finding ITED where defendant's team physician released to press information that plaintiff was suffering from fatal disease, when physician knew such information was false
How later courts described this case
- finding ITED where defendant's team physician released to press information that plaintiff was suffering from fatal disease, when physician knew such information was false
- finding IIED where defendant’s team physician released to press information that plaintiff was suffering from fatal disease, when physician knew such information was false
- holding physician informing press that a person was suffering from a potentially fatal disease despite knowing he was not could be “extreme and outrageous”
- explaining that, if true, team physician telling press that plaintiff suffered from fatal disease, despite knowing he did not, did inflict IIED
Written by the judges who cited it.
The opinion
*1283 VAN DUSEN, Circuit Judge,
dissenting in part:
I respectfully dissent from the majority’s conclusion in part V of its opinion that the district court’s denial of plaintiff’s motion for new trial on the defamation count should be affirmed because the evidence did. not support that count as a matter of law.
The uncontroverted evidence at trial indicated that polycythemia describes a number of different conditions involving excessive red blood cells. Stress polycythemia is not' a life-threatening condition, while polycythemia vera is potentially fatal. All doctors who testified to having examined Mr. Chuy agreed that he definitely never suffered from polycythemia vera.
Despite Dr. Perry’s qualified assurances that his records did not indicate that Chuy had polycythemia vera, a potentially fatal disease, Chuy testified that he believed Dr. Nixon would not have publicized his diagnosis unless true (N.T. 82; 349a). Chuy testified that his “mind just snapped” (id). Even while in Dr. Perry’s office, Mr. Chuy broke down emotionally (N.T. 83-84; 350a-51a). Afterwards Chuy became a “mental wreck,” marital difficulties ensued, and his physical condition worsened (N.T. 84-88; 351a-55a). Several months elapsed before Mr. Chuy put himself under Dr. Perry’s care and submitted to tests, which disproved the existence of polycythemia vera.
The jury answered the following questions: 1
“7. Has the plaintiff proved by clear and convincing evidence that Dr. Nixon intentionally told Hugh Brown that Mr. Chuy was suffering from polycythemia vera?
X
Yes No
If the answer to Question 7 is no, then skip questions 8 through 11, and please inform the Marshal that you have completed your deliberations.
“8. (a) Has plaintiff proved by clear and convincing evidence that Dr. Nixon’s statements about Mr. Chuy tended to injure Mr. Chuy in his business or profession, to harm his reputation by lowering him in the estimation of the community, or to deter others from associating or dealing with him?
X
Yes No
If the answer to Question 8(a) is No, then skip Question 8(b) and go on to Question 9.
(b) If the answer to 8(a) is Yes, has the plaintiff proved by clear and convincing evidence that Hugh Brown understood that publication of Dr. Nixon’s statements about Mr. Chuy would tend to injure Mr. Chuy in his business or profession, to harm his reputation by lowering him in the estimation of the community or to deter others from association or dealing with him?
x ”
Yes No
The jury found, in answer to interrogatory 7, that the plaintiff proved by clear and convincing evidence that Dr. Nixon intentionally told Mr. Brown that Don Chuy was suffering from polycythemia vera (App. 968a). The jury was also asked to determine whether all of Dr. Nixon’s statements quoted in the newspaper article, when taken together, tended to injure Mr. Chuy’s *1284 reputation (App. 938a). Finally, the jury was asked whether Mr. Brown understood that publication of Dr. Nixon’s statements would tend to injure Mr. Chuy’s reputation. The jury, in response to question 8(a), answered affirmatively that dissemination of Dr. Nixon’s remarks tended to injure Mr. Chuy’s reputation.
In Pennsylvania, defamation claims are governed by long established common law standards, as well as burden of proof rules prescribed by statute, 12 Pa.Stat.Ann. § 1584a (Purdon Supp.1978). Plaintiffs must first prove the defamatory character of particular communications. The Pennsylvania Supreme Court has adopted the definition of a defamatory communication as contained in the First Restatement of Torts:
“A communication is defamatory if it tends so 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.”
