Richard H. Tholen, M.D.; Mary Jane Tholen v. Assist America, Inc.

United States Court of Appeals
For the Eighth Circuit
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No. 19-1290
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Richard H. Tholen, M.D.; Mary Jane Tholen
lllllllllllllllllllllPlaintiffs - Appellants
v.
Assist America, Inc.
lllllllllllllllllllllDefendant - Appellee
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Appeal from United States District Court
for the District of Minnesota
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Submitted: March 10, 2020
Filed: July 31, 2020
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Before ERICKSON, GRASZ, and KOBES, Circuit Judges.
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GRASZ, Circuit Judge.
Dr. Richard Tholen and his wife Mary Jane appeal the district court’s grant of
a motion to dismiss filed by Assist America, Inc. (“Assist America”). The Tholens
sued Assist America for defamation after Assist America published a case study in
a travel and insurance magazine concerning an injury Dr. Tholen suffered. In
granting the motion to dismiss, the district court found the case study in question did
not refer to the Tholens either explicitly or by implication, and therefore the

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defamation claim was improperly pled under Minnesota law. On appeal, the Tholens
argue that under Minnesota law they pled sufficient facts to show Dr. Tholen’s
identity was ascertainable from the publication. Because the description in Assist
America’s case study is so specific and unique that it could be viewed by a jury as
fitting a universe of one — Dr. Tholen — we reverse, finding dismissal at the motion-
to-dismiss stage was improper.
I. Background
Assist America is a membership-based organization that provides global
emergency medical services. Dr. Tholen is a board-certified plastic surgeon based
in the Twin Cities. Dr. Tholen’s reputation as an experienced surgeon is well-known.
He was named a “Top Doctor” in Plastic Surgery by Minneapolis/St. Paul Magazine
each year from 2014 to 2017. He also received other accolades for his work. Dr.
Tholen and his wife, Mary Jane, were members of Assist America in 2015.
In April 2015, Dr. Tholen suffered a severe knee injury in Mexico when he
collided with a pulley while zip lining. Dr. Tholen received immediate medical
attention whereby the injured leg was placed in a hard cast without any evaluation for
a vascular injury. The Tholens allege the care was so poor it would have constituted
malpractice in the United States.
On that same day, the Tholens contacted an orthopedic surgeon in the United
States who advised them to have the cast removed and to return home as quickly as
possible for further evaluation and treatment. After this call, Dr. Tholen went to a
second Mexican hospital where the cast was removed. At the second hospital, Dr.
Tholen emailed and called Assist America and requested medical evacuation. The
Tholens allege Assist America refused to evacuate him, did not consult a medical
director in making that decision, and only told them they were at “a very good
hospital.”
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The next day, the Tholens contacted Assist America again. Again, Assist
America declined to evacuate them. However, the following day — now two days
post-accident — two Assist America medical directors reviewed the situation and
approved evacuation to the United States. But, by this time, the Tholens had already
purchased the first available tickets for a flight out of Mexico. The Tholens departed
Mexico that night and landed in Minnesota early the next day.
On the day of return, Dr. Tholen saw an orthopedic surgeon and a vascular
surgeon. Dr. Tholen underwent several tests and surgical procedures attempting to
save his leg to no avail. Less than a month after returning home, doctors amputated
Dr. Tholen’s right leg above the knee.
About a year later, in July 2016, Assist America published a case study on Dr.
Tholen’s medical misadventure in the Assistance and Repatriation Review 2016, a
special edition of the International Travel & Health Insurance Journal. The printed
case study stated as follows:
Situation
Assist America’s services attached to an association membership 59-
year-old male, injured in a zip lining accident in Cancun, Mexico.
Assistance Provided
Assist America’s Operations Center in Princeton, New Jersey, US
received a call from a member who stated that he had been injured while
zip lining. He explained that he had struck his leg on a pulley and
sustained a high-energy fracture and dislocation. The member, a doctor
himself, was transported to a local clinic for casting. Unfortunately, the
clinician at the local clinic put on a full circumferential cast that was too
restrictive, so the patient was moved to a local reputable hospital for re-
evaluation. There, the treating doctor opened the cast to reduce the
pressure, and based on his findings, recommended surgery.
