2d 368, 373 (Utah 1996)). The Plaintiff had nothing
to do with the creation or terms of this contract, and he was not a signatory to it.
Indeed, it was executed by the Hospital and Vista over two years prior to the
Plaintiff’s placement at the Hospital.
The Plaintiff claims, however, that the Coverage Agreement is part of a
larger agreement including a professional services placement agreement executed
by the Plaintiff and Vista dated March 11, 2010, (the “Placement Agreement”)
(ECF No. 40-1).2 Plaintiff alleges that, as a result of the “integration” of these
documents, he is entitled to enforce the Coverage Agreement’s terms as part of a triparty contract. This claim is also unavailing.
The Placement Agreement is an agreement signed by Vista and a medical
professional who is looking for a temporary assignment. It sets forth certain general
terms of the relationship between Vista and the professional that govern all
potential assignments going forward. Neither the Coverage Agreement nor the
Placement Agreement incorporates the other by reference. By contrast, Paragraph 5
of the Coverage Agreement incorporates by reference certain terms in the
professional’s Placement Letter.3 This incorporation of the Placement Letter

This agreement was subsequently added to Murtagh’s pleadings by agreement of the parties.
See Motion to Amend (ECF No. 40), and the Court’s order thereon (ECF No. 41). The Court considers
this on the motion to dismiss as a document central to Murtagh’s claims.
2

The Coverage Agreement provides: “Client agrees . . . to provide or pay for the lodging,
automobile, and travel expenses of Professional(s), and any costs required by Client’s clinics,
3

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demonstrates that, where the parties to the Coverage Agreement intended to
incorporate the terms of other agreements, they did so explicitly.
Moreover, the Coverage Agreement contains a merger clause that states:
Complete Agreement, Amendment. This Agreement contains the
complete understanding between the parties, and shall bind and inure
to the benefit of the parties’ successors, heirs, and legal
representatives. Amendments or variations of the terms of this
Agreement shall not be valid unless in writing and signed by all
parties.
Coverage Agreement ¶ 13(d). According to Utah’s Supreme Court, “the purpose and
effect of including a merger clause is to preclude the subsequent introduction of
evidence of preliminary negotiations or of side agreements in a proceeding in which
a court interprets the document.” Tangren Family Trust v. Tangren, 182 P.3d 326,
330 (Utah 2008). Where a contract contains an explicit merger clause, evidence
extrinsic to the contract can be considered “where the contract is alleged to be a
forgery, a joke, a sham, lacking in consideration, or where a contract is voidable for
fraud, duress, mistake, or illegality.” Id. at 330-31. The Plaintiff makes no such
claims in this case. Accordingly, absent an explicit incorporation of the Placement
Agreement into the Coverage Agreement, the former cannot supplement the terms
of the latter, or draw the Hospital into a tri-party contract.
The Plaintiff argues that because Vista is both his agent and the Hospital’s
agent, Vista acts for him in the Coverage Agreement and for the Hospital in the

hospitals or affiliates for credentials verification of Professionals as set forth in each Placement
Letter . . . .” Coverage Agreement ¶ 5.
The Placement Letter sets forth the specific terms of an assignment, including the term of
the engagement, wages, and reimbursable expenses. See ECF No. 38-1 at 8 (sample Placement
Letter).

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Placement Agreement. From there, the Plaintiff asserts that the “tri-party
agreement is directly enforceable” by him. Pl’s Opp’n to Def’s Mot. to Dismiss 10.
The Plaintiff’s argument is completely undercut by the Placement Agreement’s
provision that: “This agreement does not create a partnership or any agency
relationship between the parties.” Placement Agreement ¶ 19. Plaintiff’s citation to
McCarthy v. Azure, 22 F.3d 351 (1st Cir. 1994) is similarly unhelpful. In McCarthy,
the First Circuit determined that an individual who signed a purchase agreement
only in his official capacity could not invoke the agreement’s arbitration clause for
claims asserted against him in his individual capacity. The Court fails to see how
the McCarthy case, which is provided without pinpoint citation, helps the Plaintiff
in any way.
The Plaintiff also claims that he was bound by the Coverage Agreement to
provide notice to the Hospital in the event he wished to end his relationship with
the Hospital, and that he cannot be bound by these terms unless the Hospital is also
bound to provide notice to him under this agreement. Murtagh misreads the
Coverage Agreement, which does not require him to give notice to the Hospital. 4

