Truth and Falsity Category Archives — The Virginia Defamation Law Blog Published by Reston Defamation Attorney — Virginia Slander & Libel Lawyer

September 2, 2023

Courts Won’t Resolve Scientific Controversies

If truth is a complete defense to a defamation action, what about “scientific truth”? Are scientific findings “facts” that can form the basis of a defamation action if a particular scientist contends they are inaccurate? If so, how much of a consensus is required before a matter of scientific inquiry can be considered “settled” and thus a matter of established fact? Anti-vaxxers have filed a number of defamation actions around the country against media outlets accusing them of spreading misinformation. Few (if any) have been successful. The consensus among the courts appears to be that defamation actions are not an appropriate means of addressing arguments over unsettled questions over which vaccines treat disease most effectively. It’s not so much a matter of whether matters of scientific inquiry should be regarded as facts or opinions but of the practical reality that academic questions on complex scientific topics just aren’t the sort of thing courts or juries are equipped to resolve as definitively true or false. Courts are interested in protecting First Amendment rights, not in picking sides in a scientific debate.

Case in point: Dr. Peter A. McCullough v. Gannett Company, filed earlier this year in the Eastern District of Virginia. Dr. Peter McCullough is a cardiologist and epidemiologist who has been a vocal critic of the medical response to the COVID-19 crisis. According to his complaint, he is “considered one of the world’s leading experts on COVID-19.” The Bartlesville Examiner-Enterprise, an Oklahoma newspaper owned by Gannett Company, ran a story in October 2021 about an upcoming appearance Dr. McCullough was to make at a local community center. The article contains several quotes from a Dr. Anuj Malik, an infectious disease physician who strongly disagreed with Dr. McCullough’s views on the effectiveness of the COVID vaccine. Dr. McCullough claimed the following statements attributed to Dr. Malik were defamatory: Continue reading

May 9, 2023

Sanctions Mandatory if Defamatory Sting Obviously Lacking

by Lee E. Berlik

When a party or an attorney files an objectively baseless defamation complaint, the trial court is required to impose sanctions on one or both of them, including but not limited to an award of attorneys’ fees. This is the main takeaway from Nestler v. Scarabelli decided a few days ago by the Virginia Court of Appeals. Litigation attorneys in both state and federal court are required to adhere not only to codes of ethics but also to procedural rules that prohibit using litigation for an improper purpose. Under Virginia Code § 8.01-271.1, any time a lawyer signs and files a complaint on behalf of a client, the lawyer is certifying that “to the best of his knowledge, information and belief, formed after reasonable inquiry, [the complaint] is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and…is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” The court found that Dr. Scarabelli violated that rule by filing a defamation claim against Dr. Nestler that had no reasonable chance of success. Consequently, the trial court was not only permitted but required to impose an appropriate punishment.

MCV Associated Physicians (“MCVAP”) hired Dr. Tiziano M. Scarabelli as the Virginia Commonwealth University Health Systems’ Director of Cardio-Oncology on a one-year contract. After only a few months, MCVAP had received several complaints from staff members about Dr. Scarabelli’s alleged lack of professionalism. MCVAP also received complaints about Dr. Scarabelli from interns, residents, and patients, some of which appeared to constitute allegations of sexual harassment, such as claims that Dr. Scarabelli was “very touchy feely,” would put his hands on women’s thighs, and would often comment on the physical attractiveness of women. There were also claims he was just rude, “always putting down other physicians.” After a year, MCVAP decided not to renew Dr. Scarabelli’s contract.

November 12, 2022

If Truth is Apparent From the Pleadings, Case May Be Dismissed

by Lee E. Berlik

You may have heard that truth is a complete defense to a claim of defamation. That’s essentially true, but here in Virginia, it’s more accurate to say that a plaintiff must prove falsity as part of his case in chief. Whether a statement claimed to be defamatory is true or false is normally an issue reserved for trial to be determined by a jury. That’s because it’s an issue of fact (as opposed to a question of law, which the judge can decide without deference to the jury). This means that in most cases, a defendant won’t be able to get a defamation claim dismissed on demurrer (i.e., thrown out at the very beginning of the litigation process, without the need for a trial) on the basis that the alleged defamatory statement is true and therefore not actionable. Trials are usually necessary to determine whether the statement is, in fact, true. Sometimes, however, the truth of the allegedly defamatory statement is apparent from the face of the pleadings. When this is the case, trial courts have been known to sustain demurrers.

