Anthony Ioppolo v. Christopher Rumana
Anthony Ioppolo v. Christopher Rumana
Concurring in Part
Circuit Judge, concurring in part and dissenting in part:
I agree with the panel opinion that the district court properly dismissed Dr. Ioppolo’s claims for abuse of process, abuse of right, and intentional infliction of emotional distress, as well as his defamation claim against the American Association of Neurosurgeons (“AANS”). I write separately because, in my view, Drs. Rumana and Cuffe were not entitled to summary judgment on Dr. Ioppolo’s defamation claims against them.
This case arises out of the expert testimony that Dr. Ioppolo offered against Dr. Vogter — a former business partner of Drs. Rumana and Cuffe — in a medical malpractice case. Dr. Ioppolo offered testimony suggesting that Dr. Vogter did not follow proper hospital policy in a case where a ten-year-old boy ultimately became quadriplegic. Specifically, Dr. Ioppolo testified
Drs. Ioppolo, Rumana, and Cuffe were all members of the professional association AANS. After the malpractice case settled, Drs. Rumana and Cuffe filed a complaint against Dr. Ioppolo with the AANS’s Professional Conduct Committee (“PCC”) regarding his testimony against Dr. Vogter. In their complaint, they alleged that Dr. Ioppolo’s testimony was “false, inaccurate and constituted a violation of the AANS Expert Witness Rules.” Both Drs. Rumana and Cuffe subsequently participated in the PCC’s proceedings against Dr. Ioppolo. According to Dr. Ioppolo, Drs. Rumana and Cuffe’s testimony included “prejudicial and unsubstantiated allegations about the factual background” of the malpractice case. For example, the physicians testified that no doctor could have seen a hematoma compressing the boy’s spinal cord on a CT scan. Dr. Ioppolo asserts that these statements were later incorporated into the PCC’s resulting report. The PCC report found that Dr. Ioppolo “demonstrated a lack of adequate subject matter knowledge [in the malpractice case] and acted as an advocate for the plaintiff’s attorney rather than as an unbiased witness.” The AANS Board reviewed the PCC report, and unanimously approved a two-year suspension for Dr. Ioppolo.
Before Dr. Ioppolo had a chance to make use of the appeals process available within the AANS for such reports, Drs. Rumana and Cuffe mailed copies of the PCC report to the Louisiana State Board of Medical Examiners (“LSMB”) and the Louisiana Workers’ Compensation Corporation (“LWCC”). These reports were accompanied by letters from Drs. Rumana and Cuffe purporting to summarize the PCC report and including a number of negative statements about Dr. Ioppolo. For example, one letter stated that “Dr. Ioppolo gave false, misleading expert testimony;” that he “was a biased expert, not an impartial one;” and that his testimony was “scientifically baseless and irresponsible advocacy.” Dr. Ioppolo then filed suit against the AANS and Drs. Rumana and Cuffe alleging, among other things, that the statements in the report and letters were defamatory.
The panel opinion holds that the PCC report and the accompanying letters sent by Drs. Rumana and Cuffe were statements of opinion, and that even if they were not, the statements would still be immune from a defamation claim because they are subject to a qualified privilege. I respectfully disagree.
“The distinction drawn between opinion and statement of fact has long been important at common law because most states restricted the privilege of fair comment to expressions of opinion.” Mashburn v. Collin, 355 So.2d 879, 885 (La. 1977) (citation omitted).
Although difficult to state in abstract terms, as a practical matter, the crucial difference between statement of fact and opinion depends upon whether ordinary*335 persons hearing or reading the matter complained of would be likely to understand it as an expression of the speaker’s or writer’s opinion, or as a statement of existing fact.
Id. (citation omitted).
