                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 09a0815n.06

                                                Case No. 08-4389                                        FILED
                                                                                                    Dec 21, 2009
                               UNITED STATES COURT OF APPEALS                                LEONARD GREEN, Clerk
                                    FOR THE SIXTH CIRCUIT

 EDWARD PATRICK,                                                )
                                                                )
             Plaintiff-Appellant,                               )
                                                                )        ON APPEAL FROM THE
                    v.                                          )        UNITED STATES DISTRICT
                                                                )        COURT FOR THE NORTHERN
 CLEVELAND SCENE PUBLISHING, LLC;                               )        DISTRICT OF OHIO
 THOMAS FRANCIS,                                                )
                                                                )
             Defendants-Appellees.                              )
                                                                )
 _______________________________________                        )


BEFORE: BATCHELDER, Chief Judge; DAUGHTREY, Circuit Judge; and
VAN TATENHOVE*, District Judge.

         ALICE M. BATCHELDER, Circuit Judge. Edward Patrick, M.D., Ph.D., appeals the

order of the district court granting summary judgment to defendants Cleveland Scene and Thomas

Francis, and denying summary judgment to Patrick, in Patrick’s action brought under the court’s

diversity jurisdiction claiming that Cleveland Scene’s publication of Francis’s article Playing Doctor

on October 27, 2004, was defamatory. Because we find that Dr. Patrick failed to demonstrate the

threshold requirement of falsity regarding the main imputation or gist of Playing Doctor for his

defamation claim, we affirm the judgment of the district court.1


         *
        The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern District of
Kentucky, sitting by designation.

         1
          Dr. Patrick’s complaint also raised claims of false-light invasion of privacy and invasion of privacy by
publication of private facts, on both of which the district court granted summary judgment to the defendants. Dr.
Patrick’s briefs on appeal neither mention nor argue the judgment as to those claims and any appeal as to those
                                                           I.

         Dr. Patrick is an emergency medicine doctor who has taken a somewhat peripatetic path

throughout his training. He began his non-medical graduate education by earning a Ph.D. in

electrical engineering from Purdue University in 1966, and a medical degree from Indiana University

in 1974. The next part of Dr. Patrick’s medical training, which involves his time spent in Cincinnati,

Ohio, training at Jewish Hospital under the tutelage of Dr. Henry Heimlich, its director of surgery,2

is the subject of some dispute. To begin with, Dr. Patrick’s position and medical field during this

period are unclear. They are listed variously on his curricula vitae and job applications as:

“Rotating Internship”;          “Resident       I”;   “Residency Surgery and               Medicine”;       “Medical

Residency/Medicine & Surgery (Rotating)”; “Resident I (designed for Emergency Medicine)”;

“Internship/Rotating Emergency Med, Surgery”; “PGI Surgery”; “Internship”; and “Residencies,

Fellowships, Preceptorships, Teaching Appointments/Emergency Medicine.”3                               Dr. Patrick’s

designations of the location of the claimed positions are also inconsistent; the location is listed

sometimes solely as Jewish Hospital or University of Cincinnati, and sometimes as Jewish Hospital,

University of Cincinnati. Similarly, Dr. Patrick’s documents are not consistent in stating the years

during which he held the position. For example, his Lima Hospital application claims that it ran



claims is therefore waived.

         2
          Dr. Heimlich is the inventor of the famous “Heimlich Maneuver” for treatment of choking. The
maneuver’s genesis has been in some dispute, with Dr. Patrick publicly claiming partial credit for its invention. That
issue, however, is not germane to our disposition of Dr. Patrick’s claims.

         3
           Michael Bowen said in his deposition that he, Bowen, was also inconsistent in his use of titles (i.e.,
resident or intern) to describe this position, but this merely explains the possible genesis of some of Dr. Patrick’s
inconsistency regarding them. It does not affect the veracity of Playing Doctor’s gist, which is a holistic concept not
defined by the truth or falsity of its individual components. See Orr v. The Argus-Press Co., 586 F.2d 1108, 1112
(6th Cir. 1978). It also does not explain Dr. Patrick’s inconsistencies regarding the duration, location, or field of
medicine of his residency.

                                                           2
from 1974-1976; his Dearborn Hospital application shows it as a one-year position in 1975; and his

Scott Memorial hospital application expands it to a five-year position from 1975-1979.

