Byron D. Neely, Individually, and Byron D. Neely, M.D., P.A. v. Nanci Wilson, CBS Stations Group of Texas, L.P., D/B/A Keye-Tv and Viacom, Inc. ( 2014 )

IN THE SUPREME COURT OF TEXAS
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NO. 11-0228
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BYRON D. NEELY, INDIVIDUALLY, AND BYRON D. NEELY, M.D., P.A.,
PETITIONERS,
v.
NANCI WILSON, CBS STATIONS GROUP OF TEXAS, L.P., D/B/A KEYE-TV, AND
VIACOM, INC., RESPONDENTS
4444444444444444444444444444444444444444444444444444
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS
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Argued September 13, 2012
JUSTICE GUZMAN delivered the opinion of the Court, in which JUSTICE JOHNSON, JUSTICE
WILLETT, JUSTICE BOYD, and JUSTICE DEVINE joined.
CHIEF JUSTICE JEFFERSON filed a dissenting opinion, in which JUSTICE GREEN and JUSTICE
LEHRMANN joined.
JUSTICE HECHT did not participate in the decision.
This is an appeal of a summary judgment granted to media defendants in a suit stemming
from their investigative broadcast involving a physician. This suit, like all defamation suits,
implicates the competing constitutional rights to seek redress for reputational torts and the
constitutional rights to free speech and press. But we have long held that despite these concerns,
we adhere to our well-settled summary judgment standards.1 Thus, we decide here whether the
physician raised a genuine issue of material fact to defeat summary judgment and proceed to trial
on his defamation claim.
Truth is a defense to all defamation suits. Additionally, the Legislature has provided other
specific defenses for media defendants, such as the official/judicial proceedings privilege, the fair
comment privilege, and the due care provision. Here, the media defendants raised various defenses
in their summary judgment motion but focused primarily on the truth defense: there is no defamation
liability if the gist of the broadcast is substantially true. In the court of appeals, the media
defendants mainly argued that we created a rule in McIlvain v. Jacobs2 that a media defendant’s
reporting of third-party allegations is substantially true if it accurately reports the allegations—even
if the allegations themselves are false. We created no such rule in McIlvain, and the facts of this
case likewise do not require us to create such a rule. While it is possible for the gist of a broadcast
to be mere allegation reporting (such that the truth of such a broadcast might be measured by its
accuracy), a person of ordinary intelligence could conclude that the gist of the broadcast at issue was
that the physician was disciplined for operating on patients while taking dangerous drugs or
controlled substances. We hold the physician raised a genuine issue of material fact as to the truth
1
Casso v. Brand, 776 S.W.2d 551, 555 n.3 (Tex. 1989) (noting that constitutional implications in defamation
claims do not alter our summary judgment standards).
2
794 S.W.2d 14 (Tex. 1990).
2
or falsity of that gist with evidence that he was not disciplined for taking dangerous drugs or
controlled substances and had never performed surgery while taking them.3
As to the remaining defenses, the media defendants did not raise the due care provision in
their summary judgment motion and have not conclusively proven the application of another defense
or privilege. At trial, the media defendants may well prevail on the truth defense or on one or more
of these other defenses and privileges, but they have not conclusively done so here. We therefore
reverse the judgment of the court of appeals and remand the case to the trial court for further
proceedings.
I. Factual Background
Dr. Byron Neely is a neurosurgeon who practiced in Austin. In 1999, he installed a shunt
to drain fluid from a tumor in Paul Jetton’s brain. An enterobacterial infection set in, leaving Paul
in a debilitated state even after 12 subsequent brain surgeries. Paul and his wife, Sheila, sued Neely
and others, and Neely settled. In 2002, the Jettons filed a complaint with the Texas Medical Board
(Board), and the Board investigation found no wrongdoing by Neely.
3
On rehearing, no party challenges our holding that we have not yet recognized a rule establishing accuracy
as the test for the substantial truth of a broadcast that repeats third-party allegations. Briefing submitted in support of
rehearing construes our opinion as foreclosing such a rule and as affirmatively requiring the underlying allegation be
proven substantially true to prevail on the truth defense. That interpretation, however, misconstrues our holding. We
conclude there is a fact issue as to the truth or falsity of the gist of the media defendants’ broadcast indicating the
physician was disciplined for operating on patients while taking dangerous drugs or controlled substances. Importantly,
this fact issue as to truth is likewise a fact issue as to accuracy. Though the media defendants advocate for accuracy as
the test for truthfulness of the gist, given our holding concerning the gist, such a rule would not shield the media
defendants here. We thus, as we must, leave open the question of whether a broadcast whose gist is merely that
allegations were made is substantially true if the allegations were accurately repeated. See Heckman v. Williamson Cnty.,
369 S.W.3d 137, 147 (Tex. 2012) (discussing prohibition on rendering advisory opinions).
3
Neely also performed surgery on Wei Wu in 1999. After removing a brain tumor, Neely
reported seeing small deposits of metastatic melanoma on the surface of Wu’s brain during surgery.4
Soon after Wu recovered from the operation and learned of the melanoma deposits from his
oncologist, he committed suicide. The autopsy report indicated “no residual metastatic melanoma
on gross inspection,” which the coroner later clarified to mean that he believed Wu no longer had
any melanoma after the operation. Wu’s ex-wife sued Neely on behalf of her minor son, but the suit
was dismissed on procedural grounds.5
In 2003, after a separate investigation by the Board, Neely entered into an Agreed Order
(Order). In the Order, the Board found that Neely had self-prescribed medications between 1999
and 2002 and had a prior history of hand tremors. Further, the Board found that he was subject to
disciplinary action due to his “inability to practice medicine with reasonable skill and safety to
patients, due to mental or physical condition” and his self-prescription of medications. The Order
suspended Neely’s license, but stayed the suspension, placed him on probation for three years,
ordered physical and psychiatric evaluations, and prohibited Neely from prescribing medications
to himself or his family.
In January 2004, KEYE-TV in Austin ran a 7-minute investigative report by Nanci Wilson
(collectively “KEYE”) regarding Neely. The transcript of the entire broadcast is attached as
Appendix A. The broadcast began with anchor Fred Cantu asking:
4
“Metastatic cancer is cancer that has spread from the place where it first started to another place in the body.”