I agree with the panel opinion that the PCC report contains a number of opinions, and that such opinions are protected from defamation claims by the First Amendment. See id. (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 283, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). However, not all of the statements that Dr. Ioppolo complains of can be fairly characterized as opinions. For example, Drs. Rumana and Cuffe’s letter to the LSMB stated that “Dr. Ioppolo gave false testimony which was not supported by any medical literature in this case.” An ordinary person reading this statement would likely understand this to be a statement of fact: Either Dr. Ioppolo did, or did not, give false testimony. Only a fact can be true or false. Indeed, as Dr. Cuffe himself notes, two of the synonyms for “false” are “contrary to fact” and “counterfactual.” Thus, the statement that Dr. Ioppolo gave false testimony is best characterized as a statement of fact, rather than an opinion.
Because not all of Drs. Rumana and Cuffe’s statements were protected opinions, I next turn to whether their statements were covered by qualified privilege. “[T]he analysis for determining whether a conditional privilege exists involves a two-step process.”
“The second step of the analysis is a determination of whether the privilege was abused, which requires that the grounds for abuse — malice or lack of good faith—
Even assuming arguendo that Drs. Rumana and Cuffe met the first step in the qualified privilege test, the district court should not have granted summary judgment because a fact issue remains as to whether Drs. Rumana and Cuffe abused the privilege by acting with actual malice. The practical effect of asserting a conditional or qualified privilege is to rebut the plaintiff’s allegations of malice and to place the burden of proof on the plaintiff to establish an abuse of the privilege.
Dr. Rumana argues that he and Dr. Cuffe “had every reason to believe the PCC report was ‘true’ ” because it was the result of the PCC’s evidentiary proceeding against Dr. Ioppolo. But as Dr. Ioppolo notes, the PCC report was based in part on Drs. Rumana and Cuffe’s own testimony. If, as Dr. Ioppolo asserts, Drs. Rumana and Cuffe knew that their testimony and allegations were untrue, then they certainly had reasons to doubt the veracity of the resulting PCC report. In Kennedy, the Louisiana Supreme Court explained that summary judgment was appropriate because “there is no allegation and certainly no evidence to support a contention” that the defendants knew their statements were false. Id. at 687-88; see also id. at 688 (“In fact, Kennedy’s petition alleges only negligence on the part of [the defendants].”). By contrast, the very heart of Dr. Ioppolo’s case is his contention that Drs. Rumana and Cuffe gave the PCC false information in order to harm him.
The summary judgment record included Dr. Ioppolo’s affidavit, which states:
At the [PCC] meeting, [Drs.] Rumana and Cuffe submitted an extensive presentation which was misleading, speculative, false and prejudicial in nature, and which included hearsay, matters not in the medical records and representations which were simply untrue.
Apparently emboldened by the preliminary report and in complete disregard for the by-laws of the AANS to the appeal, [Drs.] Rumana and Cuffe commenced a systematic disbursement of the report of the PCC to my employers, colleagues and others, sending facsimiles to these entities, attaching copies of the opinion which was based upon their falsehoods and misrepresentations.
They included a copy of the report, though they knew that those findings were disputed, that they were not final and that they were not allowed [to] be made public.
I found it especially interesting that the complaints against Dr. Ioppolo were made by the defendant doctors in that case after they had settled their case and after he had been qualified to testify by the court and subjected to cross-examination by the remaining defendants.
Viewed in the light most favorable to Dr. Ioppolo, these statements create a fact issue as to whether Drs. Rumana and Cuffe abused their qualified privilege. In addition to these affidavits, Dr. Ioppolo’s position could also be supported by the fact that Drs. Rumana and Cuffe chose to send out the PCC report before Dr. Ioppolo had a chance to exhaust the AANS appeals process and challenge the report’s findings. This refusal to wait and ensure that any errors in the report were corrected could serve as evidence that they showed a reckless disregard for the truth. Because more than “one conclusion can be drawn from the evidence,” the district court should not have granted summary judgment on Dr. Ioppolo’s defamation claim against Drs. Rumana and Cuffe. Kennedy, 935 So.2d at 682.
