Tholen v. Assist America, Inc.

Background

Richard H. Tholen and Mary Jane Tholen sued Assist America, Inc. for defamation. The case concerned a case study that Assist America published in a travel and health-insurance journal. The study described a 59-year-old male Assist America member, a doctor, who was injured in a zip-lining accident in Mexico, traveled home, and later had his leg amputated.

The Tholens contended that the case study was based on Dr. Tholen’s experience but changed important facts. Among other things, the study said that a local doctor recommended surgery, that an Assist America medical director warned Dr. Tholen not to travel, that Dr. Tholen chose to travel despite medical recommendations, and that Mrs. Tholen reported that the amputation resulted from loss of circulation during travel. The record cited by the court indicated disputes about or evidence contradicting each of those descriptions. The case-study author admitted that it was based on Dr. Tholen’s case.

Assist America previously obtained dismissal of the case after the district court concluded that the publication did not refer to the Tholens explicitly or by implication. The Eighth Circuit reversed and sent the case back for further proceedings. Assist America then moved for summary judgment, which asks the court to decide a case without a trial when no material facts are genuinely disputed and the moving party is legally entitled to win.

Issues and analysis

The court applied Minnesota defamation law. The Tholens had to show a false and defamatory statement, an unprivileged publication to a third party, and harm to their reputation. Assist America argued that the Tholens could not meet these requirements because the case study did not identify them, its statements were substantially true, the statements were not defamatory, and the Tholens lacked proof of reputational harm. Assist America also challenged the request for punitive damages.

Identification of the Tholens. The court found a genuine factual dispute about whether a reasonable reader could identify the Tholens as the people described. Although the study did not name them and changed or omitted some details, it described a combination of unusual facts: a married male Assist America member who was a doctor, suffered a zip-lining injury in Mexico, and later lost his leg. Assist America acknowledged that the Tholens’ case was the only one of its cases that resulted in a leg amputation. The court also noted that the author admitted using Dr. Tholen’s case. The court therefore declined to grant summary judgment on the identification issue.

Truth and defamatory meaning. The court found sufficient evidence for a jury to decide whether one or more statements were false and defamatory. It noted evidence that the local treating doctor did not recommend surgery, that no Assist America medical director advised Dr. Tholen against travel, that Assist America medical directors supported transportation to the United States, that no Assist America representative recommended surgery in Mexico, and that Mrs. Tholen did not say that the amputation resulted from loss of circulation during travel. The court also found that the statements, considered together, could reasonably be understood to suggest that Dr. Tholen’s amputation resulted from poor judgment, haste, and reliance on emotion rather than medical advice. Whether the statements were actually defamatory was therefore for the jury.

Damages and punitive damages. The court concluded that the statements could reasonably be understood to reflect poorly on Dr. Tholen’s professional conduct as a medical doctor. It therefore found that the statements could constitute defamation per se, a category of defamation for which reputational harm may be presumed. The court also found sufficient evidence for a jury to decide whether Assist America acted with actual malice—that is, knowledge that the statements were false or reckless disregard for whether they were false. Because those factual disputes remained, the court allowed the Tholens to proceed on a theory of presumed damages without deciding whether their evidence of actual damages was sufficient.

The court separately found a triable issue on punitive damages. Under Minnesota law, punitive damages require clear and convincing evidence that the defendant deliberately disregarded the rights or safety of others. The court held that a jury could decide whether Assist America deliberately disregarded the Tholens’ rights by publishing statements that were wholly or partly contradicted by the record and implied that Dr. Tholen’s leg was amputated because he acted hastily and ignored sound medical advice.

Disposition

The court denied Assist America’s motion for summary judgment. It did not decide whether the Tholens ultimately proved defamation, actual malice, reputational harm, or entitlement to punitive damages. Instead, it held that genuine factual disputes required those questions to remain for a jury.