As I wrote on this blog last month, if a trial judge gives the jury faulty instructions in a defamation case regarding liability issues, the parties are entitled to a new trial. Juries are there to weigh evidence and determine the facts, not decide what the law should be. Today, I’m writing about the appropriate remedy when a jury awards the plaintiff an outrageously large sum of monetary damages after having been instructed properly regarding the law. Sometimes juries will understand what the trial judge has asked them to do but for reasons such as passion, prejudice, sympathy, or simply because of a rush to reach a consensus and go home, decide to award an amount of money having no bearing on the injuries actually suffered. When this happens, the unlucky defendant can ask for remittitur.

“Remittitur” is a process by which the trial court orders a new trial unless the plaintiff accepts a reduction in an excessive jury award. Compensatory damages must bear a reasonable relationship to the damages disclosed by the evidence. Although a judge may not arbitrarily substitute her opinion for that of the jury, she has both the power and the duty to correct a verdict so excessive as to “shock the conscience” of the court. (See Hogan v. Carter, 226 Va. 361, 372 (1983)). Under Virginia Code § 8.01-383.1, a trial court may give the plaintiff the option of remittitur of the excessive verdict in lieu of a new trial, permitting him or her to accept judgment for a reduced sum. In setting this reduced amount, the court should consider factors in evidence relevant to a reasoned evaluation of the damages, and set the damages at an amount that bears a “reasonable relation to the damages disclosed by the evidence.” (See Bassett Furniture, 216 Va. 897, 911-12 (1976)).

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Statements of pure opinion are protected by the First Amendment and are not actionable as defamation. Whether an alleged defamatory statement is one of fact or opinion is a question of law to be decided by the court, not the jury. It is also for the trial judge (and not the jury) to determine whether a particular statement may support a defamation action. At the same time, however, statements alleged to be defamatory must be evaluated in context, along with all accompanying statements, and cannot be considered in isolation. (See Hyland v. Raytheon Tech. Servs. Co., 277 Va. 40, 48 (2009)). This is all black-letter defamation law, but courts have struggled with the question of how exactly to instruct a jury considering a defamation claim based on a statement that includes both statements of fact and expressions of opinion. Today we have a new opinion offering some guidance. (Full disclosure: my firm was involved in the case).

Handberg v. Goldberg involved a dispute between a Loudoun County resident and The Morgan Center, a provider of educational advocacy services. The Morgan Center (run by Dr. Felicia Goldberg) kept Mr. Handberg’s debit card on file and would seek authorization from him prior to charging it for various services. Billing disagreements arose and Handberg eventually sent an email to his son’s school informing them that Dr. Goldberg no longer represented his son and including various details about the parties’ billing dispute. Dr. Goldberg sued Mr. Handberg for defamation based on this email, identifying 11 specific statements she believed were defamatory. Among those 11 statements were these three:

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In Virginia, some statements enjoy absolute immunity from defamation claims. Such statements are said to be protected by an absolute privilege. The most common of the absolute privileges is the so-called “judicial privilege,” which protects statements made in connection with and relevant to a judicial proceeding. The doctrine is typically applied to statements made by witnesses testifying in court, or to scandalous statements made in pleadings or motions filed with a court in connection with a judicial proceeding. For example, if Mrs. Smith files for divorce against Mr. Smith on the ground that he allegedly had an affair with the couple’s au pair, Mr. Smith won’t be able to sue Mrs. Smith for defamation even if the allegation about him and the au pair is completely false; the allegation was made in a judicial proceeding, so it’s absolutely privileged.

There seems to be a trend towards broadening this privilege by expanding the scope of what it means for a statement to have been made “in connection with” a judicial proceeding. In 2012, The Virginia Supreme Court held in Mansfield v. Bernabei that communications made outside of court but preliminary to a proposed judicial proceeding will be absolutely privileged from defamation liability where (1) the statement is made preliminary to a proposed judicial proceeding; (2) the statement is “material, relevant or pertinent” to the proceeding; (3) the proceeding is contemplated in good faith and is under serious consideration; and (4) the communication is disclosed only to persons having an interest in the proposed proceeding. The following year, a federal court sitting in Virginia held that once litigation is filed, the absolute judicial privilege could extend to statements made outside of court, even if made to persons without an interest in the litigation. And now this year, we have another federal case further extending the privilege to cover statements made in the course of a human-resources investigation of an employee’s complaint.

