Navy surgeon general turned attorney

continues to press defamation claim

By: Kris Olson August 2, 2018

Last month, a Chicago-based

freelance reporter flew to Boston to sit for a deposition in a lawsuit revived by two
emails he sent to check out a tip about a man by the name of Donald C. Arthur. A
retired surgeon general of the U.S. Navy, Arthur was the subject of an allegedly
defamatory story the reporter wrote in 2013.
Arthur was admitted to the Massachusetts bar last November and is now an associate
at Beauregard, Burke & Franco, the New Bedford firm he had hired a year earlier to
renew his defamation claim against reporter Michael Volpe.
Writing for the online outlet Crime Magazine (now defunct), Volpe had expanded on
previous reporting by the Philadelphia Inquirer and Chicago Tribune about controversies
related to Arthur’s academic credentials and service record that had arisen late in
Arthur’s tenure as Navy surgeon general.
Arthur initially sued Volpe and a number of other defendants in Suffolk Superior Court
within months of the publication of Volpe’s article, “The Great Pretender,” on March 28,
2013. But Volpe, acting pro se, successfully prosecuted a motion to dismiss on personal
jurisdiction grounds.
Judge Shannon Frison found that Volpe had not purposefully availed himself of the
forum state, as there was “no indication that Volpe deliberately directed his message at
an audience in Massachusetts or meant to harm Arthur specifically in Massachusetts as

opposed to anywhere else.”

About 18 months later, Volpe received an anonymous tip that Arthur was enrolled in
law school at the University of Massachusetts-Dartmouth. That piqued his interest,
given that a J.D. was one of the degrees Arthur had claimed to have earned. According
to Arthur, he had graduated from LaSalle University in Louisiana back in 1993, three
years before the notorious diploma mill was raided by the FBI.
But in his email to two deans and a student at UMass-Dartmouth, Volpe included links
to his story about Arthur. That altered the personal jurisdiction equation, Arthur and his
attorneys believed. They filed a new complaint in Barnstable Superior Court in May
2016, couching the email messages as republications of the original defamatory story,
as well as tortious acts in their own right.
In a May 8, 2017, decision, Judge Gary A. Nickerson agreed that the pleaded facts had
“changed substantially” since Frison’s decision and were “sufficient to establish the
requisite connection to in-state activities and purposeful availment.”
To Volpe, Nickerson’s ruling is “absurd” and an infringement on his rights as a member
of the free press. He is unsure how the judge would have suggested he check out the
tip, other than the method he used.

Volpe’s concern is valid, says First Amendment

attorney Jeffrey J. Pyle of Boston.
“Many journalists would be surprised to learn they could be sued in a far-off state just
because they sent a couple emails there to confirm facts for a story,” the Prince, Lobel,
Tye partner says.
Lawyers in Prince Lobel’s media practice advise journalists to be careful about repeating
defamatory statements to potential sources in the course of newsgathering, Pyle notes.
“Defamation lawsuits based solely on such statements are rare, but they can happen,”
he says.
Journalists often face the challenge of trying to investigate facts or get a comment for a
story without repeating another person’s potentially defamatory statement, Pyle says.
For example, if a prominent media executive is accused of sexual misconduct,
journalists may seek reaction from the executive’s colleagues and in the process repeat
a statement the executive will later claim is false, he says.

Fellow First Amendment lawyer Jonathan M.

Albano agrees that a reporter can, in theory, defame a libel plaintiff by speaking to a
source. But he says it’s rare that damage will result, unless the source takes action
based on something the journalist has said.
In a perverse way, Nickerson’s ruling premised on a mere two emails sent to
Massachusetts may provide a disincentive to journalists confirming facts, Pyle theorizes.
In a libel case involving a public official or public figure like Arthur, the plaintiff has to
prove knowing falsity or reckless disregard of the truth by clear and convincing
evidence, Pyle notes. Simply failing to check whether defamatory facts are true does
not meet that standard, as long as doubts about the veracity of the information have
not already been raised, he says.
Following the logic of Nickerson’s decision, by engaging in interstate communications,
the reporter is risking being hauled into court far from home and may be better off
doing nothing.
“We should want journalists to check their facts before publishing, though, even when
the plaintiff is a public figure,” Pyle says.
Pyle adds that the problem is all the greater for freelance or independent journalists like
Volpe, who are not backed by large organizations able to bear the costs.
Albano cautions, however, that it is too soon to know whether Arthur’s claim will
succeed.
“The personal jurisdiction question really tells us nothing about whether defamation
occurred and whether the statements made to school officials were defamatory,” the
Morgan, Lewis & Bockius lawyer says.
Of the new information in Volpe’s article, perhaps the most problematic relates to Dr.
Eric Gluck, who was two years behind Arthur at the College of Dentistry and Medicine in
New Jersey in the late 1970s.
Based on interviews and documents he had obtained, Volpe wrote that Arthur
attempted to have Gluck committed to a military psychiatric facility and forced him to
take a six-month supply of vaccinations all at once, which Gluck believes contributed to
him developing multiple sclerosis a few months later.
In his suit, Arthur maintains those claims are “unverified and unequivocally not true,”
adding that he has never even met Gluck, much less forced him to do anything.
Volpe also quotes extensively Dr. Frederick M. “Skip” Burkle, a Navy reservist called to
serve in Operation Desert Shield, who clashed with Arthur and paints a grim picture of
Arthur’s service — or lack thereof — at a Saudi Arabian medical base in February 1991.
Volpe had “obvious reason to doubt Dr. Burkle’s reliability,” given that Burkle “had
exhibited public animosity towards Dr. Arthur in a newspaper article years earlier,”
Arthur’s complaint adds.
Arthur’s complaint is also premised on what he says are Volpe’s slipshod attempts to
offer him a chance to respond to his findings prior to publication. Volpe says the phone
number he found online for Arthur turned out to be a fax line. He compiled a list of
questions and sent them by fax but received no reply.
Arthur’s attorneys declined to comment for this story.