. Attacks, such as these, on an expert witness’s professional standing can also negatively impact the ability of plaintiffs to bring medical malpractice cases by making physicians less willing to testify against other members of their profession. See, e.g., James A. Lowe & Mark L. Wakefield, Am. L. Prod. Liab.3d § 68:33 (noting that finding an expert witness in a medical malpractice case is "usually a hair-pulling experience”).
. The district court incorrectly applied an earlier standard for qualified privilege based on our decision in Rouly v. Enserch Corp., 835 F.2d 1127, 1130 (5th Cir. 1988). Since that decision, however, the Louisiana Supreme Court has adopted a new test, which we must apply. See Vandenbark v. Owens-Ill. Glass Co., 311 U.S. 538, 61 S.Ct. 347, 85 L.Ed. 327 (1941); Charles Alan Wright & Mary Kay Kane, 20 Fed. Prac. & Proc. Deskbook § 61 (‘‘[U]nder the Erie rule it is never too late to change in conformity to some new pronouncement of state law, and a court of appeals must rely on the latest state decisions even though they come after the federal court decision that the appellate court is reviewing.”). As the Louisiana Supreme Court explained:
Early appellate court decisions in Louisiana characterized the conditional or qualified privilege as applying if the communication is made (a) in good faith, (b) on any subject matter in which the person communicating has an interest or in reference to which he has a duly, (c) to a person having a corresponding interest or duty. Under this formulation, which finds its genesis in Madison's citation of a passage from an encyclopedia, courts typically focused on the requirements of good faith and proper publication to determine in the first instance if the privilege applied. In Smith v. Our Lady of the Lake Hospital, Inc., [639 So.2d 730 (La. 1994)], we eschewed that approach [in favor of the two-step analysis].
Kennedy v. Sheriff of E. Baton Rouge, 935 So.2d 669, 682 (La. 2006).
. Dr. Ioppolo has alleged defamation per se, which would ordinarily shift the burden to Drs. Rumana and Cuffe to prove good faith or a lack of malice. See Kennedy, 935 So.2d at 675 (“When words are defamatory per se, malice as well as injury are presumed, but may be rebutted by the defendant.”). However, because Drs. Rumana and Cuffe asserted a qualified privilege, the burden once again shifted back to Dr. Ioppolo to show malice. Id. at 683. In order to survive summary judgment, he had to put forth evidence showing an issue of material fact on this issue.
. Dr. Ioppolo’s own affidavit alone would be sufficient to survive summary judgment. See C.R. Pittman Constr. Co., Inc. v. Nat'l Fire Ins. Co. of Hartford, 453 Fed.Appx. 439, 443 (5th Cir. 2011) (”[A]n affidavit based on personal knowledge and containing factual assertions suffices to create a fact issue, even if the affidavit is arguably self-serving.”); see also Rushing v. Kan. City S. Ry., 185 F.3d 496, 513 (5th Cir. 1999) ("[Mjerely claiming that the evidence is self-serving does not mean we cannot consider it or that it is insufficient. Much evidence is self-serving and, to an extent, conclusional."), superseded on other grounds by Fed.R.Evid. 103(a).
Opinion of the Court
Dr. Anthony Ioppolo appeals the district court’s dismissal of his defamation and related claims against two fellow physicians and the American Association of Neurosurgeons, a private professional organization. We affirm the district court’s judgment.
I.
Plaintiff, Dr. Anthony Ioppolo (“Ioppolo”), a neurosurgeon in Baton Rouge, Louisiana, testified as an expert for the plaintiff in a Florida medical malpractice case in 2003. Drs. Mark Cuffe (“Cuffe”) and Christopher Rumana (“Rumana”) operated a neurological clinic in partnership with Dr. Eric Vogter, the principal defendant in the Florida case.
