2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-20-2014

Steven Graboff v. Colleran Firm

Precedential or Non-Precedential: Precedential

Docket 13-2229

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 13-2229

________________

STEVEN R. GRABOFF

v.

THE COLLERAN FIRM; FRANCIS T. COLLERAN;

AMERICAN ACADEMY OF ORTHOPAEDIC 

SURGEONS;

AMERICAN ASSOCIATION OF ORTHOPAEDIC 

SURGEONS,

American Academy of Orthopaedic Surgeons;

American Association of Orthopaedic Surgeons,

 Appellants

 

 ________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 2-10-cv-01710)

Honorable Joel H. Slomsky, District Judge

________________
2

Submitted under Third Circuit LAR 34.1(a)

December 20, 2013

BEFORE: JORDAN, VANASKIE, and 

GREENBERG, Circuit Judges

(Filed: February 20, 2014)

______________

Clifford E. Haines

Lauren A. Warner

Haines & Associates

1835 Market Street

Suite 2420

Philadelphia, PA 19103

 Attorneys for Appellee

Daniel E. Rhynhart

Christopher M. Guth

Blank Rome

130 North 18th Street

One Logan Square 

Philadelphia, PA 19103

 Attorneys for Appellants

______________

OPINION OF THE COURT

______________
3

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before this Court on an appeal from 

an order of the District Court entered March 28, 2013, denying 

defendants-appellants, the American Academy of Orthopaedic 

Surgeons and the American Association of Orthopaedic 

Surgeons’ (together the “AAOS”), motion for judgment as a 

matter of law and for judgment notwithstanding the verdict. For 

the reasons we set forth we will affirm the March 28, 2013 

order. 

The AAOS is a voluntary professional organization for 

orthopaedic surgeons, which has adopted professional standards, 

including member grievance procedures. Though most 

orthopaedic surgeons are members of the AAOS, it is not a 

licensing authority and consequently an orthopaedic surgeon 

need not be an AAOS member to practice orthopaedic surgery. 

This case is an outgrowth of an AAOS grievance proceeding 

that an AAOS member, Dr. Menachem Meller, initiated against 

another AAOS member, plaintiff-appellee Dr. Steven R. 

Graboff, a California-based orthopaedic surgeon. Dr. Meller 

filed the grievance claiming that Dr. Graboff wrote an 

inaccurate report based on incomplete information that was used 

against him in a civil malpractice case. The report charged that 

Dr. Meller departed from reasonable and accepted standards of 

medical care in treating the plaintiff in the malpractice case. 

After determining that Dr. Graboff’s testimony violated the 

AAOS’s Standards of Professionalism, which require its 
4

members to provide honest and accurate testimony when serving 

as expert witnesses, the AAOS suspended Dr. Graboff from 

membership for two years. The AAOS published a description 

of the grievance proceedings in AAOS Now, an AAOS 

newsletter. Dr. Graboff, who has resigned from the AAOS, then 

sued the AAOS, alleging that the AAOS Now article (the 

“article”) was actionable both as defamatory and a false-light 

invasion of privacy because it selectively recounted the 

circumstances of the grievance proceedings to imply that he had 

testified falsely. 

At the conclusion of a trial the District Court submitted 

the case to the jury to answer interrogatories. The jury answered 

that the article did not contain any false statements, but did 

contain statements portraying Dr. Graboff in a false light, and it 

awarded Dr. Graboff $196,000 in damages. Though the jury 

through its answers did not address the ultimate question of 

whether the AAOS was liable on either the defamation or falselight claim, the District Court treated the answers as having 

found in favor of Dr. Graboff on the false-light claim and in 

favor of the AAOS on the defamation claim. The AAOS 

subsequently moved for a judgment notwithstanding the verdict, 

but the Court denied the motion. 

The AAOS appeals, arguing that, under the District 

Court’s treatment of the jury’s answers, the answers were 

inconsistent because, as a matter of law, the jury’s finding that 

the AAOS had not made false statements foreclosed the 

possibility that it could be liable on the false-light claim. Thus, 

the AAOS contends that it was entitled to a judgment in its favor 

on both claims. We, however, hold that the answers can be 
5

reconciled and thus were not inconsistent. But we conclude that 

the District Court erred by treating the jury’s findings as 

returning a verdict in Dr. Graboff’s favor only on the false-light 

claim as we are satisfied that the findings established that the 

AAOS was liable on both the false-light and defamation claims. 

