McNeil v. Mount Carmel Health Sys., No. 2:20-cv-258 (S.D.
Ohio Nov. 29, 2022)
Plaintiffs, eight former Mount Carmel nurses and one former
Mount Carmel pharmacist, worked with and around a Dr. Husel, whose employment termination
and subsequent criminal proceedings were highly publicized. Plaintiffs alleged
that Mount Carmel engaged in a false advertising campaign aimed at convincing
the general public that Dr. Husel, with plaintiffs’ assistance, either harmed
or killed up to 35 actively dying patients with excessive pain medication. They
sued for defamation, wrongful termination, and false advertising under both the
Lanham Act and the Ohio Deceptive Trade Practices Act. The court found lack of
statutory standing on the Lanham Act claim and declined to exercise jurisdiction
over the state-law claims.
Some additional facts: The PR firm retained to help
strategize about the investigation into Dr. Husel’s dosing practices advised
Mount Carmel of a concern that it lacked policies or standards governing
medications and dosages in connection with withdrawals of non-palliative care
for dying patients. The firm “noted that criminal charges against Dr. Husel or
any of the nurses would be helpful to Mount Carmel and Trinity Health’s public
perception.” Eventually, the public PR strategy included the key message “The
acts of this doctor, along with the involved clinical staff, were a clear
violation of how we care for patients at Mount Carmel.” The PR strategy
identified key audiences including both internal (e.g., Mount Carmel’s board,
executive leaders, and employees and doctors) and external (e.g., patients,
regulators elected officials, local and national media, and Catholic leaders). Along
with other public comments, Mount Carmel announced that “48 nurses and
pharmacists,” a group encompassing all the plaintiffs here, were “under review”
and had been placed on administrative leave. It eventually announced that its
investigation was complete, and that it was terminating a number of involved
employees. Media coverage also generally mentioned the staff, and so did
lawsuits, although a number of nurses were dismissed from lawsuits.
Plaintiffs alleged that, as the result of Mount Carmel’s
public statements, each one of them “faced significant impediments to obtaining
similar work following his or her exit from Mount Carmel.”
The alleged damage to their professional reputations was
damage to a commercial interest that brought plaintiffs within the zone of
interests covered by the Lanham Act. But proximate cause was a fatal hurdle.
The statements made by Mount Carmel were only part of the public discourse: “numerous
parties made numerous public statements concerning Dr. Husel, making it ‘impossible
to trace a straight line’ from Defendants’ statements to the media to the
employment decisions of Plaintiff’s prospective employers.” [Here the court
recounts lots of attacks on Dr. Husel, but the quoted materials don’t mention
the staff, by name or otherwise, which makes reliance on them a bit thin.] “Plaintiffs
fail to explain why Defendants’ statements, rather than the plethora of other
attention-grabbing public statements (many of which arose from separate
investigations into Dr. Husel), determined the hiring decisions of Plaintiffs’
prospective employers.”
Likewise, prospective employers “exercised their independent
judgment” when declining to hire plaintiffs. [This seems to directly conflict with
Lexmark, which points out that false advertising always involves a
consumer deciding to act differently because of [allegedly false] information
and that this decision can’t therefore remove proximate cause.] But plaintiffs
couldn’t “disentangle the alleged reputational harm caused by Defendants’
statements from the other public statements discussed above, as well as the ‘unique
combination of internal and external variables’ that drive hiring decisions.”
The remaining claims were thus remanded to state court
(removal had been based on the Lanham Act claim).
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