“Appellants’ contention regarding the failure to conduct further investigation in this matter and obtain an expert medical review prior to broadcast is without merit as appellees had no such duty.”
How later courts described this case
- “Appellants’ contention regarding the failure to conduct further investigation in this matter and obtain an expert medical review prior to broadcast is without merit as appellees had no such duty.”
Written by the judges who cited it.
The opinion
Vukovich, Judge,
dissenting.
I must respectfully dissent from the majority opinion due to a differing view as to the applicability of the totality-of-the-circumstances test as set forth in
Vail v. The Plain Dealer Publishing Co.
(1995), 72 Ohio St.3d 279 , 649 N.E.2d 182 . As the majority opinion indicates, appellants provide a lengthy discussion of the applicability of that test to the case at bar in an attempt to establish that the broadcast as a whole was defamatory in nature. However, the majority discounts this position in that it concludes that the test as set forth in
Vail
should apply only to determine whether the broadcast at issue is considered a statement of fact or constitutionally protected opinion. Since appellees never alleged that the broadcast was constitutionally protected opinion, the majority holds that the totality-of-the-circumstances test is wholly inapplicable to the present case. However, I would take a different approach to this matter.
The totality-of-the-circumstances test should not be limited to determining whether the language at issue constitutes a statement of fact rather than constitutionally protected opinion. On the contrary, the test also should be held to apply in deciding whether the language is defamatory in nature once it has been determined not to be constitutionally protected opinion. This position certainly is not unprecedented in the arena of judicial reasoning.
For instance, both the First and Eighth Appellate Districts have recognized the concept that the circumstances and context in which a statement was made should be considered in determining whether the statement is defamatory. In
Belinky v. Drake Ctr., Inc.
(1996), 117 Ohio App.3d 497 , 690 N.E.2d 1302 , the First District held that “the court must look to the totality of the circumstances
in determining whether a statement is defamatory as a matter of law.”
(Emphasis added.)
Id.
at 507 , 690 N.E.2d at 1309 . The Eighth District expanded upon this idea when it held that “[t]he statements at issue should be read in context of the entire article in determining whether a reader would interpret them as defamatory.”
Mendise v. Plain Dealer Publishing Co.
(1990), 69 Ohio App.3d 721, 726 , 591 N.E.2d 789 citing
Shallenberger v. Scripps Publishing Co.
(C.P.1909), 20 Ohio Dec. 651 , 1909 WL 720 , affirmed (1912), 85 Ohio St. 492 , 98 N.E. 1132 .
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The Ninth District reached a similar conclusion when it decided
Vogel v. Sekulich
(Sept. 15, 1993), Summit App. No. 16105, unreported, 1993 WL 347096 . In relying upon
Mendise
and
Shallenberger,
the court concluded that a court must review the totality of the circumstances and evaluate the “composition and placement of the statement within the entire context of the article.”
Id.
at 4. Furthermore, in citing
Connaughton v. Harte Hanks Communications, Inc.
(C.A.6, 1988), 842 F.2d 825 , affirmed (1989), 491 U.S. 657 , 109 S.Ct. 2678 , 105 L.Ed.2d 562 , the court held that an alleged defamatory statement “should not be considered in isolation, but rather within the context of the entire article and the thoughts that the article through its structural implications and connotations is calculated to convey to the reader to whom it is addressed.”
Id.
at 840.
This judge’s review of
Connaughton
finds the reasoning therein quite persuasive as related to applying the totality-of-the-eircumstances test to the determination of whether a statement is defamatory. As is reasoned by the Sixth Circuit Court of Appeals, a statement claimed to be defamatory must be construed in the sense in which the reader to whom it is addressed would ordinarily understand it.
Id.
at 840 , citing
Washington Post Co. v. Chaloner
(1919), 250 U.S. 290, 293 , 39 S.Ct. 448, 448-449 , 63 L.Ed. 987, 989 . In order to truly determine whether a statement is defamatory, one must judge not only the plain text but also the composition of the story, its syntax, context, etc.
Id.