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For a statement to be actionable as defamation per quod, it must have resulted in damages to the plaintiff. (See Landmark Communications, Inc. v. Macione, 230 Va. 137 (1985)). In actions for libel and slander in Virginia, a plaintiff must prove the quantum of his damages unless the words at issue are considered defamatory per se. To qualify as defamation per se, the words claimed to be defamatory must fall into one of these four categories:

  1. Those which impute to a person the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished;
  2. Those which impute that a person is infected with some contagious disease, where if the charge is true, it would exclude the party from society;
  3. Those which impute to a person unfitness to perform the duties of an office or employment of profit, or want of integrity in the discharge of the duties of such an office or employment; or
  4. Those which prejudice such person in his or her profession or trade.

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The Virginia Supreme Court has had enough of defamation verdicts based on subjective statements that are relative in nature and depend largely on the speaker’s viewpoint. Such statements are statements of opinion, not fact, and cannot support a defamation verdict. A few years ago, the Court made it very clear that “ensuring that defamation suits proceed only upon statements which actually may defame a plaintiff, rather than those which merely may inflame a jury to an award of damages, is an essential gatekeeping function of the court.” (See Webb v. Virginian-Pilot Media Companies). This means that if a plaintiff files an action for libel or slander based solely on a statement of opinion, the trial court’s duty is to dismiss the case at the outset.

Of course, this doesn’t always happen, as illustrated by the recent case of William D. Sroufe v. Muriel Tamera Waldron. Mr. Sroufe is the division superintendent for Patrick County Public Schools. Ms. Waldron is a former principal of Stuart Elementary School in Patrick County. Mr. Sroufe was unhappy with Ms. Waldron’s performance, particularly in connection with her administration of Virginia’s Alternative Assessment Program (“VAAP“) for students with learning disabilities. He decided to ask the school board to reassign her to a teaching position, explaining his reasoning as follows in a letter he gave to her:

You failed to ensure that the [Individualized Education Program] Teams understand the [VAAP] participation criteria and apply them appropriately when considering students with disabilities for the VAAP. Your actions will result in students being required to take [Standards of Learning] assessments who, under a correct interpretation of the criteria, should not have been required to do so.

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Defamatory statements falling into certain categories deemed particularly damaging to one’s reputation are considered defamatory “per se” and may be compensable even without proof of reputational harm. False accusations of morally reprehensible criminal activity are a common example of this “per se” form of defamation. As the Virginia Supreme Court has put it, defamatory words will be considered defamation per se when they “impute to a person the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished.” (Tronfeld v. Nationwide Mut. Ins. Co., 272 Va. 709, 713 (2006)). One thing that remains unclear, however, is the degree of specificity required before a statement will be deemed defamatory per se. Must the statement describe specific conduct, or is it sufficient to merely characterize unspecified conduct as criminal in nature? Must a specific criminal offense be identified? There doesn’t yet seem to be a consensus on these questions. The latest Virginia court to deal with them allowed a case to proceed on the basis of very vague allegations.

Here’s what happened in the case of Frances J. Belisle v. Laura Baxter, according to the opinion. Frances brought two counts of defamation per se against Baxter, a police officer with the City of Hopewell, arising out of her arrest at Hopewell High School for disorderly conduct. The police were at the high school at its request to provide security at a school event in which Frances’ minor daughters were participants. They set up a barricade of tables to form a controlled entry point to a hallway in the school. When Frances approached the tables with her 9-year-old daughter, seeking to escort her to a classroom, she was initially told that only the daughter could enter. The police eventually decided it was OK to allow the parent to come in, but when Frances later observed Officer Baxter stopping another mother from entering the hallway, she decided to intervene.

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Whether a particular tort is deemed intentional, as opposed to merely negligent, can have far-reaching implications. Intentional torts and negligent torts are treated very differently when it comes to things like insurance coverage, sovereign immunity, and recoverable damages. Defamation is one of those torts that cannot be easily categorized, as the degree of intent required to hold someone liable for defamation differs depending on the circumstances. If the plaintiff is a public figure, he will have to prove the defendant intentionally made a false statement, or at least made the statement with a high degree of awareness of its probably falsity. Private-figure plaintiffs, on the other hand, need only demonstrate a level of culpability akin to negligence, a standard that does not require a showing of intent. States differ in their treatment of defamation-by-implication cases, but in Virginia, the speaker must have intended to make a defamatory implication to be held liable.

