312 So.3d 1165
La. Ct. App.2020Background
- Jane Doe accused Herbert Lewis, Jr. of non-consensual sex/rape after a 2013 birthday party; she filed a police report and contacted the Louisiana State Nursing Board. The district attorney declined criminal charges.
- Lewis filed a reconventional demand for defamation, alleging Doe communicated the rape accusation to the DA, his employer (Louisiana Department of Public Safety & Corrections / LCIW), the nursing board, and friends, causing lost wages and reputational harm.
- Bench trial was held January 21, 2020; the district court dismissed Doe’s underlying civil claims with prejudice and found Doe liable for defamation, awarding $75,000 in general damages and $18,462.14 in lost wages.
- On appeal Doe challenged denial of two continuances, sufficiency of evidence for defamation (including privilege/publication), and the damages awards; Lewis sought appellate attorney’s fees/costs.
- The Fourth Circuit affirmed the district court on all contested points and denied Lewis’s request for attorney’s fees on appeal.
Issues
| Issue | Plaintiff's Argument (Doe) | Defendant's Argument (Lewis) | Held |
|---|---|---|---|
| Motion(s) to continue trial | Denial of continuances (Jan. 10 & 21) was erroneous because material witnesses were unavailable and Doe had a medical reason to travel | Trial court did not abuse discretion: witnesses were not shown subpoenaed/absent contrary to arrangements; court offered depositions and video testimony and accommodated start time | Affirms: no abuse of discretion; continuances properly denied |
| Sufficiency of evidence for defamation (publication & privilege) | Communications (to nursing board and employer) were privileged or otherwise insufficient to show unprivileged publication | Doe admitted contacting nursing board; third parties (employer assistant, coworker) testified receipt/knowledge; privilege fails because Doe could not show good-faith basis for accusing Lewis | Affirms: elements met (defamatory per se, publication to third parties); qualified privilege not shown because Doe failed to prove good faith |
| Damages (lost wages & general damages) | Awards were unsupported / based on hearsay and contradictory testimony | Lost wages supported by employer testimony re: administrative leave and HR figure; general damages supported by testimony about humiliation, sleep/counseling, social/professional effects and comparable precedent | Affirms: $18,462.14 lost wages and $75,000 general damages not an abuse of discretion |
| Appellate attorney’s fees / costs | N/A (Doe appealed) | Lewis sought fees/costs in appellee brief under La. C.C.P. art. 2164 | Denies Lewis’s request: appellee must file an answer or cross-appeal to seek frivolous-appeal damages; request made only in brief was procedurally improper |
Key Cases Cited
- Thompson v. Bank One of Louisiana, NA, 134 So.3d 653 (La. 2012) (sets out elements of defamation and effect of per se accusations)
- Kennedy v. Sheriff of E. Baton Rouge, 935 So.2d 669 (La. 2006) (explains absolute vs. qualified privilege and elements of conditional privilege)
- Costello v. Hardy, 864 So.2d 129 (La. 2003) (privileged communication is an affirmative defense that must be specially pled)
- Zito v. Advanced Emergency Med. Servs., Inc., 89 So.3d 372 (La. 2012) (standard for manifest error when testimonial accounts are contradicted by objective evidence)
- Loicano v. Maryland Cas. Ins. Co., 301 So.2d 897 (La. App. 4 Cir. 1974) (testing “material witness” for continuance; witness absence contrary to arrangements)
- Hebert v. Travelers Ins. Co., 245 So.2d 563 (La. App. 3 Cir. 1971) (allowing deposition testimony in lieu of absent witnesses for continuance analysis)
- Jeansonne v. Detillier, 656 So.2d 689 (La. App. 5 Cir. 1995) (defamation damages for false rape accusation discussed)
- Connor v. Scroggs, 821 So.2d 542 (La. App. 2 Cir. 2002) (upholding damages for serious defamatory accusations in small-community context)
- Trentecosta v. Beck, 714 So.2d 721 (La. App. 4 Cir. 1998) (damages for defamatory accusations by official)
- Smith v. Atkins, 622 So.2d 795 (La. App. 4 Cir. 1993) (awarding damages where defamatory conduct caused psychiatric harm)