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The Coverage Agreement ¶ 7 states:
A Professional identified by a signed Placement Letter may terminate a Placement
Letter and cancel a placement if the Professional becomes unable, due to emergency
or medical condition, to perform services called for by that Placement Letter. Such
Placement Letter may be terminated by Professional or VISTA by giving written
notice of termination to Client, identifying the reasons justifying termination.
Termination shall be effective on receipt of said notice, and VISTA shall thereafter
return any unearned payments received under such Placement Letter. Professional,
and not VISTA, is responsible for damages incurred by Client should Professional fail
to fulfill or improperly terminate a scheduled placement.

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Murtagh’s only obligation is under the Placement Agreement, and that obligation is
to provide notice to Vista.5
Finally, even if the Coverage Agreement and the Placement Agreement were
somehow integrated, the Placement Agreement contains essentially the same
provision as the Coverage Agreement regarding removal of the Plaintiff from a
placement:
If Client reasonably finds the performance of Professional to be
unacceptable for reasons of professional competence or personal
conduct, it shall give notice to VISTA and may then remove
Professional from the Placement.
Placement Agreement ¶ 4; see also Coverage Agreement ¶ 9. Together, these terms
unambiguously indicate that any notice rights belong solely to Vista.
2. The Hospital Bylaws
The Plaintiff also makes two breach of contract claims under the Hospital’s
Bylaws.6 The Plaintiff asserted in the First Amended Complaint that as a result of
his contractual status as a locum tenens physician, he was “standing in the shoes of

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The Placement Agreement ¶ 4 states:
The terms of each Placement . . . shall allow Professional to cancel any scheduled
placement by giving written notice to VISTA identifying the reasons justifying
termination if Professional becomes unable by reason of emergency or medical
condition to fulfill an agreed placement. Professional shall pay to VISTA its
unrecoverable expenses for any placement canceled by Professional. . . . Except as
provided herein or in the applicable Placement Letter, Professional’s failure to
perform a placement as agreed may result in liability for breach of contract.

In Maine, “the bylaws of a private medical center may constitute an enforceable contract
between the medical center and its staff physicians.” Bartley v. E. Maine Med. Ctr., 617 A.2d 1020,
1021 (Me. 1992) (citing Bhatnagar v. Mid-Maine Medical Ctr., 510 A.2d 233, 234 (Me. 1986)); see also
Whalen v. Down E. Cmty. Hosp., 980 A.2d 1252, 1254-55 (Me. 2009). Murtagh was not a staff
physician, but, on the theory that bylaws may generally depending on their terms create enforceable
contracts between hospitals and individuals who work there, the Court addresses the substance of
the Plaintiff’s claims.
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a permanent physician” and therefore had a right to a hearing under the Hospital
Bylaws regarding discipline and termination of permanent employees. First Am.
Compl. ¶ 33.7 The Plaintiff abandoned this claim, which was prudent since the
Bylaws explicitly state that such rights are not available to locum tenens
physicians.8
The Plaintiff falls back on a provision of the Bylaws relating to termination of
temporary Hospital privileges:
The Chief Executive Officer may at any time upon reasonable notice
under the circumstances and for any reason after consultation with the
Chief Medical Officer of the Medical Staff and the Department Chair
terminate any or all temporary privileges granted.
Bylaws Art. 7.5.3. The Plaintiff claims that this provision entitles him to “some form
of due process review” regarding his termination. Pl’s Opp’n to Def’s Mot. to Dismiss
9.
First, the Plaintiff asserts that this paragraph “mandated consultation and
agreement amongst the medical staff” and that the Hospital “does not contest” that
this consultation and agreement “was not obtained.” Pl’s Opp’n to Def’s Mot. to
Dismiss 8. But the First Amended Complaint does not allege that the medical staff
failed to consult prior to terminating the Plaintiff’s privileges. It asserts that “the
Hospital” terminated Murtagh’s privileges, an assertion which implies that the
termination was attributable to the Hospital and was not the result of some rogue
The Bylaws of the Medical Staff of St. Mary’s Regional Hospital were referenced in and
attached to the first amended complaint (ECF 22-1) (the “Bylaws”).
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“No Practitioner shall be entitled to the procedural rights afforded by Article 9 because of
his/her inability to obtain temporary privileges or because of any termination or suspension of
temporary privileges.” Bylaws Art. 7.5.4.
8

