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At a Glance:
Title:
Batiz v. United Parcel Service, Inc.
Date:
July 11, 2007
Citation:
3:05-CV-2302-P
Status:
Unpublished Opinion

Batiz v. United Parcel Service, Inc.

United States District Court, N.D. Texas, Dallas Division.

Dawn BATIZ and DCB Health, Inc., Plaintiffs,

v.

UNITED PARCEL SERVICE, INC., Defendant.

3:05-CV-2302-P

|

Signed 07/11/2007

Attorneys & Firms

Tailim Song, Tailim Song Law Firm, Eunice E. Kim, Vincent Lopez Serafino & Jenevein PC, Dallas, TX, for Plaintiffs.

John V. Jansonius, Marcus G. Mungioli, Akin Gump Strauss Hauer & Feld, Dallas, TX, for Defendant.

ORDER

JORGE A. SOLIS, UNITED STATES DISTRICT JUDGE

*1 Now before the Court is Defendant United Parcel Service, Inc.’s (“UPS” or “Defendant”) Motion for Summary Judgment, filed March 20, 2007.1 After reviewing the briefing and applicable law, the Court DENIES Defendant’s Motion for Summary Judgment.

I. Background and Procedural History

Plaintiff Dawn Batiz (“Batiz”) is a licensed chiropractor who obtained her Doctorate in Chiropractic in 1997. Batiz practiced as a chiropractor at various clinics in the Dallas area until 2003, when she opened her own clinic, Texas Work & Injury Clinic in Dallas, Texas (“TWIC”).2 TWIC is located across the street from UPS’s Dallas package distribution hub. (Batiz Decl. ¶ 3 (Pls.’ App. at 6-7).) Batiz claims that, because of the location of her clinic, a great number of her patients are also UPS employees. (Batiz Decl. ¶ 3 (Pls.’ App. at 7).)

Anthony LeBlanc (“LeBlanc”) and Joseph Valentino (“Valentino”), two UPS package car drivers, were receiving treatments from Batiz in early 2005 for work-related injuries. (Batiz Decl. ¶ 4 (Pls.’ App. at 7).) On or about February 10, 2005, LeBlanc and Valentino informed Batiz that they had attended a meeting on February 8, 2005, with, among other UPS representatives, Julian Hernandez (“Hernandez”), the divisional manager of UPS, to discuss their work-related injuries. (Id.) According to Batiz, LeBlanc and Valentino informed her that, during the course of the meeting, Hernandez “made multiple false statements about [Batiz] unrelated to Anthony LeBlanc’s or Joe Valentino’s injuries and attempted to dissuade Mr. LeBlanc and Mr. Valentino from choosing [Batiz] as the treating doctor.” (Id.) Specifically, Batiz alleges that Hernandez made the following statements:

(1) Batiz could not help LeBlanc and Valentino because she is not a real doctor;

(2) Batiz could not help LeBlanc and Valentino because she is not a licensed doctor;

(3) Batiz is an ambulance chaser;

(4) Patients only seek treatment from Batiz because of her “looks”;

(5) Batiz once misdiagnosed a patient and caused him to go to the hospital, which implies that she is incompetent.

(Id.)

When LeBlanc and Valentino informed Batiz of these comments, Batiz recommended that LeBlanc and Valentino write a letter to the Texas Workers’ Compensation Commission (“TWCC”) and complain about UPS’s alleged coercion of its employees in connection with workers’ compensation claims because it interfered with the employees’ treatment. (Batiz Decl. ¶ 5 (Pls.’ App. at 7-8).) According to Batiz, LeBlanc and Valentino then asked Batiz to type letters to the TWCC on their behalf. (Batiz Dep. 69:25-70:21, 72:7-14 (Def.’s App. at 126-28).) On or about February 9, 2005, Batiz drafted two letters to the TWCC and gave them to LeBlanc and Valentino, who revised and signed the letters. (Batiz Decl. ¶ 5 (Pls.’ App. at 8); Pls.’ Ex. B-1 (Pls.’ App. at 10-11); Pls.’ Ex. B-2 (Pls.’ App. at 12-13).) Batiz then sent the letters to the TWCC and also kept a copy of each letter in LeBlanc’s and Valentino’s patient files. (Batiz Dep. 100:24-101:5 (Def.’s App. at 41-42); Batiz Decl. ¶ 6 (Pls.’ App. at 3).)

