[Cite as Montgomery v. The Ohio State Univ., 2011-Ohio-6857.]




                                                       Court of Claims of Ohio
                                                                              The Ohio Judicial Center
                                                                      65 South Front Street, Third Floor
                                                                                 Columbus, OH 43215
                                                                       614.387.9800 or 1.800.824.8263
                                                                                  www.cco.state.oh.us



MONTGOMERY,

       Plaintiff,                                        Case No. 2010-01174

       v.                                                Judge Joseph T. Clark

THE OHIO STATE UNIVERSITY,

       Defendant.                                        DECISION

        {¶1} On August 29, 2011, defendant filed a motion for summary judgment
pursuant to Civ.R. 56(B).         On September 19, 2011, plaintiff filed a response.              The
motion is now before the court for a non-oral hearing pursuant to L.C.C.R. 4(D).
        {¶2} Civ.R. 56(C) states, in part, as follows:
        {¶3} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317.
        {¶4} Plaintiff, a former football player at defendant, The Ohio State University
(OSU), brought this action alleging negligent misrepresentation, medical malpractice,
and defamation. According to the amended complaint, during plaintiff’s senior year at
OSU he was under consideration for employment with the National Football League
(NFL).    As part of the process, the NFL, through its Professional Football Athletic
Trainers Society, sent OSU a “Medical and Injury History Questionnaire” (questionnaire)
regarding plaintiff. On or about October 19, 1998, Douglas C. Calland, an OSU athletic
trainer checked the boxes under the section captioned “Disease or Illness” affirming that
plaintiff had “high blood pressure” and “hay fever.” Calland then returned the form. As
of that date, plaintiff had not been diagnosed with either high blood pressure or hay
fever. Plaintiff was unaware of the contents of the form.
         {¶5} Plaintiff subsequently obtained employment with an NFL team in 1999. On
or about July 29, 2009, Dr. Mark Hyman issued an “Agreed Medical Evaluation” for use
in assessing plaintiff’s medical condition in connection with plaintiff’s application for
benefits under the guidelines established by the State of California Division of Workers’
Compensation.      Dr. Hyman assessed plaintiff as suffering from hypertensive heart
disease with left ventricular hypertrophy. Relying on the form completed by Calland, Dr.
Hyman apportioned 50 percent of the responsibility for the condition to pre-NFL high
blood pressure.    As a result of the apportionment, plaintiff’s benefit would likely be
reduced. Plaintiff contacted OSU seeking correction of the information contained in the
NFL questionnaire. Dr. Christopher Kaeding, head team physician at OSU, responded
in a letter by stating that OSU does not believe the questionnaire completed by Calland
is inaccurate.
         {¶6} Plaintiff brought this action against OSU seeking to recover damages
including lost wages, diminished fringe benefits, and diminished insurance proceeds
that he allegedly incurred as a result of false and misleading information provided to the
NFL.
         {¶7} In ruling on defendant’s motion to dismiss, this court stated that “the
amended complaint conclusively establishes that plaintiff’s claim for relief sounds in
defamation and, to the extent that such claim is based upon the statement published in
1998, it is barred by the statute of limitations.” This court went on to conclude that
plaintiff’s only surviving claim for relief was his claim for defamation arising out of the
alleged 2009 publication of a letter authored by defendant’s employee and team
physician, Dr. Christopher Kaeding. With respect to that claim, the court stated,
“[a]lthough the complaint alleges that the letter was sent to plaintiff in 2009, the
complaint does not identify any third-party to whom the letter was published. There is
also no copy of the letter provided with plaintiff’s amended complaint.”
       {¶8} Defamation consists of “(a) a false and defamatory statement concerning
another; (b) an unprivileged publication to a third party; (c) fault amounting to at least
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.”
Restatement of the Law 2d, Torts (1977) 155, Section 558.
       {¶9} In defendant’s motion for summary judgment, defendant argues that Dr.
Kaeding’s letter contains no false and defamatory statements of fact.          The letter
provides in relevant part:
       {¶10} “As you know, you have contacted The Ohio State University and
explained that you are contesting Dr. Hyman’s conclusion regarding your impairment
rating for worker’s compensation/disability purposes. You have further explained your
belief that the National Football League’s Medical and Injury History Update form (the
“NFL Form”) (completed at your request by Ohio State on October 19, 1998) is
inaccurate. While the University does not believe that it is inaccurate, we are happy to
clarify the basis upon which we completed the form.
       {¶11} “* * *
       {¶12} “The Ohio State University never gave you a formal ‘diagnosis of
hypertension,’ as Dr. Hyman represents in his medical evaluation report of July 29,
2009. Rather, the records you have sent us show a number of episodes of elevated
and/or high blood pressure (highlighted in the following list of all blood pressure
readings):
       {¶13} Blood Pressure       Date                 Notes
       {¶14} 120/70          8/14/1998          physical exam
       {¶15} 130/100         8/7/1997           physical exam
       {¶16} 138/78          8/16/1996          physical exam
       {¶17} 126/84          8/2/1995           physical exam
       {¶18} 120/90          8/3/1994           physical exam
      {¶19} 148/110          11/11/1997        clinical notes
      {¶20} 120/84           11/25/1994        progress notes
      {¶21} 138/100          12/13/1994        progress notes
      {¶22} 139/96           12/15/1994        pre stress test baseline
      {¶23} 144/100          3/20/1995
      {¶24} 125/80           3/20/1995
      {¶25} The records are confirmed by the personal recollections of involved
University staff who remember that you had sporadic occurrences of elevated/high
blood pressure. There were several readings that were in the normal range (normal
blood pressure is 120/80.) The records show that you were never on medication for high
blood pressure and that we never referred you to see a specialist for hypertension.
      {¶26} “It was based upon this history of episodes of elevated and/or high blood
