Claims of
defamation for comments made by co-workers and supervisors regarding an
employee’s performance on the job are increasingly common. One significant barrier to such claims is a
qualified privilege, often called the “common interest” privilege. This privilege attaches to communications
between persons on a subject in which the persons each have an interest or duty. In Cashion v. Smith, a splintered Virginia
Supreme Court voted 4-3 to expand the ability of plaintiffs to successfully
bring defamation suits, and to limit the qualified privilege enjoyed by some
defendants. 749
S.E.2d 526, 286 Va. 327 (2013). In Cashion,
Justice Mims wrote the majority opinion, while Justice McClanahan
dissented. Justices Powell and Goodwyn
concurred in part and dissented in part.
In Cashion, an anesthesiologist brought
suit for defamation against a surgeon for comments made following the death of
a patient which they had both been treating.
Id. at 331. During the incident in question, both Dr.
Cashion, the anesthesiologist, and Dr. Smith, a trauma surgeon, were providing
care to a critically injured patient. Id.
The patient died during surgery. Id.
In the operating room following the patient’s death Dr. Smith made the
following critical comments about Dr. Cashion in front of several members of
the operating team:
- “He could have made it with better resuscitation.”
- “This was a very poor effort."
- “You didn’t really try.”
- “You gave up on him.”
- “You determined from the beginning that he wasn’t going to make it and purposefully didn’t resuscitate him.”
Id. at 332. In the hallway outside the operating room,
Dr. Smith further stated that “You just euthanized my patient.” Id
.
.
The anesthesiologist brought a
defamation claim against the surgeon. Following discovery, the surgeon moved
for summary judgment, arguing that his comments were protected by both the
rhetorical hyperbole and the qualified privilege. The circuit court granted summary judgment,
based primarily on its determination that the statements were, as a matter of
law, statements of opinion, subject to the qualified privilege, and, in some
cases, mere rhetorical hyperbole. In so
holding, the circuit court found that there was no evidence of common law
malice which would bring the statements outside the scope of the qualified
privilege.
On appeal, the Supreme Court turned first to the question of
whether the statements were statements of “opinion”. First, the Court determined that whether a
statement is “opinion” is a question of law.
A statement is one of “opinion” when it is “relative in nature and
depends largely on a speaker’s viewpoint[.]”
Id. at 336, quoting Hyland v. Raytheon Tech. Servs. Co.,
277 Va. 40, 47, 670 S.E.2d 746, 750 (2009). By contrast, a statement is one of fact when
it is “capable of being proven true or false.”
Fuste v. Riverside Healthcare
Ass’n, 265 Va. 127, 676 S.E.2d 858, 861-62 (2003).
Applying this standard, the Court found that 2, 3, and 4,
above, were opinion because they were ‘subjective” and wholly dependent upon
the speaker’s viewpoint and, accordingly, affirmed the circuit court’s
determination to that effect. However,
the Court held that statements 1 and 5, above, were statements of fact. As to the first statement, the Court explained
that it implied that plaintiff had either failed to assist, or actively prevented,
the patient’s resuscitation. As to the
fifth statement, the Court explained that it amounted to an accusation that
plaintiff had purposefully caused the patient’s death by withholding treatment.
Next, the Court addressed the circuit court’s determination
that the “euthanasia” statement was protected by the qualified privilege. First noting that “[w]hether a communication
is privileged is a question of law”, the Court reiterated that the “qualified
privilege attaches to ‘[c]ommunications between persons on a subject in which
the persons have an interest or duty.’” Id. at 337 (quoting Larimore v. Blaylock, 259 Va. 568, 528 S.E.2d 119, 121
(2000)). Applying this standard, the
Supreme Court found that the circuit court had correctly determined that the
“euthanasia” statement was privileged as a matter of law.
The Supreme Court’s inquiry did not end there, however. The Court went on to address plaintiff’s
argument that the privilege did not apply because the statements were not made
in good faith. Recognizing that, in the
past, it had included the presence or absence of “good faith” as a factor in
determining whether a qualified privilege exists, the Court in Cashion expressly overruled that
formulation of the privilege. Id. at 338. Having so held, the Court found that “the
question of whether a statement was made in good faith is a question of fact
for the jury to decide when determining whether a qualified privilege has been
lost or abused.” Id. Once the qualified
privilege has attached, it is the plaintiff’s burden to establish, by clear and
convincing evidence, that the privilege has been “lost or abused.” Id.