Nevertheless, the error was harmless and, accordingly, we will 

affirm the order of March 28, 2013. 

II. BACKGROUND

In 2007, Dr. Graboff drafted an expert report that was 

used in Jones v. Meller, a malpractice case against Dr. Meller 

filed in the Court of Common Pleas of Philadelphia County, 

Pennsylvania. Dr. Graboff’s draft report stated that Dr. Meller’s 

treatment of the malpractice plaintiff departed from reasonable 

and accepted standards of medical care. Although Dr. Graboff 

had included the words “Draft Report” in bold, underlined 

letters at the top of his report, the law firm representing the 

plaintiff in the Jones case, without Dr. Graboff’s consent or 

knowledge, whited out the “Draft Report” designation and used 

the report to obtain a settlement from Dr. Meller. 

Dr. Meller filed a grievance against Dr. Graboff with the 

AAOS asserting that Dr. Graboff had provided false testimony 

in the malpractice case against him. Dr. Meller based his 

grievance on the AAOS’s Standards of Professionalism which, 

among other provisions, require orthopaedists serving as expert 

witnesses to provide honest and accurate testimony. The AAOS 

enforces these standards through its Professional Compliance 

Program Grievance Procedures. These procedures provide that 
6

AAOS members can file grievances with the AAOS when they 

believe that a fellow member has engaged in unprofessional 

conduct. In Dr. Graboff’s case there were two hearings before 

AAOS administrative bodies. At the first hearing, Dr. Meller 

confronted Dr. Graboff with x-rays of the Jones plaintiff that Dr. 

Graboff had not seen when he prepared his expert report. Based 

on these x-rays, Dr. Graboff admitted that his report was flawed 

and that Dr. Meller’s treatment of his patient had satisfied the 

appropriate standard of care. Dr. Graboff also testified that he 

believed his report had been preliminary, and that he had not 

expected it to be used in litigation. Ultimately, however, the 

AAOS Board of Directors reached a final decision that Dr. 

Graboff had violated its Standards of Professionalism, and it 

suspended him from membership in the AAOS for two years. 

Pursuant to its bylaws, the AAOS published a summary 

of the grievance proceedings against Dr. Graboff in AAOS 

Now, a publication available to both AAOS members and the 

public. The article described the Jones case and the grievance 

proceedings against Dr. Graboff, but did not mention Dr. 

Graboff’s exculpatory testimony from the grievance proceedings 

that he considered the report to have been preliminary, that it 

had been altered, and that it had been used improperly to settle 

the case. Instead, the article explained that Dr. Graboff “was 

initially absolute in his opinion that [Dr. Meller] had violated the 

standard of care,” but later “contradicted himself” and “admitted 

his report had been based on lack of information.” JA 562. The 

article was publicly available on the AAOS website and 

appeared in online searches of Dr. Graboff’s name. 

On April 16, 2010, Dr. Graboff instituted this action 
7

against the AAOS alleging, as we have explained, that the 

article was actionable as it was defamatory and was a false light 

invasion of privacy. Though these charges set forth separate 

causes of action, the actions are related and include, as will be 

seen, certain common elements. At the ensuing 12-day jury 

trial, Dr. Graboff testified that the article omitted the fact that 

his report had been a draft, made it seem that he had access to 

the x-rays prior to drafting the report, and implied that he 

intentionally had falsified information rather than explaining 

that the report had been a preliminary draft based on limited 

information. Dr. Graboff, who, until the time of the publication 

of the article, frequently testified as an expert witness for both 

plaintiffs and defendants, including defendants’ insurance 

companies, also testified that his credibility as an expert witness 

suffered following the publication of the article. Consequently, 

several of his longstanding clients terminated their relationships 

with him and, when testifying, he was subject to impeachment 

because of the article and his suspension from AAOS 

membership. 

As we have indicated, the jury concluded that the AAOS 

had not made false statements in the article, but had made 

statements that portrayed Dr. Graboff in a false light and 

awarded him $196,000 in damages. As we also have indicated, 

the District Court treated the jury’s findings as returning a 

verdict in favor of Dr. Graboff on the false-light-invasion-ofprivacy claim, but in favor of the AAOS on the defamation 

claim. 

