Rice v. St. Louis University

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

MANDY RICE, )

)

Plaintiff, )

)

v. ) Case No. 4:19-cv-03166 SEP

)

ST. LOUIS UNIVERSITY, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This matter is before the Court on Defendants’ Partial Motion for Summary Judgment.

Doc. [17]. The Motion is fully briefed and ready for disposition. For the reasons stated below,

Defendants’ Motion is granted.

I. BACKGROUND

The Court has already discussed the facts of this case at some length in its Memorandum

and Order granting Defendants’ Motion to Dismiss. Doc. [63]. In the interest of judicial

economy, the Court will recite now only those facts relevant to the pending motion. Because this

matter is before the Court on Defendant’s Motion for Summary Judgment, these facts are

construed in Plaintiff’s favor. Duban v. Waverly Sales Co., 760 F.3d 832, 835 (8th Cir. 2014)

(“The court should review all of the evidence in the record and draw all reasonable inferences in

favor of the nonmoving party, without making credibility determinations or weighing the

evidence.”) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).

In 2013, Plaintiff Mandy Rice (“Dr. Rice”) was offered a residency position in Defendant

St. Louis University’s (“SLU”) Surgery Residency Program. Dr. Rice accepted the position by

signing a “residency agreement,” which included an addendum (described in the appointment

letters as an “information sheet,” see, e.g., Doc. [19-2] at 1, 2) entitled “Responsibilities and

Benefits Overview.” Dr. Rice and SLU executed similar residency agreements after each

academic term, although it is not clear whether the same addendum was attached to subsequent

agreements.

By all accounts, the first few years of Dr. Rice’s residency proceeded uneventfully. But

by the end of her third year and continuing into her fourth, problems arose: Dr. Rice received

poor scores on the American Board of Surgery Inservice Training Examination and was placed

on academic probation; she reported being mistreated by attending physicians and faculty

members; and the relationship between Dr. Rice and SLU deteriorated.

September 6, 2016, Incident

In September of 2016, Dr. Rice was enrolled in Dr. Michael Williams’s vascular clinic.

On September 6, Dr. Rice asked Dr. Williams if she could be excused from the clinic that

afternoon so she could prepare for her upcoming Morbidity and Mortality (“M&M”)

presentation. Dr. Williams agreed. Later that day, Dr. Rice went to Dobbs Tire and Auto

Centers to have her car tire repaired. Dr. Rice then met her husband at Fuzzy’s Taco Shop for an

early dinner. In the middle of their dinner, Dr. Williams called to check in with Dr. Rice before

leaving the hospital for the day. During the call Dr. Williams heard background noise and asked

Dr. Rice where she was. Precisely what Dr. Rice said next is contested: According to

Defendants, Dr. Rice told Dr. Williams “she and her husband were going shopping and having

an early dinner, and . . . she used the word ‘mall’ during their conversation.” Doc. [19] ¶ 27. Dr.

Rice denies telling Dr. Williams she was going shopping and denies using the word “mall,” Doc.

[38] at 7; she claims that she and Dr. Williams spoke about “mundane patient care matters,” Doc.

[38] at 33. For present purposes, the Court assumes that Dr. Rice’s characterization of the

conversation is accurate. Duban, 760 F.3d at 835. Regardless, it is undisputed that Dr. Williams

relayed his version of the events to Dr. Catherine Wittgen, the Residency Program Director,

telling her that Dr. Rice had skipped his lecture to go shopping at the mall.

February 24, 2017, Letter

In January of 2017, Dr. Rice was assigned to the Trauma Service, which was overseen by

Dr. Carl Freeman. On March 2, 2017, Dr. Rice was called into a meeting with Dr. Freeman and

four other attending physicians from the Trauma Service. Dr. Rice alleges that at the meeting,

Dr. Freeman handed Dr. Rice what he described as a “consensus” letter from the Trauma

Service. The letter was addressed to Dr. Wittgen, and it purported to memorialize the Trauma

Service’s concerns that Dr. Rice’s personality traits were interfering with her progress as a

surgeon. The letter suggested that remediation was appropriate to help facilitate Dr. Rice’s

progress.