The Court went on to explain that a plaintiff can show that
the privilege has been “lost or abused” by establishing that the statement was
made with common law malice. Id. at 338. The Court provided a non-exhaustive list of
ways in which a plaintiff might establish common law malice:
1) The statements were made with knowledge
that they were false or with reckless disregard for their truth, Raytheon Technical Servs. Co. v. Hyland,
273 Va. 292, 301, 641 S.E.2d 84, 89-90 (2007);
2) The “statements [we]re communicated to
third parties who have no duty or interest in the subject matter,” Larimore, 259 Va. at 575, 528 S.E.2d at
122;
3) The statements were motivated by
personal spite or ill will, Preston
v. Land, 220 Va. 118, 255 S.E.2d 509, 511 (1979);
4) The statements included “strong or
violent language disproportionate to the occasion,” Story v. Norfolk-Portsmouth Newspapers, Inc., 202 Va. 588, 591, 118
S.E.2d 668, 670 (1961); or
5) The statements were not made in good
faith, Chalkley v. Atlantic Coast
Line R.R. Co., 150 Va. 301, 325, 143 S.E. 631, 637-38 (1928).
Cashion, 286 Va. at 339.
Although the question of whether the a statement is privileged
is one of law, the Court determined that the question of whether the privilege
has been “lost or abused” is one of fact, and therefore reserved for the
jury. Id. As such, the Court
reversed the circuit court’s grant of summary judgment in favor of defendant on
the issue of qualified privilege, and remanded the case for further
proceedings.
Finally, the Court addressed whether the statements were
mere “rhetorical hyperbole”, which are not defamatory under Virginia law. Yeagle
v. Collegiate Times, 255 Va. 293, 295-96, 497 S.E.2d 136, 137 (1998). Statements are “rhetorical hyperbole” when
“no reasonable inference could be drawn that the individual identified in the
statements, as a matter of fact, engaged in the conduct described.” After reviewing the facts of the case, the
Court concluded that “[c]onsidering the context in which the statements were
made, a listener could believe that [plaintiff] engaged in the conduct
[defendant] attributed to him, i.e. euthanizing the patient or causing or
contributing to the patient’s death by providing deficient care.” Thus, the Court affirmed the circuit court’s
determination that the statements were not rhetorical hyperbole.
The holding of the Virginia Supreme Court in Cashion is of a piece with its other
recent jurisprudence in the area of defamation which, taken together, have
substantially liberalized the pleading standards for defamation
plaintiffs. For example, in Tharpe v. Saunders, the plaintiff’s
claim of defamation hinged on the defendant’s statement that “[plaintiff] told
me that [plaintiff] was going to screw the Authority like he did at Fort
Pickett.” 737 S.E.2d 890 (Va. 2013). The circuit court found that this statement
was non-defamatory opinion.
The Virginia Supreme Court reversed, explaining that the
statement was not opinion because it was capable of being proved true or false. Interestingly, Justice McClanahan, who would
go on to dissent in Cashion, wrote
for the Court in Tharpe. The Court noted that the statement could be
proven to be true or false by adducing evidence that plaintiff either did, or
did not, make the statement to defendant which defendant claimed plaintiff
made. In so holding, the Court expressly
rejected the circuit court’s determination that, to be capable of supporting a
claim for defamation, the statement attributed to plaintiff by defendant must
also contain a provably false connotation.
I doing so, the Court relied on caselaw from other jurisdictions
addressing fabricated quotations, and finding that quotations falsely
attributed to a plaintiff are actionable as defamation regardless of the truth
or falsity of the substance of the quotation, so long as the quotation injures
the plaintiff’s reputation.
Finally, in Webb v.
Virginian-Pilot Media Cos., LLC, the Justice Mims, writing for the Virginia
Supreme Court was faced with a situation in which the plaintiff alleged that he
had been defamed “not by statements of fact that are literally true but by an
implication arising from them[.]” No.
122024 (Va. Jan. 10, 2014) (available at: http://scholar.google.com/scholar_case?case=18279223694508766601&hl=en&as_sdt=6&as_vis=1&oi=scholarr).
The Court found that the plaintiff could nonetheless make out a claim if
“the alleged implication [can] be reasonably drawn from the words actually
used.” Id. Although holding that it was possible to make out such a claim,
the Court found that plaintiff had not successfully done so on the facts before
it.
Thus, it is now possible, in Virginia, to make out a claim
of defamation if a statement of opinion is fabricated, and falsely attributed
to the plaintiff, or if a true statement gives rise to defamatory meaning. While the qualified privilege may offer some
protection to defendants, its application is now, for all intents and purposes,
to be decided by the jury.
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