Following the return of the verdict, the AAOS moved for 

“judgment as a matter of law and for judgment notwithstanding 
8

the verdict.” JA 1219-20.1 Although the motion referred to 

both Federal Rule of Civil Procedure 50(b), dealing with the 

renewal of motions after trial of earlier motions for a judgment 

as a matter of law, and Rule 59, dealing with motions for a new 

trial, and the District Court treated the motion as seeking both 

remedies, the AAOS made the motion exclusively under Rule 

50(b) because Rule 59 does not deal with motions for entry of 

judgment, the relief that the AAOS requested in the District 

Court.2 The Court in an exceptionally comprehensive opinion 

dated March 28, 2013, denied the AAOS’s motion and, in effect, 

sustained the damages verdict. See Graboff v. Colleran Firm, 

 

1 An amendment of the Federal Rules of Civil Procedure in 1991 

substituted the term “judgment as a matter of law” for the term 

“judgment notwithstanding the verdict” but did not make a 

substantive change in the law. 9 Moore’s Federal Practice –

Civil § 50.03 (Redish 2013); see also Fed. R. Civ. P. 50 advisory 

committee’s note.

2 On this appeal the AAOS has expanded on the relief it sought 

in the District Court as it asks as an alternative to granting it a 

judgment as a matter of law that we remand the case for a new 

trial. As we have indicated, notwithstanding the AAOS’s 

reference to Rule 59, the District Court treated the Rule 59 

motion as seeking either a judgment as a matter of law or a new 

trial and it denied both motions. We see no reason why the 

District Court should have granted a new trial and we therefore 

will not remand the case for that purpose.
9

D.C. Civ. No. 10-1710, 2013 WL 1286662 (Mar. 28, 2013).3

III. JURISDICTION and STANDARD OF REVIEW

 The District Court had jurisdiction based on diversity of 

citizenship under 28 U.S.C. § 1332 and we have jurisdiction 

under 28 U.S.C. § 1291. We review the District Court’s denial 

of a motion for judgment as a matter of law de novo, Acumed 

LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 211 (3d 

Cir. 2009), and ordinarily apply the same standard as a district 

court applies in considering a motion for judgment as a matter of 

law. Johnson v. Campbell, 332 F.3d 199, 204 (3d Cir. 2003). 

That standard requires a court of appeals to assess “whether, 

viewing the evidence in the light most favorable to sustaining 

the verdict, a reasonable jury could have found for the prevailing 

party.” Id.; see also Lakeside Resort Enterps., LP v. Bd. of 

Sup’rs of Palmyra Twp., 455 F.3d 154, 156 (3d Cir. 2006). Of 

course, in this case inasmuch as we reach our result by our 

treatment of the verdict and the AAOS does not challenge the 

sufficiency of the evidence to support the verdict, we make our 

determination by plenary application of legal principles.

 

3 Dr. Graboff also sued defendants other than the AAOS and 

asserted claims for breach of contract, tortious interference of 

contract, and commercial disparagement, but we need not 

describe the proceedings on those aspects of his case because 

the proceedings with respect to these parties and claims have 

been terminated and are not at issue on this appeal. We note, 

however, that the District Court addressed at length issues 

beyond those that we now consider.
10

IV. DISCUSSION

On this appeal we address the question of whether the 

jury’s finding that the article did not contain false statements 

precluded the District Court from treating the jury’s answers to 

the interrogatories to support the entry of a judgment in favor of 

Dr. Graboff on his false-light-invasion-of-privacy claim. The 

AAOS argues that “the jury’s finding that the [a]rticle contained 

no false statements about Graboff is incompatible (or at least 

inconsistent) with its finding that the same [a]rticle portrayed 

Graboff in a false light.” Appellants’ reply br. at 6-7. 4 The 

AAOS, in making its contention that the verdict was internally 

incompatible or inconsistent, points out that the Court’s 

instructions defined falsity broadly to include both false 

statements and true statements making a false implication. 

