MAINE	SUPREME	JUDICIAL	COURT	                                    Reporter	of	Decisions	
Decision:	 2018	ME	140	
Docket:	   Cum-18-15	
Argued:	   July	18,	2018	
Decided:	  October	16,	2018	
	
Panel:	    ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
Majority:	 MEAD,	GORMAN,	HJELM,	and	HUMPHREY,	JJ.	
Dissent:	  JABAR	and	ALEXANDER,	JJ.	
	
	
                            PAMELA	G.	ARGEREOW	
                                       	
                                      v.	
                                       	
                         VERNE	M.	WEISBERG,	M.D.,	et	al.	
	
	
HJELM,	J.		

      [¶1]	 	 Pamela	 G.	 Argereow	 commenced	 this	 action	 against	 Dr.	 Verne	 M.	

Weisberg	 and	 Mercy	 Hospital,	 alleging	 that	 Weisberg	 communicated	 with	

someone	 at	 Mercy	 about	 Argereow’s	 professional	 background	 and	 that,	 as	 a	

result,	 Mercy	 did	 not	 follow	 through	 with	 its	 decision	 to	 employ	 her.		

Argereow—a	 former	 employee	 at	 one	 of	 Weisberg’s	 medical	 offices—alleges	

that	 Weisberg’s	 statements	 to	 Mercy	 were	 retaliatory	 because,	 in	 an	

administrative	 proceeding,	 she	 had	 testified	 adversely	 to	 the	 interests	 of	

another	 of	 Weisberg’s	 clinics.	 	 The	 Superior	 Court	 (Cumberland	 County,	

L.	Walker,	J.)	granted	Weisberg’s	and	Mercy’s	separate	motions	to	dismiss	the	

complaint	for	failure	to	state	claims	on	which	relief	could	be	granted,	see	M.R.	
2	

Civ.	P.	12(b)(6),	because	some	counts	were	legally	insufficient	and	other	counts	

failed	due	to	the	absolute	immunity	provisions	of	the	Maine	Health	Security	Act,	

24	M.R.S.	§§	2501-2988	(2017).		Argereow	challenges	these	determinations	on	

this	appeal.		We	correct	one	aspect	of	the	judgment	and	affirm.			

                                    I.		BACKGROUND	

	      [¶2]		Because	this	appeal	is	based	on	a	facial	review	of	the	complaint,	we	

consider	only	the	alleged	facts,	which	we	take	as	true,	see	Lalonde	v.	Cent.	Me.	

Med.	Ctr.,	2017	ME	22,	¶	2,	155	A.3d	426,	and	“examine	the	complaint	in	the	

light	most	favorable	to	the	plaintiff	to	determine	whether	it	sets	forth	elements	

of	 a	 cause	 of	 action	 or	 alleges	 facts	 that	 would	 entitle	 the	 plaintiff	 to	 relief	

pursuant	 to	 some	 legal	 theory.”	 	 Moody	 v.	 State	 Liquor	 &	 Lottery	 Comm’n,	

2004	ME	20,	¶¶	7-8,	843	A.2d	43	(quotation	marks	omitted).			

       [¶3]		Between	February	of	2012	and	October	of	2014,	Argereow	worked	

as	a	nurse	practitioner	at	a	medical	practice	that	Weisberg	owns	and	operates.		

Argereow	began	seeking	other	employment,	including	at	Mercy,	in	the	summer	

of	 2014.	 	 She	 disclosed	 in	 an	 online	 application	 for	 Mercy	 that	 she	 had	

consented	 to	 a	 professional	 reprimand	 in	 2005	 because	 in	 2003	 she	 falsely	

indicated	on	 a	checklist	that	during	a	 medical	procedure	a	surgical	team	had	

completed	a	step	that	it	had	not	taken.			
                                                                                     3	

      [¶4]	 	 On	 September	 23,	 2014,	 Argereow	 testified	 under	 subpoena	 at	 a	

hearing	concerning	an	unemployment	claim	brought	by	a	former	employee	of	

another	 clinic	 owned	 and	 operated	 by	 Weisberg.	 	 On	 October	 1,	 the	

Unemployment	Commission	administrative	hearing	officer,	citing	Argereow’s	

testimony,	 issued	 an	 order	 favorable	 to	 the	 former	 employee	 and	 allowed	

benefits,	which	were	“chargeable”	to	Weisberg’s	clinic.			

      [¶5]	 	 On	 the	 same	 day	 as	 the	 unemployment	 hearing,	 Mercy	 sent	

Argereow	a	written	offer	for	her	to	work	as	a	nurse	practitioner	at	one	of	its	

clinics.	 	 On	 October	 6,	 Argereow	 underwent	 a	 pre-placement	 screening,	

resulting	 in	 her	 approval	 for	 employment	 at	 Mercy	 without	 restrictions,	 and	

received	 Mercy’s	 employee	 handbook.            Her	 projected	 start	 date	 was	

November	10,	2014.			

	     [¶6]		On	October	15,	Argereow	informed	Weisberg	that	she	was	leaving	

her	 job	 at	 his	 practice	 and	 that	 her	 last	 day	 there	 would	 be	 October	 29.		

Weisberg	learned	from	Argereow	on	October	31	that	she	would	be	working	for	

Mercy.		Sometime,	“likely”	during	the	ensuing	week,	Weisberg	“or	someone	on	

his	behalf”	“made	a	phone	call	[to	someone	at	Mercy]	and	cost	[Argereow]	her	

job	 at	 Mercy”	 because	 of	 her	 testimony	 at	 the	 unemployment	 claim	 hearing.		

The	 information	 conveyed	 by	 Weisberg	 during	 the	 phone	 call	 concerned	
4	

Argereow’s	“professional	background”	and	her	“employment	qualifications	or	

performance,”	 and	 suggested	 that	 she	 was	 “incompetent	 in	 her	 professional	

practice.”		Argereow’s	complaint	contains	no	further	allegations	about	what	the	

caller	allegedly	said	during	the	phone	call,	who	made	the	call,1	to	whom	the	call	

was	made,	or	when	the	call	was	made.		Weisberg’s	statements	had	“the	effect	of	

discouraging	Mercy	from	employing	[Argereow].”			

         [¶7]	 	 On	 November	 7,	 a	 human	 resources	 employee	 at	 Mercy	 advised	

Argereow	 that	 her	 “projected	 start	 date	 was	 being	 pushed	 back	 on	 the	 basis	

that	 there	 were	 potential	 issues	 associated	 with	 her	 medical	 credentialing.”		

Although	Mercy	had	not	concluded	the	hiring	process,	Argereow	“had	already	

been	introduced	to	the	.	.	.	team	as	a	new	employee	and	understood	that	there	

were	no	remaining	contingencies	regarding	her	employment	by	Mercy	and	that	

all	interviews	had	already	taken	place.”		At	Mercy’s	request,	however,	Argereow	

met	 with	 its	 Chief	 of	 Surgery	 on	 November	7.	 	 After	 they	 discussed	 the	

reprimand	on	her	nursing	license,	the	physician	expressed	his	appreciation	for	

Argereow’s	 candor	 concerning	 the	 incident	 and	 said	 he	 would	 “present	 this	

information	to	the	Mercy	Board	the	following	week.”		During	the	meeting,	the	



     1		The	complaint	alleges	variously	that	Weisberg	made	the	call	and	that	it	could	have	been	made	

by	someone	else.			
                                                                                      5	

physician	 noted	 to	 Argereow	 that	 “a	 Dr.	 Weisberg,	 which	 could	 refer	 to	

Dr.	Tracey	 Weisberg,	 [Dr.	 Verne	 M.]	 Weisberg’s	 spouse,	 was	 a	 member	 of	

Mercy’s	Board	or	held	a	significant	administration	role.”			

      [¶8]		On	November	10,	2014,	a	Mercy	representative	called	Argereow	to	

suggest	that	she	withdraw	her	credentialing	application.		Argereow	then	called	

the	human	resources	 department	and	was	told	to	expect	a	call	from	another	

Mercy	physician.		That	physician	called	Argereow	the	next	day	to	warn	her	that	

if	she	“pursued	her	application,	it	would	be	denied	on	the	basis	that	she	did	not	

qualify	for	credentialing	and	that	this	would	constitute	an	event	which	would	

have	 to	 be	 reported	 to	 the	 Maine	 State	 Board	 of	 Nursing	 and	 which	 would	

impair	 her	 ability	 to	 find	 work	 elsewhere.”	 	 Shortly	 thereafter,	 Argereow	

requested	a	copy	of	her	employment	application	with	Mercy	and	confirmed	that	

she	 had	 “truthfully	 responded	 to	 all	 questions	 asked	 in	 conjunction	 with	 her	

initial	online	application.”		Nevertheless,	Argereow	withdrew	her	application	

for	 employment	 and	 credentialing	 with	 Mercy	 on	 November	 13.	 	 On	

December	1,	2014,	Argereow	reviewed	her	Mercy	credentialing	file,	“which	did	

not	 contain	 any	 adverse	 information	 except	 a	 notation,	 without	 explanation,	

from	[the	Chief	of	Surgery]	recommending	against	credentialing.”		As	a	result	

of	 Weisberg’s	 and	 Mercy’s	 conduct,	 she	 underwent	 marriage	 counseling	
6	

because	 of	 stress	 and	 lost	 eight	 months	 of	 wages,	 which	 was	 a	 significant	

financial	hardship.			

