Neely v. Wilson
Texas Supreme Court, No. 11-0228 (June 28, 2013)
In a 6-3 decision, the Supreme Court concluded that a plaintiff physician offered sufficient evidence in support of his defamation claim to defeat summary judgment for a television station that broadcast an investigative report about the physician’s alleged drug use and disciplinary history. The key dispute was whether the report was substantially true, and in particular whether accurate reporting of third parties’ allegations establishes a truth defense, regardless of the truth of the allegations themselves. The Supreme Court held that rebroadcasting defamatory statements made by others is itself defamatory and concluded the physician’s evidence raised genuine fact issues regarding the truthfulness of the statements in the report. The Court therefore reversed summary judgment for the station and remanded the case.
Over the course of a few years, Neely, a neurosurgeon, was sued for malpractice by two patients and was separately disciplined by the Texas Medical Board for prescribing himself pain medications and for being unable to practice medicine “due to mental or physical condition.” KEYE-TV ran a seven-minute investigative report on Neely that included interviews with the two patients’ families and a member of the Board. Neely sued KEYE for defamation, claiming his practice collapsed after the report aired. The station moved for summary judgment, which the trial court granted and the court of appeals affirmed.
The Supreme Court first addressed a central disputed issue of law—whether a report that accurately states allegations made by third parties is necessarily protected by a substantial truth defense. KEYE contended the Court’s decision in McIlvain v. Jacobs established a shield for media defendants who broadcast such reports. The Court disagreed with this characterization of McIlvain and instead reiterated the “well-settled legal principle that one is liable for republishing the defamatory statement of another.” The Court noted that McIlvain involved a media broadcast of statements that were “factually consistent with the government’s investigation and its findings and were thus substantially correct, accurate, and not misleading.” The Court read McIlvain to mean that one way of proving the truth of allegations made in a broadcast is to point to a government investigation that concluded the allegations were true. But, contrary to KEYE’s contention and several decisions by Texas courts of appeals and the Fifth Circuit, McIlvain did not create a substantial truth defense for accurate reporting of third-party allegations that are not themselves true.
The Court next considered whether KEYE’s broadcast was substantially true. The Court considered the “gist” of the report to be “that Neely was disciplined for operating on patients while using dangerous drugs or controlled substances.” The Court determined there was a disconnect between this message and the Board’s express findings, which were merely that Neely improperly prescribed drugs to himself, not that he was under the influence of drugs while operating on patients. Neely also offered summary judgment evidence that the gist of the broadcast was false, including his own affidavit and a psychiatrist’s findings that Neely was not diagnosable with a substance use disorder. The Court concluded this evidence was sufficient to raise a fact question regarding the truthfulness of KEYE’s broadcast and the various privilege defenses KEYE raised. The Court therefore reversed the summary judgment and remanded the case.