April 3, 2017, CCC Meeting

On April 3, 2017, just over a month after Dr. Rice received the Trauma Service’s letter,

the Clinical Competency Committee (“CCC”) met to discuss Dr. Rice’s performance during her

fourth year of residency. At the meeting, Dr. Williams brought up the September 6th incident,

stating that Dr. Rice had skipped his lecture to go shopping with her husband, which Dr.

Williams suggested reflected poorly on Dr. Rice’s professionalism. The CCC also discussed the

Trauma Service’s February 24th letter, and it considered Dr. Freeman’s remediation suggestion.

Ultimately, the CCC determined that Dr. Rice was unfit to advance to a fifth year of residency

and drafted a letter informing Dr. Rice that she would have to repeat her fourth year.

Dr. Rice then met with Dr. Wittgen and other faculty members on April 7, 2017. The

faculty members discussed several examples of Dr. Rice’s deficiencies in order to explain the

CCC’s decision. In doing so, Dr. Wittgen recounted Dr. Williams’s story that Dr. Rice had

skipped Dr. Williams’s clinic to go shopping at the mall with her husband.

At the end of Dr. Rice’s repeat fourth year, her contract with SLU was terminated. Prior

to her termination, Dr. Rice sued Defendants in the Circuit Court for the City of St. Louis,

alleging breach of contract, defamation, and promissory estoppel. Dr. Rice’s breach of contract

claims were premised on SLU’s alleged failure to comply with its own internal policies and its

accreditation requirements. After protracted litigation, Dr. Rice voluntarily dismissed her claims

without prejudice.

Dr. Rice then filed a new lawsuit in the Circuit Court, alleging breach of contract,

defamation, and discrimination, and Defendants removed the case to this Court under 28 U.S.C.

§§ 1331 and 1441. Defendants now move for summary judgment on Dr. Rice’s breach of

contract and defamation claims.

II. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56, a court must grant a motion for summary

judgment if it finds “that there is no genuine issue as to any material fact and that the moving

party is entitled to judgement as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). “A genuine issue of material fact exists if a reasonable jury could return a verdict for”

the non-movant. Cockram v. Genesco, Inc., 680 F.3d 1046, 1051 (8th Cir. 2012) (quoting Clark

v. Matthews Int’l Corp., 639 F.3d 391, 397 (8th Cir. 2011)).

The moving party bears the initial burden of “informing the district court of the basis for

its motion, and identifying those portions of the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, which it believes

demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323 (internal

quotations marks omitted). The burden then shifts to the non-movant to “present specific

evidence, beyond ‘mere denials or allegations [that] . . . raise a genuine issue for trial.’” Farver

v. McCarthy, 931 F.3d 808, 811 (8th Cir. 2019) (quoting Wingate v. Gage Cty. Sch. Dist., 528

F.3d 1074, 1079 (8th Cir. 2008)).

III. DISCUSSION

A. Breach of Contract

Defendants move for summary judgment on Counts I and II of the Petition (Doc. [5]).

Both counts allege that SLU mishandled certain aspects of Dr. Rice’s residency in violation of

the residency agreement. Count I alleges SLU breached the terms of the residency agreement by

failing to comply with its own Graduate Medical Education Policies (“GME Policies”); Count II

alleges SLU breached the agreement by failing to comply with the Accreditation Council for

Graduate Medical Education Requirements (“ACGME Requirements”). Dr. Rice argues that the

GME Policies and ACGME Requirements were made applicable to her residency agreement

through an “information sheet” that was attached as an addendum to that agreement.

Defendants believe they are entitled to summary judgment on these counts for two

independent reasons: first, because Dr. Rice’s claims are barred by Missouri’s policy against

educational malpractice suits, Doc. [18] at 12; and second, because Dr. Rice failed to make a

prima facie showing of breach of contract, id. at 15. Because the Court agrees that Dr. Rice

failed to make a prima facie case for her breach of contract claims, it will not address whether

Dr. Rice’s claims are barred by Missouri policy. See Ziehr v. United States, No. 10-00299-CV-

S-DGK, 2011 WL 13291655, at *4 (W.D. Mo. June 17, 2011) (“Federal courts should avoid

state-law questions that are ‘peculiarly within the province of the local courts,’ when deciding

them would be unnecessary.”) (quoting Harris County Com’rs Court v. Moore, 420 U.S. 77, 83-

84 (1975)).

