Day on Torts

The Tennessee Supreme Court has released an opinion that sets forth the scope of the litigation privilege to pre-litigation activity by counsel.  The Court said that "an attorney is privileged to publish what may be defamatory information prior to a proposed judicial proceeding, even though the communication may be received by individuals who are unconnected with the proposed proceeding. In order for the privilege to apply, (1) the communication must be made by an attorney acting in the capacity of counsel, (2) the communication must be related to the subject matter of the proposed litigation, (3) the proposed proceeding must be under serious consideration by the attorney acting in good faith, and (4) the attorney must have a client or identifiable prospective client at the time the communication is published."

Read the entire opinion here.

The California Supreme Court has ruled that a court may issue an order prohibiting a defendant in a defamation case from repeating statements about the plaintiff that were deemed defamatory at trial.

The concern about such a ruling is that an injunction is a "prior restraint" and would be a violation of the right of free speech.  But the California Court thought to the contrary, and said that "preventing a person from speaking or publishing something that, allegedly, would constitute a libel if spoken or published is far different from issuing a posttrial injunction after a statement that already has been uttered has been found to constitute defamation. Prohibiting a person from making a statement or publishing a writing before that statement is spoken or the writing is published is far different from prohibiting a defendant from repeating a statement or republishing a writing that has been determined at trial to be defamatory and, thus, unlawful." 

The opinion has a nice collection of law around the country that reaches a similar result.  The dissent does a fine job collecting opinions to the contrary.

The case is Balboa Village Island Inn, Inc. v. Lemen, S127904 (Cal. S. C. 4/26/07).  Read the opinion here.

A patient unhappy with the results of her plastic surgery created a website about her experiences.  Her surgeon sued her for defamation, infliction of emotional distress, etc.  The patient moved to dismiss, lost, and appealed the case to the California Court of Appeals (Third Appellate District).

This is how the Court describes the alleged defamatory statements: "[Dr.] Sykes alleges that [patient] Gilbert’s Web site defamed him in four different ways: (1) presenting misleading before and after facial photographs in that the after photos were taken after 'additional and significant cosmetic surgery' performed by others; (2) falsely indicating that Sykes recommended and performed procedures that Gilbert did not need or want; (3) misstating 'the content of communications' relating to the procedures he performed; and (4) falsely suggesting that Sykes was compensated for procedures 'under the table.'"

The Court held that Sykes had not met his burden of proving that the statements were defamatory.  The opinion carefully disects each statement and discusses the failure to Sykes to meet his burden of proof as to each.  To be sure, the opinion is based on California law, but to those readers from Tennessee (and other states with an undeveloped body of defamation law) it is very informative.

The case is  Gilbert v. Sykes,  C050766 (Jan. 26, 2007). Read the opinion here.

A Nationwide insurance adjuster met with a personal injury claimant in an effort to settle a claim.  The claimant indicated he intended to select a certain attorney as his counsel.  The adjuster said that the attorney just took peoples' money and that the attorney's clients would receive more money if they dealt with the adjuster directly.

The lawyer (Tronfeld) sued and the trial court dismissed the case, stating that the statements of the adjuster were statements of opinion and thus not actionable.

The Virginia Supreme Court said that   "[u]nless Schmitt’s statements are opinion, they are sufficient to sustain a cause of action for defamation per se because the statements prejudice Tronfeld in his profession as an attorney at law. To state that an attorney “just takes people’s money” and that an attorney’s clients receive less for their claims because of the attorney’s services implies a combination of dishonesty, incompetence or the crimes of larceny by trick or obtaining money by false pretenses. ... Such statements damage an attorney’s standing to engage in his or her chosen profession and carry the connotation that he or she lacks the integrity and fitness to practice law."

The Court then went on to say this:  "[W]e conclude that, whether considered individually or together, Schmitt’s statements “are capable of being proven true or false” and thus are actionable in defamation.  The statement “[t]hat Jay Tronfeld just takes people’s money” is capable of disproof by evidence, if adduced, that Tronfeld’s clients received monetary or other relief as a result of his legal services. It would not be a matter of opinion that Tronfeld takes a client’s money without rendering a service of value in return if Tronfeld, for example, produced evidence of a settlement or judgment he obtained for that client. Schmitt’s other statement, “that clients of Jay Tronfeld would receive more money [for their claims] if they had not hired Jay and had dealt with the adjuster [directly],” could similarly be proven false. The statement would not be opinion if the evidence showed a settlement or judgment Tronfeld obtained for a client which exceeded the offer made by an insurance company to the client prior to the retention of Tronfeld as his or her legal counsel. In this regard, Schmitt’s statements, whether considered separately or together, are analogous to the defendant’s statements in Fuste, that the plaintiff physicians had “abandoned” their patients. We held that statement was not opinion, but “capable of being proven true or false,” and thus actionable in a claim for defamation per se. Schmitt’s statements in the case at bar present a clear, if not clearer, case for proof as a matter of fact than the statements in Fuste. "  [Citations omitted.]