        [¶9]	 	 In	 November	 of	 2015,	 Argereow	 commenced	 this	 action,	 naming	

Weisberg	 as	 the	 sole	 defendant.	 	 In	 her	 complaint	 as	 amended,	 Argereow	

asserted	 claims	 for	 tortious	 interference	 with	 a	 prospective	 economic	

advantage,	 intentional	 infliction	 of	 emotional	 distress,	 defamation,	 negligent	

infliction	 of	 emotional	 distress,	 slander	 per	 se,	 and	 violation	 of	 the	

Whistleblower	 Protection	 Act	 (WPA),	 see	 26	 M.R.S.	 §	 833(1)(C)	 (2017).		

Weisberg	moved	for	the	court	to	dismiss	each	count	for	failure	to	state	a	claim.		

The	court	granted	the	motion	in	part,	dismissing	without	prejudice	the	claims	

for	 defamation,	 slander	 per	 se,	 and	 negligent	 infliction	 of	 emotional	 distress,	

but	allowing	Argereow	to	proceed	on	the	other	claims.2			

	       [¶10]	 	 During	 pretrial	 proceedings,	 Argereow	 served	 Mercy	 with	 a	

subpoena	 to	 obtain	 certain	 credentialing-related	 documents.	 	 After	 resulting	

motion	 practice	 involving	 Argereow	 and	 Mercy,	 the	 court	 issued	 an	 order	

protecting	Mercy	from	producing	some	of	that	material.		Argereow	then	filed	a	



   2		The	dismissal	of	a	claim	for	failure	to	state	a	basis	for	relief	is	an	adjudication	on	the	merits.		See	

U.S.	 Bank	 Trust,	 N.A.	 v.	 Mackenzie,	 2016	 ME	 149,	 ¶	 11,	 149	 A.3d	 267;	 Potter,	 Prescott,	 Jamieson	
&	Nelson,	P.A.	v.	Campbell,	1998	ME	70,	¶	9,	708	A.2d	283.		Therefore,	the	dismissal	of	Argereow’s	
claims	for	defamation,	slander	per	se,	and	negligent	infliction	of	emotional	distress	should	have	been	
with	prejudice,	and	we	correct	that	aspect	of	the	order	of	dismissal	accordingly.		
                                                                                                    7	

second	amended	complaint,	which	included	all	of	the	counts	she	had	asserted	

against	Weisberg,	including	the	ones	the	court	had	dismissed,	and	added	Mercy	

as	a	defendant	and	asserted	claims	 against	Mercy	for	intentional	infliction	of	

emotional	distress	and	whistleblower	retaliation,	and	a	count	seeking	access	to	

credentialing	records	in	Mercy’s	possession.		

       [¶11]		Weisberg	and	Mercy	filed	separate	motions	to	dismiss	Argereow’s	

second	 amended	 complaint.	 	 The	 court	 granted	 Dr.	 Weisberg’s	 motion	 to	

dismiss	the	remaining	counts	against	him	based	on	its	determination	that	he	is	

entitled	to	immunity	pursuant	to	24	M.R.S.	§	2511.		The	court	granted	Mercy’s	

motion	to	dismiss,	which	was	based	on	assertions	that	Mercy	was	statutorily	

immune,	 also	 pursuant	 to	 section	 2511,	 and	 that	 Argereow’s	 claims	 did	 not	

state	a	basis	for	relief.		The	court	“determined	that	Mercy	is	not	unquestionably	

entitled	to	immunity”	but	granted	the	motion	because	the	claims	against	Mercy	

did	 not	state	claims	for	relief.		Argereow	filed	a	notice	of	appeal,3	and	Mercy	

filed	a	cross-appeal	to	preserve	the	argument	that	its	motion	to	dismiss	should	




   3		On	appeal,	Argereow	does	not	pursue	any	claim	that	the	court	erred	by	dismissing	her	claims	

against	Weisberg	for	negligent	infliction	of	emotional	distress	or	slander	per	se,	or	the	dismissal	of	
her	claim	against	Mercy	seeking	access	to	“professional	competence	review	records.”			
8	

have	been	granted	based	on	section	2511	immunity.4		See	M.R.	App.	P.	2B(c),	

2C(a).			

                                             II.		DISCUSSION	

	       [¶12]	 	 When	 we	 review	 an	 order	 dismissing	 a	 complaint,	 we	 consider	

only	the	facts	alleged	in	the	complaint	and	“examine	the	complaint	in	the	light	

most	favorable	to	the	plaintiff	to	determine	whether	it	sets	forth	elements	of	a	

cause	of	action	or	alleges	facts	that	would	entitle	the	plaintiff	to	relief	pursuant	

to	 some	 legal	 theory.”	 	 Moody,	 2004	 ME	 20,	 ¶¶	 7-8,	 843	 A.2d	 43	 (quotation	

marks	 omitted).	 	 This	 is	 a	 process	 that	 “tests	 the	 legal	 sufficiency	 of	 the	

allegations	in	a	complaint,	not	the	sufficiency	of	the	evidence	the	plaintiffs	are	

able	 to	 present.”	 	 Barnes	 v.	 McGough,	 623	 A.2d	 144,	 145	 (Me.	1993)	 (citation	

omitted).		Dismissal	of	a	complaint	“should	only	occur	when	it	appears	beyond	




    4		We	acknowledge	Mercy’s	desire	to	be	cautious,	particularly	in	light	of	some	of	our	suggestions	

describing	when	a	cross-appeal	is	required.		See,	e.g.,	MaineToday	Media,	Inc.	v.	State,	2013	ME	100,	
¶	28	n.17,	82	A.3d	104;	Langevin	v.	Allstate	Ins.	Co.,	2013	ME	55,	¶	6	n.4,	66	A.3d	585.		Nonetheless,	
Mercy’s	cross-appeal	was	unnecessary	because—as	we	now	clarify—an	appellee	is	not	required	to	
cross-appeal	“if	it	argues	in	favor	of	affirming	the	decision	in	every	respect	but	simply	contends	that	
the	same	result	should	have	been	reached	through	different	legal	reasoning.”		Harris	v.	Woodlands	
Club,	2012	ME	117,	¶	16	n.8,	55	A.3d	449;	accord	Scott	Dugas	Trucking	&	Excavating,	Inc.	v.	Homeplace	
Bldg.	 &	 Remodeling,	 Inc.,	 651	 A.2d	 327,	 329	 (Me.	 1994);	 State	 v.	 Me.	 Cent.	 R.R.,	 517	 A.2d	 55,	 57	
(Me.	1986);	Givertz	v.	Me.	Med.	Ctr.,	459	A.2d	548,	556	(Me.	1983)	(“An	appellee	need	not	cross-appeal	
to	 raise	 an	 issue	 that	 merely	 could	 provide	 an	 alternative	 ground	 to	 uphold	 his	 judgment.”);	
Alexander,	 Maine	 Appellate	 Practice,	 §	 2C.1(a)	 at	 72	 (5th	 ed.	 2018)	 (“[A]n	 appellee	 need	 not	
cross-appeal	and	may	argue	by	brief	any	issue	that	could	provide	an	alternative	basis	to	affirm	the	
judgment.”).		In	any	event,	we	affirm	the	court’s	order	on	grounds	other	than	Mercy’s	assertion	of	
immunity	and	therefore	do	not	reach	that	issue.		
                                                                                                               9	

doubt	that	a	plaintiff	is	entitled	to	no	relief	under	any	set	of	facts	that	he	might	

prove	 in	 support	 of	 his	 claim.”	 	 Potter,	 Prescott,	 Jamieson	 &	 Nelson,	 P.A.	 v.	

Campbell,	1998	ME	70,	¶	5,	708	A.2d	283	(quotation	marks	omitted).	

	        [¶13]	 	 We	 first	 address	 Weisberg’s	 immunity	 from	 Argereow’s	 claims	

against	 him,	 and	 we	 then	 address	 the	 sufficiency	 of	 the	 allegations	 in	

Argereow’s	two	remaining	counts	against	Mercy.			

