SHOGO HANAMURA & Another v. ALICE WHITTIER NEWTON & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-701

SHOGO HANAMURA1 & another2

vs.

ALICE WHITTIER NEWTON & others.3

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendants appeal from an order denying their special

motion to dismiss pursuant to the anti-SLAPP statute, G. L.

c. 231, § 59H. A principal purpose of the statute is "to obtain

the expeditious dismissal of meritless claims that are based on

petitioning alone." Bristol Asphalt, Co. v. Rochester

Bituminous Prod., Inc., 493 Mass. 539, 541 (2024) (Bristol

1 Individually and on behalf of his minor children.

2Sara Hanamura, individually and on behalf of her minor
children.

3Massachusetts General Brigham, Inc., doing business as
Massachusetts General Hospital and formerly known as Partners
Healthcare; Massachusetts General Hospital; Robert Sheridan; The
Shriners Hospital for Children; Jane and John Does 1-100; Steven
Chen; and Tyler Menge.
Asphalt). The Superior Court judge denied the defendants'

special motion to dismiss, but allowed their motion under Mass.

R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), and dismissed all

but eight claims. The remaining claims are based on allegedly

defamatory statements made against the plaintiff mother and

stepfather by a doctor who investigated and reported on the

alleged abuse and neglect of their child. Because those claims

have no substantial basis in conduct other than or in addition

to the doctor's petitioning activity, and because the plaintiffs

cannot show that the doctor's petitioning activity was devoid of

any reasonable factual support or any arguable legal basis, we

reverse.

Background.4 We summarize the facts as alleged in the

pleadings, reserving certain facts for our discussion below.

The plaintiffs are the mother, stepfather, and four siblings of

A.W. A.W. is a developmentally disabled child who is alleged to

have Kabuki syndrome, a rare genetic disorder that causes speech

delays, skeletal anomalies, short stature, and other

No "supporting or opposing affidavits stating the facts
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upon which the liability or defense is based" were filed in the
Superior Court in connection with the defendants' special motion
to dismiss. See G. L. c. 231, § 59H. Accordingly, we assess
the special motion to dismiss based on the facts alleged in the
plaintiffs' complaint, notwithstanding that many of those
alleged facts are disputed by the defendants. See Bristol
Asphalt, 493 Mass. at 557-560.

2
abnormalities. In 2018, just before A.W.'s fourth birthday, the

mother took her to an emergency room in New Hampshire for

treatment of large blisters on her hands. A.W. was transferred

to Tufts Medical Center, where she was diagnosed with "bilateral

burns on both hands," and a social worker filed a report of

suspected abuse or neglect under G. L. c. 119, § 51A, that was,

according to the plaintiffs, "full of inaccuracies."

A.W. was transferred to Shriners Hospital for Children

(Shriners) in Boston. Defendants Dr. Robert Sheridan and Dr.

Alice Whittier Newton treated her there. Within a few days of

A.W.'s admission, Dr. Sheridan told the mother that he believed

A.W. had third-degree burns and would likely require skin graft

surgery. According to the plaintiffs, Dr. Sheridan and other

hospital personnel failed to consider the possibility that

A.W.'s skin lesions were not burns because of "the outright lies

perpetuated by Dr. Newton" that her prior skin lesions were

"extremely painful," "never treated by a medical professional,"

and "took weeks to heal."

A social worker from Shriners notified the mother that the

hospital would be sending "a letter to child protective

services." The next day, Dr. Newton interviewed the mother for

ten to fifteen minutes but did not "introduce herself as a child

abuse specialist." The plaintiffs allege that, following the

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interview, Dr. Newton inaccurately reported the mother's

statements regarding A.W.'s medical history, including that

A.W.'s skin problems began in New Hampshire, her prior skin

lesions involved blistering skin, she was burned in a bathtub,

and that the mother refused to bathe A.W. or left other siblings

to take care of her. As a result, A.W.'s medical records

allegedly contained inaccuracies that subsequently impacted her

medical care. At some point, Shriners personnel cancelled

Kabuki syndrome as a diagnosis on A.W.'s medical record.

Police officers interviewed the mother, the stepfather, and

A.W.'s babysitter in New Hampshire. In August 2019, the mother

and stepfather were indicted in New Hampshire Superior Court on

criminal charges of abuse and neglect. They allege that the

criminal charges were based in large part on misstatements set

forth in Dr. Newton's records, reports, and prior testimony.

Dr. Newton testified at the criminal trial in October 2019.