*2 Additionally, on or about February 10, 2005, Batiz sent a letter to UPS alleging that, at the meetings involving LeBlanc and Valentino, “Hernandez knowingly and willingly slandered [her] character in the presence of numerous employees of UPS.” (Def.’s Ex. 5 (Def.’s App. at 72).) Shortly after Batiz sent UPS the letter, a UPS Employee Relations Manager, Etta Gray, contacted Batiz by telephone to discuss her complaints. (Batiz Dep. 78:15-79:16 (Def.’s App. at 31-32).) During the phone call, Gray stated to Batiz that her complaints were of serious concern to UPS, that UPS would like to have a good working relationship with Batiz, that Batiz would have an opportunity to communicate with the UPS employees involved in the meetings in question, and that some of Batiz’s statements in the letter were inconsistent with the UPS employees’ versions of what was said during the above-mentioned meetings. (Batiz Dep. 78:15-82:13 (Def.’s App. at 31-35).) After this phone call, Batiz had no further correspondence with UPS. (Batiz Dep. 82:17-23 (Def.’s App. at 35).) The instant suit followed.3

Plaintiffs contend that Hernandez’s alleged statements constitute defamation and, as a result, Batiz’s practice has experienced significant monetary loss, and she has personally suffered damage to her reputation, mental anguish, and public humiliation. (Pls.’ Resp. at 7.) Additionally, Plaintiffs aver that Defendant acted with the specific intent to harm Plaintiffs or with reckless disregard to Plaintiffs’ rights. (Id.) UPS now moves for summary judgment on Plaintiff’s defamation claim, asserting that it cannot survive as a matter of law because: (1) Plaintiffs have presented no admissible evidence to create an issue of fact as to whether the alleged statements were ever made; (2) the statements at issue are not defamatory; (3) the statements at issue are privileged; and (4) Plaintiffs have not pled and cannot prove special damages. (Def.’s Mot. at 8-15.)4

II. Summary Judgment Standard

Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial and of identifying those portions of the record that demonstrate such an absence. Id. However, all evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).

Once the party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The party defending against the motion for summary judgment cannot defeat the motion unless he provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in his favor. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent a summary judgment. Id. at 248-50, 106 S.Ct. 2505; Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). Further, the Court has no duty to search the record for triable issues. Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). “The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise matter in which the evidence supports his or her claim.” Id.

III. Defamation

*3 “Defamation is a false statement about a person, published to a third party, without legal excuse....” Fiber Sys. Int’l v. Roehrs, 470 F.3d 1150, 1161 (5th Cir. 2006) (citing Moore v. Waldrop, 166 S.W.3d 380, 384 (Tex. App.—Waco 2005, no pet.) ). An oral defamatory statement is legally referred to as slander, as opposed to written statements, which are legally referred to as libel. Id. at 1161. The Court first turns to whether Plaintiffs have presented competent evidence to support their claim for slander.

