United States District Court, D. Vermont
BRIAN M. BOWLES, Plaintiff,
ROSI O'CONNELL, DENNIS O'CONNELL, Defendants.
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT DENNIS O'CONNELL'S MOTION FOR SUMMARY
JUDGMENT (Doc. 99)
CHRISTINA REISS, DISTRICT JUDGE.
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.
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.
is represented by David E. Bond, Esq. Mr. O'Connell is
represented by John J. Boylan, III, Esq. and John D. Willey,
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).
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
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.
The Undisputed Facts.
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.)
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."
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
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.)
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
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
The Disputed Facts.
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.)
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.
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.
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. 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
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. ...