“To make a claim for breach of contract, the plaintiff must show the existence of a

contract or agreement and the terms of that agreement, that the plaintiff performed or tendered

performance, that the defendant did not perform, and that the plaintiff was thereby damaged.”

Western Sur. Co. v. Intrust Bank, N.A., 20 S.W.3d 566, 571 (Mo. Ct. App. 2000) (internal

quotation marks and citation omitted). According to Defendants, Dr. Rice has not established

that either GME Policies or ACGME Requirements were part of her residency agreement. Dr.

Rice contends that those guidelines were either incorporated by reference into her residency

agreement or, alternatively, implied terms in the agreement. Doc. [5] ¶¶ 5, 19.

Defendants argue that Dr. Rice forfeited her argument that GME Policies and ACGME

Requirements were impliedly part of her residency agreement by failing to include it in her

Petition. Doc. [47] at 7. Certainly, Dr. Rice cannot “amend her complaint through summary

judgment briefing.” Bylo v. K-Mart Corp., No. 4:13CV2083 SNLJ, 2015 WL 1347153, at *1

(E.D. Mo. Mar. 23, 2015). But Dr. Rice did include this alternative argument in her Petition,

albeit in abbreviated form. See Doc. [5] ¶ 19 (“In any event, both the SLU GME Policies and

Procedures and the ACGME requirements are a part of the contract . . . .”). Though vague, Dr.

Rice’s allegation “satisfie[s] the essential requirement of notice to justify consideration of the

issue[].” Morgan Distrib. Co., Inc. v. Unidynamic Corp., 868 F.2d 992, 995 (8th Cir. 1989).

Therefore, the Court will address both arguments.

1. Incorporation by Reference

Contract interpretation is a question of law. Theroff v. Dollar Tree Stores, Inc., 591

S.W.3d 432, 436 (Mo. banc 2020). “The cardinal principle for contract interpretation is to

ascertain the intention of the parties and to give effect to that intent.” Intertel, Inc. v. Sedgwick

Claims Mgmt. Servs., Inc., 204 S.W.3d 183, 196 (Mo. Ct. App. 2006) (citing Butler v. Mitchell-

Hugeback, Inc., 895 S.W.2d 15, 21 (Mo. banc 1995)). “If the contract is unambiguous, it will be

enforced according to its terms. If ambiguous, it will be construed against the drafter . . . .”

Triarch Indus., Inc. v. Crabtree, 158 S.W.3d 772, 776 (Mo. banc 2005).

Under Missouri law, “matters incorporated into a contract by reference are as much a part

of the contract as if they had been set out in the contract in haec verba.” Dunn Indus. Group, Inc.

v. City of Sugar Creek, 112 S.W.3d 421, 435 n.5 (Mo. banc 2003). “The intent to incorporate,”

however, “must be clear.” State ex rel. Hewitt v. Kerr, 461 S.W.3d 798, 810 (Mo. banc 2015);

see also Intertel, Inc., 204 S.W.3d at 196 (“So long as the contract makes clear reference to the

document and describes it in such terms that its identity may be ascertained beyond doubt, the

parties to a contract may incorporate contractual terms by reference to a separate,

noncontemporaneous document . . . .”).

As Defendants point out, Missouri courts have consistently held that “mere reference” to

another document does not establish a clear intent to incorporate that document. See, e.g., Dunn

Indus. Group, 112 S.W.3d at 436 (“Mere reference to the construction contract in the guaranty is

insufficient to establish that Dunn bound itself to the arbitration provision of the construction

contract”); Kohner Properties, Inc. v. SPCP Group VI, LLC, 408 S.W.3d 336, 343 (Mo. Ct. App.