A. Hearsay

Defendant first argues that Plaintiffs have offered only inadmissible hearsay in support of their claim and have no admissible evidence that the alleged defamatory statements were made. Hearsay is an out-of-court statement offered into evidence to prove the truth of the matter asserted. Fed. R. Evid. 810(c). “Evidence on summary judgment may be considered to the extent not based on hearsay or other information excludable at trial.” Fowler v. Smith, 68 F.3d 124, 126 (5th Cir. 1995) (internal citations omitted); see also Wells v. Shop Rite Foods, Inc., 474 F.2d 838, 839 (5th Cir. 1973) (affirming a district court’s exclusion of a witness’s testimony as hearsay when the witness intended to testify that other employees had told the witness that plaintiff was fired for stealing). In Dolcefino v. Randolph, the plaintiff attempted to offer, through his own affidavit, two newspaper reporters’ alleged statements that the defendant had told them that he was doing a story on the plaintiff’s malfeasance. 19 S.W.3d 906, 927 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). The plaintiff offered such evidence to prove the defendant had made defamatory statements to the reporters. Id. In refusing to allow the plaintiff’s affidavit to support a claim for defamation, the court stated:

Because [the plaintiff] is seeking to establish a defamation claim based on what [the defendant] allegedly said to these newspaper reporters, for purposes of the hearsay analysis, the crucial inquiry is whether [the defendant] made the remarks, not whether [the defendant] was actually doing a story on malfeasance or whether [the plaintiff] committed malfeasance. [The plaintiff] clearly offered the statements of these out-of-court declarants to establish the truth of the matters asserted, i.e., to prove [the defendant] said these things to [the newspaper reporters]. As such, the statements are hearsay.

Id.

Similarly, in the instant case, Plaintiffs offer the following evidence: their original petition, the declaration of Batiz, letters drafted by Batiz on behalf of LeBlanc and Valentino, and excerpts from the depositions of Batiz and Robertson, a party not present when the statements were allegedly made. (See Robertson Dep. 69:17-70:2 (Pls.’ App. at 36).) All evidence is offered to prove that UPS, through its manager Julian Hernandez, made the above-referenced defamatory statements about Batiz to Valentino and LeBlanc during the meetings regarding their injuries in February of 2005. (See Batiz Dep. 20:18-21:25, 65:16-69:19 (Def.’s App. at 4-5, 22-26); Batiz Decl. ¶¶ 4-5 (Pls.’ App. at 7-8).) Like the situation in Dolcefino, Batiz’s own testimony through her deposition and declaration that Valentino and LeBlanc told her of what Hernandez allegedly said is offered to prove the truth of the matter asserted, i.e. that Hernandez made such statements to Valentino and LeBlanc, and is inadmissible hearsay insufficient to support a defamation claim.5

*4 The Court will, however, consider the letters sent to the TWCC in support of Plaintiffs’ claim. The letters in question were undisputedly drafted by Batiz sometime after Valentino and LeBlanc informed her of the statements allegedly made by Hernandez. Batiz states that the letters are a “summary” of what LeBlanc and Valentino said, but not a recitation of the “exact words” they used. (Batiz Dep. 106:10-107:11, 115:13-116:25 (Def.’s App. at 43-44, 47-48).) Batiz also states that she directly quoted Valentino and LeBlanc in some portions of the letters and set off such phrases in quotation marks. (See Batiz Dep. 106:10-14, 116:15-19 (Def.’s App. at 43, 48).) Notably, it is undisputed that Valentino and LeBlanc had the opportunity to review and change the letters prior to signing and submitting them to the TWCC. (Batiz Dep. 106:23-107:1, 116:20-25 (Def.’s App. at 43-44, 48).) By signing the documents, the Court finds that Valentino and LeBlanc effectively adopted the statements as their own.6 Therefore, the Court will consider these letters in ruling on the instant motion.

In moving forward, the Court will consider only the statements in these letters when evaluating Plaintiffs’ defamation claim. Among the statements alleged by Batiz also present in the letters are:

(1) Batiz is not a real doctor. (Pls.’ Exs. B-1, B-2 (Pls.’ App. at 10, 12).)

(2) Batiz is an ambulance chaser. (Pls.’ Ex. B-2 (Pls.’ App. at 12).)

(3) Batiz misdiagnosed a patient. (Id.)

(4) Batiz is an incompetent doctor. (Pls.’ Ex. B-1 (Pls.’ App. at 10).)

