Defamation

July 23rd, 2019 by Rieders Travis in Defamation

DEFAMATION-INCOMPLETE STATEMENTS LACKING IN INTEGRITY

Meyers v. Certified Guaranty Company, 2019 Pa. Super. LEXIS 1041 (October 28, 2019) Pellegrini, J.  Lower court dismissed the case on summary judgment.  Statements suggested that Meyers was incompetent and lacking in integrity.  The statements were said to be false.

As held by Pennslvania courts, a statement qualified by the speaker as being only an opinion may nevertheless be considered a statement of fact if it could “reasonably be interpreted” as such by the audience.  See Braig v. Field Communications, 310 Pa. Super. 569, 456 A.2d 1366, 1373 (Pa. Super. 1983).  An opinion can be defamatory if is misleading or based on undisclosed facts which are not true.  Id.

The crux of the statements on the message board was that Meyers was recreating value comic books and passing them off as “restored”.  The question is for a jury as to whether the message board and verbal statements to third parties were based on true facts.

A trier of fact could determine that all of the subject communications were either statements of fact not verified to be true or mixed opinions based on misleading or undisclosed defamatory facts. See Milkovich, 497 U.S. at 18-19; Braig, 456 A.2d at 1373; Beckman, 419 A.2d at 587. Summary judgment was improper because if the facts underlying a statement “are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact.” See Milkovich, 497 U.S. at 18-19. Thus, since the truth of the subject statements is in dispute, a jury should resolve that genuine question of fact and determine if the Meyers can prove the elements of defamation enumerated in 42 Pa.C.S. § 8343(a), and if the Nelson/CGC/CCS can prove the elements of 42 Pa.C.S. § 8343(b).

Since the statements made were potentially harmful to Meyers’ reputation and standing within the industry, there is a false light claim.  Pennsylvania does not recognize “assumption of risk” as a defense to a false light claim.

DEFAMATION-JNOV

Menkowitz vs. Peerless Publications, [J-13-2019] S. Ct. July 17, 2019.  This case involved a claim by Dr. Menkowitz that a newspaper defamed him by suggesting his misconduct in connection with an elderly female patient.   He claimed that the article caused defamatory implications or innuendo.   The court found that the Superior Court had scoured the record for facts to support his own conclusion.   In particular, the Superior Court overlooked the testimony of Dr. Menkowitz’s principal causation witness, Attorney Krewitz, who testified that after reading the article, he wrote a letter to another attorney who was using Dr. Menkowitz as an expert witness and informed him that Dr. Menkowitz had been accused of committing “improper sexual advances on his patients.”   The Superior Court should not have scoured the record to do this.   The Superior Court used contrary evidence as the principal support for its conclusion that “any damage to Dr. Menkowitz flowed from the suspension itself, not any implication of sexual or physical abuse.”   The Superior Court did not give Menkowitz’s verdict one of the benefit of every reasonable inference arising from the evidence while resolving any doubts in his favor.    Therefore, the case was reversed and sent back.   

DEFAMATION-DOCTOR-INNUENDO

Menkowitz v. Peerless Publications, 2017 Pa. Super. LEXIS 1043 (December 15, 2017) Stabile, J.  This is an action where defamation commenced by a private-figure plaintiff against a media defendant involving an issue of public interest.  The court threw out the verdict and entered judgment for the newspaper on a punitive damage award. The Superior Court vacated the judgment in favor of the doctor-plaintiff in its entirety and remanded for entry of judgment in favor of the publication.  The plaintiff is a board certified surgeon.  The doctor’s behavior in the hospital was bad, and he was threatened by the hospital for his disruptive and unacceptable conduct.  Finally, the doctor’s privileges were suspended.  Four articles written about this by a newspaper columnist who talked about the rumors surrounding the doctor.  There were also quotes from various patients.  No formal action against the doctor’s medical license was taken by the State Board of Medicine, according to the State Department spokesman.  Eventually, the newspaper reported that the suspension was lifted.  The doctor alleged an injury to reputation and emotional and psychological injuries.  A private figure plaintiff suing a media defendant for defamation must prove actual damages to reputation causally linked to the false defamatory communication in order to recover compensatory damages.  Where an issue of public interest is involved, even a private figure plaintiff must prove that the statements were false, negligently or maliciously published, and, absent proof of actual malice, that the false defamatory communications caused damage to his reputation.  The plaintiff did not prove falsity of the statements.  Innuendo can be defamatory, but it must be warranted, justified, and supported by the publication.  The literal “truth” of a publication need not be established, only if the statement is “substantially true.”  The court thought that the newspaper’s choice of words was fair under the circumstances.

