Tholen v. Assist America, Inc.

Background

Richard H. Tholen and Mary Jane Tholen sued Assist America, Inc. for defamation. The dispute concerned a case study Assist America published on July 26, 2016, in a special edition of the International Travel & Health Insurance Journal. The case study described a 59-year-old doctor who injured his leg in a zip-lining accident in Mexico, sought medical treatment and evacuation, traveled home, and later lost his leg.

The Tholens alleged that the case study contained false statements about the treatment received, Assist America’s medical advice, the decision to travel home, and the reason for the amputation. They claimed that the case study falsely implied that Dr. Tholen’s loss of his leg resulted from the Tholens’ own decisions and actions. They sought damages for mental distress, humiliation, and embarrassment.

Assist America moved to dismiss the complaint under Rule 12(b)(6), which allows dismissal when a complaint does not plausibly state a legal claim. Assist America argued that the case study did not identify the Tholens, that Dr. Tholen did not adequately allege harm, and that the statements were true.

Legal standard and analysis

Under Minnesota defamation law, a plaintiff must allege a false and defamatory statement, publication to a third party, and harm to reputation. The statement also must refer to an identified or identifiable person. A statement can identify someone expressly or by “fair implication,” meaning that a reader could reasonably understand the statement to concern that person even without the person being named.

The court focused first on whether the case study referred to the Tholens. It held that the case study did not mention them by name and that their names were not separately linked in the public domain to reports about the accident. The case study also changed the accident’s location and the injured person’s age, rather than recounting the Tholens’ experience with exact details.

The court further held that the complaint did not plausibly allege that the intended audience—travel-insurance industry professionals—would recognize the Tholens as the subjects. The complaint did not allege that the accident had been widely publicized or covered by the media in a way that would make the Tholens readily identifiable. Because the case study did not explicitly or implicitly refer to the Tholens, the court concluded that they had not stated a plausible defamation claim.

Disposition

The court granted Assist America’s motion to dismiss and dismissed Dr. Tholen and Mrs. Tholen’s complaint with prejudice. The court directed that judgment be entered accordingly.