Metastatic Cancer, National Cancer Institute (Mar. 28, 2013), http://www.cancer.gov/cancertopics/factsheet/
Sites-Types/metastatic (on file with Clerk’s office).
5
The Board also investigated the Wu case and found no wrongdoing, but that order issued after the broadcast
in question.
4
If you needed surgery would you want to know if your surgeon had been disciplined
for prescribing himself and taking dangerous drugs, had a history of hand tremors
and had been sued several times for malpractice in the last few years?
Co-anchor Judy Maggio continued:
A central Texas couple says they didn’t learn about this until it was too late. They’re
outraged the [Board] is allowing Dr. Byron Neely to continue to practice. KEYE
news investigative reporter Nanci Wilson tells us if you go to St. David’s Hospital
with a head injury you could be Dr. Neely’s next patient.
Wilson then interviewed Paul Jetton, who related that Neely recommended surgery after an MRI
indicated he had a brain tumor. Wilson stated that the hospital discharged Jetton despite the fact that
a bacterial infection set in at the surgical site. Wilson continued:
The result: numerous surgeries and a life of disability. Paul’s wife, Sheila, says what
they learned from other doctors was the final blow.
Sheila Jetton then stated:
Every neurosurgeon that’s looked at Paul’s MRIs from before Neely operated on him
have [sic] said they would have never done surgery. They would have watched him
with MRIs over years.
Wilson segued to discuss the Wu case, relating that Neely discovered and removed malignant
melanoma from Wu’s brain during surgery and that Wu committed suicide after learning of the
diagnosis. Wilson then stated that when
the Travis County Medical Examiner’s office, analyz[ed] Wu’s brain[], examiners
noted no residual metastatic melanoma. Meaning Wei Wu did not have brain cancer.
Wilson continued:
The [Board] investigated Dr. Neely. The board found Neely had a history of hand
tremors and that between 1999 and 2002, Dr. Neely was writing prescriptions, not
only for his patients but for himself as well. Narcotics, muscle relaxers and pain
killers. Something former patient Paul Jetton finds shocking.
5
Paul Jetton commented:
Narcotics, opiates, I mean it’s just things that, I mean things that they don’t even let
people operate machinery or drive cars when they’re, when they’re taking them and
this guy’s doing brain surgery on people. I mean it’s just, even now I’m just, it’s just
incredulous, you just can’t even believe that it even happened.
Wilson then related that the Order placed Neely on probation, required him to see a
psychiatrist, and prohibited him from prescribing to himself or his family. Wilson interviewed a
Board representative and asked:
But how would they know if he is using? He can get somebody else to prescribe
him. I mean he could say, “I’ve followed the order.” . . . . How do we, how do we
know that he’s, that we’re not putting somebody right back out there to do the same
thing he was doing before?
The Board representative responded:
That’s a very good question and why this order doesn’t include drug testing, I, I
honestly don’t know the answer to that.
The broadcast then included a statement from Paul Jetton:
I think it’s just deplorable, I mean if, if it was another profession, uh, the guy would
be in jail.
Wilson related a comment from Neely’s attorney that
two highly qualified neurosurgeons who reviewed the case agree with the medical
decisions made by Dr. Neely. In addition, the [Board] investigated the Jetton case
and found no wrong doing.
Wilson noted that Neely’s hospital had a pending investigation regarding whether to continue
Neely’s privileges. The broadcast ended by noting that the Jettons settled their suit with Neely,
Wu’s suit was dismissed, the other suits remained pending, and the Board posts final decisions on
its website.
6
After the report aired, Neely claims his practice collapsed. His referrals from other
physicians dwindled, existing appointments cancelled (citing the broadcast as the reason for the
cancellation), his income diminished, and his home went into foreclosure. He and his professional
association (collectively “Neely”) sued KEYE6 for libel. KEYE moved for summary judgment,
which the trial court granted without specifying the grounds. Neely raised seven issues in the court
of appeals, three of which are relevant here: (1) the trial court erred generally by granting summary
judgment; (2) the trial court erred because Neely had probative evidence on each element of his
defamation claim; and (3) there is no rule in Texas shielding media defendants from liability simply
because they accurately report defamatory statements made by a third party. 331 S.W.3d 900, 914.
The court of appeals held that under McIlvain v. Jacobs, 794 S.W.2d 14 (Tex. 1990), none of the
statements were actionable as a matter of law because KEYE accurately reported third-party
allegations. 331 S.W.3d at 922, 926–28. The court of appeals affirmed the trial court’s grant of
summary judgment.7 Id. at 928.
II. Standard of Review
We review a trial court’s grant of summary judgment de novo. Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). The party moving for summary judgment bears the
burden of proof. Roskey v. Tex. Health Facilities Comm’n, 639 S.W.2d 302, 303 (Tex. 1982).
Though these burdens vary for traditional and no-evidence motions, the summary judgment motion
6
Neely also sued Viacom, Inc., but the court of appeals held that Neely waived any challenge as to summary
judgment dismissal of the claims against Viacom. 331 S.W.3d 900, 914. Neely does not contest that ruling here.
7
The court of appeals also affirmed the trial court’s exclusion of some of Neely’s summary judgment evidence.
331 S.W.3d at 928–29. Neely does not challenge that ruling here.
7
here was a hybrid motion and both parties brought forth summary judgment evidence; therefore, the
differing burdens are immaterial and the ultimate issue is whether a fact issue exists. Buck v.
Palmer, 381 S.W.3d 525, 527 & n.2 (Tex. 2012). A fact issue exists if there is more than a scintilla
of probative evidence. See id. at 527; TEX. R. CIV. P. 166a(c),(i). We must review the summary
judgment record “in the light most favorable to the nonmovant, indulging every reasonable inference
and resolving any doubts against the motion.” City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex.
2005). “In reviewing a summary judgment, we consider all grounds presented to the trial court and
preserved on appeal in the interest of judicial economy.” Diversicare Gen. Partner, Inc. v. Rubio,
185 S.W.3d 842, 846 (Tex. 2005). We have held that the constitutional concerns over defamation,
discussed below, do not affect these summary judgment standards of review. Casso v. Brand, 776
S.W.2d 551, 555 n.3 (Tex. 1989).