A.	      Physician	Immunity	

	        [¶14]		The	claims	that	Argereow	continues	to	pursue	against	Weisberg	

are	for	tortious	interference	with	an	economic	advantage,	intentional	infliction	

of	emotional	distress,	and	violation	of	the	Whistleblower	Protection	Act.5	

	        [¶15]		Immunity	is	an	affirmative	defense	because	it	is	a	legal	doctrine	of	

avoidance	of	liability.		See	M.R.	Civ.	P.	8(c).		A	defendant	may	raise	immunity	as	


    5	 	 Argereow’s	 principal	 brief	 on	 appeal	 did	 not	 contain	 any	 assertion	 that	 the	 court	 erred	 by	

dismissing	her	defamation	claim	against	Weisberg,	which	was	on	a	ground	other	than	immunity.		She	
raised	 that	 contention	 only	 in	 her	 reply	 brief,	 and	 at	 oral	 argument	 acknowledged	 that	 she	 was	
attempting	 to	 “resurrect”	 such	 an	 argument.	 	 That	 effort	 is	 insufficient	 to	 preserve	 for	 appellate	
review	any	challenge	to	the	dismissal	of	that	count	of	the	complaint.		See	Lincoln	v.	Burbank,	2016	ME	
138,	¶	41,	147	A.3d	1165	(“An	issue	raised	for	the	first	time	[on	appeal]	in	a	reply	brief	may	be	viewed	
as	not	preserved	for	appeal.”).					

   We	note,	however,	that	even	if	Argereow	had	preserved	that	issue,	her	argument	would	have	been	
unavailing	for	two	reasons.		First,	pursuant	to	section	2511,	Weisberg	is	entitled	to	immunity	from	
civil	liability	on	the	defamation	claims,	just	as	he	is	from	Argereow’s	other	claims	against	him,	see	
infra	¶	23.		Second, that	count	fails	as	a	matter	of	law	because,	as	the	court	correctly	ruled	in	granting	
Weisberg’s	first	motion	to	dismiss,	she	did	not	allege	with	specificity	any	defamatory	statement.		See	
Picard	v.	Brennan,	307	A.2d	833,	834-35	(Me.	1973)	(explaining	that	because	a	defendant	can	claim	
truth	as	a	defense	against	a	claim	for	defamation,	the	“defendant	is	.	.	.	entitled	to	know	precisely	what	
statement	is	attributed	to	him”	both	in	the	pleadings	and	in	the	evidence	presented	at	trial).			
10	

the	ground	for	dismissal	of	a	claim	for	failure	to	state	a	basis	for	relief.6		Lalonde,	

2017	ME	22,	¶	11,	155	A.3d	426.		When	a	party	seeks	dismissal	of	a	claim	based	

on	an	affirmative	defense,	the	relevant	inquiry	is	whether	the	“facts	giving	rise	

to	the	defense	appear	on	the	face	of	the	complaint.”		Shaw	v.	S.	Aroostook	Cmty.	

Sch.	Dist.,	683	A.2d	502,	504	(Me.	1996);	see	M.R.	Civ.	P.	12.			

        [¶16]	 	 Section	 2511	 of	 the	 Maine	 Health	 Security	 Act	 (MHSA)	 grants	

immunity	from	civil	liability	as	follows:		

               Any	person	acting	without	malice,	any	physician,	podiatrist,	
        health	care	provider,	health	care	entity	or	professional	society,	any	
        member	of	a	professional	competence	committee	or	professional	
        review	 committee,	 any	 board	 or	 appropriate	 authority	 and	 any	
        entity	required	to	report	under	this	chapter	are	immune	from	civil	
        liability:	

              1.	Reporting.		For	 making	 any	report	or	other	information	
        available	 to	 any	 board,	 appropriate	 authority,	 professional	
        competence	 committee	 or	 professional	 review	 committee	
        pursuant	to	law;	

              2.	Assisting	in	preparation.		For	assisting	in	the	origination,	
        investigation	or	preparation	of	the	report	or	information	described	
        in	subsection	1;	or	



   6		We	are	not	persuaded	by	Argereow’s	assertion	that	Weisberg	waived	the	immunity	defense	by	

not	having	included	it	in	his	responses	to	earlier	iterations	of	her	complaint.		When	Argereow	filed	
the	 operative	 pleading,	 namely,	 the	 second	amended	 complaint,	 Weisberg	 moved	 for	 the	 court	 to	
dismiss	it	based	on	an	assertion	of	immunity.		He	therefore	did	not	waive	that	defense	any	more	than	
Argereow	waived	any	claims	that	were	not	included	in	the	previous	complaints.		See	ConnectU	LLC	v.	
Zuckerberg,	522	F.3d	82,	91	(1st	Cir.	2008)	(“An	amended	complaint,	once	filed,	normally	supersedes	
the	antecedent	complaint.		Thereafter,	the	earlier	complaint	is	a	dead	letter	and	no	longer	performs	
any	function	in	the	case.”	(citations	and	quotation	marks	omitted)).	
                                                                                                 11	

              3.	Assisting	in	duties.		For	assisting	the	board,	authority	or	
        committee	in	carrying	out	any	of	its	duties	or	functions	provided	
        by	law.	

	       [¶17]	 	 The	 complaint	 establishes	 that	 Weisberg	 is	 a	 physician,7	 and	

Argereow	 does	 not	 argue	 otherwise.	 	 Therefore,	 section	 2511	 immunizes	

Weisberg	from	civil	liability	for	any	conduct	falling	within	the	purview	of	that	

statute.				

        [¶18]		Argereow	alleges	that	“likely”	sometime	between	October	31	and	

November	7,	Weisberg—or	someone	on	his	behalf—called	someone	at	Mercy	

and	 made	 statements	 about	 her	 “professional	 background,”	 including	 her	

“employment	 qualifications	 or	 performance,”	 and	 suggested	 that	 she	 was	

professionally	incompetent.		That	report	had	the	effect	of	discouraging	Mercy	

from	 finalizing	 an	 employment	 relationship	 with	 Argereow,	 and	 Mercy	

proceeded	to	persuade	her	to	withdraw	her	employment	application.				

        [¶19]		The	MHSA	requires	every	licensed	hospital	to	establish	at	least	one	

professional	competence	committee	“with	responsibility	effectively	to	review	

the	 professional	 services	 rendered	 in	 the	 facility	 for	 the	 purpose	 of	 insuring	

quality	 of	 medical	 care	 of	 patients	 therein.”	 	 24	 M.R.S.	 §	 2503(3)(A).		




    7		The	MHSA	defines	a	“physician”	as	“any	natural	person	authorized	by	law	to	practice	medicine,	

osteopathic	medicine	or	veterinary	medicine	within	this	State.”		24	M.R.S.	§	2502(3)	(2017).	
12	

Professional	 competence	 committees	 engage	 in	 professional	 competence	

review	activities,	id.	§	2502(4),	which	are	defined	in	section	2502(4-B)	as	the	

      study,	 evaluation,	 investigation,	 recommendation	 or	 action,	 by	 or	 on	
      behalf	 of	 a	 health	 care	 entity	 and	 carried	 out	 by	 a	 professional	
      competence	committee,	necessary	to:	
      	
            A.	 Maintain	 or	 improve	 the	 quality	 of	 care	 rendered	 in,	
            through	or	by	the	health	care	entity	or	by	physicians;		
            B.	Reduce	morbidity	and	mortality;	or		
            C.	 Establish	 and	 enforce	 appropriate	 standards	 of	
            professional	 qualification,	 competence,	 conduct	 or	
            performance.	

	     [¶20]	 	 Here,	 Argereow’s	 allegations	 place	 Weisberg’s	 report	 to	 Mercy	

squarely	 within	 the	 scope	 of	 immunity	 established	 in	 section	 2511.	 	 The	

information	 Weisberg	 conveyed	 pertained	 to	 Argereow’s	 professional	

background,	 employment	 qualifications	 or	 performance,	 and	 professional	

competence,	 and	 Argereow	 alleges	 that	 it	 was	 this	 information	 that	 caused	

Mercy	 to	 effectively	 rescind	 the	 job	 offer	 that	 had	 been	 extended	 to—and	

accepted	by—Argereow.		 Weisberg’s	conduct	in	 providing	information	about	

her	professional	background	and	competence	to	Mercy	is	therefore	immunized	

by	section	2511.			