Inasmuch as it is presumed that a jury applies the court’s 

instructions as given, the AAOS argues that the jury necessarily 

found that the AAOS did not make any statements in the article 

that included a false implication with respect to Dr. Graboff.5 

Therefore, in its view, the Court erred by treating the findings as 

 

4 Although we believe that the AAOS did not raise this issue 

fully in the District Court either before the jury was dismissed or 

in its post-trial motion, we need not decide whether the AAOS 

waived the argument because Dr. Graboff does not argue that it 

did so. See Marra v. Phila. Housing Auth., 497 F.3d 286, 312 

n.21 (3d Cir. 2007).

5 We presume that the jury followed the District Court’s 

instructions when arriving at its verdict. See Weeks v. 

Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 733 (2000).
11

returning a verdict in favor of Dr. Graboff for false light 

invasion of privacy. Rather, it contends that the Court should 

have read the answers to the interrogatories to reach a 

conclusion that the AAOS was not liable for either defamation 

or false light invasion of privacy. 

Although we conclude that the AAOS’s contentions do 

not have merit, we also conclude that the District Court erred in 

its treatment of the jury’s answers for, contrary to that Court’s 

view, the answers support findings that the AAOS was liable for 

both defamation and false light invasion of privacy rather than 

only for the latter claim. However, for the reasons we set forth, 

we conclude that the Court reached the correct result in denying 

AAOS’s post-trial motion, and its error thus was harmless. 

Therefore, we will affirm the denial of AAOS’s post-trial 

motion and, in effect, uphold the judgment entered against the 

AAOS.6 

A. Legal Framework and Jury Instructions on 

Defamation and False Light Invasion of Privacy

In light of the AAOS’s incompatibility or inconsistency 

contention with respect to the jury’s verdict, we discuss the 

elements of defamation and false light invasion of privacy under 

Pennsylvania law as the parties agree that Pennsylvania law is 

 

6

It is important to recognize that neither the District Court nor 

this Court has had the advantage of having precedential opinions 

of the Pennsylvania Supreme Court on all of the state-law issues 

in this case.
12

applicable in this case. 

1. Defamation

A claim for defamation claim under Pennsylvania law 

includes the following elements: 

(1) The defamatory character of the 

communication.

(2) Its publication by the defendant.

(3) Its application to the plaintiff.

(4) The understanding by the recipient of its 

defamatory meaning.

(5) The understanding by the recipient of it as 

intended to be applied to the plaintiff. 

Tucker v. Fischbein, 237 F.3d 275, 281 (3d Cir. 2001) (quoting 

42 Pa. Const. Stat. Ann. § 8343(a) (West 1998)). Procedurally, 

a trial court at the outset should decide whether a statement is 

capable of a defamatory meaning.7 Id. (citing Thomas Merton 

 

7

Though the District Court apparently did not make this 

determination, neither party has raised this issue on this appeal, 

so we need not address whether the District Court’s bypassing 

of this issue was an error. In any event, the oversight would 

have been harmless because the statements at issue undoubtedly 

are capable of a defamatory meaning. See Hill v. Reederei F. 

Laeisz G.M.B.H., Rostock, 435 F.3d 404, 420 (3d Cir. 2006) 

(holding that harmless error requires asking whether it is “highly 

probable that the error did not affect the outcome of the case”)

(internal quotation marks omitted). 
13

Ctr. v. Rockwell Int’l Corp., 442 A.2d 213, 215-16 (Pa. 1981)). 

If the court determines that a statement can support such a 

meaning, the jury then must decide “whether the recipient 

actually understood the statement to be defamatory.” Id. at 281-

82 (citing Corabi v. Curtis Publ’g Co., 273 A.2d 899, 904 (Pa. 

1971)). 

A statement is defamatory if “it tends so to harm the 

reputation of another as to lower him in the estimation of the 

community or to deter third persons from associating or dealing 

with him.” Id. at 282 (quoting Birl v. Phila. Elec. Co., 167 A.2d 

472, 476 (Pa. 1960) (internal quotation marks omitted)). But the 

statement must do more than merely embarrass or annoy the 

plaintiff; it must provoke “‘the kind of harm which has 

grievously fractured [one’s] standing in the community of 

respectable society.’” Tucker v. Phila. Daily News, 848 A.2d

113, 124 (Pa. 2004) (quoting Scott-Taylor, Inc. v. Stokes, 229 

A.2d 733, 734 (Pa. 1967)). 

