DISSENT and Opinion Filed August 27, 2019 

# S

In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-18-01414-CV U.S. ANESTHESIA PARTNERS OF TEXAS, P.A., Appellant V. WHITNEY KELLEY MAHANA, Appellee On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-08272


### OPINION DISSENTING FROM DENIAL OF EN BANC CONSIDERATION
Before the Court En Banc Opinion by Justice Whitehill Imagine that you show up for surgery requiring general anesthes ia and as they are wheeling you into the operating room they tell you that the person respo nsible for administering the drugs that put you to sleep—a person in whose hands your life rests—i s a drug addict who that day failed a test for illegal drugs. 1 Would any ordinar y person in that situation have some potenti al concern for his or her own health and safety? Would communications amo ng that hospital’s personnel discussing that anesthetist’s ( alleged) drug habits and failed drug test be communications at least tangentially related to public he alth and safety or community w ell-being?

1 This hypothetical is based on a llegations in the plaintiff’s p etition about alleged communicati ons. This opini on does not su ggest that these facts are true of plaintiff, but it must accept the petition’s allegations at face value for pur poses of the TCPA step one ana lysis.–2– The panel majority suggests that ordinary people would not have some concern for health and safety or community well-being simply because a person who puts people to sleep for a living is a drug addict who recen tly failed a drug test. I requested en banc consideration of this case because the majo rity opinion conflicts with our prior cases, and a majority of the Court voted to deny en b anc consideration. I respectfully dissent from that decision f or the following reasons.
I. I SSUE P RESENTED The issue is straightforward. N urse anesthetist Mahana sued he r former employer for intentional infliction of emotional distress. She alleged that (i) her supervisor sent text messages to her co-workers stating that she was being removed from her d uties because she had tested positive for opiates and other controlled substances and (ii) h er supervisor and other employees were spreading rumors that she was a drug abuser and addict. T he question presented under the TCPA’s first step is whether these statements relate, even tang entially, to a matter of public concern such as public health and safety or community well-bein g. 2 See ExxonMobil Pipeline Co.
v. Coleman , 512 S.W.3d 895, 900 (Tex. 2017) (per curiam) (TCPA does not r equire more than a “tangential relationship” to a “matter of public concern”). The panel opinion holds that the subject matter of those statem ents doesn’t at least tangentially relate to health, safety, or community well-being, that is, a matter of public concern, and therefore the TCPA does not apply in this case. Because th e majority opinion is incorrect and conflicts with our controlling precedent, I dissent from the Co urt’s denial of en banc consideration.

2 Step one does not require that the legal action be based on th e truth of the communication’s content as long as the action re lates to or is in response to the communication. See Damonte v. Hallmark Fin. Servs., Inc. , No. 05-18-00874-CV, 2019 WL 3059884, at *5 (Tex. App.—Dallas July 12, 2019, no pet. h.) (mem. op.) (Whitehill, J., concurrin g). It is the fact that the communication was made and that it implicates one of the three TCPA statutorily defined protected rights that counts for the TCPA’s first step analysis. Id

.–3– II. A NALYSIS A. Contrary to the panel opinion, the speech at issue sufficien tly implicates (i) health and safety and (ii) community well-being. Mahana is a nurse anesthetist. As this passage from her live p leading shows, the communications at issue are that she is a drug addict who teste d positive for illegal drugs one day when she arrived for work: Within a short time after the Plaintiff [reported for work and] submitted to the drug testing by the Defendant, supervisors and other persons known a nd unknown to the Plaintiff at this time intentionally and with malicious intent began texting that the Plaintiff had tested posi tive for several i llegal drugs and controlled substances and was being fired. The Plaintiff was later shown texts from agen ts and supervisors of the Defendant alleging she had tested positive for numerous illegal or controlled substances when in fact the Plaintiff had tested negative. The said text also stated or implied that the Plai ntiff was a “drug addict” and was being terminated for illegal activity