	     [¶21]	 	 Argereow	 makes	 two	 arguments	 in	 an	 attempt	 to	 remove	

Weisberg’s	conduct	from	the	protections	of	section	2511.		First,	she	emphasizes	

her	 allegation	 that	 Weisberg	 acted	 with	 a	 retaliatory	 motive—that	 is,	 in	 bad	
                                                                                                     13	

faith—when	 he	 made	 the	 report	 about	 her	 professional	 competence	 and	

background	to	Mercy.		We	have	held,	however,	that	the	presence	of	animus	is	

irrelevant	 to	 the	 availability	 of	 physician	 immunity	 created	 by	 section	 2511.		

See	 Strong	 v.	 Brakeley,	 2016	 ME	 60,	 ¶	 12,	 137	 A.3d	 1007.	 	 In	 that	 case,	 we	

examined	 the	 Legislature’s	 designation	 in	 section	 2511	 of	 the	 persons	 and	

entities	that	are	entitled	to	the	immunity	created	by	that	statute.		Id.	¶¶	6,	9,	11.		

Based	 on	 the	 plain	 language	 of	 the	 statute,	 we	 concluded	 that	 the	 immunity	

provided	by	section	2511	to	a	physician	is	not	conditioned	on	the	absence	of	

malice.8		Id.	¶	12.		Rather,	malicious	intent	precludes	immunity	only	for	persons	

who	 are	 not	 included	 within	 any	 of	 the	 groups	 of	 other	 qualified	 reporters	

enumerated	 in	 the	 statute	 after	 the	 phrase	 “[a]ny	 person	 acting	 without	

malice.”	 	 Id.;	 24	 M.R.S.	 §	 2511.	 	 Because	 “physicians”	 constitute	 one	 of	 those	

enumerated	 groups,	 immunity	 is	 not	 forfeited	 even	 when	 the	 otherwise	

protected	 conduct	 is	 accompanied	 by	 malice.	 	 Therefore,	 the	 immunity	 that	

section	2511	provides	to	Weisberg	is	not	defeated	or	otherwise	restricted	by	

Argereow’s	 allegation	 that	 he	 made	 the	 report	 about	 her	 professional	

competence	and	qualifications	with	a	retaliatory	motive.	


   8		To	the	extent	that	Argereow’s	complaint	can	be	read	to	assert	that	Weisberg’s	privilege	pursuant	

to	section	2511	is	“conditional,”	Strong	v.	Brakeley	establishes	that	the	assertion	is	wrong	as	a	matter	
of	law.		2016	ME	60,	¶¶	4-14,	137	A.3d	1007.	
14	

	     [¶22]	 	 As	 a	 second	 argument	 to	 take	 her	 claims	 outside	 section	 2511,	

Argereow	contends	that	because	Mercy	had	completed	its	process	of	approving	

her	 credentials	 before	 Weisberg	 called	 the	 hospital	 in	 early	 November,	

Weisberg’s	 report	 was	 no	 longer	 protected.	 	 The	 protections	 created	 by	

section	2511	are	not	limited	in	that	manner,	however.		Nothing	in	the	statute	

restricts	its	application	to	a	particular	phase	of	the	credentialing	assessment.			

      [¶23]	 	 Further,	 as	 noted	 above,	 see	 supra	 ¶	 19,	 the	 professional	

competence	 committee	 that	 a	 hospital	 is	 required	 to	 create	 and	 maintain	

pursuant	 to	 section	 2503(3)(A)	 is	 charged	 with	 studying,	 evaluating,	

investigating,	recommending,	and	acting	on	the	hospital’s	legal	responsibility	

to	 “[m]aintain	 or	 improve	 the	 quality	 of	 care	 rendered	 in,	 through	 or	 by	 the	

health	care	entity	.	.	.	.”		Id.	§	2502(4-B)(A)	(emphasis	added).		This	makes	clear	

that	credentialing	and	assessing	of	the	professional	competence	of	a	hospital’s	

health	care	practitioners,	which	includes	nurse	practitioners	such	as	Argereow,	

see	 id.	 §	2502(1-A),	 is	 an	 ongoing,	 open-ended	 endeavor.	 	 Even	 after	 the	

credentials	 of	 a	 prospective	 employee	 have	 been	 approved,	 the	 health	 care	

entity	has	a	continuing	legal	duty	to	monitor	and,	when	appropriate,	to	reassess	

that	person’s	professional	credentials.			
                                                                                                       15	

        [¶24]		As	we	pointed	out	in	Strong,	section	2511	is	intended	to	encourage	

reports	 and	 participation	 in	 the	 communication	 and	 assessment	 of	 medical	

competence.	 	 2016	 ME	 60,	 ¶	 14,	 137	 A.3d	 1007.	 	 The	 immunity	 is	 therefore	

coextensive	with	a	hospital’s	continuing	responsibility—even	as	to	health	care	

professionals	who	are	already	in	the	hospital’s	employ—to	monitor	and	act	in	

furtherance	 of	 quality	 of	 care.	 	 Therefore,	 Argereow’s	 allegation	 that	 “there	

were	 no	 remaining	 contingencies	 regarding	 her	 employment”	 at	 Mercy	 does	

not	bear	on	Weisberg’s	statutory	immunity.		

        [¶25]	 	 In	 summary,	 because	 Argereow	 alleges	 that	 Weisberg	 provided	

Mercy	with	a	report	about	her	professional	background	and	competence	and	

that	 Mercy	 determined	 it	 would	 not	 ultimately	 approve	 her	 credentialing	

application,	 Weisberg	is	entitled	to	 immunity	 pursuant	to	section	 2511.		The	

court	therefore	correctly	dismissed	all	claims	against	Weisberg	because	he	is	

immune	from	civil	liability.9			




   9		Even	if	Weisberg	were	not	statutorily	immune	from	liability	on	Argereow’s	claim,	as	we	discuss	

below,	Argereow’s	allegations	of	the	emotional	distress	resulting	from	Weisberg’s	conduct	are	not	
sufficient	as	a	matter	of	law	to	state	a	claim	for	intentional	infliction	of	emotional	distress,	see	infra	
¶	27.		Although	the	court	rejected	that	analysis,	its	ultimate	conclusion—that	Argereow	could	not	
proceed	on	this	count	against	Weisberg—was	correct.		See	Town	of	Madawaska	v.	Cayer,	2014	ME	
121,	¶	17,	103	A.3d	547	(affirming	the	judgment	“for	reasons	different	from	those	stated	by	the	trial	
court”).		Further,	for	the	reasons	we	have	discussed,	see	supra	n.5,	Argereow’s	claim	for	defamation	
fails	for	reasons	separate	from	Weisberg’s	immunity.	
16	

B.	   Claims	Against	Mercy	Hospital	

	     [¶26]		We	next	turn	to	Argereow’s	two	claims	against	Mercy	that	she	still	

seeks	to	pursue:	intentional	infliction	of	emotional	distress	and	violation	of	the	

WPA.			

	     1.	    Intentional	Infliction	of	Emotional	Distress	

	     [¶27]		The	four	elements	of	a	claim	for	intentional	infliction	of	emotional	

distress	are	that	“(1)	the	defendant	intentionally	or	recklessly	inflicted	severe	

emotional	 distress	 or	 was	 certain	 or	 substantially	 certain	 that	 such	 distress	

would	result	from	her	conduct;	(2)	the	conduct	was	so	extreme	and	outrageous	

as	to	exceed	all	possible	bounds	of	decency	and	must	be	regarded	as	atrocious,	

utterly	 intolerable	 in	 a	 civilized	 community;	 (3)	 the	 actions	 of	 the	 defendant	

caused	 the	 plaintiff’s	 emotional	 distress;	 and	 (4)	 the	 emotional	 distress	

suffered	 by	 the	 plaintiff	 was	 so	 severe	 that	 no	 reasonable	 person	 could	 be	

expected	 to	 endure	 it.”	 	 Curtis	 v.	 Porter,	 2001	 ME	 158,	 ¶	 10,	 784	 A.2d	 18	

(quotation	marks	omitted)	(alteration	omitted).		The	determination	of	whether	

the	facts	alleged	are	sufficient	to	establish	that	the	defendant’s	conduct	is	“so	

extreme	and	outrageous	to	permit	recovery”	is	a	question	of	law	for	the	court	

to	decide.		Champagne	v.	Mid-Maine	Med.	Ctr.,	1998	ME	87,	¶	16,	711	A.2d	842	

(quotation	marks	omitted).		
                                                                                     17	