2013) (citing Dunn Indus. Group, 112 S.W.3d at 435-36).

For her argument that the residency agreement incorporated both GME Policies and

ACGME Requirements, Dr. Rice relies on an addendum to her first residency agreement. That

addendum provides in relevant part that Dr. Rice’s assignments, rotation schedules, and duty

hours “must comply” with GME Policies and ACGME Requirements. Doc. [19-2] at 20. It also

provides that concerns about the application of GME policies and procedures may be brought to

SLU’s Residents’ Association. Id. at 21.

Assuming arguendo that the addendum itself is an enforceable part of the residency

contract, Dr. Rice’s breach of contract claims nevertheless fail as a matter of law, because the

addendum does not demonstrate a “clear intent” to incorporate GME Policies and ACGME

Requirements in their entireties into Dr. Rice’s contract. “[W]hen a contract references another

instrument, the language of that instrument becomes a part of the agreement only to the extent

specified by the reference.” AB Realty One, LLC v. Miken Techs., Inc., 466 S.W.3d 722, 732

(Mo. Ct. App. 2015) (citing Wilson Mfg. Co. v. Fusco, 258 S.W.3d 841, 845 (Mo Ct. App.

2008)) (emphasis added). At most, then, the addendum might be read as intending to incorporate

specific provisions of the guidelines—i.e., those governing resident “assignments, rotation

schedules, and duty hours” and perhaps any GME provisions relating to the procedure for

bringing resident concerns. The Court does not decide whether those specific provisions are

incorporated by reference, however, because those provisions alone could not sustain Dr. Rice’s

breach of contract claims. Dr. Rice does not claim that SLU breached its contract with her by

improperly scheduling her assignments, rotations, or duty hours1; nor does her breach of contract

claim have anything to do with the process for bringing GME compliance concerns. Thus, Dr.

Rice does not allege breach of any provision that might arguably have been incorporated by

reference into her residency contract under Missouri law.

2. Implied Terms

Dr. Rice advances two arguments for considering GME Policies and ACGME

Requirements to be “implied terms” of her residency agreement. First, Dr. Rice asks the Court

to follow other jurisdictions in finding that, though “[t]he terms of the contract . . . are rarely

delineated,” “the relationship between a student and an education institution is contractual in

nature.” Doc. [37] at 18 (quoting Chang v. Purdue University, 985 N.E.2d 35, 46 (Ind. Ct. App.

2013)). Defendants argue that Dr. Rice’s request is foreclosed by established Missouri

precedent. Doc. [47] at 7.

The Court agrees with Defendants. Unlike other jurisdictions, Missouri courts have not

recognized any implied contract between students and universities. See Lucero v. Curators of

University of Missouri, 400 S.W.3d 1, 4-5 (Mo. Ct. App. 2013). Since “it is not the role of a

federal court to expand state law in ways not foreshadowed by state precedent,” the Court rejects

Dr. Rice’s first theory. Ashley County, Ark. v. Pfizer, Inc., 552 F.3d 659, 673 (8th Cir. 2009)

(quoting City of Philadelphia v. Beretta U.S.A. Corp., 277 F.3d 415, 421 (3d Cir. 2002)).

Dr. Rice next contends that GME Policies and ACGME Requirements were “part of the

contract” because “SLU promised Dr. Rice . . . that SLU would comply with its own GME

Policies and Procedures and the ACGME Requirements.” Doc. [5] ¶¶ 19, 5; Doc. [37] at 5. Dr.

Rice has not introduced evidence of such a promise, but even if she had, that evidence would be

barred by the parol evidence rule.

1 Dr. Rice does claim that SLU breached ACGME Requirements by retaliating against her in various

ways, including by assigning her a “unique rotation schedule.” Doc. [5] ¶¶ 93, 116, 130. But she does

not allege that SLU failed to comply with ACGME assignments, rotations, and duty hours standards.

In Missouri, “[e]xtrinsic evidence of a prior or contemporaneous agreement is generally

not admissible to vary, add to, or contradict the terms of an unambiguous and complete written

document . . . .” Union Elec. Co. v. Fundways, Ltd., 886 S.W.2d 169, 170 (Mo. Ct. App. 1994).