pressure that the University checked the box on the NFL Form that related to high blood
pressure.
      {¶27} “I trust that this clarifies the basis upon which the University completed the
NFL Form.”
      {¶28} Defendant first contends that Dr. Kaeding’s letter was never published to a
third party. In support of this contention, defendant submitted the affidavit of Julie D.
Vannatta, defendant’s Senior Assistant General Counsel-Athletics and Senior Associate
Athletics Director-Legal.   Therein, Vannatta avers that she forwarded Dr. Kaeding’s
letter to plaintiff; that one copy was retained by her; that another copy was provided to
defendant’s Head Athletic Trainer, Douglas Calland; that a third and final copy was
provided to defendant’s Assistant Athletic Director for Sports Performance, Janine
Orman; and that the letter was electronically distributed to Melissa Woo of the law firm
of Namanny, Byrne & Owens of Laguna Hills, California. According to the affidavit,
Calland was directly involved in the preparation of the 1998 NFL questionnaire that
gave rise to this action, and Orman was Dr. Kaeding’s supervisor.
      {¶29} Plaintiff argues that a publication occurred when Vannatta sent copies of
Dr. Kaeding’s letter to Calland and Orman, even though both individuals are employees
of defendant, and that an actionable publication also occurred when Dr. Kaeding’s letter
was forwarded by defendant to his workers’ compensation lawyers in California without
plaintiff’s express permission and with knowledge that such letter would be published to
third parties in connection with plaintiff’s workers’ compensation claim. The relevant
portions of plaintiff’s affidavit are as follows:
       {¶30} “11. At no time during any of my communications with Ohio State University
employees requesting correction of the misdiagnosis in the NFL Questionnaire did I
authorize any employee of Ohio State University to communicate directly with my
worker’s compensation attorneys.
       {¶31} “12. I did not sign an authorization for release of the 2009 Medical Report
signed by Dr. Kaeding to [m]y worker’s compensation attorneys.
       {¶32} “13. I did not ask anyone at The Ohio State University to send the 2009
Medical Report to my worker’s compensation attorneys, nor did my worker’s
compensation attorneys request a copy of the report.
       {¶33} “14. Prior to Ms. Vannatta sending the 2009 medical report signed by Dr.
Kaeding to my worker’s compensation attorneys, no one asked me for permission for
Ohio State University to forward the 2009 medical report to my worker’s compensation
attorneys, nor was I informed by anyone that Ms. Vannatta or anyone on behalf of Ohio
State University intended to send the 2009 medical report to my worker’s compensation
attorneys.
       {¶34} “15. The Ohio State University did not have authorization from me to
release any of my medical records to Mr. Namanny or his office in 2009.”
       {¶35} Plaintiff acknowledges that the law firm of Namanny, Byrne & Owens is his
legal representative in the California proceedings and that he asked his lawyers to
forward his medical records to defendant. Plaintiff denies, however, that he authorized
OSU to send a reply to his law firm.
       {¶36} A communication to a servant or agent of the one defamed is a publication
for purposes of a claim for defamation unless it is in answer to a request from the agent.
See Restatement of the Law 2d, Torts (1977) 203, Section 577, Comment e. Here, the
email correspondence attached as an exhibit to Vannatta’s affidavit permits an
inference that plaintiff’s counsel requested a copy of the Kaeding letter.      Plaintiff’s
affidavit, however, contains plaintiff’s denial that such authority was given. Thus, an
issue of fact exists with regard to publication.
       {¶37} Defendant next argues that the 2009 letter does not contain any false and
defamatory statements. The court agrees.
       {¶38} In a defamation action, the trial court is to determine as a matter of law
whether the words used are “actionable or not.” Yeager v. Local Union 20 (1983), 6
Ohio St.3d 369, 372; Early v. The Toledo Blade (1998), 130 Ohio App.3d 302, 320.
Thus, whether a particular statement is capable of bearing a particular meaning and
whether that meaning is defamatory are questions of law for the court. See Bigelow v.
Brumley (1941), 138 Ohio St. 574, 590; Restatement of the Law 2d, Torts (1977) 311,
Section 614(1).
       {¶39} Plaintiff contends that the statement by Dr. Kaeding that “the University
does not believe that [1998 questionnaire] is inaccurate” is itself false and defamatory in
that Dr. Kaeding is confirming a false diagnosis of hypertension that was allegedly made
in 1998. However, even if the court were to conclude that the 1998 questionnaire
contained a false “diagnosis” of high blood pressure, the subsequent portions of Dr.
Kaeding’s letter clearly dispel the notion that any such diagnosis was intended. The
letter goes on to state that “[t]he records show that you were never on medication for
high blood pressure and that we never referred you to see a specialist for hypertension.”
       {¶40} Plaintiff does not now contend that the blood pressure readings contained
in the letter are inaccurate, nor does he suggest that any normal readings were omitted
from the list contained in the letter. Thus, with respect to the statement regarding the
accuracy of the 1998 questionnaire, the court finds that such statement(s) are not
defamatory, as a matter of law.
       {¶41} Plaintiff next contends that the recital of plaintiff’s blood pressure readings
as recorded by defendant’s medical and training staff, without noting whether plaintiff
was under stress at the time the reading was taken, induces the reader to conclude
falsely that plaintiff suffered from hypertension in 1998.        In his affidavit, plaintiff
acknowledges that his medical records “do show episodes of elevated blood pressure”
but he explains that “the medical records also show that those episodes were always
accompanied by significant stress or trauma.”
       {¶42} Although the court finds that it is possible for an educated reader to infer
from the factual information contained in the letter that plaintiff may suffer from high
blood pressure, it is also clear from the context of the letter that neither Dr. Kaeding nor
OSU have taken any position whether plaintiff is hypertensive. In short, the court finds
that, as a matter of law, the letter is not capable of bearing the defamatory meaning
attributed to it by plaintiff.
        {¶43} For the foregoing reasons, the court concludes that there are no genuine
issues of material fact and that defendant is entitled to judgment as a matter of law as to
plaintiff’s claim for defamation. Accordingly, defendant’s motion for summary judgment
shall be granted and judgment shall be entered for defendant.