A defendant may avoid liability for defamation if it 

shows that its statements were “substantially true.” See 42 Pa. 

Const. Stat. Ann. § 8343(b)(1) (West 2013); see also Dunlap v. 

Phila. Newspapers, Inc., 448 A.2d 6, 15 (Pa. Super. Ct. 1982) 

(“The proof of truth must go to the gist or sting of the 

defamation.”) (quoting Sack, Libel, Slander, and Related 

Problems at 50-51, 137-38 (1980) (internal quotation marks 

omitted)). However, a defamatory statement must be viewed in 

context, Baker v. Lafayette Coll., 532 A.2d 399, 402 (Pa. 1987), 

and a defendant cannot use truth as a defense where “the 

implication of the communication as a whole was false,” even if 

the statement is “literally accura[te],” Dunlap, 448 A.2d at 15. 
14

Though we are not aware of any Pennsylvania Supreme Court 

case on the point, inferior Pennsylvania courts applying 

Pennsylvania law have concluded that defamation may be 

established where a statement, viewed in context, creates a false 

implication. See, e.g., id. (adopting defamation by innuendo 

theory); Mzamane v. Winfrey, 693 F. Supp. 2d 442, 476-78 

(E.D. Pa. 2010) (collecting cases approving a defamation-byimplication theory). 

2. False Light Invasion of Privacy

In Pennsylvania there can be four separate torts when 

there has been an invasion of privacy, one of which, publicity 

placing a person in a false light, is at issue here. Marks v. Bell 

Tel. Co., 331 A.2d 424, 430 (Pa. 1975). Pennsylvania has 

adopted the definition of false light invasion of privacy from the 

Restatement (Second) of Torts, which imposes liability on a 

person who publishes material that “is not true, is highly 

offensive to a reasonable person, and is publicized with 

knowledge or in reckless disregard of its falsity.” Larsen v. 

Phila. Newspapers, Inc., 543 A.2d 1181, 1188 (Pa. Super. Ct. 

1988) (en banc) (citing Restatement (Second) of Torts § 652E); 

see also Vogel v. W.T. Grant Co., 327 A.2d 133, 135-36 (Pa. 

1974) (adopting Restatement (Second) definitions for all four 

invasion of privacy claims). Although to the best of our 

knowledge the Pennsylvania Supreme Court has not addressed 

the contours of falsity in the false-light-invasion-of-privacy 

context, the Superior Court has defined falsity broadly in that 

context. A plaintiff can establish falsity by showing that a 

defendant “selectively printed or broadcast true statements or 

pictures in a manner which created a false impression.” Larsen, 
15

543 A.2d at 1189. Thus, even where a publication is literally 

true, “discrete presentation of information in a fashion which 

renders the publication susceptible to inferences casting one in a 

false light entitles the grievant to recompense for the wrong 

committed.” Id. at 1189. The Superior Court has drawn this 

broad definition from defamation law, which permits recovery 

where a publication was true, but implied falsehoods. Id. (citing 

Dunlap, 448 A.2d at 15). 

Applying this standard in Larsen, the Superior Court 

allowed the plaintiff’s claim to survive a motion to dismiss 

where he alleged that a series of articles, although literally true, 

conveyed a false impression that he had lied under oath. Id. See 

also Krajewski v. Gusoff, 53 A.3d 793, 809-10 (Pa. Super. Ct. 

2012) (reversing dismissal of false-light claim where factual 

statements in article “suggest[ed] a causal relationship” that 

could not be proven), appeal dismissed, ____A.3d ____, 2014 

WL 321859 (Pa. Jan. 29, 2014); Santillo v. Reedel, 634 A.2d 

264, 267 (Pa. Super. Ct. 1993) (“A false light claim can be 

established where true information is released if the information 

tends to imply falsehoods.”). 

