NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-701

SHOGO HANAMURA1 & another2

vs.

ALICE WHITTIER NEWTON & others.3

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendants appeal from an order denying their special 

motion to dismiss pursuant to the anti-SLAPP statute, G. L. 

c. 231, § 59H. A principal purpose of the statute is "to obtain 

the expeditious dismissal of meritless claims that are based on 

petitioning alone." Bristol Asphalt, Co. v. Rochester 

Bituminous Prod., Inc., 493 Mass. 539, 541 (2024) (Bristol 

1 Individually and on behalf of his minor children.

2 Sara Hanamura, individually and on behalf of her minor 

children.

3 Massachusetts General Brigham, Inc., doing business as 

Massachusetts General Hospital and formerly known as Partners 

Healthcare; Massachusetts General Hospital; Robert Sheridan; The 

Shriners Hospital for Children; Jane and John Does 1-100; Steven 

Chen; and Tyler Menge.
2

Asphalt). The Superior Court judge denied the defendants' 

special motion to dismiss, but allowed their motion under Mass. 

R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), and dismissed all 

but eight claims. The remaining claims are based on allegedly 

defamatory statements made against the plaintiff mother and 

stepfather by a doctor who investigated and reported on the 

alleged abuse and neglect of their child. Because those claims 

have no substantial basis in conduct other than or in addition 

to the doctor's petitioning activity, and because the plaintiffs 

cannot show that the doctor's petitioning activity was devoid of 

any reasonable factual support or any arguable legal basis, we 

reverse.

Background.4 We summarize the facts as alleged in the 

pleadings, reserving certain facts for our discussion below. 

The plaintiffs are the mother, stepfather, and four siblings of 

A.W. A.W. is a developmentally disabled child who is alleged to 

have Kabuki syndrome, a rare genetic disorder that causes speech 

delays, skeletal anomalies, short stature, and other 

4 No "supporting or opposing affidavits stating the facts 

upon which the liability or defense is based" were filed in the 

Superior Court in connection with the defendants' special motion 

to dismiss. See G. L. c. 231, § 59H. Accordingly, we assess 

the special motion to dismiss based on the facts alleged in the 

plaintiffs' complaint, notwithstanding that many of those 

alleged facts are disputed by the defendants. See Bristol 

Asphalt, 493 Mass. at 557-560.
3

abnormalities. In 2018, just before A.W.'s fourth birthday, the 

mother took her to an emergency room in New Hampshire for 

treatment of large blisters on her hands. A.W. was transferred 

to Tufts Medical Center, where she was diagnosed with "bilateral 

burns on both hands," and a social worker filed a report of 

suspected abuse or neglect under G. L. c. 119, § 51A, that was, 

according to the plaintiffs, "full of inaccuracies."

A.W. was transferred to Shriners Hospital for Children

(Shriners) in Boston. Defendants Dr. Robert Sheridan and Dr. 

Alice Whittier Newton treated her there. Within a few days of 

A.W.'s admission, Dr. Sheridan told the mother that he believed 

A.W. had third-degree burns and would likely require skin graft 

surgery. According to the plaintiffs, Dr. Sheridan and other 

hospital personnel failed to consider the possibility that 

A.W.'s skin lesions were not burns because of "the outright lies 

perpetuated by Dr. Newton" that her prior skin lesions were 

"extremely painful," "never treated by a medical professional," 

and "took weeks to heal."

A social worker from Shriners notified the mother that the 

hospital would be sending "a letter to child protective 

services." The next day, Dr. Newton interviewed the mother for 

ten to fifteen minutes but did not "introduce herself as a child 

abuse specialist." The plaintiffs allege that, following the 
4

interview, Dr. Newton inaccurately reported the mother's 

statements regarding A.W.'s medical history, including that 

A.W.'s skin problems began in New Hampshire, her prior skin 

lesions involved blistering skin, she was burned in a bathtub, 

and that the mother refused to bathe A.W. or left other siblings 

to take care of her. As a result, A.W.'s medical records 

allegedly contained inaccuracies that subsequently impacted her 

medical care. At some point, Shriners personnel cancelled 

Kabuki syndrome as a diagnosis on A.W.'s medical record.

Police officers interviewed the mother, the stepfather, and 

A.W.'s babysitter in New Hampshire. In August 2019, the mother

and stepfather were indicted in New Hampshire Superior Court on 

criminal charges of abuse and neglect. They allege that the 

criminal charges were based in large part on misstatements set 

forth in Dr. Newton's records, reports, and prior testimony. 

Dr. Newton testified at the criminal trial in October 2019. 