According to the plaintiffs, although the criminal trial

resolved in the mother's favor regarding three of A.W.'s

siblings, "the conviction was sustained relative to A.W.,

largely due to Dr. Newton's testimony."

Upon being discharged from Shriners in October 2018, A.W.

was placed in foster care. Since then, the mother "has been

embroiled in extensive civil litigation in both New Hampshire

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and New York related to the allegations of abuse and neglect" of

A.W. and her siblings, and Dr. Newton has testified twice in

those proceedings. In 2021, a court in New Hampshire terminated

the mother's parental rights over A.W. based on findings from

prior judicial proceedings that were supported by Dr. Newton's

testimony.

The plaintiffs filed suit in September 2021. Their first

amended complaint included claims for malpractice; gross

negligence; racial, gender, and disability discrimination;

negligent and intentional infliction of emotional distress; and

defamation. In a joint special motion to dismiss, the

defendants argued that the complaint should be dismissed under

G. L. c. 231, § 59H, because it was based on Dr. Newton's

petitioning activity and intended "to punish the defendants for

the investigation of allegations of child abuse and subsequent

cooperation with child custody and ongoing criminal actions"

against the parents. Following a hearing, the judge denied the

special motion to dismiss in its entirety because not all of the

plaintiffs' allegations were "directed at conduct by the

defendants that constitutes petitioning activity"; rather, some

of the plaintiffs' claims were based "on defendants' allegedly

poor medical treatment and misdiagnosis of A.W. and/or their

treatment of [the parents] during A.W.'s hospital admission."

5
The judge also denied the defendants' motion to dismiss

under the civil and criminal immunity provision in G. L. c. 119,

§ 51A (g) because "whether defendants acted in good faith

requires factual development and is not appropriate for

resolution on a motion to dismiss." Nevertheless, the judge

dismissed on other grounds all but eight of the claims in the

complaint for failure to state a claim under Mass. R. Civ. P.

12 (b) (6).5 The remaining claims are two claims for defamation

by the parents against Dr. Newton (counts 30 and 36), five loss

of consortium claims by the minor plaintiffs limited by the

judge to "the alleged defamation by Dr. Newton" (counts 8, 12,

15, 19, and 22), and a vicarious liability claim against

Shriners, Massachusetts General Hospital, and Massachusetts

General Brigham, Inc., doing business as Massachusetts General

Hospital and formerly known as Partners Healthcare, that is

limited "to the scope of the remaining substantive counts for

defamation and loss of consortium" (count 38).6

5 As the plaintiffs did not file a cross appeal, the
correctness of the dismissal of their claims under Mass. R. Civ.
P. 12 (b) (6) is not before us.

6 The judge also granted the plaintiffs leave to file a
newly amended complaint, but only with respect to the surviving
eight claims and only against the defendants we have just
listed. After the plaintiffs filed what was styled as a third
amended complaint in accordance with the judge's direction, a
separate and final judgment entered in favor of defendants Drs.
Sheridan, Chen, Menge.

6
The remaining defendants now appeal from the denial of

their special motion to dismiss under the anti-SLAPP statute and

the denial of their claim to immunity under G. L. c. 119,

§ 51A (g).

Discussion. 1. Appealability. The defendants may pursue

interlocutory appellate review from the denial of their special

motion to dismiss. See Bristol Asphalt, 493 Mass. at 547,

citing Fabre v. Walton, 436 Mass. 517, 521-522 (2002). Because

we conclude that the defendants' special motion should have been

allowed as to the remaining claims in the complaint, we need not

decide whether the denial of their motion to dismiss on the

ground of immunity under G. L. c. 119, § 51A (g), is also an

appealable interlocutory order.

2. Standard of review. We review the Superior Court

judge's ruling on the defendants' anti-SLAPP motion de novo.

See Bristol Asphalt, 493 Mass. at 560-562.

3. The anti-SLAPP framework. In Bristol Asphalt, the

Supreme Judicial Court revised the framework used to assess

special motions to dismiss under G. L. c. 231, § 59H. See

Bristol Asphalt, 493 Mass. at 554-560. As the court explained

in a companion case, this revised framework applies to all cases

in which an anti-SLAPP motion or appeal remains pending as of

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the issuance of the rescript in Bristol Asphalt. See Columbia

Plaza Assocs. v. Northeastern Univ., 493 Mass. 570, 578 (2024).