Read the opinion in Tronfeld v. Nationwide Ins. Co.  here.

Plaintiff Stanton's photograph was placed alongside a article entitled "The Mating Habits of the Suburban High School Teenager" that ran in Boston magazine. The opinion describes the photograph this way: "[Stanton's] is one of five young people pictured in a photograph that occupies the entire first page of the article and half of the facing page. The photograph, taken at a high school dance, depicts its three male and two female subjects in formal attire, sitting and standing near an open exit door in the background. Stanton's image occupies most of the left-hand side of the photograph, where she appears standing, with her face and most of her body fully visible. Although three of the subjects are smoking cigarettes, and another holds a plastic cup, Stanton simply looks at the camera, smiling faintly." The article talked about the level of sexual activity among high schoolers, etc. Stanton sued, saying that she was defamed.

The First Circuit Court of Appeals reversed dismissal of the case, stating that the article "would tend to hold [her] up to scorn, hatred, ridicule or contempt, in the minds of [a] considerable and respectable segment in the community. A reasonable reader could believe that Stanton, who appears in the lead illustration for the article, is in fact one of the teens whose promiscuous behavior is described in its text.
Metro concedes for purposes of this appeal that "a statement that [Stanton] was 'promiscuous' might damage her reputation in the community." Accordingly, we need not decide whether a false accusation of promiscuousness is defamatory. At the risk of repeating ourselves, we allow that other reasonable readers may take a different view. We conclude only that the article is susceptible to the defamatory meaning Stanton alleges, i.e., that she engages in sexually promiscuous conduct." [Citations and internal quotation marks omitted.]

The Donald (as in Trump, not Duck) has sued Timothy O'Brien and Warner Books, alleging that he has been defamed a book written and published by the defendants.

Apparently, Donald believes that the defendants have falsely claimed that he exaggerated his wealth.

The book is called "TrumpNation."

Read more about the allegations here.

I think it is fair to assume that Mr. Trump will be a "public figure."

Remember the anthrax scare in the months following the 9/11 attacks? Remember Mr. Z? If you don't, this opinion will refresh your recollection.

Mr. Z was named in some New York Times articles and did not appreciate being called a terrorist. He sued, had his case dismissed, but the Fourth Circuit Court of Appeals reversed and remanded the case for trial.

He will get his day in court. I wonder if the NYT will be forced to reveal its source(s) for the stories?

I wrote last week about Mike Price's lawsuit against Sport's Illustrated for defamation, which arose after an article that stated that he engaged in sexual conduct with several women in a hotel in Florida. Price was fired from his job.

The 11th Circuit Court of Appeals has ordered the defendant to reveal a source after Mike Price's attorney does some additional due diligence to learn the identity of the source on his own. An article reports that "the ruling would compel attorneys defending SI's parent company, Time Inc., to tell the court if writer Don Yaeger's sources lie under oath to shield either their identities or the degree to which they contributed to Yaeger's story."

The 11th Circuit determined that "Alabama's shield law specifically excludes magazines from privileges the law extends to newspapers, television and radio. Alabama's media shield law, enacted in 1935 for newspapers, was extended to include radio and TV reporters in 1949, but magazines specifically were excluded from protections afforded by the statute language."

Apparently the court asked Time's attorney "point blank" what he would do "if he heard the person he knows to be the confidential source deny under oath in deposition that she was the confidential source."

"It would be fair to say that counsel was somewhat uncomfortable with this question, but he did assure us that he would do his duty as an officer of the court and inform the district court that the witness's sworn denial was false. That assurance is important to our decision that Price should be required to depose the four women, one of whom almost certainly is the confidential source, before the defendants are forced to divulge the source's name," the opinion says.

The four women who are on the deposition list work at a strip joint attended by Price earlier in the evening which the article purported to describe.