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action by one member of the Hospital staff. See First Am. Compl. ¶ 15. There is no
positive allegation anywhere in the First Amended Complaint that the Hospital’s
medical staff failed to consult with one another prior to the Plaintiff’s termination.
The Plaintiff has failed to allege any breach of this provision of the Bylaws.
The Plaintiff also alleges that, after he was notified of the termination of his
privileges, he was denied an audience with Shapiro to discuss the reasons why his
privileges were terminated and that he was escorted from the premises in a
“humiliating fashion.” First Am. Compl. ¶ 17. While a locum tenens physician may
be entitled to “reasonable notice under the circumstances,” the Plaintiff’s
allegations do not support a claim that the notice given to the Plaintiff was
unreasonable. The Bylaws do not require the Hospital to provide the Plaintiff with
its reasons for termination, nor do they provide contractual protection for any
particular manner of escort from the Hospital premises.
For the foregoing reasons, the Plaintiff’s claim for breach of contract fails to
state a claim for which relief may be granted.
B. Count IV: Enforcement of Rights of a Third-Party Beneficiary
The Plaintiff also claims that he is entitled to enforce the terms of the
Coverage Agreement as a third-party beneficiary of this agreement. The Court
continues to apply Utah law to this contract-related claim. See Coverage Agreement
¶13(f). Utah follows the Restatement (Second) of Contracts § 302 on the question of
third-party beneficiaries. Ron Case Roofing and Asphalt Paving, Inc. v. Blomquist,
773 P.2d 1382, 1386 (Utah 1989). The Restatement provides:

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(1) Unless otherwise agreed between promisor and promisee, a
beneficiary of a promise is an intended beneficiary if recognition of a
right to performance in the beneficiary is appropriate to effectuate the
intention of the parties and either
(a) the performance of the promise will satisfy an obligation of the
promisee to pay money to the beneficiary; or
(b) the circumstances indicate that the promisee intends to give the
beneficiary the benefit of the promised performance.
(2) An incidental beneficiary is a beneficiary who is not an intended
beneficiary.
RESTATEMENT (SECOND)

OF

CONTRACTS § 302. The Coverage Agreement evinces no

intent to confer rights on the Plaintiff, and in particular, the contract plainly
confers the notice right to Vista alone. But the Plaintiff claims that because he
worked for the Hospital, and thereby placed his professional reputation in the
Hospital’s hands, an intent on Vista’s and the Hospital’s part to give him some
protection should be read into the notice provision. This equitable argument cannot
override the actual intentions of the parties, as evidenced by the terms of the
Coverage Agreement. Thus, the Plaintiff’s claim for enforcement of third-party
beneficiary rights fails to state a claim for which relief may be granted.
C. Count II: Tortious Interference with Prospective Economic Advantage
The Defendants claim that the First Amended Complaint fails to state a
claim for tortious interference with prospective economic advantage because it fails
to adequately allege either fraud or intimidation. Under Maine law:9
[t]ortious interference with a prospective economic advantage requires
a plaintiff to prove: (1) that a valid contract or prospective economic
The rest of the Plaintiff’s claims are unrelated to either the Plaintiff’s contract with Vista or
to his claimed rights under Vista’s contract with the Hospital, and so are governed by applicable
Maine statutory and common law.
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advantage existed; (2) that the defendant interfered with that contract
or advantage through fraud or intimidation; and (3) that such
interference proximately caused damages.
Rutland v. Mullen, 798 A.2d 1104, 1110 (Me. 2002) (footnotes omitted) (citing James
v. MacDonald, 712 A.2d 1054, 1057 (Me. 1998)).
1. Interference through Fraud
The elements of interference by fraud are:
(1) mak[ing] a false representation (2) of a material fact (3) with
knowledge of its falsity or in reckless disregard of whether it is true or
false (4) for the purpose of inducing another to act or refrain from
acting in reliance on it, and (5) the other person justifiably relies on the
representation as true and acts upon it to the damage of the plaintiff.
Rutland, 798 A.2d at 1111. (quoting Grover v. Minette-Mills, Inc., 638 A.2d 712, 716
(Me.1994) (alteration in original) (also citing RESTATEMENT (SECOND)

