MEMORANDUM AND ORDER
LAURIE SMITH CAMP, Chief District Judge.
This matter is before the Court on the Defendant's Motion for Summary Judgment (Filing No. 47). For the reasons discussed below, the Motion will be denied.
The parties' briefs (Filing Nos. 48, 53, and 58) and indexes of evidence (Filing Nos. 49, 50, 51, 52, and 59) reveal that there is no genuine dispute as to the following material facts:
David Steinberg ("Steinberg") is a physician specializing in psychiatry, and a current resident of the State of New Jersey. Good Samaritan Hospital (the "Hospital") is a Nebraska not-for-profit corporation that operates a medical facility located in Kearney, Nebraska.
In late 2008, a placement agency arranged for Steinberg to work at the Hospital's facility in Kearney, as a "locum tenens" physician-a temporary appointment. As such, Steinberg was awarded temporary privileges to provide psychiatric services to Hospital patients from December 1, 2008, through January 19, 2009. There was never a master-servant, employer-employee, or similar relationship between the Hospital and Steinberg. His placement was subject to the bylaws, rules, regulations and policies of the Hospital.
On the evening of January 10, 2009, a psychiatric patient struck Steinberg. Hospital staff who observed the incident perceived that Steinberg responded to the attack by grabbing the patient by the hair, yelling at her, and threatening to hit her if she did not stop her assaultive behavior. Hospital staff perceived Steinberg's actions to be improper and unprofessional. Steinberg contends that he did not attempt to pull the patient's hair, but placed his hand behind her neck to attempt to make eye contact with her, then told her that if she hit him again he would hit her back. Steinberg considered his actions to be medically appropriate "reality based feedback." (Declaration of David Steinberg, M.D., Filing No. 51 at 1-2.)
The Hospital revoked Steinberg's privileges effective January 10, 2009, and notified him by letter dated January 15, 2009. Although Steinberg was not entitled to any hearing pursuant to the Hospital's bylaws, the Hospital did offer him a hearing in February, March and April 2009. Steinberg did not accept those offers.
On or about May 2009, the Hospital filed a notice with the National Practitioner's Data Bank ("NPDB"), an internet database that can be accessed lawfully only by healthcare entities, that stated:
Physician was awarded temporary adult and child/adolescent psychiatric privilege to provide services as a locum tenens physician from December 1, 2008 through January 19, 2009. Physician was assigned to hospital pursuant to an agreement between hospital and a locum tenens placement company. On January 12, 2009, the physician's temporary privileges were terminated due [to] a finding of unprofessional conduct related to physician's disruptive behavior on January 10, 2009. Pursuant to the medical staff policy on appointment, reappointment and credentialing, the termination of temporary privileges does not entitle a physician to fair hearing and appeal procedures. Nevertheless, prior to the hospital's required report, the physician (through his retained counsel) was offered a discretionary fair hearing, but failed to respond to the offer. Thus, no hearing has been held and no findings of fact have been made in a hearing setting.
(Filing No. 49, Ex. H.)
The Hospital's administrators thought such a report was required under the regulations of the United States Department of Health, Education and Welfare ("HEW"), because such regulations require the reporting of any adverse action affecting physician privileges for 30 days or more, and because Steinberg was prohibited from reapplying for privileges at the Hospital for five years.
Steinberg petitioned the Secretary of HEW to remove the report and, on or about May 29, 2012, the Secretary of HEW made an administrative determination that the report was not mandatory pursuant to the regulations governing such filings, because Steinberg's privileges at the Hospital would have expired before 30 days elapsed from the time his privileges were revoked.
Steinberg was denied positions with certain New Jersey employers because of the NPDB report. Steinberg contends that the report was filed by the Hospital administration maliciously, in retaliation for Steinberg's criticism of the Hospital administration prior to January 10, 2009. His Complaint (Filing No. 1) invokes the Court's diversity jurisdiction and asserts a single cause of action: Defamation. He seeks compensatory damages for injury to his professional reputation, embarrassment, lost income, and emotional distress, as well as exemplary damages, and he alleges that the amount in controversy exceeds $75, 000.
The Hospital has moved for summary judgment, asserting that the statement in the notice was true, and that truth is an absolute defense to a defamation action. The Hospital acknowledges that Nebraska law appears to permit defamation actions to proceed where publication of a true statement was made with actual malice. The Hospital argues, however, that New Jersey law should apply; and, if Nebraska law is applied, that its statute-permitting defamation actions based on publication of true statements made with actual malice-is unconstitutional. Finally, the Hospital notes that it has "qualified immunity, " with respect to the communication under the Healthcare Quality Improvement Act of 1986 ("HCQIA"), 43 U.S.C. § 11101, et seq., but reserves that argument for a later motion. (Defendant's Brief, Filing No. 48 at 7, n.1.)
STANDARD OF REVIEW
"Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, demonstrates there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Gage v. HSM Elec. Prot. Servs., Inc., 655 F.3d 821, 825 (8th Cir. 2011) (citing Fed.R.Civ.P. 56(c)). The court will view "all facts in the light most favorable to the nonmoving party and mak[e] all reasonable inferences in [that party's] favor." Schmidt v. Des Moines Pub. Sch., 655 F.3d 811, 819 (8th Cir 2011). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue... Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The moving party need not negate the nonmoving party's claims by showing "the absence of a genuine issue of material fact." Id. at 325. Instead, "the burden on the moving party may be discharged by showing'... that there is an absence of evidence to support the nonmoving party's case." Id.
In response to the movant's showing, the nonmoving party's burden is to produce specific facts demonstrating "a genuine issue of material fact' such that [its] claim should proceed to trial." Nitro Distrib., Inc. v. Alticor, Inc., 565 F.3d 417, 422 (8th Cir. 2009) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts, ' and must come forward with specific facts showing that there is a genuine issue for trial.'" Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (quoting Matsushita, 475 U.S. at 586-87). "[T]he mere existence of some alleged factual dispute between the parties'" will not defeat an otherwise properly supported motion for summary judgment. Quinn v. St. Louis Cnty., 653 F.3d 745, 751 (8th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).
In other words, in deciding "a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a "genuine" dispute as to those facts.'" Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). Otherwise, where the Court finds that "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party"-where there is no "genuine issue for trial'"-summary judgment is ...