Falsity with respect to a defendant’s statements thus 

carries the same meaning in the defamation and false-lightinvasion-of-privacy contexts; indeed, the Superior Court drew 

its definition of falsity in the false-light-invasion-of-privacy 

context from its corresponding definition in the defamation 

context. Larsen, 543 A.2d at 1189. And Pennsylvania inferior 

courts consistently apply the same analysis to both types of 

claims when the causes of action are based on the same set of 

underlying facts. See, e.g., Krajewski, 53 A.3d at 809 (using 
16

discussion of statements as to defamation claim in false-lightinvasion-of-privacy context). Accordingly, publication of 

factually correct statements that convey a false impression can 

be actionable as defamation (if the statements had a grievous 

effect on one’s reputation), or actionable as a false light invasion 

of privacy (if the statements would be highly offensive to a 

reasonable person). Clearly there is little difference between 

these claims in dealing with the consequences of a defendant’s 

statements. 

3. The Jury Instructions and the 

Interrogatories

The District Court’s instructions correctly told the jury 

that a defendant’s statements in the defamation context could be 

false if the statements included untrue statements or if the 

statements implied something that was untrue. See JA 1198 (“A 

communication or any portion of it is defamatory if in context its

stated or implied meaning is defamatory.”); JA 1199 (“A 

communication may be false either because it contains untrue or 

incomplete statements of fact, or because its implication is 

untrue.”). The Court also correctly told the jury that the 

AAOS’s statements were presumed to be false, and that the 

AAOS had the burden to overcome this presumption and “to 

prove by a fair preponderance of the evidence that the 

communication was substantially true.” JA 1199. The Court, 

however, did not specifically charge the jury that a finding that 

the AAOS published a false statement was a prerequisite for Dr. 

Graboff to recover for false light invasion of privacy. Rather, 

the Court stated that the AAOS could be liable for false light 

invasion of privacy if it published statements that placed Dr. 
17

Graboff “before the public in a false light” and if the publication 

would be highly offensive to a reasonable person. JA 1202. 

This charge was correct as far as it went though it omitted an 

explanation that the AAOS could be liable in a false-light case if 

it made a factually untrue statement. 

As we have explained, the District Court did not submit 

the case to the jury by asking for general verdicts on the two 

alleged torts. Instead, the Court submitted the case to the jury 

on interrogatories which, in addition to including a damages 

question that the jury needed to address only if it answered the 

liability questions in favor of Dr. Graboff, asked only three 

questions regarding liability on the tort claims involved on this 

appeal: (1) did Dr. Graboff show, by a preponderance of the 

evidence, that the AAOS made statements in the article that 

were either false, or (2) portrayed Dr. Graboff in a false light, 

and (3) did the AAOS act knowingly or with reckless disregard 

for the truth of its statement? JA 1262. The jury found that the 

article did not contain false statements but that it did contain 

statements that portrayed Dr. Graboff in a false light and that the 

AAOS acted knowingly or with reckless disregard for the truth. 

The completed interrogatories and answers read:

6. Do you find that Dr. Steven Graboff 

proved by a preponderance of the evidence that 

the American Academy of Orthopaedic Surgeons 

and American Association of Orthopaedic 

Surgeons (‘AAOS’) made statements in AAOS 

Now about Dr. Steven Graboff that: 

(a) Were false?
18

____YES __X__ NO

(b) Portrayed Dr. Steven Graboff in a false light?

__X_YES _____ NO

If your answer to Question No. 6(a) or 

6(b) is “YES”, please proceed to Question No. 7. 

If your answers to Question No. 6(a) and 6(b) 

are “NO”, please proceed to Question No. 9.

7. Do you find that the American Academy 

of Orthopaedic Surgeons and American 

Association of Orthopaedic Surgeons (‘AAOS’) 

knew or acted in reckless disregard for the truth or

untruth of statements in AAOS NOW that were 

false or portrayed Dr. Steven Graboff in a false 

light? 

__X_YES _____ NO8

We reiterate that the District Court treated these answers as 

 

8

This finding was sufficient to establish mens rea for both 

claims. See American Future Sys., Inc. v. Better Bus. Bureau, 

923 A.2d 389, 400 (Pa. 2007) (explaining that a party may liable 

for defamation against a non-public figure if it acted 

negligently); Krajewski, 53 A.3d at 807 (requiring knowledge 

that the statements would be offensive to a reasonable person to 

recover on false light claim). 
19

making a finding in favor of Dr. Graboff for false light invasion 

of privacy and in favor of the AAOS on the defamation claim. 