OF

TORTS §§

525-26 (1977)).
To the extent the Plaintiff pleads interference through fraud, he must “state
with particularity the circumstances constituting fraud” under Federal Rule of Civil
Procedure 9(b). See Goodman v. President and Trs. of Bowdoin Coll., 135 F. Supp.
2d 40, 59 (D. Me. 2001); cf. Hayduk v. Lanna, 775 F.2d 441, 443 (1st Cir. 1985)
(“Although state law governs the burden of proving fraud at trial, the procedure for
pleading fraud in federal courts in all diversity suits is governed by the special
pleading requirements of Federal Rule of Civil Procedure 9(b)”). This requires the
Plaintiff to be specific about the “time, place, and content of an alleged false
representation, but not the circumstances or evidence from which fraudulent intent
could be inferred.” Hayduk, 775 F.2d at 444.

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The First Amended Complaint alleges that:
Upon information and belief . . . Shapiro took it upon himself. . . to
inform Murtagh’s prospective employers and/or medical staffing
agencies engaged to assist Murtagh in acquiring other temporary and
permanent employment opportunities, that Murtagh had been
dismissed from the Hospital for “unsatisfactory performance” despite
the fact that no reasonable findings had ever been made or notice
issued.
First Am. Compl. ¶ 22. The Plaintiff then alleges that Shapiro’s false statements
caused Vista to discontinue its contractual relationship with the Plaintiff. Together,
these statements get the Plaintiff only partway toward a sufficient claim for
tortious interference through fraud. The First Amended Complaint sufficiently
alleges what Shapiro said (that the Plaintiff was dismissed for unsatisfactory
performance) and to whom Shapiro made the representation (Vista) but it fails to
specify when or where Shapiro communicated this to Vista. The First Amended
Complaint is also completely deficient in its allegations that Shapiro was
responsible for the loss of any additional employment opportunities.10 Strictly
considering the facts alleged in the First Amended Complaint and documents

As part of his opposition to the motion to dismiss, the Plaintiff attached several documents
including a copy of a letter dated December 14, 2010 from Shapiro to Community Mercy Health
Partners stating that the Plaintiff “was terminated due to unsatisfactory performance” (ECF No. 352), and a 29-paragraph statement, (ECF No. 35-4, “Plaintiff’s Additional Statement”). The
statement alleges that a phone call from Shapiro resulted in his termination from a permanent
position at the Cleveland University Hospitals in September of 2010, that the Jewish Hospital in
Cincinnati terminated him in March of 2011 after receiving a copy of Shapiro’s letter, and that
Shapiro’s letter was responsible for two recruiting companies, Locum Medical and Whitiker
Company, refusing to do business with him and also for the inability of a third recruiting company,
Alliance, to place him in any positions.
These additional details cannot be considered on a motion to dismiss. Unlike the contracts
and the Hospital Bylaws, the materials providing this information do not fit the “narrow exception”
for considering materials outside of the complaint “for documents the authenticity of which are not
disputed by the parties; for official public records; for documents central to plaintiff’s claim; or for
documents sufficiently referred to in the complaint.” See Alternative Energy, Inc., 267 F.3d at 33.
10

