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Bowles v. O'Connell

United States District Court, D. Vermont

August 10, 2018

BRIAN M. BOWLES, Plaintiff,



         Plaintiff Brian M. Bowles brings state law defamation, tortious interference with contract, and tortious interference with prospective contractual relations claims arising out of a dispute between Plaintiff and Defendant Rosi O'Connell when they were both employed by the United States Postal Service ("USPS"). Plaintiff alleges that Defendant Dennis O'Connell assisted his wife, Rosi O'Connell, in publishing a false and defamatory police report. In addition, Plaintiff alleges Mr. O'Connell made defamatory statements to his sister, children, and a state prosecutor regarding Plaintiffs alleged assault of Rosi O'Connell.

         Currently pending before the court is Mr. O'Connell's motion for summary judgment, filed on February 17, 2018. Plaintiff opposed the motion on March 8, 2018, and Defendant replied on April 9, 2018. On April 26, 2018, the court held oral argument on the pending motion. Thereafter, Mr. O'Connell filed his Statement of Undisputed Material Facts on May 10, 2018, and Plaintiff filed a corresponding Statement of Disputed Material Facts on May 22, 2018, whereupon the court took the pending motion under advisement.

         Plaintiff is represented by David E. Bond, Esq. Mr. O'Connell is represented by John J. Boylan, III, Esq. and John D. Willey, Jr., Esq.

         I. Procedural Background.

         On March 1, 2014, Plaintiff filed this action in the Vermont Superior Court. On August 8, 2014, pursuant to the Federal Employees Liability Reform and Tort Compensation Act (the "Westfall Act"), the United States Attorney for the District of Vermont certified that Ms. O'Connell was acting within the scope of her employment at USPS when she made allegedly false and defamatory statements regarding Plaintiff. The Westfall Act authorizes the United States to substitute itself as a defendant in claims brought against federal employees "[u]pon certification . . . that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose[.]" 28 U.S.C. § 2679(d)(2).

         The government removed the case to this court, sought to substitute itself for Ms. O'Connell as a defendant, and moved to dismiss on the basis of sovereign immunity. On August 21, 2014, Plaintiff challenged the government's Westfall Act certifications. On February 29, 2016, following limited discovery, the court upheld a portion of the government's certifications and struck others, concluding that Ms. O'Connell was not acting within the scope of her employment when she made certain allegedly defamatory statements.

         All parties sought interlocutory review of the court's decision with respect to Westfall Act certification. The Second Circuit issued a Summary Order, affirming in part and reversing in part and extending Westfall Act certification. The government was subsequently substituted as a party for all of Plaintiff s claims subject to Westfall Act certification, which were then dismissed on the basis of sovereign immunity. Plaintiffs claims against Mr. O'Connell, however, were not subject to Westfall Act certification because he was not acting as a federal employee at the time of his alleged defamatory statements. Those claims remain pending.

         II. The Undisputed Facts.

         On the morning of April 26, 2012, a postal customer called Mr. O'Connell from the U.S. Post Office located in Hartford, Vermont and reported that Plaintiff had assaulted Rosi O'Connell, who was being transported to the hospital, and that Mr. O'Connell could meet his wife at Dartmouth Hitchcock Medical Center ("DHMC"). Before traveling to the hospital, Mr. O'Connell called Plaintiffs supervisor Sal Vitagliano and informed him that Plaintiff "had assaulted [Ms. O'Connell] and that he needed to do something about it." (Doc. 99-1 at 1, ¶ 3.)

         Police arrived at the scene of the alleged assault at the Hartford Post Office and Officer Mark McComas of the Hartford Police Department stated in a probable cause affidavit that he "felt a noticeable lump on the left side of [Rosi O'Connell's] forehead within the hair line" when he responded to the Hartford post office. (Doc. 99-2 at 1, ¶ 6). He did not, however, notice any "visible cuts or abrasions." Id. He perceived Ms. O'Connell to be "extremely confused." Id.