“If the document appears to be a complete agreement on its face, it is conclusively presumed to

be the final and complete agreement between the parties.” Rosenfeld v. Boniske, 445 S.W.3d 81,

87 (Mo. Ct. App. 2014); see also Jake C. Byers, Inc. v. J.B.C. Investments, 834 S.W.2d 806, 812

(Mo. Ct. App. 1992) (“[O]nly when the written contract is incomplete on its face may extrinsic

oral evidence be introduced to show the complete and final agreement.”).

Nothing about Dr. Rice’s residency agreement or the attached information sheet indicates

that the written documents were incomplete. The agreement sets out the duration of the contract

and Dr. Rice’s stipend, and it states that Dr. Rice’s “reappointment is subject to the same terms

and conditions as were set forth in [her] initial letter and to the terms, conditions, benefits and

responsibilities described in the attached information sheet.” Dr. Rice alleges that she did not

receive the information sheet, but that would only render the agreement incomplete as to the

information sheet. That would not license Dr. Rice to introduce evidence of a separate extra-

textual promise that SLU would comply with GME Policies and ACGME Requirements.

Finally, Dr. Rice tries to avoid summary judgment by noting that one of the Defendants

“admitted that the ACGME program requirements for graduate medical education and general

surgery have been in effect throughout Plaintiff’s residency . . . and that SLU is required to

comply with these requirements.” Doc. [37] at 24. That “admission” is of no consequence.

SLU, like all other accredited institutions, must comply with certain requirements to maintain its

accreditation. Dr. Rice still “must ‘point to an identifiable contractual promise that [SLU] failed

to honor’” if she wishes to avoid summary judgment on her breach of contract claims. Lucero,

400 S.W.3d at 5 (quoting Miller v. Loyola Univ. of New Orleans, 829 So. 2d 1057, 1060 (La. Ct.

App. 2002)). Because she has not done so, Dr. Rice’s breach of contract claims fail, and

Defendants are entitled to summary judgment as to Counts I and II.

B. Defamation

Defendants also move for summary judgment on Counts IV and V of Dr. Rice’s Petition,

both defamation claims. In Count IV, Dr. Rice accuses Drs. Wittgen and Williams of defaming

her by stating falsely that she had gone to a shopping mall on September 6, 2016, after being

excused from vascular clinic to prepare for a presentation.2 In Count V, Dr. Rice accuses Dr.

Freeman of defaming her when he presented to the CCC the February 24, 2017, letter from the

Trauma Service attendings and falsely implied that it represented a “consensus” among the

attendings.

“The elements of defamation in Missouri are: 1) publication, 2) of a defamatory

statement, 3) that identifies the plaintiff, 4) that is false, 5) that is published with the requisite

degree of fault, and 6) damages the plaintiff’s reputation.” Overcast v. Billings Mut. Ins. Co., 11

S.W.3d 62, 70 (Mo. banc 2000). Defendants argue that Dr. Rice’s claims fail to satisfy the first

element of defamation—i.e., publication—because there is no evidence that Drs. Wittgen,

Williams, or Freeman made the allegedly defamatory statements to anyone other than members

of the “educational evaluative process” at SLU. Doc. [18] at 17. According to Defendants, this

makes their statements “intra-corporate communications” that do not qualify as “publications”

for the purposes of a defamation claim under Missouri law. Id.

Defendants are correct that, in Missouri, “communications between officers of the same

corporation in the due and regular course of the corporate business, or between different offices

of the same corporation, are not publications to third persons.” Hellesen v. Knaus Truck Lines,

370 S.W.2d 341, 344 (Mo. 1963); see also Lovelace v. Van Tine, 545 S.W.3d 381, 383-84 (Mo.

Ct. App. 2018) (explaining “intra-corporate immunity”). Thus, if Defendants’ communications

qualify as “communications between officers of the same corporation in the due and regular

course of the corporate business,” Hellesen, 370 S.W.2d at 344, or, as Missouri courts have put it

elsewhere, as a “business . . . merely communicating with itself,” Van Tine, 545 S.W.3d at 383

(quoting Blake v. May Dept. Stores Co., 882 S.W.2d 688, 690 (Mo. Ct. App. 1994)), they cannot

be defamatory as a matter of law. See Gray v. AT & T Corp., 357 F.3d 763, 766 (8th Cir. 2004)

(“Missouri courts have broadly interpreted the intra-corporate immunity rule.”).