        Dr. Patrick also claims that he was engaged in other training activities during this same time

period, including — according to his American Medical Association profile — a post-graduate

medical training program in emergency medicine at “Deaconess Hsp/Cleveland” from “9/1976 -

8/1978," and a residency at the Heimlich Institute, “Specialty: EM” from 1976 to 1979 as

represented on a professional liability insurance application. Further, on several curricula vitae and

job applications, Dr. Patrick has variously characterized the 1976 to 1979 period as a “special

residency” or “specially arranged residency” “under directorship of Henry J. Heimlich” or

“supervised by Henry J. Heimlich” at various hospitals. Dr. Patrick’s training-related inconsistencies

on these documents are exacerbated by his also listing multiple birth dates for himself, ranging from

his actual birth date, October 7, 1937, to dates in 1942 and 1947. This carelessness — or worse —

regarding his birth date led to confusion in 2005 within NES Healthcare Group, for whom Dr.

Patrick was working at the time, as to “whether this was the same physician” — i.e., whether the

Edward Patrick whose Ohio medical license listed a birth date of 1937 was the same Edward Patrick

whose North Carolina medical license listed a birth date of 1947.

        Not surprisingly, Dr. Patrick’s claimed stint at Jewish Hospital in Cincinnati has generated

a flurry of requests to that hospital, asking for verification of his position there. The record contains

eleven requests to the hospital, and one to Dr. Heimlich, asking for verification of the range of titles,

specialties, and durations of Dr. Patrick’s time and training there. Francis’s notes from his interview

of Michael Bowen, the Administrative Director of the Department of Surgery at Jewish Hospital,

reflect this:


                                                   3
       Francis: You complained to the medical board about getting tons of verification
       requests [regarding Dr. Patrick] didn’t you?
       Bowen: Basically, they said they would look into it, and I believe they did. And I
       don’t know who the particulars were, who was involved with it.
       Francis: You were uncomfortable with this?
       Bowen: Well, in my business if you see something time and again . . . It does make
       you wonder. It didn’t take a rocket scientist to figure out something was amiss.
       What was this guy up to? I just said, ‘This is something people need to keep an eye
       on.’

R.116, dep. ex. WWW at 13 (Francis’s notes from Bowen interview). Bowen said during his

deposition that he was not surprised at the number of verification requests he was being shown by

Cleveland Scene’s counsel. But it is unclear from the transcript of the deposition whether he meant

that he was not surprised by the number of requests he was being shown at his deposition, given the

number that had been made, or that he was not surprised by the gross number of requests made to

him. Regardless, Bowen confirmed in his deposition that the multitude of verification requests he

had received put him on notice that at least some institutions were questioning Dr. Patrick’s

completion of an emergency medicine residency at Jewish Hospital.

       Following his stint at Jewish Hospital, which by Patrick’s various accounts ran for anywhere

from one to five years ending as late as 1979, Dr. Patrick has practiced at numerous hospitals, both

as a staff member and as a doctor hired through staffing services (e.g., Interim Physicians and

Medical Doctors Associates). He has twice been removed from, or had his contract not renewed at,

hospitals due to, among other things, questions regarding the nature of his claimed residency in

emergency medicine at Jewish Hospital, deficient sterilization practices, and patient complaints.

                                                II.

       We review de novo a district court’s grant of summary judgment, using the same standard

under Rule 56(c) used by the district court. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir. 1999)


                                                 4
(en banc). We must view the evidence, all facts, and any inferences that may be drawn from the facts

in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate when “the pleadings, the

discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as

to any material fact and that the movant is entitled to judgment as a matter of law.” FED . R. CIV . P.

56(c). The fact that both parties have filed summary judgment motions does not alter the standard

by which we review these motions. “Rather, the court must evaluate each party's motion on its own

merits, taking care in each instance to draw all reasonable inferences against the party whose motion

is under consideration.” Taft Broadcasting Co. v. United States, 929 F.2d 240, 248 (6th Cir.

1991)(quoting Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987)).

       Because this case was filed in federal court in Ohio under diversity jurisdiction, we apply the

substantive law of Ohio. “Under the Erie doctrine, federal courts sitting in diversity apply the

substantive law of the forum state and federal procedural law.” Biegas v. Quickway Carriers, Inc.,

573 F.3d 365, 374 (citing Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)). Ohio’s defamation law is

succinctly explained in Bruss v. Vindicator Printing Co., 672 N.E.2d 238 (Ohio Ct. App. 1996):

       In order to establish a claim of defamation, a plaintiff must show that (1) a false
       statement of fact was made concerning him or her; (2) the statement was defamatory;
       (3) the statement was written; (4) the statement was published; and (5) in publishing
       the statement, the defendant acted with the requisite degree of fault . . . . To survive
       a motion for summary judgment in a libel action, the plaintiff must make a sufficient
       showing of the existence of every element essential to his or her case . . . .
       [M]aterial falsity is an essential element of a libel claim. In Natl. Medic Serv. Corp.
       v. E.W. Scripps Co. . . . the court, in construing falsity as an element in a libel action,
       noted that Professor Prosser has stated: “It is sufficient [in defending against a
       defamation action] to show that the imputation is substantially true, or as it is often
       put, to justify the “gist,” the “sting,” or the substantial truth of the defamation.” The
       Ohio Supreme Court has held that it is for the court to decide as a matter of law
       whether certain statements alleged to be defamatory are actionable or not.