Corabi v. Curtis Publishing Co., 441 Pa. 432, 442 , 273 A.2d 899, 904 (1971), quoting Restatement of Torts § 559 (1938). 2 Also, the Pennsylvania Supreme Court has shown a concern for protecting business interests in its definition of libel. In Corabi, 441 Pa. at 442 , 273 A.2d at 904 , the court said:
“A libel is a maliciously written or printed publication which tends to blacken a person’s reputation or to expose him to public hatred, contempt or ridicule, or to injure him in his business or profession.” (Emphasis added.) 3
In the first instance, the trial court must determine whether a particular communication is capable of a defamatory meaning. Id.; Cosgrove Studio & Camera Shop, Inc. v. Pane, 408 Pa. 314, 318 , 182 A.2d 751, 753 (1962) (citing Restatement of Torts § 614(1)).
Hugh Brown’s column in the Philadelphia Bulletin on April 9, 1970, reported that a Dr. Harrell had examined Don Chuy and diagnosed a pulmonary embolism and recommended that Chuy no longer participate in contact sports such as pro football and wrestling. This report of Dr. Harrell’s examination was uncontroverted in the record. The truth, which plaintiff did not deny, was that his predisposition to embolisms dictated his retirement from football. In the same article, Dr. Nixon was quoted as confirming Dr. Harrell’s diagnosis and recommendation. In addition, the article quotes and paraphrases an assessment by Dr. Nixon that Chuy had polycythemia vera, which involved the probability of the formation of emboli. This single statement was false. The issue is whether the untrue remark, set against the backdrop of the accurate information in the article, was capable of defamatory meaning: that is, of a meaning that would tend “so to harm the reputation of [Chuy] as to lower him in the estimation of the community or to deter third persons from associating or dealing with him."
Reading the article in its entirety, a reader might have understood that polycythemia vera was the direct cause of Mr. Chuy’s forced, premature retirement from pro football, and might have understood or learned that polycythemia vera was potentially fatal. Where the imputation of a fatal physical disease is explicitly related in *1285 the allegedly defamatory communication to a person’s professional demise, his business stature has been seriously weakened. For example, to name just one possibility, it is not uncommon for retired professional athletes to be offered professional opportunities in sportscasting, or in advertising, or even in other, less strenuous sports. Those persons who would otherwise approach Mr.. Chuy with such opportunities might be deterred from associating or dealing with him in this professional capacity if they thought that he was suffering from a potentially fatal disease. It is in this context that I conclude that Dr. Nixon’s imputation to Don Chuy of a potentially fatal illness might have been understood as conveying a defamatory meaning. 4
The jury must be charged with determining whether plaintiff proved that the “recipient” of the communication understood it as defamatory. 12 Pa.Stat.Ann. § 1584a(l)(d) (Purdon’s Supp.1978). The district court charged the jury to consider Hugh Brown as the recipient and to consider whether he personally understood that publication of Dr. Nixon’s statements would cause Don Chuy harm (935a, 938a-39a). The interrogatories split into 8(a) and 8(b) distinguished between the jury’s understanding and Mr. Brown’s understanding of the meaning of Dr. Nixon’s statements.
I believe that the district court erred in treating the sportswriter as the relevant “recipient” within the meaning of Pennsylvania law. Defamatory words spoken to a newspaper reporter for attribution in a column should be deemed communicated not alone to the reporter but also to the general readership of the newspaper. The jury in this case should have been asked whether the average reader of the Philadelphia Bulletin understood Dr. Nixon’s statements as harming Chuy’s reputation. 5 See Sellers v. Time, Inc., 423 F.2d 887, 889-90 (3d Cir. 1970).
Clearly Mr. Brown’s personal comprehension of the effect of publication of Dr. Nixon’s statements need not have corresponded with the average reader’s actual understanding. The contrary answers to interrogatories 8(a) and 8(b) indicate that the jury understood the defamatory potential of Dr. Nixon’s statements differently from Mr. Brown. The jury’s finding that the statements tended to harm Mr. Chuy’s reputation may well have implicitly represented the jurors’ own understanding as average readers or their perception of how other average readers would have understood the statements. In sum, I conclude that the district court erred in not submitting to the jury a question as to whether the average reader understood Dr. Nixon’s statements taken in the context of the article as tending to injure Mr. Chuy’s professional reputation. 6 This error necessitates a *1286 remand on plaintiff’s defamation claim in my view.