         When he arrived at DHMC, Mr. O'Connell observed his wife to be "dazed and confused. She was crying and said [Plaintiff] hit her." (Doc. 99-1 at 1, ¶ 4.) Mr. O'Connell felt "bumps on her head" and "saw some redness through her hair where it was very sensitive." Id. at ¶ 5. Dr. Marcus Hampers, the emergency room physician attending to Ms. O'Connell, did not find any objective physical evidence of a significant blow to her head but diagnosed Ms. O'Connell with a minor closed head injury with "full recovery back to normal." (Doc. 105-1 at 2.) Although he could not recall his precise instructions, he testified that he would have instructed Ms. O'Connell to take Tylenol and, if not for Ms. O'Connell's subjective reports of pain, he would have made no diagnosis given her lack of objective clinical symptoms.

         Following Ms. O'Connell's discharge from the hospital, she and Mr. O'Connell met with Officer McComas and Postal Inspectors Forristall and Gendron. Ms. O'Connell provided a statement which was transcribed on a "Voluntary Statement" form by Mr. O'Connell. (Doc. 99-3.) Mr. O'Connell signed his name on the last lines of the narrative section of the form and Ms. O'Connell signed her name above a line labeled "Declarant[.]" Id. The statement provided that Ms. O'Connell made it "subject to the penalties of perjury." Id. Mr. O'Connell was not interviewed and did not provide his own statement to them. The inspectors' investigative memorandum reflects that they "met with Rosi O'Connell and Officer McComas at the Hartford, VT Police Department. . . . Dennis O'Connell was also present. [Ms.] O'Connell described the attack by Bowles. The description was memorialized in a sworn statement." (Doc. 99-4 at 2.)

         On April 28, 2012, two days after Dr. Hampers saw Ms. O'Connell in the emergency room at DHMC, John Cassidy, a physician's assistant, examined Ms. O'Connell's head and reported that the "left side [of her] head into the hairline is tender with some slight ecchymosis." (Doc. 105-4 at 2, ¶ 6.) He further stated that he believed these signs were consistent with a two-day-old head injury.

         Later, in May 2012, Mr. O'Connell spoke on the phone with his sister regarding the April 26, 2012 incident and told her that Ms. O'Connell's "driver had hit her on the head two or three times." (Doc. 99-1 at 2, ¶ 9.) He did not tell his sister Plaintiffs name. He also spoke with his three children regarding the incident as well as with a state prosecutor, but he cannot remember the specifics of those conversations.

         III. The Disputed Facts.

         Plaintiff maintains that Mr. O'Connell's observations of his wife's physical condition amount to assertions "that his observations confirmed her claim to have been the victim of assault[, ]" and argues that medical expertise is necessary "to differentiate between pre-existing conditions and the signs and symptoms of a supposed assault[.]" (Doc. 110 at 1.) He cites Dr. Hampers's deposition which reflects Ms. O'Connell's negative CT scan following her transport to DHMC on April 26, 2012; Dr. Hampers's lack of objective findings supporting a significant head trauma; and Dr. Hampers's doubts regarding the truthfulness of Ms. O'Connell's version of the assault based on her clinical symptomology. Plaintiff, however, does not dispute that Mr. O'Connell felt bumps on his wife's head and observed "some redness through her hair where it was very sensitive." (Doc. 99-1 at 1, ¶ 5.)

         Plaintiff also maintains that Mr. O'Connell is a longtime USPS employee and infers from this fact that he possessed knowledge of the physical characteristics of a USPS scanner, the alleged weapon involved in Plaintiffs assault. Because Mr. O'Connell knew the physical characteristics of the scanner, he could reasonably be expected to know it would cause significant trauma if wielded as a weapon. Mr. O'Connell therefore should have disbelieved his wife's version of the assault.

         Plaintiff cites evidence that Ms. O'Connell was not actually diagnosed with a concussion by Dr. Hampers, contrary to Mr. O'Connell's assertion that he believed his wife suffered this injury as a result of the alleged assault.

         Plaintiff asserts that Ms. O'Connell has a reputation in the community for dishonesty, citing his own affidavit as well as the testimony of three other witnesses who each provided their perceptions of Ms. O'Connell's trustworthiness.[1] Plaintiff does not dispute, however, that Mr. O'Connell himself believes his wife to be a truthful person and believes her reputation in the community is one for truthfulness.

         Mr. O'Connell proffers the affidavit of Sal Vitagliano, wherein he asserts that Plaintiff related to him that he did in fact "tap" Ms. O'Connell on the head with a USPS scanner on April 26, 2012. ...

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