The Guidelines provide that the testimony be “truly expert, impartial and available to all litigants.” Pursuant to the AANS bylaws, any active member in good standing “may prefer charges alleging that a Member is failing to maintain a good professional standing.” Such a charge must be made in writing and state the basis of the charge. The written charge must be delivered to the Secretary of the Board of Directors, who is then required to forward a copy to the Professional Conduct Committee (“PCC”). Thereafter, the PCC “shall call on the members who bring the charges ... to determine whether a hearing on the charges is warranted, and shall give the respondent an opportunity to respond in writing before such a decision is made.” No action can be taken by the PCC against a member without giving that member an opportunity for a hearing. If the PCC determines that a hearing is necessary, the respondent member is entitled to conduct a self-defense or be represented by counsel. After the hearing, the PCC prepares its findings and recommendations in a written report submitted to the Board of Directors. Before the Board takes action on the PCC’s report, the respondent member has an opportunity to comment on the report. If the outcome before the Board is unfavorable to the respondent member, he has an opportunity to appeal the Board’s decision.
After the medical malpractice trial, Rumana and Cuffe preferred such a charge against Ioppolo by letter to the AANS criticizing his “ethics, honesty, integrity, and professionalism.” The letter accused Ioppolo of giving “false and misleading testimony” during the trial in Florida. Upon receiving the letter, the AANS convened the PCC to investigate the allega
On March 7, 2005, before the Board decision but after the PCC report was furnished to the parties, Rumana and Cuffe wrote to the Louisiana Board of Medical Examiners, seeking to file a formal charge of unprofessional conduct with that organization against Ioppolo. In addition, on April 15, 2005 (the day of the Board’s decision), Rumana and Cuffe distributed a copy of the PCC’s preliminary findings to Louisiana Worker’s Compensation Corporation (“LWCC”) where Ioppolo served as medical director. Ioppolo also alleges that Rumana and Cuffe sent copies to Vista Surgical Hospital (where Ioppolo served as medical director), and the Neuromedical Center in Baton Rouge, Louisiana (Ioppolo’s former workplace).
In February 2006, Ioppolo sued the AANS, Rumana, Cuffe, and the American College of Surgeons in state court. Ioppolo asserted claims of defamation, abuse of process, abuse of personal rights, and intentional infliction of emotional distress (“IIED”). Defendants removed the case on the basis of diversity jurisdiction under 28 U.S.C § 1382.
In March 2006, the AANS, Rumana, and Cuffe filed motions to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In April 2006, Ioppolo was granted a temporary restraining order to prevent the AANS from publishing the fact that it had suspended Ioppolo’s membership in the organization while his case was pending in the district court. In July 2006, all parties agreed to a preliminary injunction.
Two years later, in July 2008, the district court heard arguments on the pending motions to dismiss, at which time it denied the motions filed by Rumana and Cuffe, and deferred ruling on the motion by the AANS. The court also instructed Ioppolo to amend his complaint against the AANS, or his claims against the AANS would be dismissed. In August 2008, Ioppolo filed a Second Amended Complaint against the AANS, alleging the same four causes of action. The AANS responded with a motion to dismiss the complaint.
In August 2011, the district court granted the AANS’s motion to dismiss, finding that Ioppolo had failed to state a claim for defamation, abuse of process, abuse of rights, or IIED. This left for resolution the claims against Drs. Rumana and Cuffe.
In July 2012, Rumana and Cuffe each filed a “renewed” motion to dismiss Ioppolo’s claims against them pursuant to Rule 12(b)(6). The district court granted the motions with respect to Ioppolo’s claims for abuse of rights, abuse of process, and IIED. The court also dismissed Ioppolo’s defamation claim with respect to the initial publication of the PCC report because the claim was time barred under Louisiana’s one-year prescriptive period.
Following the district court’s ruling on the motions to dismiss, the only surviving claims were Ioppolo’s claims for defamation with respect to Rumana and Cuffe’s later publication of the PCC Report in March and April 2005. In January 2013, Cuffe filed a motion for summary judgment as to this claim. Rumana filed his own motion in March 2013. The district court granted both motions.