If the jury finds on a retrial that the average reader would learn that polycythemia vera was so debilitating that he would cease associating with Chuy or not consider him for a position such as that of sportscaster, then Dr. Nixon’s statement would be defamatory. 7 I believe that the court is required by this record to decide that Dr. Nixon’s statement is capable of such lay readership understanding.
In arguing for a remand, the plaintiff also disputed the district court’s conclusion that Don Chuy was a “public figure” and claimed that his burden of proof need not have required him to produce clear and convincing evidence. I concur in the majority’s conclusion that Don Chuy was a “public figure” who must meet a constitutionally mandated higher standard of proof on the issue of actual malice than other defamed plaintiffs. 8
I would remand for a new trial limited to the defamation claim of Chuy’s complaint.
SEITZ, Chief Judge, and GIBBONS, Circuit Judge, join in the foregoing opinion dissenting in part from the opinion of the court. For reasons set forth in his separate statement, ALDISERT, Circuit Judge, joins in this dissent, x
Statement of ALDISERT, Circuit Judge, with whom VAN DUSEN, Circuit Judge, joins.
What divides this court is not a matter of institutional or precedential significance. Nor is it disagreement over the choice of a controlling legal precept, the interpretation thereof, or the application of the precept as chosen and interpreted to the facts at hand. Rather, this court divides on a prediction. The majority offers an educated guess as to what the Pennsylvania Supreme Court would do if faced with the same facts; the dissenters offer theirs. This is the nature of diversity cases in the federal courts of appeals.
The opinions in this case are impressive expressions of thoughtful analysis and careful craftsmanship, but they are no more than legal essays without institutional significance. They are not “performative utterances,” to use Professor J. L. Austin’s description of an orthodox appellate opinion. The opinion of the court has no controlling precedential value because the Pennsylvania judicial system is free to accept or reject any analysis of state law pronounced by a federal court.
I fail to see how a majority of this court’s judges could have ordered in bane consideration of the panel’s decision while respecting both the letter and spirit of Fed.R. App.P. 35:
*1287 [Rehearing in banc] is not favored and ordinarily will not be ordered except (1) when consideration by the full court is necessary to secure or maintain uniformity of its decisions, or (2) when the proceeding involves a question of exceptional importance.
Although I concede that the issues are, as the court states, “interesting,” I cannot agree that this appeal presents “a question of exceptional importance” deserving in banc consideration. 1
Moreover, the energies of the full court have been committed to a diversity case at a time when Congress has seriously questioned the advisability óf retaining federal jurisdiction in diversity cases. On February 28, 1978, by a vote of 266-133, the House passed H.R. 9622 which would have abolished diversity jurisdiction. A companion Senate Bill, S. 2389, was also introduced in the 95th Congress. A more moderate proposal, S. 2094, would have limited diversity jurisdiction by preventing a plaintiff from bringing a diversity suit in his home state. A conference committee was unable to achieve agreement, so the legislation was not enacted. Congressional Quarterly 3055 (October 21, 1978). Nevertheless, Professor Daniel Meador, Assistant Attorney General, testified before the House Committee that the Justice Department supports legislation which would restrict or reduce diversity jurisdiction. Professor Meador stated that such legislation is necessary
to equip the federal judiciary to adjudicate expeditiously and economically the unprecedented volume of civil cases.
This increase in volume is not illusory. The number of civil filings in 1977 was 130,567; an increase of 49.5 percent over the number in 1970, when the last increase in judges occurred. Because of the Speedy Trial Act of 1974, federal judges have been giving priority to criminal cases at the expense of the civil calendar. As a result, the number of civil cases pending increased 63.3 percent from 1970 to 1977. Because of this congestion, it now takes longer, with few exceptions, to dispose of a civil case in a federal district court than it does for a state court system to dispose of a comparable case.
Congressional Record E3792, July 14, 1978.
For these reasons, I believe the court improvidently granted rehearing in banc. I join in the dissenting opinion which reflects the views of the original panel.
. Also, the jury answered questions 6(a) and' (b) as follows:
“6. Has the plaintiff proved by a fair preponderance of the evidence that:
(a) The Eagles exerted any actual control over the substance of statements by Dr. Nixon to the press concerning the physical condition of Eagles players?