Defendants’ communications qualify for intra-corporate immunity under Missouri

precedent. The Missouri Court of Appeals has squarely held that universities qualify as

2 There appears to be some confusion about when Dr. Wittgen made the statements in question. Dr.

Rice’s complaint suggests Dr. Wittgen repeated Dr. Williams’s story at the April 3rd CCC meeting, Doc.

[5] ¶ 142, whereas the Statements of Material Facts say it was at the April 7th meeting. See Doc. [19]

¶¶ 61, 62; Doc. [38] at 17. The difference is inconsequential here, because on both accounts the

information was communicated by the same person to the same body.

corporations for the purpose of the rule. See Dean v. Wissmann, 996 S.W.2d 631, 634-35 (Mo.

Ct. App. 1999). In the same decision, that Court expressly endorsed the rule that “statements by

faculty to each other about student [misconduct]” are “the legal equivalent of speaking only to

one’s self and are not publications.” Id. at 635 (quoting Walter v. Davidson, 104 S.E.2d 113, 116

(Ga. 1958)). That principle is directly applicable to this case.

It is undisputed that Drs. Wittgen, Williams, and Freeman were faculty members of the

SLU residency program in which Dr. Rice was enrolled at all times relevant to this lawsuit.

Indeed, they were no ordinary faculty members: Dr. Wittgen is identified in Dr. Rice’s Petition

as “the program director of the Residency Program,” Doc. [18-1] ¶ 12; see also Doc. [38] at 30,

and the “supervising attending” on the vascular service to which Dr. Rice was temporarily

assigned as chief resident, Doc. [18-1] ¶ 28; Doc. [38] at 31. Dr. Rice also refers repeatedly to

Dr. Wittgen’s responsibilities for providing her with feedback, evaluation, and discipline. See

Doc. [18-1] ¶¶ 22, 31, 35, 37, 38. Similarly, Dr. Rice identifies Dr. Freeman as the chief of the

Trauma Service during her residency, Doc. [5] ¶ 54, and she notes that Dr. Williams was not

only a faculty member but also a member of the CCC, Doc. [5] ¶ 38. Defendants undoubtedly

qualify as an “officers” of the SLU residency program for the purpose of the intra-corporate

immunity rule. Blake v. May Dep’t Stores Co., 882 S.W.2d 688, 691 (Mo. Ct. App. 1994)

(“Prior court decisions have not applied a narrow definition of ‘officer.’”), quoted in Van Tine,

545 S.W.3d at 384.

A more significant question for the purpose of the intra-corporate immunity doctrine is

whether the recipients of Defendants’ allegedly defamatory statements qualify as “officers” of

the SLU residency program. As clarified in a recent Missouri Court of Appeals decision, what

matters most for the application of intra-corporate immunity is “the role of the person receiving

the statement, rather than the person making the statement,” because “[e]mployees must be able

to bring personnel matters to the attention of supervisors without risk of liability.” Van Tine, 545

S.W.3d at 384 (emphasis in original).

On the record before the Court, the members of the CCC do qualify as “officers” for the

purposes of Missouri’s intra-corporate immunity doctrine. Dr. Rice admits in her Petition that

“one of the CCC’s responsibilities is to evaluate residents on a semiannual basis,” Doc. [5] ¶ 32,

and that it has a “duty to ‘advise the program director regarding resident progress, including

promotion, remediation, and dismissal,’” id. ¶ 74 (quoting ACGME Common Program

Requirements §V.A.1.b).(1).(c)); see also Doc. [38] at 34 (explaining that the CCC “evaluates

residents and makes recommendations to the Program Director regarding evaluation of residents’

progress and competence . . . .”). Dr. Rice also repeatedly refers to the CCC’s evaluations of her

performance. E.g., Doc. [5] ¶¶ 32-33, 49, 69-74.