There is no admissible evidence that tends to prove that Hernandez stated that Batiz was not a licensed doctor or that her patients only go to see her “because of her looks.” Thus, the Court finds that Plaintiff cannot assert a defamation claim based on these particular alleged statements and will only evaluate the statements noted above evidenced by the letters.

B. Defamatory Meaning

Defendant next argues that summary judgment is appropriate because the alleged statements cannot reasonably be seen as defamatory. “ ‘A statement is defamatory if the words tend to injure a person’s reputation, exposing the person to public hatred, contempt, ridicule, or financial injury.’ ” Burch v. Coca-Cola Co., 119 F.3d 305, 325 (5th Cir. 1997) (quoting McKethan v. Tex. Farm Bureau, 996 F.2d 734, 743 (5th Cir. 1993) (internal quotation and citation omitted) ); see also Tex. Civ. Prac. & Rem. Code § 73.001 (2007). A plaintiff must prove that at least one person hearing the statement perceived the statement as defamatory. Farias v. Bexar County Bd. of Trustees for Mental Health Mental Retardation Servs., 925 F.2d 866, 878 (5th Cir. 1991) (citing Diesel Injection Sales & Servs., Inc. v. Renfro, 656 S.W.2d 568, 573 (Tex. App.—Corpus Christi 1983, writ ref’d n.r.e.); Bergman v. Oshman’s Sporting Goods, Inc., 594 S.W.2d 814, 816 (Tex. Civ. App.—Tyler 1980, no writ) ). A plaintiff’s opinion on whether or not words are defamatory is irrelevant to this determination. Id. at 878. Additionally, “[t]he allegedly defamatory statement must be considered in context and in light of the circumstances surrounding its publication.” Burch, 119 F.3d at 326 (quoting McKethan, 996 F.2d at 743 (internal citation and quotation omitted) ). Whether words may be defamatory is a threshold question of law for the court. Id. at 325-26 (quoting McKethan, 996 F.2d at 743).

There are two types of defamatory statements: defamation per quod, which requires proof of special damages to be actionable, and defamation per se. Alaniz v. Hoyt, 105 S.W.3d 330, 345 (Tex. App.—Corpus Christi 2003, no pet.) (citing Padilla v. Carrier Air Conditioning, 67 F.Supp.2d 650, 663 (E.D. Tex. 1999) ). “Words may be defamatory per se if they are so obviously harmful to the person aggrieved that no proof of their injurious effect is necessary to make them actionable.” Id. (internal citation omitted). The law characterizes words as defamatory per se if they: (1) impute a crime, (2) impute a loathsome disease, (3) tend to injure a person’s office, business, profession, or calling, or (4) impute sexual misconduct. Fiber Sys. Int’l, 470 F.3d at 1161 (quoting Gray v. HEB Food Store N. 4, 941 S.W.2d 327, 329 (Tex. App.—Corpus Christi 1997, writ denied) ). If words are defamatory per se, a plaintiff is not required to plead or prove special damages; rather, the law presumes actual damage. Plumley v. Landmark Chevrolet, 122 F.3d 308, 310 (5th Cir. 1997); see also Belli v. Orlando Daily Newspapers, Inc., 389 F.2d 579, 582 (5th Cir. 1967) (finding words defamatory per se if they tend to injure one’s business or profession or if the natural and proximate cause of such a statement is such injury, without requiring proof of actual injury).