	     [¶28]	 	 Here,	 Argereow	 alleges	 that	 Mercy	 acted	 on	 Weisberg’s	 report	

concerning	 her	 professional	 qualifications	 and	 performance,	 where	 he	

suggested	 that	 she	 was	 professionally	 incompetent,	 by	 encouraging	 her	 to	

withdraw	her	employment	application.		As	a	matter	of	law,	this	falls	short	of	the	

standard	for	actionable	conduct	necessary	for	a	claim	for	intentional	infliction	

of	emotional	 distress.		See	Bratton	v.	McDonough,	2014	ME	64,	 ¶	23,	 91	A.3d	

1050	 (vacating	 judgment	 on	 an	 IIED	 claim,	 where	 the	 trial	 court	 had	

determined	that	the	evidence	did	not	show	extreme	and	outrageous	conduct	by	

a	landlord	 who	“allowed	 a	family	with	young	children	to	live	in	a	house	that	

exposed	 the	 children	 to	 toxic	 levels	 of	 lead	 for	 several	 years”	 and	 did	 not	

relocate	the	family,	despite	being	under	a	legal	duty	to	do	so,	for	four	years	after	

the	State	declared	the	house	to	be	a	lead	hazard);	Rubin	v.	Matthews	Int’l	Corp.,	

503	A.2d	694,	700	(Me.	1986)	(concluding	that	a	complaint	alleged	“conduct	

upon	 which	 liability	 for	 intentional	 infliction	 of	 emotional	 distress	 may	 be	

predicated”	where,	in	the	context	of	a	contractual	relationship,	the	defendant	

repeatedly	misrepresented	that	a	monument	had	been	shipped	and	would	be	

delivered	on	time	for	a	religiously	significant	event).			

      [¶29]	 	 Further,	 Argereow’s	 allegations	 do	 not	 place	 her	 emotional	

distress,	which	takes	the	form	of	lost	wages	and	a	strained	marriage	that	led	to	
18	

counseling,	 at	 a	 level	 where	 it	 could	 be	 characterized	 as	 “so	 severe	 that	 no	

reasonable	person	could	be	expected	to	endure	it.”		Curtis,	2001	ME	158,	¶	10,	

784	 A.2d	 18	 (quotation	 marks	 omitted)	 (alteration	 omitted).	 	 Rather,	 her	

allegation	 is	 akin	 to	 the	 “general	 feelings	 of	 upset	 and	 defeat”	 that	 are	

insufficient	to	establish	a	claim	for	intentional	infliction	of	emotional	distress.		

See	Lougee	Conservancy	v.	CitiMortgage,	Inc.,	2012	ME	103,	¶¶	4-8,	26,	48	A.3d	

774;	see	also	Lyman	v.	Huber,	2010	ME	139,	¶¶	19,	24-26,	10	A.3d	707	(stating	

that	the	“serious”	emotional	distress	resulting	from	fifteen	years	of	emotional	

abuse	inflicted	by	a	domestic	partner	is	not	sufficient	for	a	claim	for	intentional	

infliction	of	emotional	distress).			

        [¶30]		Because	Argereow’s	allegations	fell	short	of	meeting	the	pleading	

requirements	 for	 two	 elements	 of	 the	 claim	 for	 intentional	 infliction	 of	

emotional	distress,	the	court	correctly	dismissed	that	count.10			




   10		Argereow	also	argues	that	Mercy’s	conduct	in	“aid[ing]	and	abett[ing]	Weisberg’s	retaliation	

against	 Argereow”	 is	 sufficient	 for	 a	 claim	 against	 Mercy	 for	 intentional	 infliction	 of	 emotional	
distress.		As	the	theory	of	joint	tortfeasor	liability	applies	here,	however,	the	claim	is	predicated	on	
“harm	resulting	to	a	third	person	from	the	tortious	conduct	of	another”	if	one	“does	a	tortious	act	in	
concert	with	the	other	or	pursuant	to	a	common	design	with	him.”		Restatement	(Second)	of	Torts	
§	876	(Am.	Law.	Inst.	1979).		As	explained	above,	see	supra	¶¶	6-8,	Argereow	has	not	alleged	in	her	
complaint	any	conduct	by	Mercy	that	was	in	concert	with	Weisberg.					
                                                                                                      19	

	       2.	     Whistleblower	Retaliation		

	       [¶31]		Argereow’s	second	amended	complaint	included	 a	claim	 against	

Weisberg	and	Mercy	for	violation	of	the	Whistleblower	Protection	Act	and	the	

Maine	Human	Rights	Act,	5	M.R.S.	§§	4553(10)(D),	4572(1)(A)	(2017).11		Mercy	

moved	to	dismiss	all	of	Argereow’s	claims	against	it,	including	the	WPA	claim,	

asserting	 that	 it	 is	 immune	 from	 liability	 pursuant	 to	 section	 2511	 and,	

alternatively,	that	its	alleged	conduct	did	not	violate	the	WPA.		In	her	opposition	

to	Mercy’s	motion	to	dismiss	the	WPA	claim,	Argereow	addressed	only	the	issue	

of	Mercy’s	immunity.			

        [¶32]		In	its	order	granting	Mercy’s	motion	to	dismiss,	the	court	stated	

that	 it	 was	 unable	 to	 determine	 definitively	 that	 Mercy	 was	 entitled	 to	

immunity	 but	 agreed	 with	 Mercy’s	 alternative	 argument—the	 one	 that	

Argereow	did	not	address	in	her	opposition	to	Mercy’s	motion—and	concluded	

that	 Argereow’s	 WPA	 claim	 against	 Mercy	 failed	 to	 state	 a	 basis	 for	 relief.		

Although	Argereow	contends	here	that	the	court	erred	by	dismissing	her	WPA	

claim,	 she	 did	 not	 preserve	 a	 challenge	 to	 the	 ground	 on	 which	 the	 court	

dismissed	that	claim,	and	it	is	therefore	waived.		See	Homeward	Residential,	Inc.	



    11		Argereow	has	made	clear	that	she	is	not	asserting	that	Mercy	is	liable	for	a	violation	of	the	WPA	

on	any	theory	other	than	“aid[ing]	and	abet[ing]”	Weisberg’s	own	alleged	violation	of	the	WPA.			
    20	

    v.	Gregor,	2017	ME	128,	¶	9,	165	A.3d	357	(stating	that	an	issue	is	waived	for	

    appeal	 if	 it	 was	 not	 timely	 presented	 in	 the	 trial	 court);	 Alexander,	 Maine	

    Appellate	Practice	§	402(a)	at	311	(5th	ed.	2018)	(“The	Law	Court	will	not	reach	

    an	issue	.	.	.	if	the	issue	is	raised	for	the	first	time	on	appeal.”).		

          The	entry	is:	

                        Judgment	dismissing	the	claims	against	Verne	M.	
                        Weisberg,	 M.D.	 for	 defamation,	 slander	 per	 se,	
                        and	 negligent	 infliction	 of	 emotional	 distress	
                        corrected	 as	 dismissals	 with	 prejudice.	 	 As	
                        corrected,	judgment	affirmed.		
	
                                   	      	      	      	      		

                                          	
    JABAR,	J.,	with	whom	ALEXANDER,	J.,	joins,	dissenting.	
    	
    	    [¶33]		We	respectfully	dissent	because,	at	this	motion-to-dismiss	stage	of	

    the	proceedings,	with	all	favorable	inferences	given	to	Argereow,	the	pleadings	

    do	 not	 affirmatively	 establish	 that	 Weisberg	 is	 entitled	 to	 the	 immunity	

    provided	 by	 section	2511.	 	 Immunity	 under	 section	 2511	 is	 an	 affirmative	

    defense	that	physicians	are	“eligible”	for,	therefore,	Weisberg	has	the	burden	of	

    proving	that	his	actions	are	within	the	statute	in	order	to	be	afforded	immunity.		

    See	Strong	v.	Brakeley,	2016	ME	60,	¶¶	6-9,	137	A.3d	1007;	Lalonde	v.	Cent.	Me.	

    Med.	Ctr.,	2017	ME	22,	¶	11,	155	A.3d	426.		Consistent	with	the	method	by	which	

    other	 affirmative	 defenses	 are	 reviewed	 at	 the	 motion-to-dismiss	 stage	 of	
                                                                                       21	

proceedings,	 it	 must	 be	 clear	 on	 the	 face	 of	 the	 complaint	 that	 the	 cause	 of	

action	is	barred	by	the	immunity	statute.		See	Jackson	v.	Borkowski,	627	A.2d	

1010,	1013	(Me.	1993)	(statute	of	limitations);	Danforth	v.	Gottardi,	667	A.2d	

847,	 848	 (Me.	 1995)	 (governmental	 immunity	 under	 the	 Maine	 Tort	 Claims	

Act);	 Shaw	 v.	 S.	 Aroostook	 Cmty.	 Sch.	 Dist.,	 683	 A.2d	 502,	 504	 (Me.	 1996)	

(immunity	under	the	Workers’	Compensation	Act).			