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At this time, the member contacted Assist America and insisted on
traveling to his home in the Midwest to undergo surgery, expressing fear
about receiving further medical care abroad. Assist America’s medical
director explained to the member that it was highly inadvisable to travel
given his condition. The safest option, he explained, would be to have
the surgery performed locally at the reputable, well-equipped facility he
was currently in. The member, however, declined and against the
medical recommendations he was receiving from both Assist America
and the local treating team, opted to make his own arrangements to
travel home. Days later, Assist America was contacted by the member’s
wife who informed us that the patient’s leg was ultimately amputated
due to loss of circulation during travel.
The article surrounding the case study also informs readers that “Ignoring medical
advice in favour of personal instincts is generally not advisable nor acceptable, of
course, as the case study on this page illustrates.”
In July 2018, the Tholens sued Assist America for defamation, alleging several
of the statements contained within the case study were false and defamatory. These
statements include (1) that the treating doctor in Mexico opened the cast and
recommended surgery, when he instead recommended not removing the cast and
simply continuing observation for 24–48 hours; (2) that an Assist America medical
director explained it was highly inadvisable to travel, when instead the Tholens were
never advised by a medical director until after they had already purchased plane
tickets; (3) that the member decided to make his own travel arrangements against the
recommendations of Assist America and the local medical team, when Dr. Tholen
claims he received no medical recommendation from Assist America; and (4) that the
member’s wife told Assist America that the patient’s leg was amputated from loss of
circulation during travel, when Mrs. Tholen’s call reporting the amputation did not
discuss loss of circulation. Overall, the Tholens allege these statements painted them
in a negative manner by falsely implying Dr. Tholen lost his leg because of his own
decisions and actions.
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Assist America filed a motion to dismiss the Tholens’s claim arguing in part
that the case study did not identify or refer to the Tholens, and therefore their identity
was not readily ascertainable. The district court agreed, granting the motion to
dismiss the defamation claim on this ground.
II. Analysis
We review the grant of a motion to dismiss de novo. McDonough v. Anoka
Cty., 799 F.3d 931, 945 (8th Cir. 2015). In undertaking this review, we “accept as
true all factual allegations in the complaint and draw all reasonable inferences in
favor of the nonmoving party.” Id. But we need not accept “threadbare recitals of the
elements” as true. Id. (alteration omitted) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)). We must also remember that “[a] claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. (quoting Iqbal, 556 U.S.
at 678).
Although the underlying claim is one of Minnesota defamation law, the
resolution of the case hinges in large part on its procedural posture: an appeal of a
grant of a motion to dismiss. The Tholens need only provide sufficient facts to have
“state[d] a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678
(emphasis added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Under Minnesota law, to state a claim of defamation, a party must sufficiently
plead four elements. First, the statement or communication in question must be
defamatory. Second, the statement must be false. Third, the statement must refer to
the plaintiff. And fourth, the statement must be published. See Weinberger v.
Maplewood Review, 668 N.W.2d 667, 673 (Minn. 2003); see also MSK EyEs Ltd. v.
Wells Fargo Bank, Nat’l Ass’n, 546 F.3d 533, 542 (8th Cir. 2008) (applying
Minnesota law). In this case, the district court resolved the motion to dismiss on the
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third element, finding the case study did not refer to the Tholens either explicitly or
by implication.
However, “whether an allegedly defamatory statement concerns the plaintiff
is generally a question of fact for the jury.” Maethner v. Someplace Safe, Inc., 907
N.W.2d 665, 670 (Minn. Ct. App. 2018), rev’d in part on other grounds, 929 N.W.2d
868 (Minn. 2019); accord Ruzicka v. Conde Nast Publ’ns, Inc., 999 F.2d 1319, 1322
(8th Cir. 1993).