B. The Jury’s Verdict is Consistent

The AAOS challenges the jury’s verdict as “incompatible 

(or at least inconsistent).” Appellants’ reply br. at 6-7. The 

AAOS argues that because the Court defined falsity as including 

“true statements that create a false impression,” id. at 5, the 

jury’s finding in interrogatory 6(a) that the AAOS had not 

published false statements precludes imposing liability on it 

either for defamation or false light invasion of privacy. In 

effect, the AAOS is arguing that, inasmuch as the jury found 

that it did not make false statements about Dr. Graboff, it could 

not have made statements portraying him in a false light. 

We approach the incompatibility and inconsistency 

argument recognizing that “inconsistent jury verdicts are an 

unfortunate fact of life in law, and should not, in and of 

themselves, be used to overturn otherwise valid verdicts.” 

Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396, 

407 (3d Cir. 2000). Rather, when faced with a seemingly 

inconsistent verdict, a court, to the extent possible, should read 

the verdict to resolve the inconsistencies.9 Pitts v. Delaware, 

 

9

The AAOS requests that we reverse the judgment and enter 

judgment in its favor, or, alternatively, that we reverse the 

judgment and remand the case for a new trial. Appellants’ reply 

br. at 7. The first request directly conflicts with Mosley v. 

Wilson, 102 F.3d 85, 91 (3d Cir. 1996), in which we held that 

the district court erred by “directing a judgment notwithstanding 

the jury’s verdict on one claim on the sole ground that it was 
20

646 F.3d 151, 156 n.2 (3d Cir. 2011); see also Mosley v. 

Wilson, 102 F.3d 85, 90 (3d Cir. 1996) (noting that a court has a 

“‘duty to attempt to read the verdict in a manner that will resolve 

inconsistencies’” (quoting Los Angeles v. Heller, 475 U.S. 796, 

806, 106 S.Ct. 1571, 1576 (1986) (Stevens, J. dissenting))); 

Repola v. Mobark Indus., Inc., 934 F.2d 483, 494 (3d Cir. 1991) 

(characterizing duty to resolve inconsistencies in jury verdicts as 

a constitutional obligation). 

We conclude that the answers to the interrogatories can 

be reconciled but that the District Court did not correctly treat 

the answers to resolve a possible inconsistency in them when it 

concluded that the jury found for the AAOS on the defamation 

claim and for Dr. Graboff on the false-light-invasion-of-privacy 

claim. The Court, applying Pennsylvania law, explained to the 

jury that Dr. Graboff could prove his defamation claim if the 

AAOS published either untrue statements or true statements that 

implied something untrue. The Court explained that the AAOS 

could be liable for false light invasion of privacy if it published 

statements that portrayed Dr. Graboff in a false light, but in so 

defining a false-light claim did not distinguish between untrue 

statements or statements that implied something untrue. 

Overall, when the entire charge is considered, it is clear that the 

Court split the bases for finding liability under the two causes of 

 

inconsistent with the jury’s verdict on another claim.” Although 

reversal and remand for a new trial is one potential approach to 

resolving inconsistent verdicts, see Acumed LLC, 561 F.3d at

217-18, where possible we have attempted to reconcile verdicts 

that seemingly were inconsistent. See, e.g., Pitts, 646 F.3d at 

156 n.2. 
21

action at issue into two possibilities: i.e., factually false 

statements or statements whether or not true that implied 

something untrue. 

The jury found that the AAOS had not published false 

statements, but had published statements that portrayed Dr. 

Graboff in a false light. Under the instructions, these responses 

support a finding of liability for both defamation and false light 

invasion of privacy; after all, as the District Court explained to 

the jury, it was not necessary for the jury to find a statement was 

untrue for there to be a recovery on a defamation claim. JA 

1199. What the Court did, in effect, was to ask the false-light 

interrogatory twice, the first time as part of what the Court 

regarded to be the defamation claim interrogatory because 

falsity by implication was included in the definition of falsity 

and the second time in what the Court believed to be the falselight claim interrogatory. When we view the interrogatories in 

this way, the verdict was not inconsistent because the evidence 

supported a conclusion that the AAOS had made statements that 

were false inasmuch as they portrayed Dr. Graboff in a false 

light but that the statements were not factually false. 