                                               Court of Claims of Ohio
                                                                         The Ohio Judicial Center
                                                                 65 South Front Street, Third Floor
                                                                            Columbus, OH 43215
                                                                  614.387.9800 or 1.800.824.8263
                                                                             www.cco.state.oh.us




MONTGOMERY,

       Plaintiff,                                 Case No. 2010-01174

       v.                                         Judge Joseph T. Clark

THE OHIO STATE UNIVERSITY,

       Defendant.                                 JUDGMENT ENTRY


        {¶44} A non-oral hearing was conducted in this case upon defendant’s motion for
summary judgment.           For the reasons set forth in the decision filed concurrently
herewith, defendant’s motion for summary judgment is GRANTED and judgment is
rendered in favor of defendant. Court costs are assessed against plaintiff. The clerk
shall serve upon all parties notice of this judgment and its date of entry upon the journal.



                                           _____________________________________
                                           JOSEPH T. CLARK
                                           Judge

cc:


Daniel R. Forsythe                             Norman A. Abood
Karl W. Schedler                               203 Fort Industry Square
Assistant Attorneys General                    152 North Summit Street
150 East Gay Street, 18th Floor                Toledo, Ohio 43604
Columbus, Ohio 43215-3130

Filed November 8, 2011
To S.C. reporter December 30, 2011