The question before us is whether the allegations pled in the Tholens’s
complaint were sufficient to establish a plausible claim that those reading the case
study would know it was referring to the Tholens. Without considering the ultimate
merits of the Tholens’s claim, we find the Tholens sufficiently pled just enough to
proceed beyond the motion to dismiss stage. “A plaintiff does not have to be
specifically named in the defamatory statement so long as a reader by fair implication
would understand the statement to be directed at the plaintiff.” Glenn v. Daddy
Rocks, Inc., 171 F. Supp. 2d 943, 948 (D. Minn. 2001); accord Dressel v. Shippman,
58 N.W. 684 (Minn. 1894) (explaining direct reference to the plaintiff is not
“necessary where the libelous article contains reference to matters of description or
to facts and circumstances from which others reading the article may know the
plaintiff was intended”). Here, there is a plausible inference, sufficient to survive a
motion to dismiss, that persons1 who read the case study about a middle-aged doctor
from the Midwest who injured his leg while zip lining in Mexico resulting in
amputation would understand the article to be referencing Dr. Tholen. Given the rare
1Such persons include the 20,000 person subscription base of the magazine as
well as any person with access to the internet link to the online version of the
publication, as included in the Tholen’s complaint. The dissent overlooks the
possibility that among those subscribers are employees at Assist America who were
familiar with the Tholens’ story, or individuals in Minnesota or the medical
community generally who were aware of Dr. Tholen’s amputation.
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factual scenario experienced and the replication of those details in the case study, “the
relationship of the [case study] to the [Tholens] as a matter of identity is a question
for the jury to be determined [from the case study] as a whole.” Ruzicka, 999 F.2d
at 1322.
Indeed, the Tholens’s complaint provides the content of the allegedly
defamatory statement, information on where the case study could be found, and
specifically alleges that “given the circumstances the Case Study describes, including
a male member [of Assist America], ‘a doctor himself’ who was ‘injured in a zip
lining accident’ in Mexico whose leg was ultimately amputated,” the universe of
identifiable subjects who fit all of these unique facts is practically limited to one.
This was sufficient to satisfy the pleading requirements. See Sagehorn v. Indep. Sch.
Dist. No. 728, 122 F. Supp. 3d 842, 867–69 (D. Minn. 2015) (denying a motion for
judgment on the pleadings of a Minnesota defamation claim where the plaintiff
alleged enough facts to establish the defendant’s statements would be understood to
be about him). We therefore reverse the district court’s dismissal based on the third
element of the Tholens’s defamation claim.
Assist America also invites us to affirm the district court’s judgment on other
grounds. First, Assist America argues the Tholens failed to allege that Dr. Tholen’s
reputation was harmed, which it claims is required under Minnesota law. And
second, Assist America argues that the material statements in the case study were not
false, so the defamation claim fails as a matter of law. We disagree with Assist
America’s assertions on both grounds, finding the Tholens have pled sufficient facts
to proceed beyond the motion to dismiss stage.
We first address Assist America’s argument that the Tholens failed to plead
actual harm to reputation. Assist America relies on the Minnesota Supreme Court’s
decision in Richie v. Paramount Pictures Corp. for the proposition that where
statements were made by the media, involved a matter of public concern, and there
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was no allegation of actual malice, recovery cannot be based on presumed damages;
actual damages must be demonstrated instead. 544 N.W.2d 21, 26 (Minn. 1996). We
reject this argument because the Tholens’s allegations set forth a plausible claim of
“actual malice,” and therefore the complaint need not allege actual damages.2
The Minnesota Supreme Court has described actual malice as “a term of art . . .
mean[ing] that the defendant acted with knowledge that the publication was false or
with reckless disregard of whether it was false or not.” Chafoulias v. Peterson, 668
N.W.2d 642, 654 (Minn. 2003) (internal quotation and alteration omitted). The
defendant need not have “acted with ill will or spite,” and “reckless disregard” simply
“requires that a defendant make a statement while subjectively believing that the
statement is probably false.” Id. at 654–55. The complaint here includes sufficient
facts to indicate Assist America knew that at least some of the claims made in the
case study were not true. For example, the case study states the second treating
physician in Mexico recommended surgery. But the Tholens’s complaint alleges this
is not true, asserting that this physician recommended “observation.” Also, the case
study indicates that an Assist America medical director explained to the patient it was
highly inadvisable to travel given his condition. But the complaint asserts this was
expressly untrue because Dr. Tholen never talked to a medical director and therefore
was never advised by a medical director not to travel. Further, the case study states
the patient’s wife called and told an Assist America representative that her husband’s
amputation was caused by a “loss of circulation during travel.” But the complaint
alleges this statement was false as Mrs. Tholen never made such a statement, or
anything similar. Because we are at the motion to dismiss stage, we must “accept as
true all factual allegations in the complaint.” McDonough, 799 F.3d at 945. The
allegations of these inaccuracies present a reasonable inference that Assist America
2Because of this conclusion, we need not decide whether Assist America
qualifies as a member of the media or whether the case study was a matter of public
concern.