DEFAMATION-PUBLIC FIGURE-ACTUAL MALICE-LOCK HAVE EXPRESS

Coleman v. Ogden Newspapers, Inc., 142 A.3d 898 (Pa. Super. 2016).  Adam C. Coleman appeals from the order that dismissed his complaint after granting the motion fo summary judgment filed by Ogden Newspapers, Inc. d/b/a The Lock Haven Express (The Express), Ogden Publications of Pennsylvania, Inc., Robert O. Rolley, and James E. Runkle (Defendants, collectively).  We affirm.

The issue before us in this appeal is whether the trial court erred in concluding that Coleman failed to come forth with sufficient evidence to meet his burden of production as to the actual malice prongs of his defamation and false light claims.

We conclude as a matter of law that Coleman did not present evidence that could lead a fact-finder to the clear conviction, without hesitancy, that Defendants published any false statements about him with actual malice.  Accordingly, we hold that the trial court properly granted Defendants’ motion for summary judgment.

Order affirmed.

DEFAMATION-LIMOUSINE SERVICE

Joseph v. Scranton Times, L.P., 129 A.3d 404 (Pa. 2015).  Business owners and businesses brought defamation and invasion of privacy action against newspaper reporters based on newspaper articles indicating a connection between the business and various criminal activities.  There was a bench trial at the Common Pleas level, and judgment was entered for the owners and businesses.  The newspaper appealed.  The Superior Court affirmed in part, vacated in part, reversed in part and remanded.  The Supreme Court concurred in part and dissented in part.

The Superior Court erred in granting the business owners a new trial and the case was reversed.  In an action for defamation the plaintiff has the burden of proving (1) the defamatory character of the communication; (2) its publication by the defendant; (3) its application to the plaintiff; (4) the understanding by the recipient of its defamatory meaning; (5) the understanding by the recipient of it as intended to be applied to the plaintiff; (6) special harm resulting to the plaintiff from its publication; (7) abuse of conditionally privileged occasion.  42 Pa.C.S. § 8343(a).  Where the plaintiff has met this burden under the Act, defendant has the burden of proving:  (1) the truth of the defamatory communication; (2) the privilege character of the occasion on which it was published; (3) the character of the subject matter of the defamatory comment as of public concern.  42 Pa.C.S. § 8343(b).  After the defendant establishes a privilege, the burden shifts to plaintiff to demonstrate an abuse of the privilege.  General damages were awarded not only for harm to reputation for which the plaintiff proved to have occurred, but also, in the absence of such proof, for harm to reputation that would normally be assumed to flow from a defamatory publication of the nature involved.  However, enter the First Amendment.  In addition to limiting the availability of presumed damages to private figure plaintiffs against media defendants upon a showing of less than actual malice, as discussed by Supreme Court decisions, the U.S. Supreme Court also limited the availability of punitive damages.  In light of the United States Supreme Court rulings, the Pennsylvania Supreme Court has recognized that it may not interpret the state constitution as providing broader free expression rights than does its counterpart.  Where plaintiffs are private figures, Pennsylvania therefore requires private figures to prove, at a minium, negligence in a civil libel case.  When private figure plaintiffs establish liability based on negligence, recovery is restricted to compensation for actual injury, thus eliminating presumed and punitive damages.  Causation must be established either through direct or circumstantial evidence.  The First Amendment prohibits awards of presumed and punitive damages for defamatory statements where private plaintiffs show less than actual malice.  The Pennsylvania Supreme Court found no specific directive from the U.S. Supreme Court to cause the Pennsylvania Supreme Court to abandon the longstanding practice in Pennsylvania of allowing punitive, as well as presumed damages in appropriate cases.  The Josephs court agreed with the Media Defendants that the Superior Court erred in determining a new trial was warranted for the trial court to further consider the claim of emotional distress, mental anguish and personal humiliation.  The record supports the trial court in stating that the business owners failed to meet their burden of proving either (1) they suffered reputational injuries, or (2) they suffered reputational injuries which had a connection to the defamatory articles.  The Supreme Court concluded that the proof presented to show actual malice lacked the convincing clarity which the constitutional standard demands and hence it could not constitutionally sustain a judgment for presumed or punitive damages in favor of the business owners under the rule of law.  At most, the evidence against Media Defendants suggests negligence.  This is constitutionally insufficient to show the recklessness required for a finding of actual malice.  The Superior Court erred in remanding for a new trial.  Again, the Supreme Court reinstated the order of the trial court denying the business owners’ post-trial motion for new trial and judgment in favor of the Media Defendants.

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