III. Discussion
A. Competing Constitutional Concerns
The common law has long allowed a person to recover for damage to her reputation
occasioned by the publication of false and defamatory statements. Milkovich v. Lorain Journal Co.,
497 U.S. 1, 11 (1990). Chief Justice Rehnquist noted that Shakespeare penned the rationale for the
cause of action in Othello:
Good name in man and woman, dear my lord,
Is the immediate jewel of their souls.
Who steals my purse steals trash;
‘Tis something, nothing;
8
‘Twas mine, ‘tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.
WILLIAM SHAKESPEARE, OTHELLO, act 3 sc. 3, quoted in Milkovich, 497 U.S. at 12. Unlike the
federal Constitution, the Texas Constitution twice expressly guarantees the right to bring suit for
reputational torts. See TEX. CONST. art. I, §§ 8 (“Every person shall be at liberty to speak, write or
publish his opinions on any subject, being responsible for the abuse of that privilege.”), 13 (“All
courts shall be open, and every person for an injury done him, in his lands, goods, person or
reputation, shall have remedy by due course of law.” (emphasis added)).
The right to recover for defamation, however, is not the only constitutional concern at stake.
Of significant import are the constitutional rights to free speech and a free press. See Cain v. Hearst
Corp., 878 S.W.2d 577, 582 (Tex. 1994). As the United States Supreme Court has articulated,
“[w]hatever is added to the field of libel is taken from the field of free debate.” New York Times Co.
v. Sullivan, 376 U.S. 254, 272 (1964). To balance these competing interests, the United States
Supreme Court through federal constitutional law, this Court through the common law, and the
Legislature through statutes, have undertaken to tailor the tort of defamation so as to preserve the
right to recover for reputational damages while minimally impinging on the rights to free speech and
a free press. Cain, 878 S.W.2d at 582.
B. Elements of Defamation
9
The tort of defamation includes libel and slander. Libel occurs when the defamatory
statements are in writing. TEX. CIV. PRAC. & REM. CODE § 73.001. Slander occurs when the
statements are spoken. Milkovich, 497 U.S. at 17. The broadcast of defamatory statements read
from a script is libel, not slander. Christy v. Stauffer Publ’ns, Inc., 437 S.W.2d 814, 815 (Tex.
1969). Libel “tends to injure a living person’s reputation and thereby expose the person to public
hatred, contempt or ridicule, or financial injury or to impeach any person’s honesty, integrity, virtue,
or reputation . . . .” TEX. CIV. PRAC. & REM. CODE § 73.001.
We have revised the elements of the defamation cause of action in response to the United
States Supreme Court’s application of constitutional principles to defamation claims. Before
Sullivan, 376 U.S. at 254, the defamation plaintiff generally prevailed by proving the defendant
published a statement that defamed her unless the defendant proved the truth of the statement. Pierre
N. Leval, The No-Money, No-Fault Libel Suit: Keeping Sullivan in Its Proper Place, 101 HARV. L.
REV. 1287, 1287 (1988). But the Supreme Court held in Sullivan that freedom of expression
requires “breathing space,” and that if the plaintiff is a public official, she must prove the defendant
had actual malice. 376 U.S. at 272, 279–80. The Court later held that public figures and limited
purpose public figures must also prove actual malice, and that states may set their own level of fault
for private plaintiffs.8 Gertz v. Robert Welch, Inc., 418 U.S. 323, 345, 347 (1974). The Court left
the precise standard of fault to the states, and we have chosen a negligence standard for a private
8
The Court also determined actual malice requires proof by clear and convincing evidence. Gertz v. Robert
Welch, Inc., 418 U.S. 323, 342 (1974).
10
figure seeking defamation damages from a media defendant.9 WFAA-TV, Inc. v. McLemore, 978
S.W.2d 568, 571 (Tex. 1998); see also Gertz, 418 U.S. at 353 (Blackmun, J., concurring) (“[T]he
Court now conditions a libel action by a private person upon a showing of negligence, as contrasted
with a showing of willful or reckless disregard.”); RESTATEMENT (SECOND) OF TORTS § 580B
(1977). In light of these holdings, to recover defamation damages in Texas, a plaintiff must prove
the media defendant: (1) published a statement; (2) that defamed the plaintiff; (3) while either acting
with actual malice (if the plaintiff was a public official or public figure) or negligence (if the plaintiff
was a private individual) regarding the truth of the statement. McLemore, 978 S.W.2d at 571.
KEYE frames a central issue in this proceeding as the liability of a media defendant for
republishing a third party’s allegedly defamatory statements. We first observe that it is a well-
settled legal principle that one is liable for republishing the defamatory statement of another. See
Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376, 386 (1973) (noting
that a “newspaper may not defend a libel suit on the ground that the falsely defamatory statements
are not its own”).10 The rule’s broad application has thus brought about efforts to soften its impact,
such as the Sullivan and Gertz decisions requiring a showing of fault as well as the privileges and
defenses described below. 1 ROBERT D. SACK, SACK ON DEFAMATION § 2.7.1 (3d ed. 2009).
9
The majority of states have adopted a negligence standard for private figures, while Alaska, Colorado, Indiana,
and New Jersey have adopted the actual malice standard for private figures. 1 RODNEY A. SMOLLA, LAW OF
DEFAMATION § 3:31 (2d ed. 1991), cited in Kaitlin M. Gurney, Myspace, Your Reputation: A Call to Change Libel Laws
for Juveniles Using Social Networking Sites, 82 TEMP. L. REV. 241, 251 & n.97 (2009).
10
See also RESTATEMENT (SECOND) OF TORTS § 578 (1977) (“[O]ne who repeats or otherwise republishes
defamatory material is subject to liability as if he had originally published it.”);1 ROBERT D. SACK, SACK ON
DEFAMATION § 2.7.1 (3d ed. 2009) (“‘The common law of libel has long held that one who republishes a defamatory
statement adopts it as his own and is liable [for false, defamatory statements] in equal measure to the original defamer.’”
(quoting Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1298 (D.C. Cir. 1988)) (alteration in original)).
11
C. Privileges and Defenses
The common law and statutes provide certain defenses and privileges to defamation claims.