*5 Defendant argues that the identified comments are not “of such magnitude that they would tend to injure Batiz’s reputation ...” (Def.’s Mot. at 9.) The Court disagrees. Statements that Batiz is not a “real” or competent doctor, that she is an “ambulance chaser,” and that she misdiagnosed a patient all go directly to her reputation as a licensed chiropractor. The Court fails to see how such statements, if made, could do anything other than harm Batiz’s professional reputation and, from the letters, it appears that Valentino and LeBlanc perceived the statements as injurious to Batiz. In viewing the evidence in a light most favorable to Plaintiffs, the Court finds the alleged statements capable of a defamatory meaning. Additionally, because they go directly to Batiz’s occupation, she is not required to plead or prove damages. Rather, such words are “actionable in and of themselves.” Alaniz, 105 S.W.3d at 345.7

Defendant also argues that the alleged statements are not defamatory because they are substantially true. Truth is an absolute defense to a defamation claim. Patton v. United Parcel Serv., Inc., 910 F.Supp. 1250, 1274 (S.D. Tex. 1995) (citing Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995); Farias, 925 F.2d at 878). To secure summary judgment, a defendant must make a showing of substantial truth. Id. at 1274 (citing McIlvain v. Jacobs, 794 S.W.2d 14, 15 (Tex. 1990) ).

The test used in deciding whether [a statement] is substantially true involves consideration of whether the alleged defamatory statement was more damaging to [the plaintiff’s] reputation, in the mind of the average listener, than a truthful statement would have been.... If the underlying facts as to the gist of the defamatory charge are undisputed, then we can disregard any variance with respect to items of secondary importance and determine substantial truth as a matter of law.

McIlvain, 794 S.W.2d at 15 (internal citation omitted).

Defendant allegedly stated that Batiz once misdiagnosed a patient, who turned out to have a stomach ulcer. (See Pl.’s Ex. B-2 (Pl.’s App. at 12).) Batiz’s account of the events does not comport with this statement. Rather, she avers that, at the time of the alleged incident, she was routinely treating the patient for a lumbar injury. (Batiz Decl. ¶ 7 (Pl.’s App. at 8).) According to Batiz, on one particular day, when the patient came to Batiz for his scheduled appointment, he was having stomach pain. (Id.) Batiz determined that his stomach pain was unrelated to the lumbar injury she was presently treating him for and took him to the hospital for further diagnosis; it is undisputed that she did not misdiagnose this patient. (Id.) Defendant argues that, because Batiz did in fact, on one instance, stop in the course of treating a patient and take him to the hospital for what turned out to be a stomach ulcer, Hernandez’s “alleged understanding or misunderstanding about this incident is not grounds for a defamation claim.” (Def.’s Mot. at 10.) The Court finds this argument unpersuasive at the summary judgment stage. According to Batiz, she actually responded to the patient’s pain and aided him in receiving the proper treatment, an action in direct contravention to Hernandez’s assertion of a misdiagnosis that ultimately sent the patient to the hospital. In taking Batiz’s account as true for the purpose of summary judgment, Hernandez’s alleged statement is more than a misunderstanding of the mere details of the incident; rather, it materially misconstrues the nature of Batiz’s claimed actions. Thus, the Court cannot find that Hernandez’s alleged statement is substantially true and Defendant cannot secure summary judgment based on this defense.

*6 Next, Defendant claims that Hernandez’s statement that Batiz is not a “real” doctor is substantially true because Batiz is not a licensed medical doctor with the ability to prescribe medication or perform surgeries. (Def.’s Mot. at 10.) Batiz has presented undisputed evidence that she is a licensed chiropractor with a Doctorate in Chiropractic. (Batiz Decl. ¶ 3 (Pl.’s App. at 6).) Because Batiz does have a license and doctorate degree to practice as a chiropractor, the Court cannot find the statement that Batiz is not a “real” doctor substantially true, even in the context of a meeting where Defendant was purportedly encouraging an employee to seek treatment from a medical doctor. Such statement could be found by a reasonable person to injure Batiz’s professional reputation and thus carry a defamatory meaning. The cases cited by Defendant do not lend themselves to the opposite conclusion. See Randall’s Food Mkts., Inc., 891 S.W.2d at 646; Bell v. United Parcel Serv., Inc., No. 3:98-CV-1235, 2000 WL 274274, at *3, 2000 U.S. Dist. LEXIS 3926, at *9 (N.D. Tex. Mar. 10, 2000). Therefore, an issue of fact appropriate for the jury remains as to whether or not this statement is actionable.

