156 So. 3d 1200
La. Ct. App.2014Background
- Plaintiff Madro Bandaries (an attorney and husband-caregiver) sued defense counsel F. Evans Schmidt for defamation based on questions Schmidt asked at the deposition of Judith Sullivan (Bandaries’ wife and a plaintiff in an underlying suit against Malta Park).
- At the October 7, 2013 deposition, Schmidt asked whether Bandaries or his associate M. Claire Trimble had a sexual relationship; Bandaries claimed the questions were unrelated to the underlying care/fraud claims and were posed to embarrass him.
- Bandaries filed a defamation suit alleging the questions amounted to defamatory per se accusations of adultery, published to others at the deposition, made with actual malice.
- Schmidt moved for summary judgment asserting the questions were protected by the litigation qualified privilege (and were relevant follow-ups), and that questioning cannot constitute actionable statements. The trial court granted summary judgment for Schmidt.
- On appeal, the Fourth Circuit reviewed de novo, found the questions were not material to the underlying assisted‑living/fraud claims (so the qualified privilege did not apply), concluded the questions could be read as defamatory per se (imputing adultery), held publication occurred, and reversed and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the attorney’s deposition questions are protected by the qualified litigation privilege | Bandaries: questions were irrelevant to underlying claims, so no privilege | Schmidt: questions were pertinent to motive/conflict and were reasonable discovery; privilege applies | Held: Qualified privilege does not apply — questions not material to underlying suit |
| Whether questions framed as inquiries can be defamatory | Bandaries: the questions presupposed the affair and functioned as assertions (rhetorical accusation) | Schmidt: questions are mere inquiries and thus not capable of being true/false | Held: Questions can be actionable if reasonably read as assertions; these could be read as assertions |
| Whether the alleged words are defamatory per se | Bandaries: accusing adultery is defamatory per se and presumes falsity/malice/injury | Schmidt: not per se — no crime or assault on professional reputation; no cause of action for alleging affair | Held: Accusation of adultery found defamatory per se under Louisiana law |
| Whether publication occurred | Bandaries: deposition attendees and transcript constitute publication | Schmidt: confined to deposition participants and privilege bars publication | Held: Publication element satisfied (deposition attendees and record) |
Key Cases Cited
- Freeman v. Cooper, 414 So.2d 355 (La. 1982) (recognizes only a qualified privilege for attorney statements in litigation and sets materiality/probable-cause/absence-of-malice test)
- Sassone v. Elder, 626 So.2d 345 (La. 1993) (discusses summary judgment standard in defamation cases)
- Kennedy v. Sheriff of East Baton Rouge, 935 So.2d 669 (La. 2006) (reexamines summary judgment standard for defamation actions)
- Costello v. Hardy, 864 So.2d 129 (La. 2003) (summarizes elements of defamation and defenses of truth/privilege)
- Gorman v. Swaggart, 524 So.2d 915 (La. App. 4th Cir.) (accusations of adultery equated with defamatory statements)
- Stahl v. Kincade, 192 N.E.2d 493 (Ind. App. 1963) (holding that allegations irrelevant to the underlying claim defeat litigation privilege)