These include the defense of truth, TEX. CIV. PRAC. & REM. CODE § 73.005, which we have
interpreted to require defendants to prove the publication was substantially true, Turner v. KTRK
Television, Inc., 38 S.W.3d 103, 115 (Tex. 2000). Moreover, statements that are not verifiable as
false cannot form the basis of a defamation claim. Milkovich, 497 U.S. at 21–22. Further, the
common law has recognized a judicial proceedings privilege since at least 1772 for parties,
witnesses, lawyers, judges, and jurors.11 Additionally, one cannot recover mental anguish damages
for defamation of a deceased individual. Renfro Drug Co. v. Lawson, 160 S.W.2d 246, 250 (Tex.
1942); see also RESTATEMENT (SECOND) OF TORTS § 560 (1977). And a qualified privilege exists
under the common law when a statement is made in good faith and the author, recipient, a third
person, or one of their family members has an interest that is sufficiently affected by the statement.
Diamond Shamrock Ref. & Mktg. Co. v. Mendez, 844 S.W.2d 198, 210 (Tex. 1992) (Hightower, J.,
concurring).
The United States Supreme Court, this Court, and the Legislature have afforded additional
protections to media defendants. The United States Supreme Court and this Court long ago shifted
the burden of proving the truth defense to require the plaintiff to prove the defamatory statements
were false when the statements were made by a media defendant over a public concern.
11
SACK, supra note 10, § 8.2.1 (citing King v. Skinner, 1 Lofft 55, 56, 98 Eng. Rep. 529, 530 (K.B. 1772),
quoted in Burns v. Reed, 500 U.S. 478, 490 (1991)). We have long recognized this privilege in Texas. Reagan v.
Guardian Life Ins. Co., 166 S.W.2d 909, 912 (Tex. 1942).
12
Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777 (1986); McIlvain, 794 S.W.2d at 15.12
This distinction is less material at the summary judgment stage where, as here, the media defendant
is the movant. See Casso, 776 S.W.2d at 555 n.3.
Additionally, the Legislature has crafted the official/judicial proceedings privilege, which
shields periodical publications from republication liability for fair, true, and impartial accounts of
judicial, executive, legislative, and other official proceedings.13 TEX. CIV. PRAC. & REM. CODE
§ 73.002(b)(1). And the Legislature has also adopted the fair comment privilege, shielding
periodical publications from republication liability for reasonable and fair comment on or criticism
of official acts of public officials or other public concerns. Id. § 73.002(b)(2).
Notably, the Legislature has also added the due care provision for broadcasters, shielding
them from liability unless the plaintiff proves the broadcaster failed to exercise due care to prevent
publication of a defamatory statement. Id. § 73.004. The provision requires that:
A broadcaster is not liable in damages for a defamatory statement published or
uttered in or as a part of a radio or television broadcast by one other than the
broadcaster unless the complaining party proves that the broadcaster failed to
exercise due care to prevent the publication or utterance of the statement in the
broadcast.
12
Neely admitted in his deposition that the public has a right to know about the Board’s findings. The parties
do not dispute that the defendants are members of the media. Thus, we hold that Neely must prove the falsity of the
broadcast to recover damages. Hepps, 475 U.S. at 777.
13
We previously noted that “we are reluctant to afford greater constitutional protection to members of the print
and broadcast media than to ordinary citizens” because the “First Amendment affords equal dignity to freedom of speech
and freedom of the press.” Casso, 776 S.W.2d at 554. But this understanding of the constitution is no impediment to
the Legislature crafting additional protections for media defendants, which it has done in Chapter 73 of the Civil Practice
and Remedies Code.
13
Id. We have previously commented that, under the due care provision, “[b]roadcasters are generally
not liable in defamation for broadcasts made by third parties.” Cain, 878 S.W.2d at 582. A number
of other jurisdictions have enacted a due care provision, although some states require the defendant
broadcaster to prove it used due care (as opposed to our statute, which requires the plaintiff to prove
the defendant broadcaster did not use due care).14 KEYE did not raise the due care provision at the
summary judgment stage, and thus it is not at issue in this proceeding.
Moreover, we note that this past regular session, the Legislature passed the Defamation
Mitigation Act, which requires defamation plaintiffs to request a correction, clarification, or
retraction from the publisher of a defamatory statement within the limitations period for the
defamation claim. TEX. CIV. PRAC. & REM. CODE §§ 73.051, .054–.055 (added by H.B. 1759, 83d
Leg., R.S., § 2). Under this provision, a defamation plaintiff may only recover exemplary damages
if she serves the request for a correction, clarification, or retraction within 90 days of receiving
knowledge of the publication.15 Id. § 73.055(c).
D. Substantial Truth
Whether Neely raised a fact issue regarding the truth or falsity of the underlying statements
is the primary issue in this appeal. We have developed the substantial truth doctrine to determine
the truth or falsity of a broadcast: if a broadcast taken as a whole is more damaging to the plaintiff’s
14
See, e.g., CAL. CIV. CODE § 48.5(1); COLO. REV. STAT. § 13-21-106; FLA. STAT. § 770.04; GA. CODE ANN.
§ 51-5-10(a); IOWA CODE § 659.5; KY. REV. STAT. ANN. § 411.062; NEB. REV. STAT. § 25-840.02(1); OR. REV. STAT.
§ 31.200(1); S.D. CODIFIED LAWS § 20-11-6; UTAH CODE ANN. § 45-2-7; VA. CODE ANN. § 8.01-49; WYO. STAT. ANN.
§ 1-29-101.
15
The Defamation Mitigation Act only affects publications published after its effective date and does not apply
to this proceeding. H.B. 1759, 83d Leg., R.S., § 3.
14
reputation than a truthful broadcast would have been, the broadcast is not substantially true and is
actionable. Turner, 38 S.W.3d at 115 (“the meaning of a publication, and thus whether it is false
and defamatory, depends on a reasonable person’s perception of the entirety of a publication and not
merely on individual statements”); McIlvain, 794 S.W.2d at 16 (“The test used in deciding whether
the broadcast 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. This evaluation involves looking to the ‘gist’ of the
broadcast.” (citations omitted)); see also Masson v. New Yorker Magazine, Inc., 501 U.S. 496,
516–17 (1991) (applying substantial truth defense under California law).