We cannot say that the jury did not follow the District 

Court’s instructions in returning its verdict for, notwithstanding 

the Court’s explanation that falsity includes statements false in 

themselves and statements false by implication, the Court 

separated the two categories of falsity and directed the jury to 

consider the categories in different answers, and the jury did 

exactly that. But we believe that the Court erred in its treatment 

of the verdict because the legal consequence of the jury’s 

finding that the AAOS published statements portraying Dr. 
22

Graboff in a false light was that the AAOS was liable on both 

claims even though the jury found that the article did not make a 

false statement.10 Properly applied, the jury’s determination 

trumps the AAOS’s argument that its finding that the AAOS did 

not make false statements about Dr. Graboff precluded a finding 

of liability on either claim. 

The confusion here could have been avoided if the Court 

had combined the false statement and false light interrogatories 

into a single three-part interrogatory requiring an affirmative 

liability answer if the jury found that the AAOS made false 

statements about Dr. Graboff, portrayed him in a false light, or 

did both. But inasmuch as the Court split the bases for a finding 

of liability it was required to enter a judgment in accordance 

with the answers the jury gave to the interrogatories by, if 

possible, reconciling the answers. Though it attempted to do so 

we reiterate our conclusion that it erred when it treated the 

answers as finding for the AAOS on the defamation claim, but 

against it on the false-light claim. In fact, the jury did not find 

for or against Dr. Graboff on the defamation claim as the Court 

did not submit the case to it to make an ultimate finding on 

either the defamation or false-light claim. Rather, the jury 

simply answered the questions that the Court submitted to it and, 

as we have explained, the jury’s answers, in addition to 

supporting a judgment for Dr. Graboff on the false-light claim, 

supported a judgment that the AAOS was liable for defamation 

inasmuch as it could have defamed Dr. Graboff without making 

 

10 It cannot be contended seriously that the article did not have a 

grievous effect on Dr. Graboff’s reputation, an element of a 

defamation charge.
23

any statements that were false in themselves about him. 

But even though the District Court did not read the 

verdict as it could have and, indeed, should have to resolve any 

seeming inconsistency in the verdict, the error was harmless 

because once we reconcile the liability aspects of the verdict, as 

we have done, the damages finding easily stands. The jury 

calculated damages for defamation and false light invasion of 

privacy together: 

10. Please state the amount of damages, if any, 

that Dr. Steven Graboff suffered as a result of the 

liability you found against the American Academy 

of Orthopaedic Surgeons and American 

Association of Orthopaedic Surgeons (“AAOS”). 

. .

For Intentional Interference with Prospective 

Contractual Relations, Defamation, and/or 

Publication in a False Light: 

Past loss of earnings in a lump sum:

$_____140,000___

Future loss of earnings in a lump sum:

$_____0_________

Noneconomic loss in a lump sum:

$____56,000______

JA 1264. Because the jury assessed damages for both claims as 

a single unit, our reading of the verdict to provide that the 

AAOS was liable both for defamation and false light invasion of 
24

privacy allows the damages award to stand. In these 

circumstances, the District Court’s error in treating the jury’s 

answers to the interrogatories so as to exonerate the AAOS on 

the defamation claim was harmless because the error had no 

effect on the outcome of the case. See Hill v. Reederei F. Laeisz 

G.M.B.H., Rostock, 435 F.3d 404, 411 (3d Cir. 2006) 

(explaining that errors are harmless where it is “highly probable 

that the error did not affect the outcome of the case” (internal 

quotation marks omitted)). Regardless of whether the jury 

found for Dr. Graboff only for false light invasion of privacy, as 

the District Court believed, or on both claims, its damage 

calculation would have been the same.11 

V. CONCLUSION

For the foregoing reasons we will affirm the order of 

March 28, 2013, denying AAOS’s motion for judgment as a 

matter of law and for judgment notwithstanding the verdict.

 

11 We also point out that Dr. Graboff has not cross-appealed 

from the judgment in favor of the AAOS on his defamation 

claim or asked us to remand the case for a new trial on damages 

only on both the defamation and false-light claims or, without 

disturbing the judgment in his favor on the false-light claim, on 

the defamation claim alone.