PJC Business 2024

D EFAMATION , B USINESS D ISPARAGEMENT & I NVASION OF P RIVACY

PJC 110.2

Identifying the allegedly defamatory matter. When a jury charge specifically identifies the allegedly defamatory matter—for example, by quoting statements—a verdict must be supported by evidence related to the specific defamatory matter identi fied in the charge. For example, in a defamation case brought by a surgeon against a hospital, the jury charge specifically identified the allegedly defamatory matter as the following statement made by a hospital employee to the plaintiff and quoted in the charge: [H]e had spoke[n] to CEO Keith Alexander and they had discussed it and they felt that the data needed to be shared, that we needed to be a transpar ent organization, that this was a safety issue, . . . and that means they can do what they will with the data and that he was going to show it and had shown it to cardiologists at cardiology meetings and other physicians and who referred to me so they can . . . make informed decisions when they refer patients. Memorial Hermann Health System v. Gomez , 649 S.W.3d 415, 421 (Tex. 2022). The plaintiff argued, and the court of appeals agreed, that this charge submitted to the jury defamation questions with respect to the data referenced in the quoted statement— namely, mortality statistics that the plaintiff contended were misleading because they were raw rather than adjusted to account for the riskiness of the procedures at issue. Gomez , 649 S.W.3d at 425–26. But the supreme court held that, by its plain language, the charge submitted only defamation questions with respect to the specific quoted statement, not the data referenced in the statement. Gomez , 649 S.W.3d at 423–25. Because the quoted statement was made only to the plaintiff, there was no evidence that it was “published,” and thus the verdict was reversed. Gomez , 649 S.W.3d at 426– 29 (where jury charge submitted a specific statement—“I heard bad quality, high mor tality rates, unnecessary surgeries”—made to a specific person about the plaintiff sur geon, evidence to support the verdict had to relate to that specific statement, not to a broader “whisper campaign” of similar statements made to others). To avoid this out come, practitioners should ensure that the charge clearly submits the allegedly defam atory statements.

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