                                                   5
Bruss, at 240-241 (internal citations omitted) (emphasis added) (abrogated in part on other grounds

by Welling v. Weinfeld, 866 N.E. 2d 1051 (Ohio 2007)).

        The district court concluded that Dr. Patrick had the burden of establishing the falsity of the

Cleveland Scene article by clear and convincing evidence because the matters contained in the article

were matters of public concern, and, further, that because Dr. Patrick is a “limited public figure,” he

had the burden of demonstrating actual malice on the part of the defendants. We do not reach those

issues because we conclude that even if Dr. Patrick were simply a private citizen claiming

defamation by the media, he would be required to make the threshold showing of falsity, a showing

that the district court correctly determined he failed to make.

        The district court held that the gist of Playing Doctor is “twofold: the reported character of

Dr. Patrick's 1975-1976 residency at Jewish Hospital raised questions about the degree of his

participation in and the thoroughness of his residency training; and, Dr. Patrick's representations of

his medical training were either exaggerated or inaccurate.” Patrick v. Cleveland Scene Pub. LLC,

582 F. Supp. 2d 939, 948 (N.D. Ohio 2008). Turning to the first of these two imputations, the court

held that Dr. Patrick failed to present evidence of the material falsity of the article’s claims that Dr.

Patrick’s various applications and curricula vitae contained significant inconsistencies regarding the

dates, claimed fields of medicine, and position titles (i.e., intern or resident) of his medical training,

and of his birth date. Our review of the record confirms that the record contains evidence of

numerous inconsistencies. Dr. Gordon Margolin, the Director of the Department of Internal

Medicine at Jewish Hospital, had refused to sign Dr. Patrick's residency certificate, saying that he

had misgivings about doing so and had asked Dr. Heimlich to sign it on behalf of the hospital. Dr.

Heimlich signed that certificate, and confirmed that Dr. Patrick did a one-year residency at Jewish


                                                    6
Hospital, but disclaimed knowledge of any residency training program done by Patrick beyond that,

thus casting doubt on Dr. Patrick’s claims of a residency at the “Heimlich Institute” and a “special

residency” supervised by Dr. Heimlich after the year at Jewish Hospital. And while Jewish Hospital

confirmed that Dr. Patrick spent the year there as a surgical resident from 1975-1976, it has

responded to numerous verification requests disavowing any knowledge of his completing an

emergency medicine residency or receiving any specialized emergency medicine training there.

Indeed, Francis’s interview notes and the depositions taken in this case show that both Dr. Margolin

and Mr. Bowen stated that Jewish Hospital had no residency program in emergency medicine at the

time Dr. Patrick was there, but offered residencies only in surgery and internal medicine. This

evidence is unrebutted in the record.

       The other imputation of Playing Doctor, that “Dr. Patrick's representations of his medical

training were either exaggerated or inaccurate,” is similarly supported by the record evidence. The

record demonstrates many inconsistencies in Dr. Patrick’s representations of virtually all aspects of

his medical training, including: the title (i.e., intern or resident), medical field (i.e., emergency

medicine or surgery), location (i.e., Jewish Hospital, University of Cincinnati, or the Heimlich

Institute) and year and duration (i.e., various years and time periods between 1974 and 1979) of his

residency. The district court held that Dr. Margolin’s refusal to sign Dr. Patrick’s residency

certificate, Dr. Heimlich’s disclaiming any knowledge of Dr. Patrick’s training beyond the one year

at Jewish Hospital, and Jewish Hospital’s refusal to certify that — contrary to Dr. Patrick’s claims

— he had obtained any training in emergency medicine while there, together with inconsistencies

in Dr. Patrick’s own documents, demonstrate that the gist of Playing Doctor is substantially true.

And the record supports the district court’s conclusion that although Dr. Patrick made some attempt


                                                 7
to rebut this evidence, the rebuttal evidence is wholly insufficient to make the showing of falsity

necessary to survive summary judgment.

       Because Dr. Patrick failed to make a showing of an essential element of his defamation claim

— i.e., that the gist of Playing Doctor is false — he cannot survive the defendants’ motion for

summary judgment. The district court therefore did not err in granting summary judgment to the

defendants and dismissing the complaint.

                                               III.

       For the foregoing reasons, we affirm the judgment of the district court.




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