      [¶34]		When	a	complaint	is	dismissed	on	a	M.R.	Civ.	P.	12(b)(6)	motion,	

we	review	 it	de	 novo,	in	the	light	 most	 favorable	to	the	 plaintiff,	and	give	no	

deference	to	the	trial	court.		See	Bog	Lake	Co.	v.	Town	of	Northfield,	2008	ME	37,	

¶	6,	942	A.2d	700.		At	this	stage	of	the	proceedings,	it	is	premature	to	conclude	

that	Weisberg’s	claim	of	immunity	has	been	clearly	established	within	the	four	

corners	of	Argereow’s	complaint.		In	Strong,	we	determined	that	two	physicians	

were	entitled	to	immunity	under	section	2511,	but	this	was	done	on	a	motion	

for	 summary	 judgment	 after	 the	 trial	 court	 denied	 the	 physician’s	 motion	 to	

dismiss	based	on	a	claim	of	immunity	pursuant	to	section	2511	and	ordered	the	

parties	to	proceed	to	discovery	on	the	limited	issue	of	immunity.		See	Strong,	

2016	 ME	60,	¶¶	3,	14,	137	 A.3d	1007.		 Because	we	believe	that	the	Superior	

Court	should	do	the	same	here,	we	respectfully	dissent.	
22	

A.	   Immunity	under	Section	2511	of	the	Maine	Health	Security	Act	

      [¶35]		The	Court	holds	that	Weisberg	is	entitled	to	immunity	pursuant	to	

section	2511	because	the	pleadings	establish	that	Weisberg	“provided	Mercy	

with	 a	 report	 about	 her	 professional	 background	 and	 competence.”	 	 Court’s	

Opinion	 ¶	25.	 	 The	 Court	 refers	 to	 the	 information	 supplied	 by	 Weisberg	 as	

information	normally	associated	with	credentialing,	and	states	that	“immunity	

is	.	.	.	coextensive	with	a	hospital’s	continuing	responsibility	.	.	.	to	monitor	and	

act	in	furtherance	of	quality	care.”		Court’s	Opinion	¶	24.		By	bootstrapping	the	

content	 of	 the	 information	 to	 the	 hospital’s	 continuing	 duty	 to	 monitor	 the	

quality	of	care,	the	Court	characterizes	Weisberg’s	actions	as	falling	within	the	

peer	review	privilege.		However,	the	Court	fails	to	consider	the	context	in	which	

the	 information	 was	 supplied	 to	 the	 hospital	 representative	 by	 Weisberg.		

Courts	should	not	merely	consider	the	content	of	information	when	deciding	

whether	a	physician	is	entitled	to	immunity	under	section	2511.		Such	a	narrow	

focus	overlooks	the	way	in	which	the	information	was	produced,	the	purpose	

for	 which	 the	 information	 was	 produced,	 and	 to	 whom	 the	 information	 was	

directed.		See	Bd.	of	Registration	in	Med.	v.	Hallmark	Health	Corp.,	910	N.E.2d	

898,	907	(Mass.	2009)	(holding	that	courts	must	look	to	the	“way	in	which	a	

document	 was	 created	 and	 the	 purpose	 for	 which	 it	 was	 used,	 not	 .	 .	 .	 its	
                                                                                       23	

content.”).		The	Court’s	decision	expands	the	scope	of	immunity	to	include	any	

information	supplied	to	any	representative	of	a	hospital	by	a	physician.		This	is	

not	the	intended	scope	of	the	immunity	provided	by	section	2511.		Rather,	the	

immunity	is	intended	to	apply	to	information	supplied	by	a	qualifying	reporter	

to	an	appropriate	authority	during	a	legitimate	peer	review	process.			

      [¶36]	 	 The	 legislative	 history	 of	 section	 2511	 reveals	 that	 context	 is	

critical	in	evaluating	whether	a	physician’s	comments	are	entitled	to	immunity.		

In	1975	the	Legislature	responded	to	escalating	medical	malpractice	insurance	

rates	 in	 Maine	 by	 creating	 the	 Commission	 to	 Revise	 the	 Laws	 Relating	 to	

Medical	and	Hospital	Malpractice	Insurance,	more	commonly	referred	to	as	the	

Pomeroy	Commission.		L.D.	727,	Statement	of	Fact	(108th	Legis.	1977).		As	a	

result	 of	 the	 Commission’s	 findings	 and	 recommendations,	 the	 Maine	 Health	

Security	Act	(MHSA)	was	enacted.		P.L.	1977,	ch.	492	(effective	Oct.	24,	1977).		

Discussing	the	then-proposed	legislation,	the	Pomeroy	Commission’s	findings	

and	recommendations	briefly	touched	on	section	2511:	

      The	 doctors	 of	 Maine	 are	 justly	 proud	 of	 their	 self[-]discipline	 in	
      terms	 of	 organized	 quality	 control.	 	 Their	 efforts	 will	 be	
      strengthened,	 and	 the	 public	 reassured	 by	 the	 enactment	 of	
      sections	 2503	 through	 2507	 which	 make	 a	 minimal	 level	 of	 peer	
      review	 a	 legal	 duty	 for	 hospital	 medical	 staffs	 and	 for	 medical	
      societies.	 	 These	 sections	 also	 substantially	 broaden	 the	 existing	
      law	 on	 reporting	 incompetence	 or	 negligence	 to	 the	 appropriate	
      licensing	authority.	
24	

    	
Commission	to	Revise	the	Laws	Relating	to	Medical	and	Hospital	Malpractice	

Insurance,	 Report	 to	 the	 108th	 Legislature,	 at	 xx	 (Jan.	 25,	 1977)	 (emphasis	

added).			

        [¶37]		In	1985	the	Legislature	amended	section	2511	in	“An	Act	to	Clarify	

the	 Law	 Regarding	 Peer	 Review	 Immunity	 Under	 the	 Maine	 Health	 Security	

Act.”		P.L.	1985,	ch.	193,	§	2511.		The	purpose	of	the	amendment	was	“to	clarify	

existing	law	and	fulfill	the	original	legislative	intent	that	all	those	participating	

in	good	faith	in	legitimate	peer	review	activities	are	entitled	to	immunity.”		L.D.	

1107,	 Statement	 of	 Fact	 (112th	 Legis.	 1985)	 (emphasis	 added).	 	 Although	

malice	 is	 irrelevant	 for	 purposes	 of	 affording	 immunity	 to	 a	 physician	 under	

section	2511,	see	Strong,	2016	ME	60,	¶	12,	137	A.3d	1007,	the	context	in	which	

a	physician	makes	statements	and	then	later	seeks	shelter	under	section	2511	

is	 not.	 	 As	 this	 legislative	 history	 demonstrates,	 a	 physician	 must	 be	

participating	 in	 a	 legitimate	 peer	 review	 activity	 with	 an	 appropriate	

authority.12		Case	law	from	other	states	concerning	the	peer	review	privilege	

support	that	notion	as	well.	


   12		When	the	MHSA	was	first	enacted,	the	only	authority	that	could	receive	protected	reports	was	

the	Board	of	Registration	in	Medicine	or	the	Board	of	Osteopathic	Examination	and	Registration.		P.L.	
1977,	ch.	492,	§§	2502,	2511	(effective	Oct.	24,	1977).		In	1985	the	Legislature	amended	the	statute	
to	 protect	 reports	 to	 certain	 committees	 that	 were	 organized	 for	 the	 purpose	 of	 identifying	 and	
treating	physicians	impaired	by	misuse	of	alcohol	or	drugs,	or	by	physical	or	mental	infirmity.		P.L.	
                                                                                                            25	

	       [¶38]		Almost	all	of	the	fifty	states	have	some	form	of	medical	peer	review	

privilege.	 	 Some	 courts	 have	 differentiated	 between	 conversations	 and	

documents	arising	in	the	course	of	ordinary	business	operations	as	opposed	to	

conversations	 associated	 with	 peer	 review	 proceedings.	 	 The	 United	 States	

District	Court	for	the	District	of	Vermont	explained	the	importance	of	context	

in	 determining	 whether	 the	 privilege	 applies:	 “Because	 the	 dividing	 line	

between	 peer	 review	 and	 normal	 business	 operations	 can	 be	 unclear,	 courts	

generally	apply	the	peer	review	privilege	only	when	the	formalities	of	a	peer	

review	 process	 are	 clearly	 apparent.”	 	 Robinson	 v.	 Springfield	 Hosp.,	

No.	1:09-CV-75,	 2010	 U.S.	 Dist.	 LEXIS	 10160,	 at	 *5	 (D.	 Vt.	 Feb.	 5,	 2010)	

(requiring	disclosure	in	a	discovery	dispute,	the	Vermont	court	declined	to	find	

that	two	meetings	involving	a	physician’s	assistant	were	part	of	a	“formal	peer	

review	 process,”	 and	 instead	 characterized	 the	 meetings	 as	 “in	 the	 course	 of	

ordinary	business	operations.”);	see	also	Prouty	v.	Sw.	Vt.	Med.	Ctr.,	No.	89-2-13,	

2013	Vt.	Super.	LEXIS	64,	at	*5-7	(Vt.	Super.	Ct.	Oct.	26,	2013)	(considering	the	

discoverability	 of	 documents,	 the	 court	 ruled	 that	 defendant’s	 “blanket	

assertion	of	[peer	review]	privilege”	did	not	state	a	valid	claim	for	the	privilege	



1985,	ch.	185,	§§	2502(4-A),	2511	(effective	May	20,	1985).		Eventually,	the	Legislature	added	the	
language	 we	 now	 have	 to	 protect	 reporting	 to	 any	 board,	 authority,	 or	 committee.	 	 See	 24	 M.R.S.	
§	2511.	
26	

because	 “the	 party	 invoking	 a	 privilege	 must	 show	 the	 privilege	 applies.		