Finally, Defendant argues that Hernandez’s alleged statement that Batiz is an “ambulance chancer” is a non-actionable opinion. A defamatory statement must be a statement of verifiable fact, not an opinion or characterization. Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 316 n.13 (5th Cir. 1995) (citing Howell v. Hecht, 821 S.W.2d 627 (Tex. App.—Dallas 1991, writ denied) ). “An alleged defamatory statement of opinion requires an implication of undisclosed facts to be actionable.” Brown v. Swett & Crawford of Tex., Inc., 178 S.W.3d 373, 383 (Tex. App. 2005) (citing Bentley v. Bunton, 94 S.W.3d 561, 584 (Tex. 2002) ). Whether a statement is a fact or opinion is a question of law. Id. at 383 (citing Carr v. Brasher, 776 S.W.2d 567, 570 (Tex. 1989) ).

After reviewing the applicable cases, the Court finds that Hernandez’s alleged statement that Batiz is an “ambulance chaser” is an assertion of fact, and therefore actionable. See, e.g., id. at 383 (finding the statement that plaintiff was a “walking E&O”8 an opinion as to the quality of plaintiff’s work performance); AP v. Cook, 17 S.W.3d 447, 454 (Tex. App. 2000) (finding the statement that the plaintiff was a “blight on law enforcement” to be an opinion); Howell, 821 S.W.2d at 631 (refusing to allow a defamation cause of action for the statement that the plaintiff was “widely considered an embarrassment to the judiciary and Republican party” because such statement is an opinion); c.f. Bentley, 94 S.W.3d at 584-85 (holding the statement that plaintiff was “corrupt” actionable because it could be verified by proving the plaintiff participated in illegal and dishonest activities). A jury could determine that Defendant, by calling Batiz an ambulance chaser, was implying that Batiz unethically or improperly encourages her clients to seek compensation or legal recourse for their injuries; these incidents could be objectively verified. Because such statement implies undisclosed facts, the Court finds the statement an actionable assertion of fact.

In sum, the Court finds each statement evidenced in the letters sent to the TWCC capable of a defamatory meaning and, because the statements tend to injure Plaintiffs’ business and profession, constitute slander per se; the Court will appropriately leave the ultimate determination of whether such statements are defamatory for the jury.

C. Privilege

Defendant also claims that the alleged statements are privileged because they were made by a manager during the course of meetings conducted to discuss the events surrounding two employees’ work related injuries and the receipt of workers’ compensation benefits. (Def.’s Mot. at 11-13.)

*7 Texas recognizes a qualified privilege for statements that occur under circumstances wherein any one of several persons having a common interest in a particular subject matter may reasonably believe that facts exist that another, sharing that common interest, is entitled to know. Hence, a communication made on a subject matter in which the person making it has an interest is privileged if made to persons having a corresponding interest or duty.

Wheeler v. Miller, 168 F.3d 241, 252 (5th Cir. 1999) (internal citations and quotations omitted). Whether a qualified privilege exists is a question of law. Danawala v. Houston Lighting & Power Co., 14 F.3d 251, 254 (5th Cir. 1993).

To overcome such privilege, a plaintiff must prove that the statement was motivated by actual malice. Id. at 253. “Actual malice” for purposes of defamation means “ ‘the making of a statement with knowledge that it is false, or with reckless disregard of whether it is true.’ ” Austin v. Belton, No. 3:01-CV-0421-P, 2002 WL 87345, at *5, 2002 U.S. Dist. LEXIS 714, at *15 (N.D. Tex. Jan. 16, 2002) (quoting Carr, 776 S.W.2d at 571). Furthermore, to show “reckless disregard” of the truth, the plaintiff must present “sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” Morris v. Equifax Info. Servs., LLC, 457 F.3d 460, 472 (5th Cir. 2006) (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968) ). That is, the defendant does not lose the privilege if he actually believes the defamatory statements are true. Duffy, 44 F.3d at 314. A court or jury may infer actual malice from an accumulation of objective circumstantial evidence. Fiber Sys., Int’s, 470 F.3d at 1170 (quoting 965 F.2d 38, 47 (5th Cir. 1992) ).