Under this framework, a party may file a special motion to

dismiss if "the civil claims, counterclaims, or cross claims

against said party are based on said party's exercise of its

right of petition under the constitution of the United States or

of the commonwealth." G. L. c. 231, § 59H. At the first stage

of the analysis, the proponent of the special motion to dismiss

"must show that the challenged count has no substantial basis in

conduct other than or in addition to the special motion

proponent's alleged petitioning activity." Bristol Asphalt, 493

Mass. at 555-556. If the proponent cannot make this threshold

showing, the special motion to dismiss must be denied. Id. at

556. If the proponent does show that the claim is based solely

on the special motion proponent's petitioning activity, "the

burden shifts to the special motion opponent." Columbia Plaza

Assocs., 493 Mass. at 577, citing G. L. c. 231, § 59H, first

par. At that second stage, "the special motion opponent must

show by a preponderance of the evidence that the special motion

proponent's petitioning activity (1) was devoid of any

reasonable factual support or any arguable legal basis; and

(2) caused the special motion opponent actual injury." Id. "If

the special motion opponent makes both showings, the special

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motion is denied. Otherwise, the special motion is allowed."

Id. See Bristol Asphalt.

4. Application of the anti-SLAPP framework to the

remaining defamation-based claims. Applying the revised

framework for assessing special motions to dismiss retroactively

(see Columbia Plaza Assocs., 493 Mass. at 578) we conclude that

the judge erred by not conducting the two-stage analysis on a

claim-by-claim basis. Although the judge correctly found that

much of the plaintiffs' complaint is based on petitioning

activity, he denied the special motion to dismiss because not

all of the plaintiffs' allegations in the complaint were

"directed at conduct by the defendants that constitutes

petitioning activity." The sufficiency of the special motion

proponent's threshold showing, however, is evaluated "count by

count." Bristol Asphalt, 493 Mass. at 551, citing Duracraft

Corp. v. Holmes Prod. Corp., 427 Mass. 156, 167-168 (1998). The

judge must assess each "particular claim" challenged by a

special motion to dismiss, along with the factual allegations

that provide the basis for that claim. Bristol Asphalt, supra

at 561. The Supreme Judicial Court applied this approach in

Columbia Plaza Associates, in which the court held that the

special motion to dismiss was properly allowed as to a

commercial fraud claim based entirely on the proponent's

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petitioning activities, but not as to claims for unfair or

deceptive acts in violation of G. L. c. 93A, § 11, that were not

"based solely on its petitioning activity." See Columbia Plaza

Assocs., 493 Mass. at 578-80.

To be sure, after the Supreme Judicial Court's ruling in

Bristol Asphalt, judges may no longer "parse the factual

allegations underlying each claim to determine whether a portion

of the opponent's cause of action could be construed as being

based on the proponent's petitioning alone." Bristol Asphalt,

493 Mass. at 554. If the judge determines that part of a claim

is based on a proponent's "substantial conduct other than or in

addition to the petitioning activities," the special motion to

dismiss must be denied as to that claim. Id. at 554-556. Here,

all eight remaining claims, as limited by the judge, (including

the minor plaintiffs' loss of consortium claims and the

vicarious liability claim against the hospitals) are based

solely on the factual allegations that support the parents'

defamation claims against Dr. Newton.

When pleading a claim for defamation, a plaintiff must

plausibly allege four elements: "(1) the defendant published a

defamatory statement of and concerning the plaintiff; (2) the

statement was a false statement of fact (as opposed to opinion);

(3) the defendant was at fault for making the statement, and any

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privilege that may have attached to the statement was abused;

and (4) the plaintiff suffered damages as a result, or the

statement was of the type that is actionable without proof of

economic loss." Lawless v. Estrella, 99 Mass. App. Ct. 16, 18-

19 (2020). Cf. Barrows v. Wareham Fire Dist., 82 Mass. App. Ct.

623, 628 (2012) ("Defamation is essentially spoken or written

words or expressions that injure reputation.") Thus, for an

allegation to serve as the basis for any of the eight remaining

claims, it must involve a statement allegedly made by Dr. Newton

concerning the parents. Allegations about A.W.'s medical

treatment, the hospital's treatment of the parents, and other

nonexpressive conduct are irrelevant to the special motion to

dismiss framework as it applies to those claims.

As the plaintiffs acknowledged at oral argument, all of the

statements allegedly made by Dr. Newton fall into three

categories: (i) statements written in medical reports or notes,

(ii) statements made to other hospital or medical personnel, and

(iii) statements made to police or while testifying as a witness

in a civil or criminal proceeding. In particular, Dr. Newton is

alleged to have recorded false information about A.W.'s medical

history in her charts, made statements depicting the parents as

child abusers and neglectors, and testified against them in

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court proceedings that resulted in A.W.'s removal from the

parents' custody and their indictment on criminal charges.