Defendant	 cannot	 exclude	 all	 information	 considered	 by	 a	 peer	 review	

committee.	 	 Instead,	 Defendant	 may	 only	 refuse	 to	 disclose	 material	 that	

Defendant	 shows	 was	 created	 as	 a	 part	 of	 a	 formal	 peer	 review	 process.”		

(emphasis	added)	(citations	omitted)).	

	     [¶39]	 	 The	 Massachusetts	 Supreme	 Judicial	 Court	 dealt	 with	 a	 similar	

problem	involving	a	document	prepared	by	an	established	peer	committee	that	

was	 claimed	 to	 be	 privileged	 in	 a	 privilege	 log,	 and	 therefore	 not	 subject	 to	

discovery	 requests.	 	 See	 Bd.	 of	 Registration	 in	 Med.	 v.	 Hallmark	 Health	 Corp.,	

910	N.E.2d	 898,	 907	 (Mass.	 2009)	 (remanding	 “for	 an	 individualized	

consideration	 whether	 each	 of	 the	 documents	 listed	 on	 [the]	 privilege	 log	 is	

protected	 by	 [the	 peer	 review	 statute].	 .	 .	 .”).	 	 The	 Massachusetts	 Supreme	

Judicial	Court	held	that	merely	labeling	records	as	privileged	is	insufficient.		Id.	

at	906-07.		Instead,	the	court	must	look	to	the	“way	in	which	a	document	was	

created	and	the	purpose	for	which	it	was	used,	not	.	.	.	its	content.”		Id.	at	907	

(quotation	marks	omitted).		In	all	of	these	cases	it	is	apparent	that	the	context	

in	which	statements	are	made,	or	a	document	produced,	makes	a	difference	in	

evaluating	an	assertion	of	immunity.			
                                                                                   27	

	     [¶40]	 	 As	 we	 have	 noted	 before	 in	 the	 context	 of	 immunity	 under	 the	

Maine	 Tort	Claims	 Act,	“[t]he	review	of	 a	claimed	exception	to	governmental	

immunity	often	requires,	as	it	does	here,	a	close	examination	of	the	individual	

facts	of	the	case.”		Bussell	v.	City	of	Portland,	1999	ME	103,	¶	2,	731	A.2d	862.		

For	that	reason,	we	suggested	in	Bussell	that	“parties	should	be	sparing	in	their	

use	of	Rule	12(b)(6)	to	test	the	sufficiency	of	a	complaint	when	resolution	of	

the	 motion	 requires	 analysis	 of	 a	 claimed	 exception	 to	 governmental	

immunity.”		Id.	at	862-63.		The	same	is	true	of	immunity	under	section	2511,	

given	the	need	to	identify	the	context	of	the	statements	to	ensure	that	they	fall	

within	 the	 purview	 of	 section	 2511.	 	 See	 generally	 Cunningham	 v.	 Haza,	

538	A.2d	 265,	 267	 (Me.	 1988)	 (vacating	 the	 Superior	 Court’s	 dismissal	 of	 a	

complaint	on	a	12(b)(6)	motion,	finding	plaintiff’s	complaint	legally	sufficient	

and	 defendant’s	 affirmative	 defense	 needing	 further	 factual	 development);	

Danforth,	 667	 A.2d	 847,	 847-48	 (Me.	 1995)	 (vacating	 the	 Superior	 Court’s	

dismissal	 of	 a	 complaint	 on	 a	 12(b)(6)	 motion	 claiming	 governmental	

immunity);	 Shaw,	 683	 A.2d	 502,	 504	 (Me.	 1996)	 (vacating	 a	 trial	 court’s	

“premature”	dismissal	of	a	complaint	on	a	12(b)(6)	motion	claiming	immunity	

under	Workers’	Compensation	Act).		
28	

      [¶41]		In	this	case,	we	are	addressing	the	pleadings	without	any	context	

of	 Weisberg’s	 allegedly	 defamatory	 statements,	 context	 typically	 obtained	

through	 discovery.	 	 Simply	 because	 Weisberg	 is	 a	 physician	 commenting	 on	

another’s	 qualifications	 does	 not	 necessarily	 bring	 the	 immunity	 statute	 into	

play.	 	 The	 Court’s	 overbroad	 interpretation	 of	 section	 2511	 is	 being	 applied	

prematurely,	 without	 any	 consideration	 of	 the	 context	 in	 which	 the	 alleged	

defamatory	 statements	 about	 Argereow	 were	 made	 by	 Weisberg	 to	

representatives	 of	 Mercy	 Hospital.	 	 As	 we	 stated	 in	 Strong,	 “[i]n	 subsections	

1	and	2,	immunity	is	dependent	upon	the	identity	of	the	recipient	of	a	report	

and	the	purpose	of	the	report.		For	subsection	3,	immunity	is	dependent	upon	

the	 provision	 of	 assistance	 to	 a	 board,	 authority,	 or	 committee.”	 	 Strong,	

2016	ME	60,	¶	7,	137	A.3d	1007.		Unlike	in	Strong,	we	do	not	know	to	whom	

Weisberg	placed	his	call	or	report,	and	after	examining	the	four	corners	of	the	

pleadings	we	do	not	know	whether	that	person	could	be	properly	deemed	an	

appropriate	 “board,	 authority,	 or	 committee”	 pursuant	 to	 section	 2511.		

Weisberg’s	 affirmative	 defense	 of	 immunity	 should	 be	 determined	 only	 after	

the	facts	have	been	developed	through	discovery.	
                                                                                                           29	

B.	     Causes	of	Action	

	       [¶42]		Since	we	do	not	believe	that	Weisberg	is	entitled	to	immunity	at	

this	 stage	 of	 the	 proceedings,	 we	 must	 address	 the	 merits	 of	 Argereow’s	

allegations	 contained	 in	 her	 complaint.	 	 We	 find	 that	 the	 complaint	 makes	

legitimate	claims	of	defamation,	slander	per	se,	and	tortious	interference	with	

a	prospective	economic	advantage.13	

	       1.	     Defamation	

	       [¶43]		Defamation	consists	of	four	elements:	(1)	“a	false	and	defamatory	

statement	 concerning	 another”;	 (2)	 “an	 unprivileged	 publication	 to	 a	 third	

party”;	 (3)	 “fault	 amounting	 to	 at	 least	 .	 .	 .	 negligence	 on	 the	 part	 of	 the	

publisher”;	and	(4)	“either	actionability	of	the	statement	irrespective	of	special	

harm	or	the	existence	of	special	harm	caused	by	the	 publication.”		Morgan	v.	

Kooistra,	 2008	 ME	 26,	 ¶	 26,	 941	 A.2d	 447.	 	 “Slander	 per	 se	 refers	 to	 spoken	

defamatory	statements	that	relate	to	a	profession,	occupation	or	official	station	

in	which	the	plaintiff	was	employed.		Malice	is	implied	as	a	matter	of	law	in	such	

cases,	and	the	claimant	may	recover	compensatory	damages	without	proving	




    13		We	agree	with	the	majority	regarding	Argereow’s	claims	against	Mercy	Hospital	and	Weisberg	

for	 intentional	 infliction	 of	 emotion	 distress	 and	whistleblower	 liability,	and	 do	 not	discuss	 those	
claims	further.	
30	

special	damages.”		Cookson	v.	Brewer	Sch.	Dep’t,	2009	ME	57,	¶	27,	974	A.2d	276	

(quotation	marks	omitted).	

