## Facts

- An Internal Revenue Service inquiry sought information from area dentists about patients referred to Dr. Joseph A. May.
- Dr. Robert L. Nelson, president of the Greater Kansas City Dental Society, received an IRS inquiry letter.
- Nelson wrote and published a newsletter article about an IRS investigation of an unnamed dentist; the article did not name Dr. May.
- The article used pejorative, figurative insults (e.g., “yo-yo,” “wacko,” and a reference likening the subject to an “axe murderer”) while discussing whether it was worth contesting the IRS inquiry.
- Dr. May alleged readers would identify him as the unnamed dentist and that the publication harmed his professional reputation, reduced referrals, and contributed to closure of his practice.
- May’s wife, Glenda Scoville, alleged the publication caused severe emotional distress and a miscarriage; she asserted claims including wrongful death of the unborn child.
- Plaintiffs filed a multi-count petition against Nelson and the Dental Society asserting libel/defamation, intentional infliction of emotional distress, wrongful death, and related theories.
- The trial court dismissed all counts for failure to state a claim and denied leave to amend.

## Issues

1. Whether the anonymous newsletter article was “of and concerning” Dr. May and reasonably capable of a defamatory meaning sufficient to plead actionable libel (per se or per quod).
2. Whether publication of the article constituted “extreme and outrageous” conduct sufficient to plead intentional infliction of emotional distress for Scoville.
3. Whether Missouri law permitted a wrongful-death action for the death of a nonviable fetus allegedly caused by emotional distress from reading the publication.
4. Whether the trial court abused its discretion in denying leave to amend the petition.

## Decision

- The appellate court affirmed dismissal of all claims and affirmed denial of leave to amend.
- The libel claim failed because the article did not sufficiently identify Dr. May as its subject and the challenged language was not actionable defamation.
- The IIED claim failed because publication of a critical, insulting article about an unnamed person did not meet the legal threshold for extreme and outrageous conduct.
- The wrongful-death claim failed because, under then-controlling Missouri law, wrongful death did not extend to a nonviable fetus.
- Denial of leave to amend was not an abuse of discretion because amendment would not cure the legal deficiencies.

## Legal Principles

- Defamation requires that the publication be “of and concerning” the plaintiff; an unnamed or ambiguous reference is not actionable unless an ordinary reader would reasonably understand the statements to refer to the plaintiff.
- Pejorative epithets and rhetorical hyperbole, when not conveying provably false assertions of fact about professional competence or integrity, are generally not actionable as libel per se and may be insufficient to plead libel per quod.
- Intentional infliction of emotional distress requires conduct so extreme and outrageous as to exceed all bounds of decency; insulting commentary in a publication typically does not satisfy this standard as a matter of law.
- Under then-existing Missouri precedent, wrongful-death liability did not extend to a nonviable fetus.
- A trial court may deny leave to amend where amendment would be futile because the defects are legal rather than merely pleading-related.

## Conclusion

The court upheld dismissal of the plaintiffs’ petition because the anonymous newsletter article did not plausibly identify Dr. May or state actionable defamation, the alleged publication conduct was not legally extreme enough to support IIED, wrongful death did not cover a nonviable fetus under controlling Missouri law at the time, and amendment would not have cured these legal barriers.


May v. Greater Kan. City Dental Soc’y, 863 S.W.2d 941 (Mo. Ct. App. W.D. 1993)