Those alleged statements constitute petitioning activity

under the anti-SLAPP statute. The definition of petitioning

activity includes "any written or oral statement made before or

submitted to a legislative, executive, or judicial body, or any

other governmental proceeding [and] any written or oral

statement made in connection with an issue under consideration

or review by a legislative, executive, or judicial body, or any

other governmental proceeding." G. L. c. 231, § 59H. To

satisfy the "'in connection with' definition of petitioning. . .

a communication must be 'made to influence, inform, or at the

very least, reach governmental bodies -- either directly or

indirectly.'" (citation omitted). Blanchard v. Steward Carney,

Hops., Inc., 477 Mass. 141, 149 (2017) (abrogated on other

grounds). In Massachusetts, doctors and other hospital workers

are required to report suspected child abuse and neglect to the

Department of Children and Families, and "a mandated reporter

may in addition to filing a report under this section contact

local law enforcement authorities or the child advocate about

the suspected abuse or neglect." G. L. c. 119, § 51A (a).

Statements made in reports or notes or to other medical

personnel by Dr. Newton, based on her examination of A.W. or

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interview of her parents, are petitioning activity because they

involve "a plausible nexus between the statement" and a

governmental proceeding concerning possible child abuse.

Blanchard, 477 Mass. at 149. Similarly, statements made by Dr.

Newton in related civil and criminal proceedings are petitioning

activity because the "archetypical demonstration of this nexus

involves a party's statement regarding an ongoing government

proceeding made directly to a governmental body." Id. The

defendants therefore met their threshold burden, as the special

motion proponents, with respect to the remaining defamation-

based claims.

Under the second stage of the analysis, the burden shifts

to the plaintiffs to show, by a preponderance of the evidence,

that Dr. Newton's petitioning activity "(1) was devoid of any

reasonable factual support or any arguable legal basis; and (2)

caused the special motion opponent actual injury." Columbia

Plaza Assocs., 493 Mass. at 577. Because the plaintiffs did not

submit an opposition in the Superior Court to the defendant's

special motion to dismiss, there are no affidavits in the record

"stating the facts upon which the liability . . . is based."

G. L. c. 231, § 59H. We conclude that the plaintiffs cannot

meet their burden in any event because their own complaint

establishes that Dr. Newton's statements have been credited by

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several courts in proceedings involving the parents' allegedly

abusive or neglectful treatment of A.W. For example, the

plaintiffs allege that the mother's parental rights over A.W.

were terminated in May 2021 "based on the findings of prior

Court proceedings in which social services' position was

supported with testimony from Dr. Newton." They further allege

that a criminal conviction of the mother in New Hampshire

Superior Court was sustained relative to the abuse or neglect of

A.W. "largely due to Dr. Newton's testimony." We acknowledge

that the parents may have denied the charges and allegations

against them in some of these proceedings, and some of the

judgments may still be subject to appeal. Nevertheless, the

judgments conclusively establish that Dr. Newton's petitioning

activity is not "devoid of any reasonable factual support or any

arguable legal basis." See Columbia Plaza Assocs., 493 Mass. at

581 (allowing special motion to dismiss where, at second stage,

proponent's statement "was squarely supported by the judge's

ruling" in related civil litigation); see also Fabre, 436 Mass.

at 524-525 (judgment entered in G. L. c. 209A proceedings was

"conclusive evidence that the petitioning activity was not

devoid of any reasonable factual support or arguable basis in

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law.") Accordingly, the remaining defamation-based claims in

this case warrant dismissal under G. L. c. 231, § 59H.7

Conclusion. So much of the September 1, 2022 order denying

the special motion to dismiss in part and allowing the

plaintiffs' motion to file a third amended complaint is

reversed. The third amended complaint is struck. A judgment

shall enter dismissing the first amended complaint.

So ordered.

By the Court (Neyman,
Brennan & Toone, JJ.8),

Assistant Clerk

Entered: May 28, 2024.

7 Because we conclude that the special motion to dismiss
should have been allowed as to the remaining eight claims based
solely on the allegations in the complaint, we deny as moot the
motion filed by the defendants in this court to supplement the
record to reflect developments in the parents' criminal cases.

8 The panelists are listed in order of seniority.

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