SEPTEMBER 4, 2012
“On The Huge Threats And Challenges Of Defamation Cases”
Saul Leventhal, Minnesota Litigator
In the digital age, (mis)information travels far, fast, and essentially at no up-front cost — as never before. The potential for far-reaching reputation harm, irretrievable and at light-speed is a new social phenomenon. This should be news to no one. There is now a thriving market for “reputation management” (formerly known as public relations, damage control, crisis management?).
But think twice before you counsel your client to sue for defamation…
There are many perils in defamation cases. Perhaps the worst is that current U.S. law and, in particular, the rules for stating claims in complaints arguably require defamed plaintiffs to echo, re-broadcast, and republish the defamatory statements complained of in a public court file.
How many people would have read or heard of the unflattering descriptions of Dr. McKee if he himself had had not made a case of them?
The case, by the way, is being argued before the Minnesota Supreme Court this morning. The trial court had tossed out Dr. McKee’s complaint. The Court of Appeals reversed in part, concluding: that appellant’s defamation claim shall proceed with respect to the following statements: (1) appellant told the patient that he had to “spend time finding out if you were transferred or died”; (2) appellant said, “44% of hemorrhagic strokes die within 30 days. I guess this is the better option”; (3) appellant said, “You don’t need therapy”; (4) appellant said, “it doesn’t matter” that the patient’s gown did not cover his backside; (5) appellant left the patient’s room without talking to the patient’s family; and (6) a nurse told respondent that appellant was “a real tool.”
Has Dr. McKee’s lawsuit made him more likely or less likely to be widely viewed as “a real tool”?
If you bring a “normal” lawsuit and lose, the reputation risk is relatively slight. If, however, you bring a defamation lawsuit and you lose, or even if you quietly settle and call it a “win” (which is, all things considered, will be the way over 90% likely outcome), you may have taken whatever harm you originally suffered and magnified it, perhaps exponentially. Ralph Waldo Emerson famously said, “If you shoot at a king, you must kill him.” In a defamation case, similarly, plaintiffs had better fully appreciate the stakes of a misfire.
Speaking of the harm suffered by a defamation plaintiff, how is that measured? If a jury agrees with a doctor defamation plaintiff’s claim that a disappointed patient’s family falsely suggested that a nurse called the doctor a “real tool,” can the doctor really trace any actual damages to that unflattering, if ambiguous, label? And, if not, how is a jury to fix on a dollar amount? And how much was the claimed damage caused not by the original publication but by the defamation plaintiff’s subsequent lawsuit?