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properly incorporated therein, the Plaintiff’s claim fails to state a claim for tortious
interference through fraud.
2. Interference through Intimidation
The Plaintiff asserts that he has stated a claim for interference through
intimidation. See Currie v. Indus. Sec., Inc., 915 A.2d 400, 408 (Me. 2007). In Currie,
Maine’s Law Court observed:
“intimidation is not restricted to ‘frightening a person for coercive
purposes,’” but rather exists wherever a defendant has procured a
breach of contract by “making it clear” to the party with which the
plaintiff had contracted that the only manner in which that party could
avail itself of a particular benefit of working with defendant would be
to breach its contract with plaintiff.
Currie, 915 A.2d at 408 (quoting Pombriant v. Blue Cross/Blue Shield of Maine, 562
A.2d 656, 659 (Me. 1989)). The First Amended Complaint does not allege that
Shapiro “made it clear” to Vista that Vista could only continue its relationship with
the Hospital if Vista discontinued its relationship with the Plaintiff. It alleges only
that Shapiro falsely informed Vista of the Plaintiff’s unsatisfactory performance and
that, based on this report, Vista dropped the Plaintiff. Accordingly, the First
Amended Complaint fails to state a claim for tortious interference with prospective
economic advantage through intimidation.
D. Count III: Defamation
The Defendants contend that the First Amended Complaint fails to state a
claim for defamation because Shapiro’s alleged statements that the Plaintiff was
terminated for unsatisfactory performance were not false or defamatory. Common
law defamation consists of:
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(a) a false and defamatory statement concerning another;
(b) an unprivileged publication to a third party;
(c) fault amounting at least to negligence on the part of the publisher;
and
(d) either actionability of the statement irrespective of special harm or
the existence of special harm caused by the publication.
Lester v. Powers, 596 A.2d 65, 69 (Me. 1991) (quoting RESTATEMENT (SECOND)

OF

TORTS § 558 (1977)). Under Maine law:
The plaintiff in a defamation case must prove that the published
statements made were defamatory, meaning that the statements
harmed his reputation so as “to lower him in the estimation of the
community.” Schoff v. York Cnty, 761 A.2d 869, 871 n. 3 (Me. 2000)
Moreover, the plaintiff must prove that the defamatory statements are
false. . . . A false statement must be “an assertion of fact, either explicit
or implied, and not merely an opinion, provided the opinion does not
imply the existence of undisclosed defamatory facts.” Lester v. Powers,
596 A.2d 65, 69 (Me. 1991). If the publication is truly an opinion . . . it
is not actionable. . . .
“The determination whether an allegedly defamatory statement
is a statement of fact or opinion is a question of law . . . [but if] the
average reader could reasonably understand the statement as either
fact or opinion, the question of which it is will be submitted to the
[fact-finder].” Caron v. Bangor Publ’g Co., 470 A.2d 782, 784 (Me.
1984).
Ballard v. Wagner, 877 A.2d 1083, 1087 (Me. 2005) (alterations in original) (some
citations omitted).
Taking all reasonable inferences in the Plaintiff’s favor, Shapiro’s alleged
statement that the Plaintiff was terminated due to unsatisfactory performance
implies the existence of undisclosed defamatory facts. A fact finder could reasonably
find that someone receiving this statement from Shapiro would understand it to
mean that the Hospital found that the Plaintiff failed to meet certain objective
professional standards when he worked there. A fact finder could reasonably find