Assessing a broadcast’s gist is crucial. A broadcast with specific statements that err in the
details but that correctly convey the gist of a story is substantially true. Turner, 38 S.W.3d at 115.
On the other hand, a broadcast “can convey a false and defamatory meaning by omitting or
juxtaposing facts, even though all the story’s individual statements considered in isolation were
literally true or non-defamatory.” Id. at 114. We determine a broadcast’s gist or meaning by
examining how a person of ordinary intelligence would view it.16 Id. at 114–15. “If the evidence
is disputed, falsity must be determined by the finder of fact.” Bentley v. Bunton, 94 S.W.3d 561, 587
(Tex. 2002).
KEYE contends the trial court properly granted summary judgment because: (1) KEYE
accurately reported third-party allegations, which satisfies our test for substantial truth; (2) the
broadcast is privileged under the fair comment and official proceeding privileges; (3) Neely is a
16
We have also described this standard as the “average listener” standard. McIlvain, 794 S.W.2d at 16.
15
limited purpose public figure and there is no evidence of actual malice; (4) there is no evidence of
negligence; and (5) Neely’s professional association cannot maintain a defamation action. We
address each argument in turn.
1. McIlvain
To address KEYE’s first issue, we analyze our holding in McIlvain. KEYE contends that
in McIlvain, we transformed the substantial truth doctrine to shield media defendants from
defamation liability for publishing third-party allegations if the defendants show that the underlying
allegations (1) were made, and (2) were accurately reported.
McIlvain concerned a broadcast about an investigation by the City of Houston into alleged
misconduct by employees in its water maintenance division. 794 S.W.2d at 15. The broadcast
indicated that the public integrity section was investigating allegations that: (1) employees cared for
the elderly father of a manager on city time; (2) employees were putting in for overtime to complete
their city duties later; (3) authorities were looking for a gun at a water treatment facility; and
(4) employees had been drinking on the job. Id. Two of the employees sued the broadcasters for
defamation. Id. The city’s investigation later found all the allegations to be true. Id. at 16. The trial
court granted summary judgment in favor of the media defendants. Id. at 15. We affirmed the trial
court’s ruling because the “broadcast statements are factually consistent with [the government’s]
investigation and its findings” and were thus “substantially correct, accurate, and not misleading.”
Id. at 16 (emphasis added).
Since McIlvain, several courts of appeals and the Fifth Circuit have interpreted it to mean
that media reporting of third-party allegations under investigation is substantially true if the media
16
accurately reports the allegations and the existence of any investigation.17 KEYE similarly asserts
that our holding in McIlvain created a substantial truth defense for accurately reporting third-party
allegations. But the parties do not assert and we cannot locate such a rule in any other jurisdiction.
See, e.g., RESTATEMENT (SECOND) OF TORTS § 581A, cmt. e (1977). We did not establish a third-
party allegation rule in McIlvain. Rather, we measured the truth of the allegations in McIlvain
against the government investigation that found them to be true. Id. In other words, a government
investigation that finds allegations to be true is one of many methods of proving substantial truth.
But we do not foreclose the possibility that the gist of some broadcasts may merely be allegation
reporting, such that one measure for the truth of the broadcast could be whether it accurately relayed
the allegations of a third party. See, e.g., Global Relief Found., Inc. v. New York Times Co., 390
F.3d 973, 986 (7th Cir. 2004) (broadcast that government was investigating a nonprofit
organization’s alleged funding of terrorism was substantially true based upon government affidavits
indicating it was investigating the reported allegations). As addressed below, even if we adopted
such a rule today, it could not enable KEYE to prevail here because there is a genuine issue of
material fact as to whether Neely was disciplined for the conduct the broadcast suggests.18
17
See Green v. CBS, Inc., 286 F.3d 281, 284 (5th Cir. 2002); 331 S.W.3d at 922; Grotti v. Belo Corp., 188
S.W.3d 768, 775 (Tex. App.—Fort Worth 2006, pet. denied); Associated Press v. Boyd, No. 05-04-01172-CV, 2005 WL
1140369, at *3 (Tex. App.—Dallas May 16, 2005, no pet.); UTV of San Antonio, Inc. v. Ardmore, Inc., 82 S.W.3d 609,
612 (Tex. App.—San Antonio 2002, no pet.); Dolcefino v. Randolph, 19 S.W.3d 906, 918 (Tex. App.—Houston [14th
Dist] 2000, pet. denied); Am. Broad. Cos., Inc. v. Gill, 6 S.W.3d 19, 33 (Tex. App.—San Antonio 1999, pet. denied);
KTRK Television v. Felder, 950 S.W.2d 100, 106 (Tex. App.—Houston [14th Dist.] 1997, no writ).
18
As amicus The Dallas Morning News observes, our ruling that McIlvain did not create a third-party allegation
rule does not necessarily mean the previous cases misinterpreting McIlvain reached incorrect results. Specifically, The
Dallas Morning News observes that the following cases nonetheless properly held that the gist of the statements were
substantially true: Green, 286 F.3d at 284–85; Boyd, 2005 WL 1140369, at *3; Ardmore, Inc., 82 S.W.3d at 612;
Randolph, 19 S.W.3d at 921. Amicus Br. of The Dallas Morning News on Rehearing, at 8–11.
17
2. Gist of the Broadcast
The broadcast at issue began by asking listeners if they would want to know “if your surgeon
had been disciplined for prescribing himself and taking dangerous drugs.”19 The broadcast discusses
the Jetton and Wu cases and then states that the Board “did discipline Neely.” After discussing the
Order, the broadcast contains the following statement by Paul Jetton:
Narcotics, opiates, I mean it’s just things that, I mean things that they don’t even let
people operate machinery or drive cars when they’re, when they’re taking them and
this guy’s doing brain surgery on people. I mean it’s just, even now I’m just, it’s just
incredulous, you just can’t even believe that it even happened.
Wilson then asked a Board representative how the Board would know Neely was not using the
medications again: “But how would they know if he is using? He can get somebody else to
prescribe him. I mean he could say, ‘I’ve followed the order.’”