. (Emphasis added.) Yet the panel professes that they would not be concerned for their (or the public’s) health or safety if they (or the public) appeared for surgery that day and were given that information about the person w ho would be putting them to sleep in a few minutes. Under Lippincott v. Whisenhunt , 462 S.W.3d 507 (Tex. 2015) (per curiam), and Coleman , 512 S.W.3d at 900, Mahana’s claim triggers the TCPA with respec t to the communications stating that (i) she was being removed from her duties because she test ed positive for illegal drugs and controlled substances and (ii ) she was a drug addict. Under the TCPA, the step one que stion is whether the communicat ion relates at least tangentially to a matter of public concern, such as health, saf ety, or community well-being. Statements that a nurse anesthe tist—a medical professional in w hose hands peoples’ lives rest— is a drug addict who shows up fo r work testing positive for ill egal drugs and other controlled substances unquestionably and directly relate to public and pat ient health and safety, let alone tangentially so. Patients could die or suffer life altering in juries if a nurse anesthetist makes a mistake because of drug impairment. This is an obvious health and safety risk. According to–4– Mahana’s petition, the hospital thought so; that is a reason wh y it fired her. At this stage, we accept the truth of Mahana’s pe tition alleging that fact. See Hersh v. Tatum , 526 S.W.3d 462, 467 (Tex. 2017). Many employers consider drug use a health and safety risk, whic h is why many fire employees for positive tests fo r illegal drugs. Indeed, Mahana ’s employment agreement provides that she may be terminated immediately if “a determination is m ade by the Board that there is an immediate and significant threat to the health or safety of any Patient as a result of the services provided by Provider under this A greement.” Further, Mahana’s employment agreement provides that it violates her employer’s s tandards of conduct if there i s “[p]hysical or mental impairment while performing clinical duties, including but not limited to, substance abuse.” The majority opinion concludes that there would be a health and safety concern only if someone had said that Mahana used illegal drugs on the job or t hat her alleged use affected her job performance. That requires too much. It is enough that the pu blic would be concerned about health and safety risks because a drug addicted nurse anestheti st might show up for surgery high on drugs. (None of this is to s ay that this actually happened in this case, but we must deal with the import of the communications des cribed in Mahana’s first amende d petition.) As we have held, whether a statement is true or false has no be aring on whether it implicates a matter of public concern and thus constitutes an exercise of the right of free speech. AOL, Inc. v. Malouf , No. 05-13-01637-CV, 2015 WL 1535669, at *3 (Tex. App.—Dallas Apr. 2, 2015, no pet.) (mem. op.); Cruz v. Van Sickle , 452 S.W.3d 503, 515 (Tex. App.—Dallas 2014, pet. denied). The panel opinion’s holding that the statements about Mahana do not implicate health and safety conflicts with our holding in AOL, Inc . In that case, we held that statements that a dentist had been charged with Medicaid fraud implicated health and safe ty, among other matters of public concern. 2015 WL 1535669, at *2. The statements about Mahana bear a much more direct–5– relationship to health and safety than the statements in AOL, Inc. , so the panel opinion conflicts with that precedent. The alleged speech also relates to community well-being. The p anel opinion’s holding that it doesn’t conflicts with both AOL, Inc. and Watson v. Hardman , 497 S.W.3d 601 (Tex. App.— Dallas 2016, no pet.). In both of those cases, we held that st atements accusing someone of criminal activity implicated community well-being. Watson , 497 S.W.3d at 607 (accusation of stealing charitable funds); AOL, Inc. , 2015 WL 1535669, at *2 (accusation of Medicaid fraud). The p anel opinion attempts to avoid the c onflict by constr uing the statem ents about Mahana to be limited to the state of drug addiction, whic h is not itself a crime. But the statements about Mahana also accuse her of testing positive for illegal drugs and controlled substances on a day she showed up for work putting people to sleep . Testing positive for illegal drugs necessarily entails illegal use of those substances. Thus, the panel opinion conflicts with bo th AOL, Inc. and Watson on this basis. Furthermore, given the allegation of illegal drug use, the panel deci sion’s rationale that the TCPA does not apply because the pe tition did not al lege illegal activity is puzzling. Finally, we should remember that ruling in appellant’s favor co ncerning TCPA step one is not the be-all, end-all here. The real question arises at step two, when we would consider whether Mahana’s allegations, if true, a dd up to a viable intentional i nfliction of emotional distress claim. This is the sort of thing we rou tinely address and decide on th is Court. There is no reason for not doing so in this case.
III. C ONCLUSION If a statement that a nurse anes thetist, who routinely puts peo ple to sleep for medical procedures, abuses and is addicted to illegal drugs doesn’t at least tangentially relate to health, safety, or community well-be ing, what statement does?–6– Because the panel opinion misapplies the TCPA and conflicts wit h binding precedents from this Court, I respectfull y dissent from the Court’s refusa l to consider thi s case en banc.

Schenck, J., joins this dissenting opinion
181414DF2.P05 /Bill Whitehill/ BILL WHITEHILL JUSTICE