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Tholen v. Assist America, Inc.

United States District Court, D. Minnesota

January 7, 2019

Richard H. Tholen, M.D., and Mary Jane Tholen, Plaintiffs,
Assist America, Inc., Defendant.

          Ronald J. Schutz, Esq., Patrick M. Arenz, Esq., Brenda L. Joly, Esq., and Emily E. Niles, Esq., Robins Kaplan LLP, counsel for Plaintiffs.

          Mark T. Berhow, Esq., Hinshaw & Culbertson LLP, counsel for Defendant.




         Plaintiffs Richard H. Tholen, M.D. (“Dr. Tholen) and Mary Jane Tholen (“Mrs. Tholen”), sued Defendant Assist America, Inc., alleging defamation arising out of marketing material that Defendant published which detailed an accident leading to Dr. Tholen's leg amputation. This matter is before the Court on Defendant's motion to dismiss. For the reasons discussed below, the Court grants the motion.


         Dr. Tholen is a board-certified, nationally recognized plastic surgeon. (Doc. No. 1 (“Compl.”) ¶¶ 16-19.) Assist America is a membership-based organization and is in the business of providing global emergency medical services, including medical evacuation if a member does not receive adequate care locally. (Id. ¶ 2.) In 2015, the Tholens were Assist America members. (Id. ¶ 23.)

         The Tholens attempted to use Assist America's services in April 2015. On April 19, 2015, while vacationing in Mazatlán, Mexico, Dr. Tholen suffered a severe knee injury in a zip lining accident. (Id. ¶ 21.) Dr. Tholen received immediate medical care, which included the placement of a hard cast on his leg. (Id. ¶ 22.) The medical professionals did not, however, check his leg for a vascular injury. (Id.) The Tholens allege that such care was so poor that it would be considered malpractice in the United States. (Id.)

         The same day, the Tholens contacted an orthopedic surgeon in the United States, who advised them to have the cast removed and to return to the U.S. as soon as possible for evaluation and treatment. (Id.) The Tholens then visited a second hospital in Mexico, where Dr. Tholen had the cast removed. While at the second hospital, Dr. Tholen e-mailed and called Assist America requesting medical evacuation. (Id. ¶ 28, Ex. B; ¶¶ 29-30.) The Tholens allege that Assist America refused to evacuate the Tholens, did not consult with an Assist America medical director in reaching the decision, and told them that they were at “a very good hospital.” (Id. ¶¶ 30-31.)

         On April 20, 2015, the Tholens again contacted Assist America, and Assist America again refused to evacuate the Tholens even though no medical director had yet assessed Dr. Tholen's situation. (Id. ¶ 33.) On April 21, 2015, two of Assist America's medical directors-Dr. Shaffrey and Dr. Krohn-reviewed Dr. Tholen's situation and approved his evacuation to the United States. (Id. ¶¶ 35-36.) By then, the Tholens had already purchased first-available tickets for a flight out of Mexico. (Id. ¶ 34.) The Tholens departed Mexico on April 21, 2015, and landed in Minnesota in the early morning hours of April 22, 2015. (Id.) Assist America did not communicate with the Tholens during this time. (Id. ¶¶ 40-42.)

         Upon returning to Minnesota, on April 22, 2015, Dr. Tholen saw an orthopedic surgeon and a vascular surgeon. (Id. ¶ 43.) Over the course of several weeks, Dr. Tholen underwent numerous tests and surgical procedures designed to save his leg. (Id. 44-46.) Unfortunately, doctors determined that Dr. Tholen's right leg could not be saved, and on May 18, 2015, he underwent an above-knee amputation of his right leg. (Id. ¶ 47.) On August 24, 2017, Dr. Tholen sued Assist America for negligence and breach-of-contract, alleging that Dr. Tholen's leg could have been saved but for Assist America's negligence and breach of contractual duties. Tholen v. Assist America, Inc., Civ. No. 17-3919 (DWF/SER). The Tholens' negligence and breach-of-contract action is ongoing, with the parties having completed fact discovery, exchanged opening and rebuttal expert reports, and engaged in motion practice regarding discovery. See generally id.

         This case, however, involves allegations that Assist America published false statements and misrepresentations about the Tholens' accident and request for evacuation, and Assist America's response. Specifically, the Tholens allege that Assist America made false and defamatory statements in a case study that it published on July 26, 2016 in the Assistance and Repatriation Review 2016, a special edition of the International Travel & Health Insurance Journal (“Case Study”). (Compl. ¶ 57.)

         The Case ...

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