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that this statement harmed the Plaintiff’s professional reputation and lowered him
in the estimation of the community. See Stanton v. Metro Corp., 438 F.3d 119, 12425 (1st Cir. 2006) (under Massachusetts law, on a motion to dismiss court
determines not the ultimate issue of whether the statement is defamatory, but the
threshold question of whether the statement is reasonably susceptible of a
defamatory meaning.) The Plaintiff also adequately alleged that his performance
while at the Hospital was not deficient in any respect, and thus, that this statement
was false. The First Amended Complaint states a claim for defamation.
E. Count III: False Light
The Defendants claim that the Plaintiff fails to plead that the Defendants
gave publicity to any matter that placed him in a false light. The tort of false light,
also known as “false light invasion of privacy,” “is based on publicity which places
the plaintiff in a false light in the public eye.” Cole v. Chandler, 752 A.2d 1189, 1197
(Me. 2004). Under the Restatement (Second) of Torts, which Maine follows, liability
for false light is described as follows:
One who gives publicity to a matter concerning another that places the
other before the public in a false light is subject to liability to the other
for invasion of his privacy, if (a) the false light in which the other was
placed would be highly offensive to a reasonable person, and (b) the
actor had knowledge of or acted in reckless disregard as to the falsity
of the publicized matter and the false light in which the other would be
placed.
RESTATEMENT (SECOND)

OF

TORTS § 652E (1977), see Chandler, 752 A.2d at 1197.

The Restatement also explains the following regarding publicity:

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“Publicity,” as it is used in this Section, differs from “publication,” as
that term is used in § 577 in connection with liability for defamation.
“Publication,” in that sense, is a word of art, which includes any
communication by the defendant to a third person. “Publicity,” on the
other hand, means that the matter is made public, by communicating
it to the public at large, or to so many persons that the matter must be
regarded as substantially certain to become one of public knowledge.
RESTATEMENT (SECOND) OF TORTS § 652D cmt. a (1977).
The First Amended Complaint makes no claim that Shapiro gave publicity to
the matter of the Plaintiff’s termination from the Hospital. It claims only that
Shapiro took it upon himself to inform the Plaintiff’s prospective employers and/or
medical staffing agencies that the Plaintiff had been dismissed from the Hospital
for unsatisfactory performance. The Plaintiff’s Additional Statement gets closer to
the idea of publicity when it asserts that Shapiro’s letter was in a central database
to which all Mercy hospitals have access, and that as a result of the letter, the
Plaintiff could not be hired in a Catholic hospital anywhere in the nation. But
again, the Court will not consider this information because it was not presented
within the operative pleading. See Alternative Energy, Inc., 267 F.3d at 33. The
Plaintiff’s claim for false light, as alleged in the First Amended Complaint, must be
dismissed.
F. Count V: Violation of 26 M.R.S.A. § 630
The Defendants move to dismiss the Plaintiff’s statutory claim for a written
explanation of the Hospital’s reasons for terminating his employment. Under
Maine’s employment practices statutes, “[a]n employer shall, upon written request
of the affected employee, give that employee the written reasons for the termination

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of that person’s employment.” 26 M.R.S.A. § 630. “Employee” is defined under these
statutes as “every person who may be permitted, required or directed by any
employer in consideration of direct or indirect gain or profit, to engage in any
employment,” 26 M.R.S.A. § 591.11
The Defendants assert that the Plaintiff cannot make out a claim under § 630
because he was an independent contractor, both under the terms of the Placement
Agreement and by his own admission in the First Amended Complaint. See
Placement Agreement ¶ 11, First Am. Comp. ¶¶ 31, 39, 53, and 57. The Plaintiff
argues that the question of whether he was an employee or an independent
contractor is a factual matter not appropriate for determination on a motion to
dismiss. The Court agrees with the Plaintiff. The multi-part test for determining
the status of an individual as an independent contract is fact-intensive.12
Regarding the Placement Agreement terms, Maine has long held that these
are not determinative of an individual’s status as an employee or independent
contractor. See, e.g., Timberlake v. Frigon & Frigon, 438 A.2d 1294, 1298 (Me. 1982)
(“one might ‘intend to enter into an independent contractual relationship and still
the terms of the employment be such that the law would determine his status as

Under a recently-passed law, “An Act to Standardize the Definition of ‘Independent
Contractor,’” “employee” has explicitly been defined in contradistinction to “independent contractor.”
See 2012 Me. Legis. Serv. Ch. 643 (H.P. 960) (L.D. 1314) (West). The Plaintiff does not claim that
this law, which went into effect on December 31, 2012, is inapplicable to his case. Even before the
law went into effect, the definition of “employee” was largely considered to be in contradistinction to
“independent contractor.” See North East Ins. Co. v. Soucy, 693 A.2d 1141, 1144 (Me. 1997).
(“definition of employment status almost always takes the form of distinguishing an employee from
an independent contractor.”).
11