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acted with knowledge or reckless disregard for the truth when publishing this case
study. Therefore, the Tholens have pled sufficient facts of “actual malice” to
proceed.3
As to the argument regarding material falsity, Assist America’s logic
dismantles its own argument. Assist America readily admits that parts of the case
study were not accurate — characterizing such falsities as “minor inaccuracies or
alterations” and “inconsequential.” One such example is how the case study indicates
Mrs. Tholen’s call informed Assist America that the travel home to the United States
was the cause of the amputation, whereas the complaint draws the connection
between the need to amputate with the delay in reaching adequate medical care.
Assist America claims this was a minor inaccuracy that leaves the gist of the article
intact, i.e., that moving a patient is inadvisable. However, such an alteration is not
necessarily minor from Dr. Tholen’s perspective because he claims he was harmed
by the assertion that he (a medical doctor) did not follow a doctor’s orders. As such,
there is a factual dispute over whether the challenged statements in the case study are
materially false. This dispute prevents dismissal of a defamation claim under
12(b)(6).
3On appeal, Assist America raises the argument that its publication of the
allegedly defamatory material is privileged because it produced the case study for
educational purposes. Because we have found the Tholens have pled sufficient facts
of “actual malice,” the qualified privilege claimed is unavailable. See Harlow v. State
Dep’t of Human Servs., 883 N.W.2d 561, 569–70 (Minn. 2016) (finding in the
defamation context that “‘qualified or conditional privilege’ applies only if the
statements ‘are publicized in good fath and without malice.’”) (emphasis added)
(quoting Zutz v. Nelson, 788 N.W.2d 58, 61–62 (Minn. 2010)).
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III. Conclusion
Because the Tholens’s complaint establishes a plausible inference that Dr.
Tholen was identifiable by implication in the published case study and Assist
America has not convinced us alternative grounds exist to affirm, we reverse the
district court’s grant of the motion to dismiss and remand for further proceedings.
ERICKSON, Circuit Judge, dissenting.
The majority holds that the complaint contains “just enough” to survive a
motion to dismiss. I respectfully disagree. As the majority notes, “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). However, “[w]here a complaint
pleads facts that are merely consistent with a defendant’s liability, it stops short of the
line between possibility and plausibility.” Id. (quotations omitted). This case hinges
on whether the complaint contains a plausible claim that readers of the case study
would understand it was referring to the Tholens. I say no.
Under Minnesota law, a defamatory statement must be “of and concerning” the
plaintiff, either explicitly or by “fair implication.” Glenn v. Daddy Rocks, Inc., 171
F.Supp.2d 943, 948 (D. Minn. 2001). Here, the case study does not name the
Tholens, and certain facts were changed to further disguise their identity.
Nevertheless, the Tholens allege that the unusual combination of facts, alone, renders
them sufficiently identifiable. Complaint at ¶ 55. The Tholens argue that readers
who are “already aware” of their situation would understand the article as referring
to them. Id. Assuming that to be the case, a review of the complaint demonstrates
that the Tholens do not allege any basis upon which a finder of fact could conclude
that any one reader of the relevant journal knew of their situation – instead they allege
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only that the article was published in a journal for insurance professionals with
readership of approximately 20,000. Id. at ¶ 57.
To support a finding of fair implication, the majority cites to Sagehorn v.
Indep. Sch. Dist. No. 728, 122 F.Supp.3d 842, (D. Minn. 2015). In Sagehorn, the
defamation claim was allowed to proceed where the alleged defamatory statement did
not specifically name the plaintiff but was of such a nature that it would have been
understood by the readers to be about the plaintiff because of news stories that were
already in the public domain. Id. at 867–69. See also East Coast Test Prep LLC v.
Allnurses.com, Inc., 307 F.Supp.3d 952 (D. Minn. 2018) (finding fair implication
where an internet post did not specifically name the plaintiff, but the internet thread
title and post immediately after named the plaintiff so the identity could be
ascertained). The Tholens’ situation is different. There is no allegation of public
news stories, internet discussions, or social media posts which could indicate that the
alleged readers were “already aware” of the Tholens’ story.
Because the complaint fails to allege a plausible basis that the Tholens’ identity
was ascertainable by readers of the case study, I would affirm the district court’s
dismissal of the complaint for failure to state a claim.
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