Finally, while not binding upon this court,
Mucci v. Dayton Newspapers, Inc.
(C.P.1995), 71 Ohio Misc.2d 71 , 654 N.E.2d 1068 , serves to shed further light on this subject. In
Mucci ,
a series of articles were published by Dayton Newspapers, Inc. which allegedly imputed a “general want of professional skill and/or knowledge” on the part of Dr. Thomas J. Mucci. Due to the perceived defamatory nature of the statements contained therein, a suit was filed against the newspaper.
In its decision regarding the newspaper’s motion for summary judgment, the trial court indicated that while the facts themselves which were contained in the articles were not defamatory, the facts as they were presented under the totality of the circumstances could be viewed as defamatory in nature.
Id.
at 76-77, 654 N.E.2d at 1072-1073. In arriving at this conclusion, the court determined that the totality-of-the-circumstances test should also apply in deciding whether statements were defamatory in that a court must hold as a matter of law whether an alleged defamatory statement is actionable.
Id.
Situations may arise where, while not defamatory in and of themselves, the “synergistic effect” of the statement gives rise to actionable defamation.
Id.
The court went on to provide that although truth is a defense to a defamation action, the truth must relate to the entire published report in light of the context of the statement.
Id.
Although, this case is not binding on this court, it is nonetheless persuasive.
*815
It is also worth noting that jurisdictions outside the state of Ohio have found this concept to have merit and to be¡ applicable to cases involving television broadcasts. In
Weinstein v. Bullick
(E.D.Pa.1993), 827 F.Supp. 1193 , it was held that allegedly defamatory statements must be reviewed in the context of the entire broadcast.
Id.,
citing
Pierce v. Capital Cities Communications, Inc.
(C.A.3, 1978), 576 F.2d 495, 502 ; Restatement of the Law 2d, Torts (1977), Section 563, Comment
d.
In applying this test to the case at bar, the trial judge should have determined that summary judgment was precluded. Although the majority indicates that comments regarding doctors being “unfit,” “incompetent,” “negligent,” and “potentially deadly” did not directly refer to appellant, these statements should be taken in the context of the broadcast as a whole. After all, appellees concede that the broadcast should not be interpreted as two separate segments but rather in its entirety. When the statements are viewed in this sense rather than in the sterile, out-of-context environment in which the majority views them, they have defamatory connotations as to appellant’s fitness to practice medicine. Since the two segments must be viewed together, a reasonable viewer would likely associate the degrading comments with appellant as she was the only physician in the broadcast whose actual practice of medicine was at issue. In essence, appellees use appellant as an example of the medical board’s laxity in disciplining “bad doctors.” Appellant’s medical practice and the discussion regarding the failure to discipline medical negligence are inseparable.
Furthermore, although the statements relating to the malpractice action filed against appellant may have been true, that should not be held to be a defense. As the court indicated in
Mucci ,
truth should relate to the entire broadcast in light of the context of the alleged defamatory statements.
To adopt the position espoused by the trial court as well as the majority herein would serve to shield individuals from liability for conduct which oftentimes should be viewed as defamatory in nature. For instance, under the trial court’s approach a television station or newspaper could run a two-part series, the first part of which focused on corruption in the practice of law. In referring to the first part of the series, the station or newspaper could then single out an individual attorney in the second segment and discuss matters not directly related to any type of corrupt activity. So long as all statements when viewed individually were true, the attorney would be without a remedy regardless of the effect the statements had on the reasonable viewer. Such a result should not be encouraged or tolerated in our judicial system.
In conclusion, applying the totality of the circumstances test to the determination of whether a statement is in fact defamatory advances the policy behind permitting actions for defamation. The context in which a statement is made
*816
should be a consideration as it provides insight into what a reader, or in this case a listener, reasonably would perceive from the article or broadcast. Taking the statements out of the environment in which they were made necessarily alters the effect they have upon the individual reviewing them. Whenever such a statement is examined in a vacuum, the impact it has will be lessened to the detriment of the plaintiff.
For the foregoing reasons, I respectfully dissent from the majority opinion.