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Sinderbrand v. Schuster

Decided: October 11, 1979.


Civil Action.

Francis, A.j.s.c.


Defendants in this defamation suit move to have venue changed from Atlantic to Mercer County. The court agrees with the contentions raised by defendants in support of their motion, and it will order that venue be changed to Mercer County.

This matter is an outgrowth of an earlier criminal prosecution. Dr. Robert Sinderbrand, plaintiff in the present action, was acquitted in December 1978 of charges that he illegally prescribed drugs to two State Police undercover agents. At the same time he pleaded guilty to a charge of failing to make, keep and furnish records and information as required by law. N.J.S.A. 24:21-1 et seq. These allegations of wrongdoing were also the subject of a proceeding before the New Jersey Board of Medical Examiners to determine whether plaintiff's medical license should be suspended or revoked. It appears that a final determination of this issue has not yet been made by the Board.

Dr. Sinderbrand's complaint avers that defendants "falsely and maliciously caused to be written and published" harmful statements about him which appeared in the April 21, 1978 issue of the Atlantic City Press. The alleged defamatory statement made by defendant Alfred J. Schuster, who at that time was the Executive Secretary of the Board of Medical Examiners, consisted of the remark: "A doctor can't be a drug pusher." The other statement complained of was made by defendant Robert Weir, who was then a New Jersey Deputy Attorney General. The Press reported that Weir stated: "I've always said we were dealing with a fringe group within the medical profession, but

it's a group that can cause a serious problem when they dispense drugs illegally."

The first ground offered by defendants in support of their motion for change of venue is that R. 4:3-2(a)(2) requires that venue in this action be laid in Mercer County. That provision requires that in actions "not affecting real property which are brought by or against municipal corporations, counties, public agencies or officials," venue shall be laid "in the county in which the cause of action arose." The movants assert that this provision is applicable because they were public officials acting in their official capacities at the time that the alleged tortious conduct occurred. They argue that venue must be laid in Mercer County because any statements made by them to the Press were made from their Mercer County offices, and therefore, the cause of action arose in Mercer County.

The court holds that R. 4:3-2(a)(2) does require that this suit be heard in Mercer County. Plaintiff does not allege that defendants were acting other than in their official capacities when they made the statements complained of, and the court is satisfied that these statements were made in the scope of the defendants' employment as public officials. The duties of a Deputy Attorney General include the enforcement of the State's drug laws, N.J.S.A. 52:17B-107, 52:17A-4, 52:17A-6, and this was one of the responsibilities assigned to defendant Weir at the time in question. In addition, the Board of Medical Examiners is by statute empowered to initiate investigations of medical doctors, N.J.S.A. 45:1-18, and may suspend or revoke a doctor's license. N.J.S.A. 45:9-16, 45:1-21.

While the statutes governing the duties of these officials do not specifically designate communication with the media as one of their functions, it is increasingly recognized that if this communication pertains to matters which are within the scope of an official's responsibilities, such statements should be regarded as being within the "outer perimeter" of the officials'

"line of duty." Barr v. Matteo , 360 U.S. 564, 574-575, 79 S. Ct. 1335, 3 L. Ed. 2d 1434 (1959); See Economou v. U.S. Dept. of Agriculture , 535 F.2d 688 (2nd Cir. 1976); Margoles v. Wis. State Bd. of Medical Examiners , 446 F. Supp. 959 (W.D.Wis.1978). Cf. N.J.S.A. 10:4-6. In Margoles , a case factually similar to the one at hand, members of the Wisconsin Board of Medical Examiners were sued for making alleged defamatory statements to newspaper reporters which pertained to the plaintiff's fitness to practice medicine in that state. The court indicated that it did not disagree with the view that "the allegations against (the defendants) charge things done or said in their respective official capacities." 446 F. Supp. at 962.

In the present case, there is nothing in the record which indicates that personal rather than professional considerations motivated the defendants to make the statements at issue. There is no hint that "personal animus" was a factor behind the making of the statements. Van Horn v. Trenton , 80 N.J. 528, 537 (1979). The remarks were apparently made by phone in the defendants' offices in response to calls placed by the Atlantic City Press. The Press sought the defendants' views precisely because they were public officials. The record shows that the statements were made in furtherance of defendants' official duties, and not merely in furtherance of their own purposes, and ...

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