Supreme Court of Texas, No. 11-0772 (May 17, 2013)
Justice Guzman (Opinion)
Seeking to clarify the distinction between defamation and defamation per se, the Texas Supreme Court held that the latter can be found only if the disparaging statements “ascribe the lack of a necessary skill that is peculiar or unique to the [plaintiff’s] profession.” If this element is not satisfied, plaintiff cannot recover without proving actual damages.
After Dr. Hancock received a letter from his supervisor, Dr. Variyam, criticizing Dr. Hancock’s “lack of professionalism and disregard for patient care,” Dr. Hancock resigned his position at a university medical center and distributed a letter calling Dr. Variyam a liar with a “reputation for lack of veracity.” Dr. Variyam sued for defamation. The trial court granted a directed verdict that Hancock’s letter was defamatory per se, and entered judgment on the jury’s verdict awarding $175,000 in compensatory and exemplary damages. The Amarillo Court of Appeals affirmed the judgment, holding that calling someone a liar is “so obviously hurtful” that proof of injury is not required.
The Supreme Court granted review, reversed the court of appeals, and rendered a take-nothing judgment. The court first reviewed the changes in the “constitutional landscape” since its last in-depth discussion of defamation per se in the 1942 Renfro case. After discussing the United States Supreme Court’s efforts to reconcile free-speech rights and protection against defamation, the court enumerated the types of damages that may be recovered if defamation is proven. Because defamation per se allows a plaintiff to recover general damages (e.g., compensation for loss of reputation or mental anguish) without proving actual injury, such claims are limited to narrowly defined categories, including statements that injure a person “in his office, profession, or occupation.” Applying comments to the Restatement (Second) of Torts § 573, the court held that statements imputing dishonesty to a doctor do not constitute defamation per se because the “specific trait of truthfulness is not peculiar or unique to being a physician.” The conclusion that the statements were not defamatory per se was fatal to plaintiff’s judgment, as the court held there was no evidence of actual injury to reputation or compensable mental anguish.