See 26 M.R.S.A. § 1043(11)(E). The 2012 amendment to 26 M.R.S.A. § 591 incorporates this
definition of “independent contractor”.
12

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that of an employee. . . .’” (quoting Kirk v. Yarmouth Lime Co., 15 A.2d 184, 187
(Me. 1940)).
Regarding the Plaintiff’s assertions of independent contractor status in the
First Amended Complaint, Federal Rule of Civil Procedure 8(d) allows a plaintiff to
make inconsistent claims: “A party may state as many separate claims or defenses
as it has, regardless of consistency.” This is essentially what the Plaintiff has done
in paragraph 57 of the First Amended Complaint, which states, “Although an
independent contractor, Murtagh is also an ‘employee’ as to the Defendant Hospital
within the Meaning of Title 26, Section 630.” Although the Plaintiff apparently did
not understand that the terms “employee” and “independent contractor” are
mutually exclusive under Maine law, his assertion of independent contractor status
may not be borne out by the evidence, and his assertion that he was an employee of
the Hospital may yet prove viable. The First Amended Complaint raises sufficient
factual questions regarding the Plaintiff’s status as an independent contractor that,
resolving all doubts in the Plaintiff’s favor, a sufficient claim of employee status has
been made.
G. Count VI: Retaliation Against a Whistleblower and Wrongful Discharge
The Defendants move, finally, to dismiss Count VI of the First Amended
Complaint, which alleges a claim for retaliation and wrongful discharge in violation
of Maine’s Whistleblower Protection Act, 26 M.R.S.A. § 833 (the “WPA”). In Count
VI, the Plaintiff alleges that he was wrongfully terminated from his position at the
Hospital either because: (1) Shapiro perceived him as a whistleblower based on the

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Plaintiff’s past whistleblowing activities; or (2) Shapiro actually discovered the
Plaintiff’s whistleblowing with regard to the Hospital.
Costain v. Sunbury Primary Care, P.A., 954 A.2d 1051 (Me. 2008) sets forth
the basic test:
There are three elements to a claim of unlawful retaliation: (1) the
employee engaged in activity protected by the statute; (2) the employee
was the subject of an adverse employment action; and (3) there was a
causal link between the protected activity and the adverse employment
action.
Costain, 954 A.2d at 1053 (citing Blake v. State, 868 A.2d 234, 237 (Me. 2005)). The
Defendants claim that the Plaintiff’s claim fails to adequately allege either that the
Plaintiff engaged in protected activity or that there was a causal link between the
protected activity and the adverse employment action taken against him.
1. Engagement in a Protected Activity
a. Perceived Whistleblower
The Plaintiff’s first theory—that his employment was illegally terminated
because he was perceived as a whistleblower from prior whistleblower activity at a
previous employer—cannot be sustained under the text of WPA or the case law
interpreting it. The statute protects only employees who have actually taken some
action in regard to their current employer, whether reporting potentially illegal or
injurious activities, participating in an investigation or hearing, or refusing to carry
out the employer’s directive to engage in illegal or injurious activities. See 26
M.R.S.A. § 833(1), cf. Chandler v. Dowell Schlumberger Inc., 572 N.W.2d 210, 212
(Mich. 1998) (construing its WPA, which protects an employee who “reports or is
about to report . . . a suspected violation” (emphasis added)).
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The Law Court has also interpreted the WPA to protect only “(1) employees
(2) who report to an employer (3) about a violation (4) committed or practiced by
that employer.” Costain, 954 A.2d at 1054. In Costain, the state had asked the
plaintiff to participate in a licensing board’s investigation against a doctor who
worked at a medical practice where she was a patient. Id. at 1052. A few years
later, the plaintiff began working for the practice as a rehabilitation aide, but,
several weeks into her new job, her employment was terminated after the practice
learned that she had, years prior, participated in the investigation of the doctor. Id.
Even though the plaintiff’s actions plainly met the criterion of being “requested to
participate in an investigation, hearing or inquiry held by that public body” under §
833(1)(C), the Law Court found that she was not protected under the WPA because
she was not an employee of the defendant at the time of the investigation. Id. at
1054. Similarly here, the Plaintiff is not protected by the WPA for blowing the
whistle on another employer prior to his engagement by the Hospital. Neither the
Plaintiff’s status as a former whistleblower, nor Shapiro’s alleged fear that the
Plaintiff might blow the whistle, is enough to confer protected status on the
Plaintiff.
b. Actual Whistleblower
The Plaintiff also claims that he was actually engaged in whistleblowing
against the Hospital at the time his employment was terminated. Paragraph 63 of
the First Amended Complaint states:
Murtagh reported possible illegal or fraudulent activity taking place at
St. Mary’s in good faith to state and federal agencies and to