We determine the gist through the lens of a person of ordinary intelligence. Turner, 38
S.W.3d at 114–15. Neely asserts that a person of ordinary intelligence could conclude that the gist
of the broadcast, based on the content and placement of these statements, was that Neely was
disciplined for operating on patients while using dangerous drugs or controlled substances.20 KEYE
maintains that the gist of the broadcast “concerned controversies and allegations surrounding
Neely’s care of Jetton and Wu, the malpractice lawsuits filed by Jetton and Wu’s ex-wife, an autopsy
19
We have previously stated that an introduction can be especially misleading. See Turner, 38 S.W.3d at 118.
20
Neely also asserts the broadcast includes gists that he was performing unnecessary surgeries and was unsafely
operating on patients while experiencing hand tremors. We need not assess the substantial truth of the gist that Neely
was performing unnecessary surgery because these statements are protected by the official/judicial proceedings privilege.
See infra Part III.E. And we need not assess the gist regarding Neely’s hand tremors in light of our disposition regarding
the gist that he was disciplined for operating on patients while using dangerous drugs and controlled substances. See
infra Part III.D.3–III.F.
18
report by the Travis County [Medical Examiner], a public disciplinary action by the Medical Board,
and Neely’s responses to the allegations.” We agree with Neely that a person of ordinary
intelligence could conclude the gist of the broadcast was that Neely was disciplined for operating
on patients while using dangerous drugs or controlled substances.
3. Substantial Truth of the Broadcast’s Gist
To prevail at summary judgment on the truth defense, KEYE must conclusively prove that
this gist is substantially true.21 Turner, 38 S.W.3d at 114–15. As we explained in Turner, although
the specific statements in a broadcast may be substantially true when viewed in isolation, the gist
can be false by omitting or juxtaposing facts. Id. We examine whether the gist was more damaging
to the plaintiff’s reputation, in the mind of a person of ordinary intelligence, than a truthful statement
would have been. Id.
A reasonable view of the gist of the broadcast is that Neely was disciplined for operating on
patients while using dangerous drugs or controlled substances. Unlike in McIlvain, the government
investigation (here from the Board Order) does not indicate that this allegedly defamatory statement
was correct. The Order disciplined Neely for prescribing himself dangerous drugs or controlled
substances. It did not discipline Neely for taking or using dangerous drugs or controlled substances.
The Board found that Neely’s medications were “legitimately and appropriately prescribed” by
treating physicians but that Neely “began to refill the medications himself in lieu of scheduled
visits.” Further, section 164.051(a)(4) of the Occupations Code allows the Board to suspend a
21
When a private figure sues a media defendant over defamatory statements that are of public concern, the
plaintiff has the burden of proving falsity. Hepps, 475 U.S. at 777. But this distinction is less material at summary
judgment. Casso, 776 S.W.2d at 555 n.3.
19
license if the physician is unable to practice medicine with reasonable skill and safety to patients
because of “excessive use of drugs” or “mental or physical condition.” TEX. OCC. CODE
§ 164.051(a)(4)(C)–(D). When citing to section 164.051(a)(4), the Order only noted Neely’s
“mental or physical condition” as grounds for discipline, not any excessive use of drugs. And rather
than concluding that Neely’s self-prescribing affected his ability to practice medicine (as it
apparently did with his mental or physical condition), the Board concluded that Neely’s self-
prescribing instead violated a then newly-created rule that self-prescribing dangerous drugs or
controlled substances in certain situations is not “an acceptable professional manner consistent with
public health and welfare.” 22 TEX. ADMIN. CODE § 190.8(1)(M) (Tex. State Bd. of Med.
Examiners, Disciplinary Guidelines) (added by 28 Tex. Reg. 10496 (2003)). Thus, the Order
reflects that Neely was disciplined for self-prescribing dangerous drugs or controlled substances,
not for taking them.
In addition, Neely brought forth evidence that he was not operating on patients while taking
or using dangerous drugs or controlled substances:
• Neely swore in an affidavit that he had “never abused drugs or been addicted to drugs,
prescription or otherwise” and had “never performed surgeries while impaired by drugs.”22
• Wilson reported not finding any independent evidence that Neely performed surgery while
impaired.
22
Uncontroverted summary judgment evidence from an interested witness is only sufficient to raise a fact issue,
unless the evidence is clear, direct, positive, can be readily controverted, and there are no circumstances tending to
impeach or discredit the testimony. See TEX. R. CIV. P. 166a(c); Great Am. Reserve Ins. Co. v. San Antonio Plumbing
Supply Co., 391 S.W.2d 41, 47 (Tex. 1965). Because Neely’s evidence is only used to raise a fact issue here, we need
not assess whether his testimony is clear, direct, positive, can be readily controverted, or could be impeached or
discredited.
20
• Neely retained Dr. Edgar Nace—a former vice president of the Board who was board
certified in clinical, addiction, and forensic psychiatry—to conduct a psychiatric and
substance abuse evaluation of Neely during the Board investigation. Among other things,
Nace reviewed Neely’s pharmacy records and performed a drug test. Nace determined that
Neely “has not been and is not currently diagnosable with a substance use disorder—neither
abuse nor dependence.” Nace noted that Neely’s dosage of hydrocodone was lower than
with emerging patterns of abuse or addiction and Neely’s use of only one pharmacy was
inconsistent with a pattern of abuse or addiction. Nace concluded that Neely’s “prescriptions
and subsequent refills have been appropriate to his documented diagnosis” for a torn rotator
cuff, diverticulitis, and asthma.
• Neely used hydrocodone primarily in 2000 and part of 2001 to treat a torn rotator cuff. He
ceased using hydrocodone in April 2003.
• Neely ceased using steroids, prescribed for asthma, in 2000, when he began using an inhaler.
• As of October 2003, Neely was using medications for asthma (Advair, Ventolin), allergies
(Actifed, Benadryl, Flonase), high blood pressure (Cardura), and colon issues (Lomotil),
none of which are controlled substances.