X
Yes
No
(b) The Eagles by virtue of their relationship with Dr. Nixon had the right to control the substance of statements by Dr. Nixon to the press concerning the physical condition of Eagles players?
X
Yes
No
. The revised Second Restatement retains intact the First Restatement’s definition of defamatory meaning. Restatement (Second) of Torts § 559 (1977).
. The above-quoted language also appears in these Pennsylvania decisions: Volomino v. Messenger Pub. Co., 410 Pa. 611, 613 , 189 A.2d 873, 874-75 (1963); Bogash v. Elkins, 405 Pa. 437, 439 , 176 A.2d 677, 678 (1962); Mengel v. Reading Eagle Co., 241 Pa. 367, 370-71 , 88 A. 660, 661 (1913). In addition, the Pennsylvania Supreme Court has followed § 573 of the Restatement of Torts, which provides;
Ҥ 573. Slanderous Imputations Affecting Conduct of Business, Trade, or Profession.
“One who falsely and without a privilege to do so, publishes a slander which ascribes to another conduct, characteristics or a condition incompatible with the proper conduct of his lawful business, trade, [or] profession . is liable to the other.”
See Cosgrove Studio & Camera Shop, Inc. v. Pane, 408 Pa. 314, 320 , 182 A.2d 751, 754 (1962); Fegley v. Morthimer, 204 Pa.Super. 54, 56-57 , 202 A.2d 125, 126 (1964).
. I conclude only that Dr. Nixon’s false statement was capable of defamatory meaning, not that it was so understood nor that it was the proximate cause of any actual damages sustained by Don Chuy. See Restatement (Second) of Torts § 559, comment d; id. §§621, 622A.
. Because the newspaper has not been sued, X do not view this as a libel action for republication of a defamatory remark. Nor do I construe the newspaper as an agent for the Eagles in propagating Dr. Nixon’s statements. My view that the newspaper readership was the relevant “recipient,” and not Mr. Brown to whom the words were spoken, is bolstered by the Restatement’s treatment of publication by a third person. In comment f to § 577 of the Restatement (Second) of Torts (1977), the view is expressed that an individual’s intent that slanderous words be reduced to writing, followed by their subsequent embodiment, renders the speaker liable for libel as well as slander. Thus, a news source’s revelations to a reporter are properly treated as libelous when printed in the evening paper. As a corollary, the readers of the libel are its recipients and the reporter is the recipient of the slander.
. The following answers to questions 9(a) and (b) make it not improbable that the jury would have found liability for defamation if question 8(b) had been properly worded and the charge had made clear that the average reader’s understanding of Dr. Nixon’s statement was controlling:
“9. (a) Has the plaintiff proved by clear and convincing evidence that it was the natural and probable consequence of Dr. Nixon’s making that statement to Mr. Brown that it would come to the direct attention of the plaintiff, Donald Chuy?
*1286 Yes No
If the answer to Question 9(a) is No, skip Question 9(b).
(b) If the answer to Question 9(a) is Yes, has the plaintiff proved by clear and convincing evidence that under all the facts and circumstances of this case as you find them to be, Dr. Nixon’s making that statement to Mr. Brown constituted shocking or outrageous conduct on his part, or exceeded the bounds of decency, with respect to its natural and probable impact on plaintiff, Donald Chuy?
X
Yes No
. It seems clear that a defendant who knowingly spread an inaccurate rumor that a plaintiff being considered for presidency of a corporation had cancer could be found liable for defamatiori under the language from the Restatement of Torts quoted at page 1284 above. Thus, I am not persuaded by the majority’s effort to confine defamation by attribution of illness to venereal diseases or leprosy.
. A public figure may recover only if he proves that the defamatory statement was made with “ ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 , 84 S.Ct. 710, 726 , 11 L.Ed.2d 686 (1964). In this case, Dr. Nixon admitted that Chuy did not have polycythemia vera and the jury found, “by clear and convincing evidence,” in answer to question 7 “that Dr. Nixon intentionally told Hugh Brown that Mr. Chuy was suffering from polycythemia vera.” Thus, a finding of actual malice was properly made by the district court without submission of a special interrogatory to the jury.
. It will be noted that the court divides solely on a state law issue. There is complete agreement on the first amendment considerations.