Some would argue that defamation by implication should only be deemed an intentional tort in those cases where malice is required. Most court opinions involving claims of implied defamation focus solely on whether the statement implies a defamatory meaning to the reasonable listener or reader, without regard to the defendant’s subjective intent in making the statement. According to Section 563 of the Restatement (Second) of Torts, “the meaning of a communication is that which the recipient correctly, or mistakenly but reasonably, understands that it was intended to express.” If the requisite level of intent for defamation liability is mere negligence (the usual standard in cases not involving public figures or officials), it might make sense to hold the speaker liable for a reasonable defamatory inference even if that inference was not the intended meaning. Since the Virginia Supreme Court decided Pendleton v. Newsome, however, it has been clear that plaintiffs seeking to hold defendants liable based on a defamatory implication must demonstrate not only a defamatory inference but that the defendant intended to communicate that inference.

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When California congressman Devin Nunes, a public figure, decided to file a pair of defamation lawsuits against Twitter (based in California), The McClatchy Company (based in California), and others, why do you suppose he selected Virginia as his forum of choice? One popular theory is that Virginia’s anti-SLAPP laws are much weaker than those in California and many other states. In fact, some Virginia courts aren’t so sure Virginia’s law can even be characterized accurately an an “anti-SLAPP statute,” given that the phrase is not found anywhere in the statute itself and the law does not expressly authorize any special motion designed to suspend discovery and cut the litigation short absent an evidentiary showing by the plaintiff.

Like traditional anti-SLAPP statutes, Virginia’s immunity statute applies to defamation claims based solely on statements regarding matters of public concern that would be protected under the First Amendment to the United States Constitution. Unlike most anti-SLAPP statutes, however, Virginia lacks any special procedure designed to invoke this immunity at the earliest stages of the litigation. In California, for example, if a defamation lawsuit is brought over a statement amounting to a constitutionally protected exercise of free speech, the person sued can file a “special motion to strike” that (a) suspends all discovery, and (b) requires the plaintiff to proffer evidence sufficient to show a likelihood of success on the merits of the case. Virginia procedural rules do allow for the filing of a preliminary motion called a “plea in bar,” but many Virginia judges prefer to address the immunity issue at trial rather than at the start of the litigation.

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Another federal judge faced with interpreting Virginia’s insulting-words statute has found that (1) a face-to-face confrontation is not required, and (2) if the words at issue are defamatory per se, then they automatically satisfy the requirements of the statute. The case is Christen Waddle v. Aundrea Claughton, currently pending in the Danville Division of the Western District of Virginia.

The facts of the case (as alleged in the complaint and recited in an earlier opinion) are essentially as follows. Ms. Waddle was driving down the street minding her own business, when she encountered an emaciated dog (not the one pictured) running loose in the middle of the road. The dog appeared to be in bad shape. It had scratches on its face and its ribs were visible. Feeling sorry for the dog, she decided to scoop it up and take it to Animal Control. She called the number on the dog’s collar but no one answered. She then found the owner’s Facebook page and contacted him through Facebook, letting him know she was taking the dog to Animal Control.

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In a defamation per se case, the jury will be instructed that it may presume damages and award a monetary recovery to the plaintiff even in the absence of any evidence of specific harm caused by the defamatory statements. This goes against the general rule that juries cannot award damages unsupported by the evidence. What’s not entirely clear, however, is how much the jury is permitted to award in such a case. Most courts seem to be of the mind that whatever the jury decides is appropriate to award will be permissible in cases of defamation per se. But suppose that number is vastly out of proportion to the gravity of the offense? If the defendant falsely accused the plaintiff of stealing a pack of gum, can a jury decide to award $500 million to the plaintiff, even in the absence of any evidence of harm to reputation? Well, yes and no. In defamation per se cases, the jury can award whatever amount it decides is warranted–even if there is no evidence at all of actual damages–but if the award is especially unconscionable, the court can strike it down.

Virginia Model Jury Instruction 37.105 (which applies in defamation cases involving presumed damages) simply says “the plaintiff is entitled to recover compensatory damages without any proof of actual or pecuniary injury.” There is no mention of any limits on the amount the jury might award. So as far as the jury is concerned, the sky’s the limit. In Poulston v. Rock, 251 Va. 254, 261 (1996), the court wrote that “even in the absence of any evidence of pecuniary loss, the damages which the injured party is entitled to recover may be substantial.”

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