The Case: Myers v. Pickering Firm, Inc. , 959 S.W.2d 152 (Tenn. Ct. App. 1997).
The Basic Facts: This is a defamation action related to errors in a report by an engineering and architectural firm. After a trial, the jury returned a verdict for the plaintiff in the amount of $600,000.00 in compensatory damages, and $100,000.00 in punitive damages.
The Bottom Line:
- "Under Tennessee law, a plaintiff is required to prove actual damages in all defamation cases. Handley v. May, [588 S.W.2d 772, 776 (Tenn. Ct. App. 1979)]. The actual damage requirement was discussed by the United States Supreme Court in Gertz v. Robert Welch, Inc., [418 U.S. 323 (1974)]:
We need not define 'actual injury,' as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury.[Id. at 349-50.]" 959 S.W.2d at 164.
- "The failure to prove special damages or out-of-pocket losses is not necessarily determinative. Handley, 588 S.W.2d at 776. The issue is whether the record contains any material evidence of impairment of reputation and standing in the community, personal humiliation, or mental anguish and suffering. Id." Id.
- "The amount of damages assessed depends on the degree of moral turpitude of the defendant's conduct. Saunders v. Baxter, 53 Tenn. (6 Heisk.) 369, 385 (1871)." Id.
- "Absence of malice may be shown by the defendant's retraction of the libel to mitigate the damages. See Knoxville Publ'g Co. v. Taylor, [215 S.W.2d 27, 30 (Tenn. Ct. App. 1948)]. Unless 'actual malice' is shown, punitive damages are not permitted. Memphis Publ'g Co., 569 S.W.2d at 421. A refusal to retract after a request for retraction is made or the republication after notice is given of the falsity of the statements is evidence of malice. See e.g., Vigil v. Rice, 397 P.2d 719 (N.M. 1964) (holding that refusal to retract defamatory statements is evidence of malice to destroy a qualified privilege); Morgan v. Dunn & Bradstreet, Inc., 421 F.2d 1241 (6th Cir. 1970) (holding that republication after knowledge of the falsity of the defamatory statements is sufficient evidence of malice to support punitive damages)." Id.
- "Under the principles above, we must determine whether there is material evidence to support the amounts awarded by the jury on the libel claims, which included $150,000.00 for emotional distress, $250,000.00 for pecuniary losses, $200,000.00 for injuries to MK's reputation, and $100,000.00 for punitive damages." Id. at 165.
- "The record is replete with testimony concerning the emotional distress that Myers and Klimek suffered as a result of the Report. Myers testified that he spent forty years of his life building his reputation in the architectural business and that the statements in the Report devastated and humiliated him and caused him to become severely depressed. Klimek also testified that the statements in the Report caused him great distress. Although this testimony related to the original publication of the Report, it is reasonable to infer that MK suffered the same emotional distress from each publication of the Report, including the publication to Omega and Thompson-White. Under the principles above, there is material evidence to support the amount awarded for emotional distress." Id.
- "As for the $250,000.00 awarded by the jury for pecuniary losses, MK points out that it is no longer in existence and that Myers and Klimek are no longer practicing architecture. However, there is no evidence that this was a result of the publication of the Report to Omega and Thompson-White and not a result of the publication of the Report to LSSM. There is also no evidence that MK suffered any pecuniary losses or lost any potential business opportunities with Omega or Thompson-White by virtue of the publication of the Report to those entities. There is no material evidence in the record to support this award." Id.
- "The jury further awarded MK $200,000.00 for the injuries to its reputation as a result of the publication to Omega and Thompson-White. The only evidence in the record with respect to any possible injury to MK's reputation is Melvin O'Brien's testimony that the publication of such a report would injure an architect's reputation. However, there is no testimony or evidence in the record establishing that MK actually suffered injuries to its reputation as a result of the publication to Omega and Thompson-White. After reviewing the record, we conclude that the evidence indicates that the injury MK suffered to its reputation, if any, resulted from the privileged communications of the Report, MK's replacement by Pickering as project architect, and MK's termination by LSSM. There is no material evidence to support this award." Id.
- "The jury also awarded $100,000.00 in punitive damages to MK on the libel claims. The record indicates that MK requested that Pickering correct the errors or retract the defamatory statements in the Report, but that Pickering failed to do as MK requested. This is sufficient evidence of Pickering's actual malice to support the jury award of punitive damages." Id. at 165-166.
Other Sources of Note: Tenn. Code Ann. § 29-24-101 (West, WESTLAW through 2007 First Reg. Sess.)("Any words written, spoken, or printed of a person, wrongfully and maliciously imputing to such person the commission of adultery or fornication, are actionable, without special damage except as otherwise provided in § 29-24- 105."); Tenn. Code Ann. § 29-24-103 (providing that a newspaper or periodical that retracts within ten days of notice any article alleged to be false and defamatory shall be liable for only actual and not punitive damages.); Davis v. The Tennessean, 83 S.W.3d 125 (Tenn. Ct. App. 2001) (adopting "libel-proof" doctrine, which provides that "there are persons so notorious that they have no reputation on which to base a defamation claim."); Emerson v. Garner, 732 S.W.2d 613 (Tenn. Ct. App. 1987) (holding doctrine of presumed damages in libel and slander cases is no longer applicable in Tennessee);
Brasfield v. Dyer, No. E2008-01774-COA-R3-CV, 2010 WL 98880 (Tenn. Ct. App. Jan. 12, 2010) (upholding JNOV where employee did not offer prove alleged defamatory statement caused damage).
Safro v. Kennedy , No. E2006-01638-COA-R3-CV, 2007 WL 1215052 (Tenn. Ct. App. Apr. 25, 2007) (vacating trial court's dismissal of defamation claim finding genuine issues of material fact as to whether defamatory statements were published and whether plaintiff incurred damages as a result).