Ioppolo appeals from the district court’s dismissal of each of his four claims.
II.
We review a district court’s dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure de novo
“This court reviews a district court’s grant of summary judgment de novo, applying the same standards as the district court.”
III.
A.
We turn first to Ioppolo’s claims for abuse of process and abuse of right. “Abuse of process involves the misuse of a process already legally issued whereby a party attempts to obtain a result not proper under the law.”
[A]buse of process is the misuse of legal process for an ulterior purpose. It consists in the malicious misuse or misapplication of that process after issuance to accomplish some purpose not warranted or commanded by the writ. It is malicious perversion of a legally issued process whereby a result not lawfully or properly obtainable under it is attempted to be secured.14
There is no evidence to suggest that the AANS proceedings are anything other than the mechanism of a private professional organization to enforce its ethical and professional standards. Therefore, Ioppolo has failed to state a claim for abuse of process under Louisiana law because he has not alleged the use of any qualifying “process.”
The abuse of rights doctrine is a civil law concept which is rarely used in Louisiana,
Ioppolo contends that the AANS, Rumana, and Cuffe abused their rights under the AANS bylaws by pursuing the complaint against him as a result of his expert testimony. However, he fails to adequately brief this argument on appeal.
B.
Next, we address Ioppolo’s claim for Intentional Infliction of Emotional Distress (“IIED”). Under Louisiana law, a plaintiff claiming IIED must establish three elements: (1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct.
The district court dismissed Ioppolo’s IIED claim as to each defendant, finding that his allegations did not rise to the “high level of ‘extreme and outrageous’ conduct” to constitute IIED under Louisiana law.
Ioppolo contends that the allegations in his Second Amended Complaint meet the pleading requirements because he “precisely pled” each of the elements of IIED in his petitions and complaints against each defendant, sometimes using the exact language of the required elements. This contention is incorrect. “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do____”
Rumana and Cuffe filed a complaint with the AANS, which was their right as members of the organization. Ioppolo complains, however, that Rumana and Cuffe participated in the proceedings before the PCC by giving false and misleading testimony to the committee. Ioppolo further alleges that Rumana and Cuffe then distributed the report of the PCC to Ioppolo’s employers, colleagues, and the Louisiana State Board of Medical Examiners, prior to review by the Board of Directors of the AANS. Lastly, Ioppolo alleges that the AANS refused to police the abuses of its members, Rumana and Cuffe, and therefore became complieit in their conduct, and refused to communicate with the entities and individuals who received the PCC report prematurely sent out by Rumana and Cuffe.
The defendants’ actions did not rise to the level of “extreme” or “outrageous,”
C.
Finally, we turn our attention to Ioppolo’s claim for defamation. “Defamation is a tort which involves the invasion of a person’s interest in his or her reputation and good name.”
“Defamatory words are, by definition, words which tend to harm the reputation of another so as to lower the person in the estimation of the community, to deter others from associating or dealing with the person, or otherwise expose a person to contempt or ridicule.”
The Louisiana case of Doe v. Grant illustrates this point.
The PCC Report in the instant case is comparable to the communications in Grant. Both involved the findings of professional committee hearings and the suspension of privileges. Both contained statements which were damaging to a physician’s professional reputation. In each
We now turn to Ioppolo’s defamation claim against Rumana and Cuffe. The district court dismissed as time barred that part of Ioppolo’s defamation claim against Rumana and Cuffe related to the first distribution of the PCC Report. The PCC Report was initially distributed on December 28, 2004, and Ioppolo filed suit more than one year later, on February 9, 2006. Ioppolo’s claims based on this distribution are therefore time barred on their face under Louisiana’s one-year statutory limit.
