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The Superior Court Reviews The Standards For Defamation Per Se And Defamation By Implication

February 15th, 2018

In Menkowitz v. Peerless Publ’n, Inc., 2017 WL 6397649, the Superior Court granted a judgment n.o.v. to defendant newspaper with regard to plaintiff’s claims for defamation per se, and defamation by implication.  In this case, the Pottstown Mercury Newspaper published several articles reporting that plaintiff doctor “has been suspended by Pottstown Memorial Medical Center after 25 years on the hospital staff,” and that the doctor’s “sudden absence from the [Pottstown Memorial] hospital has spawned rampant rumors” of “professional misconduct in his treatment of an older female patient.” Plaintiff sued claiming defamation per se, and defamation by implication.  A jury returned a verdict in favor of plaintiff for compensatory and punitive damages.  The trial court vacated the award of punitive damages, but affirmed the award of compensatory damages.  Both parties appealed.

The Superior Court noted that the plaintiff is a private figure, the Pottstown Mercury Newspaper is a media defendant, and the alleged defamation involved a matter of public interest.  Such cases involve two competing societal interests:  the need to avoid self-censorship by the media, and the need to compensate individuals for harm inflicted by defamatory falsehoods.

The Superior Court held that private individuals bear the burden of first showing that the speech by a media defendant was false.  Conversely, a media defendant can avoid liability by proving that the gist, or sting of the statement is substantially true, even if there were slight inaccuracies in the details.  The law does not require perfect truth.  In order to be materially false, it must be shown that the statement that was made would have a different effect on the mind of the reader than the effect that the pleaded truth would have produced.  In addition, statements of opinion are actionable only if they imply the existence of false, undisclosed facts.  A statement of opinion relating to matters of public concern must contain a provably false connotation in order to be actionable.  Whether a statement is one of fact or opinion is a question of law for the court to determine in the first instance.

In addition to proving falsity, the plaintiff must prove fault in the publication.  A private figure need only prove negligence, i.e., the failure to exercise reasonable care and diligence to ascertain the truth.  Proof of malice is not required.

Finally, a private figure suing a media defendant must prove actual damage to reputation, and that such damage, if any, was caused by the false, defamatory communication.  Damages may only be presumed if actual malice is shown.  Malice requires proof that the defendant subjectively acted with reckless disregard for the truth.

The Superior Court held that a statement is defamatory if it “tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him or her.  A communication is also defamatory if it ascribes to another conduct, character or a condition that would adversely affect his fitness for proper conduct of his or her proper business, trade or profession.  Written or printed words injurious to one in his business, calling, trade or profession are libelous.

The Superior Court held that an action for defamation by implication lies only when non-defamatory, innocent words create a defamatory innuendo based on the context in they are made.  Such words are actionable where the innuendo is both defamatory and false.  Thus, innocent words that are literally true, can still be defamatory if, when viewed as a whole, they create a false implication.  The legal test for defamation by implication is whether the language can fairly and reasonably be construed to imply a defamatory meaning.  However, new matter cannot be introduced, and the natural meaning of the words cannot be enlarged to create a defamatory innuendo.  In order to determine whether a statement is capable of a defamatory meaning, the Superior Court must consider the effect of the entire article and the impression it would engender in the minds of the average reader among whom it was circulated.

In this case, plaintiff conceded that the statement that his hospital privileges were suspended were true.  He claimed, however that the statement that his “sudden absence from the hospital has spawned rampant rumors” was defamatory and false.  The Superior Court found that the report of “rampant rumors” did not carry the gist of the libelous charge, and was not actionable as defamation as a matter of law.  The plaintiff also pled that the statement that his suspension involved “professional misconduct regarding his treatment of an older, female patient” was false.  The court found that this statement was the essence of the defamation claim, but that it was the plaintiff’s burden to prove that it was false.  The Superior Court held that plaintiff failed to meet his burden of proving that this statement was false.  Plaintiff’s lack of knowledge as to whether his treatment of an older female patient was a basis for his suspension, and the failure of the suspension letter to mention his treatment of an older female patient was not a sufficient basis to refute the newspaper’s account.

However, the Superior Court also found that these words were capable of defamation by implication.  “Even where a plausible innocent interpretation of the communication exists, if there is an alternative defamatory interpretation, it is for the jury to determine if the defamatory meaning was understood by the recipient.”  The literal accuracy of separated statements will not make the statement true where the implication of the statement as a whole is false.  The Superior Court found that the phrase, “professional misconduct,” could implicate improper physical contact or criminal activity.  Also, this defamatory interpretation does not require the addition of new matter or enlargement of the natural meaning of the words used.

However, the Superior Court also found that there was no evidence of actual malice by defendant.  Therefore, in order to recover damages, plaintiff was required to prove actual damage to reputation, and that such damage, if any, was caused by the allegedly false statements or innuendo.  The court found that plaintiff did suffer damage to his reputation, but that there was insufficient proof that the damage was caused by the defamatory statements as opposed to the statement that his hospital privileges had been suspended after 25 years, which was true and also damaging.  Thus, the Superior Court granted the defendant’s motion for judgment n.o.v.  The Superior Court also affirmed the trial court’s decision to vacate the award of punitive damages.

Before Bender, P.J.E., Bowes, Panella, Lazarus, Ott, Stabile, Dubow, Moulton, and Ransom, JJ.  Opinion by Stabile, J.  Concurring Opinion by Bowes, J. in which Judges Dubow and Moulton, JJ.

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