22

Defendants. Specifically, the conduct involved patient care and was a
condition or practice related to Pulmonary Medicine and Critical Care
Medicine that placed the health and safety of patients at risk. The
disclosures were made first to the Hospital’s Risk Management Offices
to provide an opportunity to take corrective action and then to VISTA
and other agencies.
There are no further details regard the Plaintiff’s alleged reporting in the First
Amended Complaint. This paragraph is insufficient under Iqbal and Twombly and
their progeny to state a plausible claim that the Plaintiff was actually engaged in
whistleblowing. It is almost entirely an empty recitation of statutory criteria
without underlying factual content. The only part of the paragraph that provides
factual content is the Plaintiff’s allegation that he made disclosures to the
Hospital’s Risk Management Office, which at least identifies a particular office
within the Hospital to which the Plaintiff made reports. The Court can plausibly
infer from the title of this office that the disclosures were made to “a person having
supervisory authority with the employer” as required by § 833(2).
The content of the alleged disclosures and when they were made, however,
remain shrouded in mystery. That the conduct involved “patient care” means
nothing. The statute recites that the report of “a deviation from the applicable
standard of care for a patient” is protected activity. 26 M.R.S.A. § 833(1)(E). That
the conduct “was a condition or practice related to Pulmonary Medicine and Critical
Care Medicine that placed the health and safety of patients at risk” is similarly
meaningless. The statute recites that the report of “a condition or practice that
would put at risk the health or safety of that employee or any other individual” is
protected activity. 26 M.R.S.A. § 833(1)(B). The phrase “related to Pulmonary

23

Medicine and Critical Care Medicine” simply inserts into the legal standard those
areas of practice in which the Plaintiff was engaged without providing any content
about the alleged violations. The Plaintiff introduces additional facts in the
Plaintiff’s Additional Statement, but as noted above, the Court cannot consider this
exhibit on the motion to dismiss. For these reasons, the First Amended Complaint
fails to adequately allege that the Plaintiff was engaged in the protected activity
required to state a claim for unlawful termination and retaliation under the WPA.
2. Causation
Since the Plaintiff has not articulated a plausible claim that he engaged in
protected conduct, it follows by force of logic that he has not articulated a plausible
claim that his employment was terminated because he engaged in protected
conduct. The Court need not go on to assess the complaint’s allegations on
causation.
CONCLUSION
For the reasons stated, the Defendant’s motion to dismiss is DENIED as to
Counts III and V for defamation and violation of 26 M.R.S.A. § 630, and GRANTED
as to Counts I, II, III, IV, and VI for breach of contract, tortious interference with
prospective economic advantage, false light, and enforcement of rights of third-party

24

beneficiary, and wrongful discharge and retaliation against a whistleblower. Count
III survives as to defamation but not false light. Counts I, II, IV, and VI are hereby
DISMISSED.
SO ORDERED.
/s/ Nancy Torresen
United States District Judge
Dated this 23rd day of September, 2013.

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