In its third and final ruling addressing the defamation claims, the district court, on summary judgment, dismissed Ioppolo’s claims against Rumana and Cuffe based on their distribution of the PCC Report to the Louisiana State Board of Medical Examiners (“LSBME”) and the LWCC.
Ioppolo argues that this distribution constitutes defamation. According to Ioppolo, the following statements by Rumana and Cuffe in their letter were defamatory: (1) that Ioppolo gave “false testimony which was not supported by any medical literature in this case”; (2) that Ioppolo was “a biased expert, not an impartial one”; (3) that Ioppolo’s testimony that there was an extradural clot compressing the spinal cord was incorrect, highly damaging, and substandard for a neurological surgeon; (4) that the verdict in the Florida case “threatened to bankrupt the Tallahassee Neurological Center ...”; (5) that Ioppolo offered an overoptimistic prognostication which was “misleading to the jury”; (6) that Ioppolo’s trial testimony was “scientifically baseless and irresponsible advocacy”; and (7) that the PCC considers Ioppolo’s conduct unprofessional and egregious. Additionally, Ioppolo contends that several statements contained within the PCC report were also defamatory upon publication to third parties. Ioppolo also argues that the statements by Rumana and Cuffe are defamatory per se because they bear negatively on his “professionalism, knowledge as a physician, propensity for truthfulness, morality, and responsibility as an expert.”
We affirm the district court’s dismissal for the following reasons. First, the PCC Report itself is a statement of opinion, not fact. The First Amendment provides “a defense against defamation actions for expressions of opinion about matters of public concern made without knowing or reckless falsity.”
Even if we assume arguendo that the PCC Report and the letter by Rumana and Cuffe do not constitute opinion, they are still immune from a claim for defamation if the statements are subject to a qualified privilege. “In Louisiana, privilege is a defense to a defamation action.”
Determining whether a qualified privilege exists involves a two-step process. “First, it must be determined whether the attending circumstances of a communication occasion a qualified privilege.”
A Louisiana court has applied the qualified privilege in “attending circumstances” similar to this case. In Elmer v. Coplin, the defendant, an attorney, wrote a letter to the National Conference of Bar Examiners which accused the plaintiff, an applicant to the District of Columbia Bar, of participating in the fraudulent misrepresentation of the assets and liabilities of a company the plaintiff represented.
In addition, Louisiana courts have held that a qualified privilege is generally necessary for statements made when reviewing the fitness of medical doctors to practice their profession.
Moving to the second part of the test, we find no sign of abuse of the qualified privilege by Rumana and Cuffe. Ioppolo
“The conditional privilege is abused, and thus inapposite, when the ‘defendant steps outside the scope of the privilege, or abuses the occasion.’ ”
IV.
For the reasons stated above, we affirm the district court’s dismissal of Dr. Ioppolo’s action against the AANS, and Drs. Rumana and Cuffe.
AFFIRMED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
. Dr. Vogter died during the pendency of the Florida litigation.
. The report was initially published in December 2004, and Ioppolo filed suit in February 2006.
. Kopp v. Klein, 722 F.3d 327, 333 (5th Cir. 2013) (citing Atchafalaya Basinkeeper v. Chustz, 682 F.3d 356, 357 (5th Cir. 2012)).
. Id. (citing Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999)).
. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
. Chustz, 682 F.3d at 358.
. Barker v. Hercules Offshore, Inc., 713 F.3d 208, 212 (5th Cir. 2013) (quoting Greater Hous. Small Taxicab Co. Owners Ass'n v. City of Houston, 660 F.3d 235, 238 (5th Cir. 2011)).
. Greater Hous. Taxicab, 660 F.3d at 238 (alteration in original).
. F.D.I.C. v. Myers, 955 F.2d 348, 349 (5th Cir. 1992) (citing Kennett-Murray Corp. v. Bone, 622 F.2d 887 (5th Cir. 1980)).
. Arismendez v. Nightingale Home Health Care, Inc., 493 F.3d 602, 606 (5th Cir. 2007) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)).