Based on Neely’s responsive evidence,23 we hold that a there is a fact issue regarding the
truth or falsity of the gist that Neely was disciplined for operating on patients while taking or using
23
Neely also offered other evidence the trial court excluded, which Neely does not challenge on appeal. This
evidence included: (1) the Board orders finding no wrongdoing with Neely’s treatment in the Jetton and Wu cases;
(2) Neely’s statement that he only took narcotic medications at night; (3) the psychiatric evaluation conducted pursuant
to the Board Order that concluded that Neely’s “use of the self-prescribed opiates does not suggest that he ever had a
problem with abuse or dependence;” and (4) the fact that the Board terminated its Order early, less than half way through
the three-year probationary period.
21
dangerous drugs or controlled substances. Turner, 38 S.W.3d at 117–18 (holding that, especially
in light of a broadcast’s introduction, a viewer could believe in a gist of the broadcast that was not
substantially true); McIlvain, 794 S.W.2d at 16. As in Turner, we note that even an accurate account
of Neely that did not create a false impression “may have raised troubling questions.” 38 S.W.3d
at 118. But because the factfinder may conclude that the gist was more damaging to Neely’s
reputation than a truthful and accurate broadcast would have been, the substantial truth defense
cannot support the trial court’s summary judgment.
E. Official/Judicial Proceedings Privilege
KEYE next asserts that the trial court’s grant of summary judgment was proper because the
broadcast was protected by the official/judicial proceedings privilege. The United States Supreme
Court has long recognized a common law judicial privilege. See Cox Broad. Corp. v. Cohn, 420
U.S. 469, 492 (1975). Underpinning the judicial privilege is the notion that a “trial is a public event.
What transpires in the court room is public property. If a transcript of the court proceedings had
been published, we suppose none would claim that the judge could punish the publisher for
contempt.” Craig v. Harney, 331 U.S. 367, 374 (1947). In Texas, the Legislature codified the
judicial proceedings privilege and expanded it to other official proceedings. Section 73.002 of the
Civil Practice and Remedies Code provides that publications are privileged if they are “a fair, true,
and impartial account of” judicial or other proceedings to administer the law. TEX. CIV. PRAC. &
REM. CODE § 73.002(b)(1).
The official/judicial proceedings privilege assesses whether the reporter’s account of the
proceedings (not the underlying allegations made in those proceedings) was fair, true, and impartial.
22
Denton Publ’g Co. v. Boyd, 460 S.W.2d 881, 883 (Tex. 1971). When construing a substantially
similar prior version of the official/judicial proceedings privilege, we held that “[t]he publication
would be within the privilege provided by statute as long as it purported to be, and was, only a fair,
true and impartial report of what was stated at the meeting, regardless of whether the facts under
discussion at such meeting were in fact true . . . .” Id. at 882; see also Herald-Post Publ’g Co. v.
Hill, 891 S.W.2d 638, 639 (Tex. 1994) (comparing allegedly defamatory article to trial testimony
to determine that judicial proceeding privilege applied).
But the privilege only extends to statements that: (1) are substantially true and impartial
reports of the proceedings, and (2) are identifiable by the ordinary reader as statements that were
made in the proceeding. Boyd, 460 S.W.2d at 884. In Boyd, there was a factual dispute as to
whether a false statement that a contractor was bankrupt was made at a city council meeting. Id. at
884–85. When remanding to resolve the factual dispute, we concluded the privilege would apply
if: (1) the statement was made at the city council meeting, and (2) an ordinary reader of the
defendant’s article would understand the statement was made at the meeting.24 Id. at 885.
1. Unnecessary Surgery
One gist of the KEYE broadcast we have not previously addressed is that Neely was
performing unnecessary surgeries.25 This gist results from the inclusion of the statement by Sheila
that “[e]very neurosurgeon that’s looked at Paul’s MRIs from before Neely operated on him have
24
We see no substantive difference from our ordinary reader standard for the judicial proceedings privilege in
Boyd, 460 S.W.2d at 884–85, and our person of ordinary intelligence standard for substantial truth in Turner, 38 S.W.3d
at 114–15.
25
See supra note 20.
23
[sic] said they would have never done surgery. They would have watched him with MRIs over
years.” The placement of this statement within the broadcast was in the discussion of Neely’s
treatment of Paul and the resulting lawsuit. The allegation that Neely performed unnecessary
surgery was one basis for the lawsuit, in which the Jettons alleged that, “[a]t the time [Neely and a
fellow doctor] performed such procedure, they ostensibly did so to treat symptomatic hydrocephalus
in Paul Jetton. However, Paul Jetton did not have symptomatic hydrocephalus.” We hold that an
ordinary viewer could conclude that Sheila’s allegation regarding unnecessary surgery in the
broadcast was made in the Jetton lawsuit. Id. at 884. Thus, KEYE met its initial burden of proving
this statement is protected by the conditional judicial proceedings privilege. See id. (holding that
the defendant has the initial burden of proving a publication is privileged).
But Neely can rebut the privilege by proving it is inapplicable. Id. The judicial/official
proceedings privilege “does not extend to the republication of a matter if it is proved that the matter
was republished with actual malice after it had ceased to be of public concern.” TEX. CIV. PRAC. &
REM. CODE § 73.002(a). Actual malice means the defendant made the statement “‘with knowledge
that it was false or with reckless disregard of whether it was true or not;’” and reckless disregard
means “‘the defendant in fact entertained serious doubts as to the truth of his publication.’” New
Times, Inc. v. Isaacks, 146 S.W.3d 144, 162 (Tex. 2004) (quoting Huckabee v. Time Warner Entm’t
Co., 19 S.W.3d 413, 420 (Tex. 2000) and Bentley, 94 S.W.3d at 591); see also Hearst Corp. v.
Skeen, 159 S.W.3d 633, 637 (Tex. 2005). Sheila’s statement that every neurosurgeon would have
not performed surgery was controverted by the two neurosurgeons who agreed with Neely’s
treatment of Paul and the Board order finding no wrongdoing in Neely’s treatment of Paul. KEYE’s
24
inclusion of this disclaiming information negates any allegation that KEYE acted with actual malice
as to the gist of the broadcast that Neely was performing unnecessary surgery and the record
contains no other evidence that creates a fact issue on this point. Accordingly, the official/judicial
proceedings privilege shields this portion of the broadcast. TEX. CIV. PRAC. & REM. CODE
§ 73.002(a); Boyd, 460 S.W.3d at 884.