According to the plaintiffs, although the criminal trial 

resolved in the mother's favor regarding three of A.W.'s 

siblings, "the conviction was sustained relative to A.W., 

largely due to Dr. Newton's testimony."

Upon being discharged from Shriners in October 2018, A.W. 

was placed in foster care. Since then, the mother "has been 

embroiled in extensive civil litigation in both New Hampshire 
5

and New York related to the allegations of abuse and neglect" of 

A.W. and her siblings, and Dr. Newton has testified twice in 

those proceedings. In 2021, a court in New Hampshire terminated 

the mother's parental rights over A.W. based on findings from 

prior judicial proceedings that were supported by Dr. Newton's 

testimony.

The plaintiffs filed suit in September 2021. Their first 

amended complaint included claims for malpractice; gross 

negligence; racial, gender, and disability discrimination; 

negligent and intentional infliction of emotional distress; and 

defamation. In a joint special motion to dismiss, the 

defendants argued that the complaint should be dismissed under 

G. L. c. 231, § 59H, because it was based on Dr. Newton's 

petitioning activity and intended "to punish the defendants for 

the investigation of allegations of child abuse and subsequent 

cooperation with child custody and ongoing criminal actions" 

against the parents. Following a hearing, the judge denied the 

special motion to dismiss in its entirety because not all of the 

plaintiffs' allegations were "directed at conduct by the 

defendants that constitutes petitioning activity"; rather, some 

of the plaintiffs' claims were based "on defendants' allegedly 

poor medical treatment and misdiagnosis of A.W. and/or their 

treatment of [the parents] during A.W.'s hospital admission."
6

The judge also denied the defendants' motion to dismiss 

under the civil and criminal immunity provision in G. L. c. 119, 

§ 51A (g) because "whether defendants acted in good faith 

requires factual development and is not appropriate for 

resolution on a motion to dismiss." Nevertheless, the judge 

dismissed on other grounds all but eight of the claims in the 

complaint for failure to state a claim under Mass. R. Civ. P. 

12 (b) (6).5 The remaining claims are two claims for defamation 

by the parents against Dr. Newton (counts 30 and 36), five loss 

of consortium claims by the minor plaintiffs limited by the 

judge to "the alleged defamation by Dr. Newton" (counts 8, 12, 

15, 19, and 22), and a vicarious liability claim against 

Shriners, Massachusetts General Hospital, and Massachusetts

General Brigham, Inc., doing business as Massachusetts General 

Hospital and formerly known as Partners Healthcare, that is 

limited "to the scope of the remaining substantive counts for 

defamation and loss of consortium" (count 38).6

5 As the plaintiffs did not file a cross appeal, the 

correctness of the dismissal of their claims under Mass. R. Civ. 

P. 12 (b) (6) is not before us.

6 The judge also granted the plaintiffs leave to file a 

newly amended complaint, but only with respect to the surviving 

eight claims and only against the defendants we have just 

listed. After the plaintiffs filed what was styled as a third 

amended complaint in accordance with the judge's direction, a 

separate and final judgment entered in favor of defendants Drs. 

Sheridan, Chen, Menge.
7

The remaining defendants now appeal from the denial of 

their special motion to dismiss under the anti-SLAPP statute and 

the denial of their claim to immunity under G. L. c. 119, 

§ 51A (g).

Discussion. 1. Appealability. The defendants may pursue 

interlocutory appellate review from the denial of their special 

motion to dismiss. See Bristol Asphalt, 493 Mass. at 547, 

citing Fabre v. Walton, 436 Mass. 517, 521-522 (2002). Because 

we conclude that the defendants' special motion should have been

allowed as to the remaining claims in the complaint, we need not 

decide whether the denial of their motion to dismiss on the 

ground of immunity under G. L. c. 119, § 51A (g), is also an 

appealable interlocutory order.

2. Standard of review. We review the Superior Court 

judge's ruling on the defendants' anti-SLAPP motion de novo. 

See Bristol Asphalt, 493 Mass. at 560-562.

3. The anti-SLAPP framework. In Bristol Asphalt, the 

Supreme Judicial Court revised the framework used to assess 

special motions to dismiss under G. L. c. 231, § 59H. See 

Bristol Asphalt, 493 Mass. at 554-560. As the court explained 

in a companion case, this revised framework applies to all cases 

in which an anti-SLAPP motion or appeal remains pending as of 
8

the issuance of the rescript in Bristol Asphalt. See Columbia 

Plaza Assocs. v. Northeastern Univ., 493 Mass. 570, 578 (2024).