. Glotfelty v. Hart, 2013-0870 (La.App. 1 Cir. 12/27/13), 2013 WL 6858285; Goldstein v. Serio, 496 So.2d 412, 415 (La.Ct.App. 1986).
. Nathans v. Vuci, 443 So.2d 690, 694-95 (La.Ct.App. 1983) (citing Succession of Cutrer v. Curtis, 341 So.2d 1209, 1213-14 (La.Ct. App. 1976), writ denied, 343 So.2d 201 (La.
. Almerico v. Dale, 05-749 (La.App. 5 Cir. 3/28/06), 927 So.2d 586, 594.
. Id. (quoting Succession of Cutrer, 341 So.2d at 1214) (emphasis added). See also MiniTogs, Inc. v. Young, 354 So.2d 1389, 1390 (La.Ct.App. 1978) ("A legal and legitimate use of process, to effect the result which such process is designed by law to accomplish, is not an abuse thereof.” (citation omitted) (emphasis added)).
. See Steier v. Heller, 31-733 (La.App. 2 Cir. 5/5/99), 732 So.2d 787, 790-91.
. Id. at 791. (citing Mass. Mut. Life Ins. Co. v. Nails, 549 So.2d 826 (La. 1989)).
. Our opinion in United States v. Scroggins provides a helpful and accurate summation of our law on this issue:
A party that asserts an argument on appeal, but fails to adequately brief it, is deemed to have waived it. It is not enough to merely mention or allude to a legal theory. We have often stated that a party must “press” its claims. At the very least, this means clearly identifying a theory as a proposed basis for deciding the case — merely "intimating" an argument is not the same as "pressing” it. In addition, among other requirements to properly raise an argument, a party must ordinarily identify the relevant legal standards and any relevant Fifth Circuit Cases. We look to an appellant’s initial brief to determine the adequately asserted bases for relief.
599 F.3d 433, 446-47 (5th Cir. 2010) (citations and quotations omitted). Ioppolo mentions this claim only twice early in his brief. He fails to address it substantively, or refer to it at all, in his argument that the district court’s 12(b)(6) ruling was in error.
. White v. Monsanto Co., 585 So.2d 1205, 1209 (La. 1991).
. James v. Woods, No. 14-216, - F.Supp.3d -, 2014 WL 1896760, *4 (E.D.La. May 12, 2014) (citing Nicholas v. Allstate Ins. Co., 765 So.2d 1017, 1022 (La. 2000)).
. White, 585 So.2d at 1209.
. Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted).
. See James,-F.Supp.3d at-, 2014 WL 1896760, at *4 (citing Nicholas, 765 S.o.2d at 1022).
. White, 585 So.2d at 1209.
. Cyprien v. Bd. of Sup'rs ex rel. Univ. of La. Sys., 08-1067 (La.1/21/09), 5 So.3d 862, 866 (quoting Costello v. Hardy, 03-1146 (La. 1/21/04), 864 So.2d 129, 139).
. Id.
. Kennedy v. Sheriff of E. Baton Rouge, 05-1418 (La.7/10/06), 935 So.2d 669, 679. ("... [W]e decline the invitation to adopt a New York Times standard of liability in cases involving private individuals and matters of public concern, and instead adopt the negligence standard set forth in the Restatement (Second) of Torts § 580B.”)
. Costello, 864 So.2d at 140 (citations omitted).
. Id. at 674-75 (citation omitted).
. Id. at 675 (citations omitted).
. Id. (citation omitted).
. Id. (citation omitted).
. Id. (citation omitted).
. See, e.g., Bell v. Rogers, 29-757 (La.App. 2 Cir. 8/20/97), 698 So.2d 749.
. See 01-0175 (La.App. 4 Cir. 1/29/03), 839 So.2d 408.
. Id. at 412.
. Id. at 413.
. Id.
. Id.
. Id. at 416.
. Id.