These facts, most of which come directly from Dr. Rice’s own filings, are more than

enough to ground Defendants’ claim there is no genuine issue of material fact as to whether

members of the CCC qualify as supervisors, and that Defendants’ communications to them in the

context of evaluating Dr. Rice’s performance are therefore protected by intra-corporate

immunity. See Gray, 357 F.3d at 766 (citing participation in a team that investigated plaintiff’s

conduct as evidence of supervisory responsibility). Indeed, Missouri courts have identified the

purpose of Defendants’ meetings with the CCC—namely, to assess and evaluate program

personnel, including Dr. Rice—as squarely within the purview of the intra-corporate immunity

doctrine. See Blake v. May Dep’t Stores Co., 882 S.W.2d 688, 690 (Mo. Ct. App. 1994)

(“Solving personnel problems is in the due and regular course of corporate business.”).

In light of these facts, the burden shifts to Dr. Rice to “present specific evidence, beyond

‘mere denials or allegations [that] . . . raise a genuine issue for trial’” that would undermine

Defendants’ entitlement to summary judgment. Farver, 931 F.3d at 811 (quoting Wingate, 528

F.3d at 1079). Dr. Rice fails to do so. She does not challenge Defendants’ contention that their

statements were not repeated to anyone outside the residency program. In fact, she admits as

much. Doc. [38] ¶¶ 48, 66. Instead, Dr. Rice argues only that “Defendants have submitted no

evidence, and cited no case law, to support this claim that all of the faculty members are

supervisors.” Doc. [37] at 25. That statement alone—which does not even rise to the level of a

“denial” or “allegation,” much less “specific evidence”—is insufficient to create a genuine issue

of material fact, especially given the evidence Dr. Rice herself has provided of the supervisory

functions performed by all parties to the communications.3 Accordingly, the allegedly

3 The rest of Dr. Rice’s response to Defendants’ intra-corporate immunity argument misses the mark. Dr.

Rice’s argument that “[e]ven if all attending physicians (faculty members) qualify as supervisors, intra-

corporate immunity provides only a qualified privilege,” conflates two distinct doctrines that protect

corporate communications in the defamation context: “intra-corporate immunity,” which dictates that

defamatory statements were all “intra-corporate communications” that do not qualify as

“publications” under Missouri defamation law, and Dr. Rice’s defamation claims against

Defendants Wittgen, Freeman, and Williams all fail.

IV. CONCLUSION

For the reasons stated above, Defendants are entitled to judgment as a matter of law as to

Counts I, I, IV, and V.

Accordingly,

IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment

(Doc. [17]) is GRANTED.

IT IS FURTHER ORDERED that Counts I, II, IV, and V of the Petition (Doc. [5]) are

DISMISSED with prejudice.

Dated this 4'" day of June, 2020.

Sarah E. Pitlyk

United States District Judge

communications among officers and supervisory employees are not “publications” for defamation

purposes, and a qualified privilege that protects some intra-corporate communications to non-supervisors.

See Lovelace v. Van Tine, 545 S.W.3d 381, 384 (Mo. Ct. App. 2018) (explaining the difference between

intra-corporate immunity and qualified privilege for other intra-corporate communications). Here,

Defendants claim—correctly—that their communications qualify for the categorical immunity provided

by the first doctrine, not the qualified privilege afforded by the latter. See Doc. [18] at 17. Therefore,

much of Dr. Rice’s response is inapposite. See Doc. [37] at 25, 27 (citing qualified privilege cases Rice v.

Hodapp, 919 S.W.2d 240, 244 (Mo. banc 1996); Carter v. Willert Home Products, Inc., 714 S.W.2d 506,

513 (Mo. banc 1986); Topper v. Midwest Div. Inc., 306 S.W.3d 117, 129 (Mo. Ct. App. 2010)).

12