Friday, May 16, 2014

Watch Your Mouth: Virginia Supreme Court Increasingly Receptive to Defamation Claims

            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:

  1. “He could have made it with better resuscitation.”
  2. “This was a very poor effort."
  3. “You didn’t really try.”
  4. “You gave up on him.”
  5. “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:  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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