SCRANTON – A Luzerne County nurse has reiterated allegations that his former employer, who he had secured work through to be used as an expert witness in medical malpractice cases, defamed him in an email and harmed his future opportunities to be chosen as such an expert.
Ken McCawley of Avoca first filed suit in the Lackawanna County Court of Common Pleas on Jan. 10 versus Med Legal Pro, LLC and Tracy Liberatore, both of Scranton.
“Plaintiff is a registered nurse. Plaintiff often testifies as an expert witness in medical malpractice litigation. Until recently, plaintiff obtained expert work as an employee of defendant, Med Legal Pro LLC. The individual defendant, Tracy Liberatore, is the sole owner of Med Legal Pro and the author of the defamatory e-mail that is the subject of this case. Med Legal Pro is in the business of providing medical expert testimony for law firms and their clients,” the suit said.
“Central to this case, in November of 2023, defendants sent the following e-mail to every one of plaintiff’s clients: ‘If you are receiving this email you have or had a case with Ken McCawley. We regret to inform you that as of 11/15/2023, he is no longer going to be completing any cases, including additional work that may arise on former cases. Nor will he attend live depositions or trials. If you have a current active case with him, please get in touch with us so that we can get your case reassigned to a new expert if needed. We can no longer promote or work with someone who does not meet our professional standards. Unfortunately, we have had too many occurrences where he canceled or rescheduled depositions/live testimony last minute. As well as not meeting deadlines on reviews and/or reports. While we understand the inconvenience this may cause for you if you have an active case, we truly believe it is the best decision for all parties involved in the long run. Here at Med Legal Pro, we only promote experts of the utmost professional integrity, and we just cannot jeopardize the outcome of a case by knowingly providing an expert that is not meeting our own standards. We had hoped he would finish any work needed on active cases, but that is not the choice he has made. Again, please contact us with any questions or concerns. Those with known active cases have been contacted.”
The suit added that this email was both defamatory and false.
“The allegation that plaintiff ‘had too many occurrences where he canceled or rescheduled depositions/live testimony last minute’ is false. The allegation that plaintiff was ‘not meeting deadlines on reviews and/or reports’ is false. The allegation that plaintiff ‘does not meet our professional standards’ is false. The allegation that plaintiff ‘lacks the utmost professional integrity’ is false. The allegation that retaining plaintiff as an expert would ‘jeopardize the outcome of a case’ is false,” the suit stated.
“The e-mail viewed as a whole is false because it alleges that plaintiff is someone who lacks professional integrity, who misses deadlines, or fails to show up for depositions or live testimony, and who is so unreliable that he puts his clients’ cases at risk. These allegations rise to the level of defamation per se because they allege misconduct by plaintiff in his professional and business dealings. The allegation that plaintiff lacks integrity and lacks professional standards would be defamatory against any plaintiff. It is particularly damaging in this case because of plaintiff’s role as an expert witness, for which the effectiveness of his testimony inherently depends on his credibility. The allegation that plaintiff misses deadlines is defamatory because litigation often has severe consequences for missed deadlines, and this applies to missing an expert deadline in a medical malpractice case.”
The suit continued that “the allegation that plaintiff cannot be trusted to appear at depositions or for live testimony is defamatory because a law firm or client whose expert failed to appear would be at a severe disadvantage or outright lose the case because of it” and likewise, “the allegation that plaintiff puts his clients’ cases at risk is defamatory because it creates fear for the recipients of the e-mail that retaining plaintiff as their expert would put their case at risk.”
“The e-mail was sent with the intention of severing plaintiff’s relationship, specifically with people who would otherwise have been likely to continue retaining plaintiff. As a result of defendants’ conduct, plaintiff suffered damages,” the suit said.
UPDATE
The defendants answered the action on Feb. 9, denying that the plaintiff was ever an employee of both defendant parties, and further denying on multiple points that the email message in question was in any way defamatory – since its contents were truthful and contained no falsehoods, according to the defendants and their counsel.
“Under Pennsylvania law, truth is an absolute defense to defamation. Any and all representations made within the e-mail referenced within the plaintiff’s complaint were true. Plaintiff’s complaint may be barred and/or limited by the application of the doctrine of conditional privilege,” per the filing’s additional new matter.
In a Feb. 20 reply to the new matter, the plaintiff denied that the defendant’s allegations in the supposedly-defamatory communications are true, and denied the remainder of the new matter.
For a lone count of defamation, the plaintiff is seeking damages in excess of the compulsory arbitration limit, interest, costs, attorney’s fees, punitive damages, an injunction prohibiting further defamatory statements and directing defendants to retract those statements complained of in this case, and such other relief that the Court may deem just and proper.
The plaintiff is represented by Alan L. Frank and Evan L. Frank of Alan L. Frank Law Associates, in Jenkintown.
The defendants are represented by John R. Nealon of Marshall Dennehey, in Scranton.
Lackawanna County Court of Common Pleas case 2024-CV-00229
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com