A recent example comes from the County of Dinwiddie, Virginia (population 28,000). The facts of Dennis F. Harrup III v. Collison F. Royer et al. go something like this. Dennis Harrup owns Harrup Real Estate, LLC (“HRC”). HRC took out a loan of roughly one million dollars with Blue Ridge Bank, secured by a deed of trust (i.e., mortgage) establishing liens on several properties located throughout Richmond, Petersburg, and Lancaster. The deed of trust contained a provision restricting HRC’s right to sell the secured properties. In contravention of this restriction, HRC managed to sell one of the houses. A title search, for reasons that aren’t clear, did not reveal the liens held by Blue Ridge Bank. In the course of the sale, Mr. Harrup signed a “no financing agreement” indicating that he owned the house personally and that there were no liens or encumbrances against it. The documents clearly showed that both of these assertions were false–the property was owned by HRC, not Harrup personally, and there was a substantial lien against it held by Blue Ridge Bank.

July 27, 2022

Defamation Claim Against Shenandoah University Goes Forward

by Lee E. Berlik

Last year I wrote a post about how it can be defamatory for an employer to misrepresent the reasons for an employee’s termination. If an employer says that an employee was fired because of reasons X, Y, and Z, the employee may have a valid defamation claim even if statements X, Y, and Z are all completely true. If the reason for the employee’s termination had nothing to do with those pretextual reasons, then the employer’s statement, taken as a whole, is false and therefore potentially defamatory. A case came across my desk today involving a very similar issue: whether a university can be held liable for defamation when announcing that a student’s dismissal from a degree program was due to certain seemingly valid and legitimate concerns based on the student’s failure to pass a required test, when the student’s dismissal was actually due to something else entirely. Consistent with earlier rulings, the court found that on these alleged facts, the plaintiff had presented a viable defamation claim.

The case is John Doe v. Shenandoah University. The alleged facts of the case, according to the opinion, go something like this. The plaintiff was born in Nigeria and emigrated to the United States, where he is now a permanent resident. He enrolled in the Physician Assistant Studies Program (“PA Program”) at Shenandoah University in Winchester, Virginia. At some point after his enrollment, he developed Social Anxiety Disorder, a health condition characterized by extreme fear of social settings. He requested and received various accommodations due to this disorder, such as (a) time and a half for all quizzes and examinations and (b) testing in a quiet, distraction-free environment. One test he was required to pass as part of the PA Program was the Objective Structured Clinical Exam (“OSCE”), a “time-limited practical exam conducted at the end of certain semesters in the PA program” consisting of “a set of predefined stations related to patient care.”

August 22, 2019

Juries Cannot Base Defamation Verdicts on Statements of Opinion

by Lee E. Berlik

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:

October 13, 2017

Separating Fact From Opinion Is Not Always Easy

by Lee E. Berlik

Defamation Law 101 teaches that expressions of opinion are protected by the First Amendment and are not actionable in court. To bring a successful defamation suit, you’ll need to prove that someone made a false statement of fact about you. If that person merely expressed his or her personal opinion, the law of defamation will not provide a remedy, no matter how unfavorable the opinion is or how harshly it was expressed. Distinguishing assertions of fact from expressions of opinion, however, is not always an easy task. Smart lawyers and even judges will frequently disagree with each other on whether a particular statement is “fact” or “opinion”.

In theory, the differences are clear. A statement of fact is one that contains an assertion capable of being proven true or false. Statements of opinion are those that can’t be proven true or false because they depend on the speaker’s personal, subjective viewpoint. A recent Virginia case illustrates the difficulties that come with applying this test to real-world situations.

June 3, 2017

The Substantial Truth Doctrine Saves Katie Couric–For Now

by Lee E. Berlik

If a statement claimed to be defamatory is substantially true (even if partially inaccurate), Virginia courts will generally not allow offended parties to bring defamation actions based on the minor inaccuracies. If the damaging aspect of the statement–the part that tends to affect one’s reputation–is substantially true, small factual errors that may exist in the less-important details are deemed insufficient to support a defamation action under the so-called “substantial truth doctrine.” In the Katie Couric defamation case I wrote about back in September, an interesting question arose: is a non-responsive or evasive answer to a question substantially the same thing as sitting in complete silence in response to that question? Judge Gibney thought so, and recently dismissed the case based in part on that reasoning. I would be surprised if that ruling gets upheld on appeal, though it may not ultimately make a difference to the outcome of the case.

Let’s recap briefly what the case is about. Katie Couric produced a documentary on gun violence called Under the Gun. Under the Gun portrays firearms as a serious social problem and advocates in favor of gun control. Ostensibly in an effort to show both sides of the gun-control debate, she invited members of the Virginia Citizens Defense League, a gun-rights organization, to be interviewed on camera. There is a scene in the film where she asks the VCDL group the following pointed question: “If there are no background checks for gun purchasers, how do you prevent felons or terrorists from purchasing a gun?” It’s a question often asked by gun-control advocates, and a question most gun-rights advocates are comfortable answering. But in Couric’s film, the responses shown on camera amount to what appears to be bewildered and uncomfortable silence. When the camera cuts away, viewers are left with the impression that the VCDL members had never considered the question before and were unable to come up with a single answer to it.