Under this framework, a party may file a special motion to 

dismiss if "the civil claims, counterclaims, or cross claims 

against said party are based on said party's exercise of its 

right of petition under the constitution of the United States or 

of the commonwealth." G. L. c. 231, § 59H. At the first stage 

of the analysis, the proponent of the special motion to dismiss 

"must show that the challenged count has no substantial basis in 

conduct other than or in addition to the special motion 

proponent's alleged petitioning activity." Bristol Asphalt, 493 

Mass. at 555-556. If the proponent cannot make this threshold 

showing, the special motion to dismiss must be denied. Id. at 

556. If the proponent does show that the claim is based solely 

on the special motion proponent's petitioning activity, "the 

burden shifts to the special motion opponent." Columbia Plaza 

Assocs., 493 Mass. at 577, citing G. L. c. 231, § 59H, first 

par. At that second stage, "the special motion opponent must 

show by a preponderance of the evidence that the special motion 

proponent's petitioning activity (1) was devoid of any 

reasonable factual support or any arguable legal basis; and 

(2) caused the special motion opponent actual injury." Id. "If 

the special motion opponent makes both showings, the special 
9

motion is denied. Otherwise, the special motion is allowed." 

Id. See Bristol Asphalt.

4. Application of the anti-SLAPP framework to the 

remaining defamation-based claims. Applying the revised 

framework for assessing special motions to dismiss retroactively

(see Columbia Plaza Assocs., 493 Mass. at 578) we conclude that 

the judge erred by not conducting the two-stage analysis on a 

claim-by-claim basis. Although the judge correctly found that 

much of the plaintiffs' complaint is based on petitioning 

activity, he denied the special motion to dismiss because not 

all of the plaintiffs' allegations in the complaint were 

"directed at conduct by the defendants that constitutes 

petitioning activity." The sufficiency of the special motion 

proponent's threshold showing, however, is evaluated "count by 

count." Bristol Asphalt, 493 Mass. at 551, citing Duracraft 

Corp. v. Holmes Prod. Corp., 427 Mass. 156, 167-168 (1998). The 

judge must assess each "particular claim" challenged by a 

special motion to dismiss, along with the factual allegations 

that provide the basis for that claim. Bristol Asphalt, supra

at 561. The Supreme Judicial Court applied this approach in 

Columbia Plaza Associates, in which the court held that the 

special motion to dismiss was properly allowed as to a 

commercial fraud claim based entirely on the proponent's 
10

petitioning activities, but not as to claims for unfair or 

deceptive acts in violation of G. L. c. 93A, § 11, that were not 

"based solely on its petitioning activity." See Columbia Plaza 

Assocs., 493 Mass. at 578-80.

To be sure, after the Supreme Judicial Court's ruling in 

Bristol Asphalt, judges may no longer "parse the factual 

allegations underlying each claim to determine whether a portion 

of the opponent's cause of action could be construed as being 

based on the proponent's petitioning alone." Bristol Asphalt, 

493 Mass. at 554. If the judge determines that part of a claim 

is based on a proponent's "substantial conduct other than or in 

addition to the petitioning activities," the special motion to 

dismiss must be denied as to that claim. Id. at 554-556. Here,

all eight remaining claims, as limited by the judge, (including 

the minor plaintiffs' loss of consortium claims and the

vicarious liability claim against the hospitals) are based 

solely on the factual allegations that support the parents' 

defamation claims against Dr. Newton.

When pleading a claim for defamation, a plaintiff must 

plausibly allege four elements: "(1) the defendant published a 

defamatory statement of and concerning the plaintiff; (2) the 

statement was a false statement of fact (as opposed to opinion); 

(3) the defendant was at fault for making the statement, and any 
11

privilege that may have attached to the statement was abused; 

and (4) the plaintiff suffered damages as a result, or the 

statement was of the type that is actionable without proof of 

economic loss." Lawless v. Estrella, 99 Mass. App. Ct. 16, 18-

19 (2020). Cf. Barrows v. Wareham Fire Dist., 82 Mass. App. Ct. 

623, 628 (2012) ("Defamation is essentially spoken or written 

words or expressions that injure reputation.") Thus, for an 

allegation to serve as the basis for any of the eight remaining 

claims, it must involve a statement allegedly made by Dr. Newton

concerning the parents. Allegations about A.W.'s medical 

treatment, the hospital's treatment of the parents, and other 

nonexpressive conduct are irrelevant to the special motion to 

dismiss framework as it applies to those claims.

As the plaintiffs acknowledged at oral argument, all of the 

statements allegedly made by Dr. Newton fall into three 

categories: (i) statements written in medical reports or notes, 

(ii) statements made to other hospital or medical personnel, and 

(iii) statements made to police or while testifying as a witness 

in a civil or criminal proceeding. In particular, Dr. Newton is 

alleged to have recorded false information about A.W.'s medical 

history in her charts, made statements depicting the parents as 

child abusers and neglectors, and testified against them in 
12

court proceedings that resulted in A.W.'s removal from the 

parents' custody and their indictment on criminal charges.