Additionally, under Texas law, “[w]hen a defendant in a defamation suit moves for summary judgment on the basis of qualified privilege, the defendant has the burden of conclusively proving that the statements were not made with malice.” Robert v. Davis, 160 S.W.3d 256, 263 (Tex. App.—Texarkana 2005, pet. denied); see also Boze v. Branstetter, 912 F.2d 801, 807 (5th Cir. 1990). However, in a federal court governed by the Rule 56 summary judgment standard, the plaintiff must produce evidence of actual malice to avoid summary judgment. Tuong B. Van v. Anderson, 199 F.Supp.2d 550, 570 (N.D. Tex. 2002) (citing Duffy, 44 F.3d at 314; ContiCommodity Servs., Inc. v. Ragan, 63 F.3d 438, 443 (5th Cir. 1995) ).

Defendant argues that the statements were made during the meetings to people who shared the common interest of the health and workplace safety of the UPS employees, and that “nothing in the record suggests that Julian Hernandez was acting with anything other than a good faith obligation and duty to meet with his employees about their work-related injuries.” (Def.’s Reply at 10.) However, both Valentino’s and LeBlanc’s letters state that the alleged defamatory statements were made for the purpose of intimidating them, lowering their confidence in Batiz, and forcing them to see the company doctor. (See Pls.’ Exs. B-1, B-2 (Pls.’ App. at 11-13).) The Court fails to see how such statements, if articulated in the manner asserted by LeBlanc and Valentino, were made in support of a “common interest” between UPS and its employees. Rather, Plaintiffs’ evidence supports their contention that Hernandez was attempting to coerce LeBlanc and Valentino to see the company doctor by making derogatory and allegedly false statements about Batiz; such comments, if made, go beyond privileged communications regarding Defendant and Plaintiffs’ common concern for the health and safety of UPS employees.

*8 Even assuming such communications are privileged, the Court finds Plaintiffs’ evidence sufficient to create a fact issue as to whether Hernandez acted with actual malice. The letters from Valentino and LeBlanc provide accounts of Hernandez’s statements that Batiz is not a real doctor, cannot help them, and misdiagnosed another UPS employee; the Court has previously determined that Defendant has not shown that these statements are substantially true for purposes of summary judgment. Although Hernandez submits a declaration stating that he prefers his employees see a medical doctor as opposed to a chiropractor, he does not deny that he made these statements or conclusively assert that he believed them to be true. Additionally, Plaintiffs have presented evidence that the statements were made with the underlying motives of intimidation and coercion in an effort to prevent Valentino and LeBlanc from continuing to see Batiz. Such evidence may allow a jury to conclude Hernandez was not acting in good faith when he made the statements; thus, Plaintiffs have at least created a fact issue as to whether Hernandez acted with actual knowledge or reckless disregard as to the truth of the alleged statements about Batiz.

In viewing the evidence in a light most favorable to Plaintiffs, the Court finds that the alleged statements are not privileged and, even if they are, a fact issue remains as to whether Hernandez made the alleged statements with actual malice; thus, Defendant has not conclusively proven its defense of privilege in a manner sufficient to obtain summary judgment.

IV. Conclusion

For the foregoing reasons, the Court DENIES Defendant’s Motion for Summary Judgment and DENIES Plaintiffs’ Objections AS MOOT.

It is so ordered.

