Byron D. Neely, Individually, and Byron D. Neely, M.D., P.A. v. Nanci Wilson, CBS Stations Group of Texas, L.P., D/B/A Keye-Tv and Viacom, Inc.
418 S.W.3d 52
| Tex. | 2013Background
- Dr. Byron Neely, an Austin neurosurgeon, was the subject of a 2004 KEYE investigative TV broadcast describing Board findings that he self‑prescribed medications, had hand tremors, faced malpractice suits, and had been disciplined (probation; stayed license suspension; prohibited from self‑prescribing).
- The broadcast’s opening asked whether a surgeon had been “disciplined for prescribing himself and taking dangerous drugs,” and included patient interviews and questioning about whether the Board could ensure he wasn’t still using drugs.
- Neely alleges the broadcast caused loss of referrals, cancelled appointments, financial harm, and foreclosure; he and his professional association sued KEYE for libel.
- At summary judgment KEYE primarily relied on the truth/substantial‑truth defense and argued it accurately reported third‑party allegations (invoking Mcllvain); it did not rely on the statutory broadcaster due‑care defense in the motion.
- The Texas Supreme Court held that the gist of the broadcast — that Neely was disciplined for operating on patients while taking dangerous drugs or controlled substances — could be so understood by an ordinary viewer and that Neely produced evidence creating a genuine fact issue on whether that gist was true.
- The Court reversed summary judgment as to KEYE, holding other defenses/privileges were not conclusively established at summary judgment and remanded for trial.
Issues
| Issue | Neely’s Argument | KEYE’s Argument | Held |
|---|---|---|---|
| Whether the broadcast was substantially true (gist test) | The broadcast's gist — that he was disciplined for operating while taking dangerous drugs — was false; evidence shows he was not disciplined for taking drugs nor operated while impaired | The broadcast was substantially true because it accurately reported Board findings and third‑party allegations | A fact issue exists: a reasonable viewer could conclude the broadcast meant he was disciplined for operating while using drugs; Neely produced evidence to controvert that gist, so summary judgment on truth fails |
| Whether McIlvain creates a rule shielding accurate repetition of third‑party allegations | McIlvain should not immunize a broadcaster who conveys a false damaging gist | KEYE: McIlvain permits summary‑truth defense where allegations under investigation are accurately reported | Court: McIlvain did not create a blanket rule; accurate reporting of allegations can prove substantial truth in some cases, but not here because the gist goes beyond mere allegation‑reporting |
| Application of official/judicial‑proceedings and fair‑comment privileges | Portions may not be fair, true, and impartial — particularly the taking‑drugs gist | The broadcast was a fair report of Board proceedings and public concern, so privileged | Judicial‑proceedings privilege protects the portions reporting Sheila Jetton’s lawsuit allegations (unnecessary surgery); but the taking‑drugs gist is not conclusively a fair, true, impartial report of the Board Order — fact issue remains. Fair‑comment also not dispositive because it depends on substantial truth |
| Whether Neely is a limited‑purpose public figure (actual malice standard) | He did not voluntarily thrust himself into a public controversy; private figure (negligence standard) | KEYE: Neely was a limited‑purpose public figure and must prove actual malice | Held: Neely is not a limited‑purpose public figure; negligence standard applies |
| Whether KEYE showed absence of negligence at summary judgment | Neely produced evidence raising falsity of the gist, which can indicate negligence | KEYE argued no negligence evidence | Held: Fact issue as to negligence exists; summary judgment for KEYE on negligence inappropriate |
| Whether a professional association can sue for defamation | Association and Dr. Neely claim harm; association seeks recovery | KEYE argued professional associations cannot maintain defamation claims | Held: Professional associations have same powers as corporations under the Business Organizations Code and may sue for defamation (subject to single‑injury/double‑recovery limits) |
Key Cases Cited
- McIlvain v. Jacobs, 794 S.W.2d 14 (Tex. 1990) (examined substantial truth of broadcast reporting government investigation)
- Turner v. KTRK Television, Inc., 38 S.W.3d 103 (Tex. 2000) (substantial‑truth/gist test; publication viewed as whole by ordinary listener)
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (U.S. 1990) (statements of opinion and verifiability limits in defamation)
- New York Times Co. v. Sullivan, 376 U.S. 254 (U.S. 1964) (actual malice standard for public officials; breathing space for debate)
- Gertz v. Robert Welch, Inc., 418 U.S. 323 (U.S. 1974) (distinguishing public/private plaintiffs; states set fault standard for private figures)
- Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (U.S. 1991) (substantial truth doctrine tolerates minor inaccuracies)
- Hepps v. Philadelphia Newspapers, Inc., 475 U.S. 767 (U.S. 1986) (plaintiff bears burden to prove falsity for matters of public concern)
- WFAA‑TV, Inc. v. McLemore, 978 S.W.2d 568 (Tex. 1998) (Texas standard of fault: negligence for private‑figure plaintiffs)
- Bentley v. Bunton, 94 S.W.3d 561 (Tex. 2002) (falsity is a question for the factfinder when evidence is disputed)