Those alleged statements constitute petitioning activity 

under the anti-SLAPP statute. The definition of petitioning 

activity includes "any written or oral statement made before or 

submitted to a legislative, executive, or judicial body, or any 

other governmental proceeding [and] any written or oral 

statement made in connection with an issue under consideration 

or review by a legislative, executive, or judicial body, or any 

other governmental proceeding." G. L. c. 231, § 59H. To 

satisfy the "'in connection with' definition of petitioning. . .

a communication must be 'made to influence, inform, or at the 

very least, reach governmental bodies -- either directly or 

indirectly.'" (citation omitted). Blanchard v. Steward Carney, 

Hops., Inc., 477 Mass. 141, 149 (2017) (abrogated on other 

grounds). In Massachusetts, doctors and other hospital workers 

are required to report suspected child abuse and neglect to the 

Department of Children and Families, and "a mandated reporter 

may in addition to filing a report under this section contact 

local law enforcement authorities or the child advocate about 

the suspected abuse or neglect." G. L. c. 119, § 51A (a). 

Statements made in reports or notes or to other medical 

personnel by Dr. Newton, based on her examination of A.W. or 
13

interview of her parents, are petitioning activity because they 

involve "a plausible nexus between the statement" and a 

governmental proceeding concerning possible child abuse. 

Blanchard, 477 Mass. at 149. Similarly, statements made by Dr. 

Newton in related civil and criminal proceedings are petitioning 

activity because the "archetypical demonstration of this nexus 

involves a party's statement regarding an ongoing government 

proceeding made directly to a governmental body." Id. The 

defendants therefore met their threshold burden, as the special 

motion proponents, with respect to the remaining defamationbased claims.

Under the second stage of the analysis, the burden shifts 

to the plaintiffs to show, by a preponderance of the evidence, 

that Dr. Newton's petitioning activity "(1) was devoid of any 

reasonable factual support or any arguable legal basis; and (2) 

caused the special motion opponent actual injury." Columbia 

Plaza Assocs., 493 Mass. at 577. Because the plaintiffs did not 

submit an opposition in the Superior Court to the defendant's 

special motion to dismiss, there are no affidavits in the record 

"stating the facts upon which the liability . . . is based." 

G. L. c. 231, § 59H. We conclude that the plaintiffs cannot 

meet their burden in any event because their own complaint 

establishes that Dr. Newton's statements have been credited by 
14

several courts in proceedings involving the parents' allegedly 

abusive or neglectful treatment of A.W. For example, the 

plaintiffs allege that the mother's parental rights over A.W. 

were terminated in May 2021 "based on the findings of prior 

Court proceedings in which social services' position was 

supported with testimony from Dr. Newton." They further allege 

that a criminal conviction of the mother in New Hampshire 

Superior Court was sustained relative to the abuse or neglect of 

A.W. "largely due to Dr. Newton's testimony." We acknowledge 

that the parents may have denied the charges and allegations 

against them in some of these proceedings, and some of the 

judgments may still be subject to appeal. Nevertheless, the 

judgments conclusively establish that Dr. Newton's petitioning 

activity is not "devoid of any reasonable factual support or any 

arguable legal basis." See Columbia Plaza Assocs., 493 Mass. at 

581 (allowing special motion to dismiss where, at second stage, 

proponent's statement "was squarely supported by the judge's 

ruling" in related civil litigation); see also Fabre, 436 Mass. 

at 524-525 (judgment entered in G. L. c. 209A proceedings was 

"conclusive evidence that the petitioning activity was not 

devoid of any reasonable factual support or arguable basis in 
15

law.") Accordingly, the remaining defamation-based claims in 

this case warrant dismissal under G. L. c. 231, § 59H.7

Conclusion. So much of the September 1, 2022 order denying 

the special motion to dismiss in part and allowing the 

plaintiffs' motion to file a third amended complaint is 

reversed. The third amended complaint is struck. A judgment 

shall enter dismissing the first amended complaint.

So ordered.

By the Court (Neyman, 

Brennan & Toone, JJ.8),

Assistant Clerk

Entered: May 28, 2024.

7 Because we conclude that the special motion to dismiss 

should have been allowed as to the remaining eight claims based 

solely on the allegations in the complaint, we deny as moot the 

motion filed by the defendants in this court to supplement the 

record to reflect developments in the parents' criminal cases.

8 The panelists are listed in order of seniority.