Footnotes

1

Plaintiffs Dawn Batiz and DCB Health, Inc. (collectively “Plaintiffs”) filed a Response on April 10, 2007, and Defendant filed a Reply on April 25, 2007. Plaintiffs also filed Objections to Defendant’s Motion for Summary Judgment Evidence on April 10, 2007. Defendant filed a Response to these objections on April 25, 2007, and Plaintiffs did not file a Reply. Because the Court does not rely on any of the evidence Plaintiffs object to, it DENIES Plaintiffs’ Objections as MOOT.

2

In December of 2004, Batiz formed DCB Health, Inc., the other Plaintiff in this lawsuit, through which she runs TWIC. (Batiz Dep. 148:1-23, 149:9-11, 149:22-150:4 (Def.’s App. at 55-57).)

3

Plaintiffs filed this defamation action in state court on September 28, 2005. On November 22, 2005, Defendant removed the action to this Court. (See Notice of Removal at 1.)

4

Defendant also asserts that the statements allegedly made in 2003 are barred by limitations if offered to support a defamation claim. (Def.’s Resp. at 15.) In their Response, Plaintiffs explicitly state that their defamation claim is based on statements allegedly made in February of 2005. (Pls.’ Resp. at 14.) Accordingly, when evaluating Plaintiffs’ defamation claim, the Court considers only the statements purportedly made by Hernandez in the meetings with Valentino and LeBlanc during February of 2005, and will not evaluate Defendant’s limitations argument.

5

See also Fitch v. Reliant Pharm., LLC, No. 4:04-CV-615-Y, 2006 WL 325759, at *5-6, 2006 U.S. Dist. LEXIS 5548, at *16-17 (N.D. Tex. Feb. 13, 2006) (granting summary judgment on plaintiff’s defamation claim when only offered evidence was inadmissible hearsay in plaintiff’s deposition and after-the-fact affidavit); Staktek Corp. v. Samsung Elecs. Co., No. A-98-CA-770 JRN, 2000 U.S. Dist. LEXIS 20623, at *28-33 (W.D. Tex. May 3, 2000) (dismissing defamation claim for lack of non-hearsay evidence); Donahue v. Melrose Hotel, No. 3:95-CV-2630-R, 1997 WL 148012, at *12-13, 1997 U.S. Dist. LEXIS 4877, at *36-37 (N.D. Tex. Mar. 26, 1997) (granting summary judgment on plaintiff’s defamation claim for lack of evidence other than speculative third-party statements that constituted inadmissible hearsay).

6

The Court notes Defendant’s objections to these letters as hearsay inadmissible for summary judgment purposes. However, at the pretrial conference on July 9, 2007, Plaintiffs indicated that they would present Valentino and LeBlanc as live witnesses at trial. Such statements will, therefore, be presented at trial in a manner admissible for the jury’s consideration. On this basis, the Court will deny summary judgment. The Court further notes that any statements made by Hernandez, UPS’s agent, and repeated by LeBlanc and Valentino are admissible as a statement by a party opponent. See Fed. R. Evid. 801(d)(2).

7

Defendant argues that, even if the statements constitute slander per se, Plaintiffs are still required to present evidence to recover damages beyond those that are presumed, including lost profits, incurred costs, lost time value, and future injury. The Court agrees. See Tex. Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563 (Tex. App.—Austin 2007, no pet.). However, this does not cause Plaintiffs’ defamation claim to fail as a whole; because the Court has found the alleged statements potentially actionable as defamation per se, general damages are presumed, and Plaintiffs have met this element of their claim for purposes of summary judgment. Defendants filed a Motion to Exclude Untimely, Supplemental Damages Evidence, and Motion to Strike Pleadings of Special Damages and Lost Profits on June 22, 2007, which is not yet ripe for determination. The Court will address the remaining issues regarding special damages in its consideration of that motion.

8

The court noted that the phrase “walking E & O” refers to a person whose work performance is likely to cause the company to file a claim with its errors and omissions insurer. Brown, 178 S.W.3d at 382 n.4.

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