When Lawyers Sue Dentists

The Maine Supreme Judicial Court affirmed the dismissal of a lawsuit filed by an attorney against a dentist, holding that the state anti-SL APP statute required that result

In 2020, Weinstein, an attorney, filed a complaint against Marina Narowetz, DDS, and her dental practice, Old Orchard Beach Family Dentistry, LLC (collectively, Narowetz). Weinstein alleged that, in response to Narowetz’s handling of Weinstein’s request for the dental records of his client, he had filed a complaint against Narowetz with the Board of Dental Practice,1 prompting Narowetz to file complaints against him with the Maine Board of Overseers of the Bar, the Massachusetts Board of Bar Overseers, and the United States Postal Service. Based on statements that Narowetz made in her written answer to and testimony before the Board of Dental Practice and in her complaints to the Boards of Overseers and the Postal Service, Weinstein alleged seven counts: (1) libel, (2) slander, (3) defamation, (4) intentional infliction of emotional distress, (5) negligent infliction of emotional distress, (6) negligence, and (7) punitive damages.

No actual injury

Here, the only form of injury that Weinstein both referenced in his complaint and provided evidence about in his affidavit opposing the special motion to dismiss was injury in the form of embarrassment, shame, humiliation, emotional distress, and harm to his reputation. Such “emotional injury” alone does not constitute actual injury for anti-SLAPP purposes however, “unless it is so severe that no reasonable person could be expected to endure it.”

A dissent by Justice Jabar

Here, Narowetz made complaints to various regulatory agencies. She filed a complaint with the Overseers of the Bar in Maine and Massachusetts, alleging harassment and intimidation by Weinstein. She also made a complaint to the USPS, alleging that Weinstein was impersonating a postal employee, a federal crime. These statements are allegedly defamatory in that they pertain to Weinstein’s profession as a lawyer and accuse him of violating the law. Narowetz has admitted that the statements were false. At this stage of the proceedings, Narowetz is not entitled to a Rule 12(b)(6) dismissal based on an absolute privilege for claims that relate to complaints or statements made to Boards of Overseers and the USPS. If Weinstein can convince the fact finder by a preponderance of the evidence that “either that the utterer ‘knew [her] his statement to be false or recklessly disregarded its truth or falsity, i.e., entertained a high degree of awareness of probable falsity or serious doubt as to the truth of the statement’ . . . or ‘acted entirely out of ill will’ toward [Weinstein],”then he may overcome the privilege. Baker v. Charles, 919 F. Supp. 41, 45 (D. Me. 1996) (quoting Staples v. Bangor Hydro-Elec. Co., 629 A.2d 601, 604 (Me. 1993).

Thus

Although Narowetz is entitled to absolute immunity for her communications with and testimony before the Dental Board, see LaPlante v. United Parcel Serv., Inc., 810 F. Supp. 19, 21 (D. Me. 1993), her statements to the Maine Board of Overseers of the Bar, the Massachusetts Board of Bar Overseers, and the USPS are entitled to only qualified immunity, see Truman, 2001 ME 182, ¶ 15, 788 A.2d 168.

(Mike Frisch)