. See Lyons v. Knight, 10-1470 (La.App. 3 Cir. 5/11/11), 65 So.3d 257, 260 (citing LA. CIV. CODE ANN. art. 3492).
. Reed v. Baton Rouge Crime Stoppers, 11-0618, *2 (La.App. 1 Cir. 11/9/11), 2011 WL 5419678.
. Mashburn v. Collin, 355 So.2d 879, 885 (La. 1977). See also Bussie v. Lowenthal, 535
. See Bussie, 535 So.2d at 381-83. These phrases include: “The PCC concludes that [Ioppolo] demonstrated a lack of adequate subject matter knowledge ... "we consider Dr. Ioppolo's trial testimony that there had been ‘little or no irreversible damage ... to be scientifically baseless and irresponsible advocacy’ and “we ... consider Dr. Ioppolo’s unequivocal testimony that there was an ex-tradural clot compressing the cord to be incorrect, highly damaging, and substandard for a neurological surgeon.”
. See, e.g., Baton Rouge Waterworks Co. v. Louisiana Pub. Serv. Comm'n, 156 La. 539, 548-49, 100 So. 710 (La. 1924) (" ‘The administration of justice, the preservation of the public peace, and the like ... are essentially matters of public concern.' ” (quoting State ex rel. Saunders v. Kohnke, 109 La. 838, 846, 33 So. 793 (La. 1903))).
. The PCC Report concluded that "Dr. Ioppolo demonstrated a lack of adequate subject matter knowledge and acted as an advocate for the plaintiff and the plaintiff attorney rather than as an unbiased witness.”
Rumana and Cuffe's letter also stated that Ioppolo "was not qualified to even give testimony in [the Florida malpractice] case by the standards of the American College of Surgeons.” The American College of Surgeons guidelines for testimony require that an expert be a practicing surgeon who currently practices in the area relevant to his testimony. Ioppolo fails to mention this statement in his briefs. After reviewing the record and the ACS guidelines, we cannot say this statement is untrue, and therefore it is not defamatory.
. Kennedy, 935 So.2d at 681 (citing Costello, 864 So.2d at 141).
. Kennedy, 935 So.2d at 681 (citing Toomer v. Breaux, 146 So.2d 723, 725 (La.App. 1962)).
. Hakim v. O'Donnell, 49, 140, *6 (La.App. 2 Cir. 6/25/14), (citing Kennedy, 935 So.2d 669; Martin v. State, Dep't of Pub. Safety & Corr., Office of State Police, 47, 647 (La.App. 2 Cir. 1/16/13), 109 So.3d 442).
. Dyas v. Shreveport Police Dep’t, 48, 804, *11 (La.App. 2 Cir 2/26/14), 136 So.3d 897, 904 (citing Kennedy, 935 So.2d 669).
. Kennedy, 935 So.2d at 682 (citing Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 630 So.2d 730).
. Id.
. Id. at 682.
. 485 So.2d 171, 174 (La.Ct.App. 1986).
. Id. at 178.
. Smith, 639 So.2d at 744 (" .. If a conditional privilege should ever operate, indeed if there is one instance where society should encourage uninhibited communication, it is in the review of the competency of medical professionals.’ ”) (quoting Sibley v. Lutheran Hosp. of Maryland, Inc., 871 F.2d 479, 483 (4th Cir. 1989)). See also Sanders v. State ex rel. Dep’t of Health and Hosp., 2011-0814, *11-12 (La.App. 1 Cir. 8/2/12), 2012 WL 3133694.
. Smith, 639 So.2d 730, 744 (citing W. Keeton, D. Dobbs. R. Keeton & D. Owen, Prosser & Keeton on Torts § 115, P. 832 (5th Ed. 1984)).
. Kennedy, 935 So.2d at 686.
. Id. at 689 (citing Trentecosta v. Beck, 96-2388, *15 (La. 10/21/97), 703 So.2d 552, 561).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.