	     [¶44]		“A	motion	to	dismiss	a	complaint	for	failure	to	state	a	claim	should	

not	be	granted	if	the	pleading	alleges	facts	which	would	entitle	the	plaintiff	to	

relief	 upon	 some	 theory,	 or	 if	 it	 avers	 every	 essential	 element	 of	 a	 claim.”		

Vahlsing	Christina	Corp.	v.	Stanley,	487	A.2d	264,	267	(Me.	1985).		In	the	context	

of	a	defamation	action,	we	have	acknowledged	as	“suspect”	the	application	of	a	

strict	standard	of	specificity	at	the	motion-to-dismiss	stage	of	proceedings.		See	

Marston	v.	Newavom,	629	A.2d	587,	591	(Me.	1993)	(noting	that	the	continuing	

validity	of	the	requirement	that	plaintiffs	prove	the	defamatory	words	strictly	

as	alleged	“is	suspect	in	light	of	modern	notice	pleading	and	increased	reliance	

on	discovery”	(emphasis	added)).		Moreover,	the	requirement	that	defamatory	

words	be	proven	at	trial	strictly	as	alleged	has	been	relaxed	to	afford	plaintiffs	

more	latitude.		See	Saunders,	497	A.2d	1121,	1125-26	(Me.	1985)	(“[M]aterial	

words,	 those	 essential	 to	 the	 charges	 made,	 must	 be	 proved	 as	 alleged,	 but	

.	.	.	some	latitude	 may	be	 allowed	with	respect	to	unimportant,	connecting	or	

descriptive	words.”).		

	     [¶45]	 	 In	 Vahlsing,	 we	 vacated	 a	 trial	 court’s	 granting	 of	 a	 motion	 to	

dismiss	and	held	that	the	“failure	to	specifically	allege	the	date,	month,	and	year	
                                                                                      31	

of	the	publication	of	the	alleged	defamatory	material	is	not	necessarily	fatal.”		

Vahlsing,	 487	 A.2d	 264,	 267	 (Me.	 1985).	 	 We	 reasoned	 that	 “[i]n	 modern	

pleading	practice,	the	purpose	of	the	complaint	is	to	provide	the	defendant	with	

fair	notice	of	the	claim	against	him.”		Id.			

	     [¶46]	 	 Turning	 to	 the	 case	 before	 us,	 Argereow	 has	 pleaded	 sufficient	

facts	that	would	entitle	her	to	relief	in	an	action	for	defamation	and	slander	per	

se	 against	 Weisberg.	 	 Furthermore,	 the	 pleadings	 allege	 sufficient	 facts	 to	

provide	 Weisberg	 with	 fair	 notice	 of	 the	 defamation	 claim	 against	 him.		

Specifically,	Argereow’s	complaint	alleges	that,	between	October	31,	2014,	and	

November	7,	2014,	Weisberg	contacted	representatives	of	Mercy	Hospital	and	

made	 false	 and	 intimidating	 statements	 with	 the	 intention	 of	 discouraging	

Mercy	from	employing	her.		Further,	Argereow	alleges	that	Weisberg	informed	

one	 of	 his	 employees	 that	 when	 he	 found	 out	 Argereow	 was	 going	 to	 be	

employed	at	Mercy	he	made	a	phone	call	and	cost	Argereow	her	job	at	Mercy.			

	     [¶47]		There	are	certainly	situations	in	which	the	granting	of	a	motion	to	

dismiss	 a	 defamation	 claim	 is	 warranted,	 notwithstanding	 the	 highly	

deferential	standard	of	review	afforded	to	plaintiffs	on	such	a	motion.		See	Halco	

v.	 Davey,	 2007	 ME	 48,	 ¶¶	 4,	 14,	 919	 A.2d	 626	 (affirming	 the	 dismissal	 of	 a	

defamation	 claim	 under	 M.R.	 Civ.	 P.	 12(b)(6),	 where	 the	 alleged	 defamatory	
32	

statements	 were	 merely	 statements	 of	 opinion).	 	 However,	 it	 would	 take	 far	

more	unsupported	speculation	and	vagueness	than	is	present	in	the	pleadings	

of	 this	 case	 to	 appropriately	 dismiss	 a	 defamation	 complaint	 for	 a	 lack	 of	

specificity	in	the	alleged	defamatory	statements.		To	this	point,	the	Court	relies	

upon	the	Picard	case,	in	which	we	vacated	a	judgement	following	a	bench	trial.		

Court’s	Opinion	n.	5;	see	Picard	v.	Brennan,	307	A.2d	833,	833-35	(Me.	1973).		

The	Court’s	reliance	on	this	case	is	misplaced.		Picard	was	an	appeal	following	

a	bench	trial,	and	does	not	take	into	account	the	procedural	posture	of	the	case	

before	us	and	the	standard	by	which	motions	to	dismiss	are	decided.		See	id;	

Marston,	 629	A.2d	 587,	 591	 (Me.	 1993).	 	 We	 find	 that	 Argereow’s	 complaint	

alleges	a	sufficient	statement	to	give	fair	notice	of	the	claims	to	the	defendants	

in	this	case.		See	Casco	Bank	&	Trust	Co.	v.	Rush,	348	A.2d	239,	241	(Me.	1975)	

(disclosure	of	“all	material	details	.	.	.	is	not	the	function	of	the	complaint	but	is	

a	 burden	 which	 the	 .	 .	 .	 motion	 for	 more	 definite	 statement,	 or	 the	 various	

discovery	devices	provided	by	the	Rules,	can	better	carry.”)	(quotation	marks	

omitted).	

	     2.	    Tortious	Interference	with	a	Prospective	Economic	Advantage	

	     [¶48]	 	 To	 establish	 a	 claim	 of	 tortious	 interference	 with	 a	 prospective	

economic	 advantage,	 the	 complaining	 party	 must	 prove	 “(1)	 that	 a	 valid	
                                                                                 33	

contract	 or	 prospective	 economic	 advantage	 existed;	 (2)	 that	 the	 defendant	

interfered	with	that	contract	or	advantage	through	fraud	or	intimidation;	and	

(3)	that	such	interference	proximately	caused	damages.”		Currie	v.	Indus.	Sec.	

Inc.,	2007	ME	12,	¶	31,	915	A.2d	400.		Intimidation	that	“procures	[a]	breach	of	

a	contract	that	would	have	continued	but	for	such	wrongful	interference	.	.	.	is	

not	restricted	to	frightening	a	person	for	coercive	purposes.”		Pombriant	v.	Blue	

Cross/Blue	 Shield	 of	 Me.,	 562	 A.2d	 656,	 659	 (Me.	 1989)	 (quotation	 marks	

omitted).				

	     [¶49]		As	the	Superior	Court	correctly	held,	Argereow’s	claim	sufficiently	

alleges	that	Weisberg	intimidated	Mercy	Hospital	into	rescinding	its	job	offer	

to	Argereow.		Accordingly,	we	would	affirm	the	decision	of	the	Superior	Court	

denying	 the	 Defendant’s	 motion	 to	 dismiss	 Argereow’s	 claim	 for	 tortious	

interference	with	a	prospective	economic	advantage.	

C.	   Conclusion	

	     [¶50]		In	sum,	we	would	hold	that,	at	this	stage	of	the	proceedings,	with	

all	favorable	inferences	given	to	Argereow,	the	pleadings	do	not	establish	that	

Weisberg	is	entitled	to	immunity	pursuant	to	section	2511.		Furthermore,	we	

would	hold	that	Argereow’s	claims	for	defamation,	slander	per	se,	and	tortious	

interference	with	a	prospective	economic	advantage	all	allege	sufficient	facts	to	
34	

withstand	 Defendant’s	 motion	 to	 dismiss.	 	 We	 would	 vacate	 the	 Superior	

Court’s	decision	and	remand	with	instructions	to	proceed	with	discovery	on	the	

immunity	issue.	

	     	       	     	       	      	
	
Robert	 W.	 Kline,	 Esq.	 (orally),	 Kline	 Law	 Offices	 LLC,	 Portland,	 for	 appellant	
Pamela	G.	Argereow	
	
Joanne	 I.	 Simonelli,	 Esq.	 (orally),	 and	 Frederick	 B.	 Finberg,	 Esq.,	 The	 Bennett	
Law	Firm,	P.A.,	Portland,	for	appellee	Verne	M.	Weisberg,	M.D.	
	
Thad	 B.	 Zmistowski,	 Esq.	 (orally),	 and	 Ryan	 P.	 Dumais,	 Esq.,	 Eaton	 Peabody,	
Bangor,	for	appellee	Mercy	Hospital	
	
	
Cumberland	County	Superior	Court	docket	number	CV-2015-504	
FOR	CLERK	REFERENCE	ONLY	
