749 S.E.2d 526
Va.2013Background
- Dr. Robert Smith and Dr. Bradley Cashion treated a critically injured patient; the patient died during surgery.
- Smith and Carilion criticized Cashion in the OR and hallway, including remarks that implied euthanasia.
- Cashion sued for defamation; Smith and Carilion moved to dismiss arguing some statements were non-actionable opinions and protected by privilege.
- The Demurrer Order sustained some demurrers for non-euthanasia statements as opinions, but overruled demurrers as to euthanasia statements; later summary judgment followed.
- A trial court held euthanasia statements non-hyperbole and privileged, and granted summary judgment; appeal followed.
- This Court reverses in part: non-euthanasia statements were not protected as opinion, and the privilege analysis required different malice considerations; euthanasia statements not hyperbole were non-actionable only to extent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver under 8.01-384(A) | Cashion argues endorsement waived objections. | Majority says endorsement can waive only if express written agreement to waiver is shown. | Endorsement did not waive the non-euthanasia issue. |
| Non-euthanasia statements as opinion | Non-euthanasia statements were actionable facts. | They were non-actionable expressions of opinion. | Court erred in treating two statements as non-actionable opinions; they are potentially actionable facts. |
| Qualified privilege and malice | Privilege may be lost/abused; malice shown by pre-existing spite suffices. | Privilege attached; failure to show malice defeats it as a matter of law. | Privilege attaches; malice is a jury question and not limited to spite; remand for proper malice assessment. |
| Rhetorical hyperbole | Euthanasia statements are not hyperbole and are defamatory. | Statements constitute rhetorical hyperbole not actionable. | Euthanasia statements are not rhetorical hyperbole; not protected speech; affirmed in part and reversed in part accordingly. |
Key Cases Cited
- Kellermann v. McDonough, 278 Va. 478 (2009) (waiver requires clear abandonment of objection)
- Helms v. Manspile, 277 Va. 1 (2009) (waiver requires conduct showing intent to abandon objection)
- Chawla v. BurgerBusters, Inc., 255 Va. 616 (1998) (endorsement not necessarily waiver; context matters)
- Johnson v. Hart, 279 Va. 617 (2010) ( Seen and consented endorsement not a broad waiver)
- Lamar Corp. v. City of Richmond, 241 Va. 346 (1991) (endorsement language in Lamar used to interpret waiver context)
- Great Coastal Express, Inc. v. Ellington, 230 Va. 142 (1985) (malice elements can defeat privilege; multiple avenues ok)
- Yeagle v. Collegiate Times, 255 Va. 293 (1998) (rhetorical hyperbole not defamatory; court determines as law)
- Fuste v. Riverside Healthcare Ass'n, 265 Va. 127 (2003) (establishes standard for privilege and malice proof)
- Hyland v. Raytheon Tech. Servs. Co., 277 Va. 40 (2009) (test for opinion vs. fact in defamation context)
- Gree nbelt Publ’g Ass’n v. Bresler, 398 U.S. 6 (1970) (First Amendment protection for rhetorical hyperbole)