October 28, 2016

Former Boss Fired You But Tells People You Quit: Not Defamatory

by Lee E. Berlik

In an opinion published earlier this week by a federal court in Alexandria, the court analyzed a defamation claim brought by a sales representative against her former employer, manufacturer of the Mammotome breast biopsy system. Her former supervisor, after terminating her employment, had met with her largest customer to introduce her replacement to them, and when asked about her whereabouts, the supervisor responded that the employee had “up and left” and added that she was “not a closer.” The customer was not pleased, as they had held the employee in very high regard, and when they heard the news that she had parted ways with the manufacturer, they reached out to her and helped her land a job with another medical device company. The employee was also not pleased when she heard this, and she sued her old boss for defamation. The court denied her claim and entered summary judgment in favor of her former employer.

The case is Jasna Kuhar v. Devicor Products, Inc. The first statement at issue was that of Ms. Kuhar’s former supervisor, Joseph Baia, who told the customer that Ms. Kuhar had left Devicor voluntarily, without giving prior notice (which is how the court interpreted the “up and left” statement). As a preliminary matter, the court noted that this was a statement of fact, capable of being proven true or false (which is a prerequisite for defamation liability). The court disagreed, however, with Ms. Kuhar’s argument that the statement was “per se” defamatory in that it disparaged her qualifications as a sales representative. Ms. Kuhar presented no evidence to suggest that immediate resignation was frowned upon in the sales profession. (And at-will employees have the right to resign without giving advance notice). Here, Ms. Kuhar’s offer letter stated expressly that “Your relationship with the Company will therefore be at-will, which means you or the company may terminate your employment at any time, with or without cause or notice.” The court also noted that the undisputed evidence not only showed that the statement had not prejudiced her in her profession or trade, but that she had not, in fact, suffered any damage. Her customers testified that they continued to hold her in high regard, and even helped her find another job.

April 25, 2016

Minor Factual Discrepancies Won’t Support Defamation Action

by Lee E. Berlik

You may have heard that truth is a complete defense to an action for libel or slander. This is essentially correct, but it would be more accurate to say that to win a defamation case, the plaintiff must be able to prove that the statements at issue are false. In other words, the burden of demonstrating falsity lies with the person bringing the case; the defendant does not need to prove that the statements were true. If the jury finds that the odds of a defamatory statement being true are exactly 50-50, the defendant wins, not because “truth is a complete defense,” but because the plaintiff failed to convince the jury that the statement was false.

So if you’re a prospective plaintiff considering suing someone for defamation, you need to understand that you’re not going to win unless the words that were spoken or written about you are false. And when I say “false,” I mean that the part of the statement that is hurtful or offensive–the “sting” of the statement–needs to be false in all material respects. If the stinging words are substantially true, forget litigation. Filing a lawsuit is only going to invoke the Streisand Effect and bring more attention to the situation, resulting in further harm to your reputation.

July 29, 2015

Threats to Destroy Reputation May Constitute Blackmail

by Lee E. Berlik

Online review sites wield enormous power, and some enterprising consumers have begun leveraging that power to extract refunds or other benefits from businesses worried about protecting their online reputations. Suppose you’re at an orthodontist’s office being fitted for some $5000 braces when the orthodontist accidentally pierces the inside of your cheek. You decide that (a) the doctor is incompetent and (b) the world should be made aware of that fact for the good of mankind. Your first instinct is to go to Yelp or HealthGrades and write a scathing review warning the public about the dangers of dealing with this orthodontist. But then you realize you might be able to gain even greater satisfaction another way: you contact the doctor, tell him of your plans to write a negative online review, and offer to refrain from posting the review if he will waive the $5000 charge for the braces. You get free braces, and the doctor gets to preserve his 5-star Yelp rating. Win-win, right?

Consumers have a First Amendment right to express their opinions regarding products and services they have received, but things get a little tricky when people threaten to exercise that right as a means to extract money from someone. Some would call this blackmail, known in Virginia as extortion. Extortion is governed by Va. Code § 18.2-59, which provides in pertinent part, “Any person who (i) threatens injury to the character…of another person,…and thereby extorts money, property, or pecuniary benefit or any note, bond, or other evidence of debt from him or any other person, is guilty of a Class 5 felony.”
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