2. Disciplined for Operating on Patients While Taking
Dangerous Drugs or Controlled Substances
We next analyze whether the gist of the broadcast that Neely was disciplined for operating
on patients while taking dangerous drugs or controlled substances is protected by the official/judicial
proceedings privilege. This gist is explained in part by the anchor’s introduction to the broadcast,
which asked:
If you needed surgery would you want to know if your surgeon had been disciplined
for prescribing himself and taking dangerous drugs . . . ?
As previously addressed, the evidence creates a fact issue as to whether the assertion that Neely had
been disciplined for “taking dangerous drugs” is a fair, true, and impartial account of the Board
Order. The Board found Neely’s self-prescribing to be inappropriate—not his taking or using the
medications. The Board found that the medications were “legitimately and appropriately
prescribed” but that Neely “began to refill the medications himself in lieu of scheduled visits.”
Accordingly, a jury may conclude that the Order disciplined Neely for his “inappropriate
prescription of dangerous drugs or controlled substances to oneself.” Thus, we cannot say that—as
25
a matter of law—the statement that Neely was disciplined for taking or using dangerous drugs or
controlled substances was a fair, true, and impartial account of an official or judicial proceeding.
Boyd, 460 S.W.3d at 883.
F. Fair Comment Privilege
KEYE also maintains that the fair comment privilege applies to the broadcast. Section
73.002(b)(2) provides that a broadcast is privileged if it is a “reasonable and fair comment on or
criticism of an official act of a public official or other matter of public concern published for general
information.” TEX. CIV. PRAC. & REM. CODE § 73.002(b)(2). Comments based on substantially true
facts are privileged if fair; comments that assert or affirm false statements of fact are not privileged.
We long ago stated that it “is the settled law of Texas, that a false statement of fact concerning a
public officer, even if made in a discussion of matters of public concern, is not privileged as fair
comment.” Bell Publ’g Co. v. Garrett Eng’g Co., 170 S.W.2d 197, 204 (Tex. 1943); see also
Barbouti v. Hearst Corp., 927 S.W.2d 37, 52 (Tex. App.—Houston [1st] 1996, writ. denied) (false
statements not privileged as fair comments). The Legislature has extended the fair comment
privilege to matters of public concern,26 TEX. CIV. PRAC. & REM. CODE § 73.002(b)(2), and we have
come to interpret the truth defense as requiring only substantial truth, Turner, 38 S.W.3d at 115.
Substantial truth assesses whether the gist of the broadcast is substantially true, and a broadcast can
convey a substantially false meaning by juxtaposing facts that, viewed in isolation, are true. Id.
Joining these principles, we conclude that a comment based on a substantially true statement of fact
can qualify as a fair comment. TEX. CIV. PRAC. & REM. CODE § 73.002(b)(2). But if a comment is
26
As we noted above, this broadcast addressed a matter of public concern. See supra note 12.
26
based upon a substantially false statement of fact the defendant asserts or conveys as true, the
comment is not protected by the fair comment privilege. Bell, 170 S.W.2d at 204.
KEYE’s broadcast opened by asking viewers if they would want to know if their doctor “had
been disciplined for prescribing himself and taking dangerous drugs . . . .” Wilson’s questioning of
whether the Order would prevent Neely from using the drugs was predicated on the statement that
Neely had been disciplined for taking or using dangerous drugs or controlled substances—which
the broadcast affirmed to be true. Because a fact issue exists on whether the statement was true,
KEYE is not entitled to summary judgment based on the fair comment privilege. Bell, 170 S.W.2d
at 204.
G. Limited Purpose Public Figure
KEYE also asserts that Neely was a limited purpose public figure who therefore had to prove
malice. We disagree.
Public figure status is a question of law for the court. McLemore, 978 S.W.2d at 571. We
use a three-part test to assess whether an individual is a limited purpose public figure:
(1) the controversy at issue must be public both in the sense that people are
discussing it and people other than the immediate participants in the controversy are
likely to feel the impact of its resolution;
(2) the plaintiff must have more than a trivial or tangential role in the controversy;
and
(3) the alleged defamation must be germane to the plaintiff’s participation in the
controversy.
Id. In McLemore, we expressly reserved the question of whether an individual may meet the public
controversy requirement against her will. Id. at 571–72.
27
The distinction between public and private figures matters chiefly because public and limited
purpose public figures must prove a defamation defendant acted with actual malice. Gertz, 418 U.S.
at 342. The United States Supreme Court addressed this distinction in Gertz:
[p]ublic officials and public figures usually enjoy significantly greater access to the
channels of effective communication and hence have a more realistic opportunity to
counteract false statements than private individuals normally enjoy. Private
individuals are therefore more vulnerable to injury, and the state interest in
protecting them is correspondingly greater.
More important than the likelihood that private individuals will lack effective
opportunities for rebuttal, there is a compelling normative consideration underlying
the distinction between public and private defamation plaintiffs. An individual who
decides to seek governmental office must accept certain necessary consequences of
that involvement in public affairs. He runs the risk of closer public scrutiny than
might otherwise be the case. . . .
Those classed as public figures stand in a similar position. Hypothetically, it may
be possible for someone to become a public figure through no purposeful action of
his own, but the instances of truly involuntary public figures must be exceedingly
rare. For the most part those who attain this status have assumed roles of especial
prominence in the affairs of society. Some occupy positions of such persuasive
power and influence that they are deemed public figures for all purposes. More
commonly, those classed as public figures have thrust themselves to the forefront of
particular public controversies in order to influence the resolution of the issues
involved. In either event, they invite attention and comment.
Id. at 344–45. Thus, the Court was concerned with both access to communication to rebut a
defamatory statement and the normative considerations of public figures typically having “thrust
themselves to the forefront of particular public controversies.” Id. at 345. The Court later stated that
“those charged with defamation cannot, by their own conduct, create their own defense by making
the claimant a public figure.” Hutchinson v. Proxmire, 443 U.S. 111, 135 (1979). In other words,
28
the allegedly defamatory statement cannot be what brought the plaintiff into the public sphere;
otherwise, there would be no private figures defamed by media defendants.
The Court’s forecast that it would be “exceedingly rare” for a person to become a public
figure involuntarily has proven true: neither the United States Supreme Court nor this Court has
found circumstances in which a person involuntarily became a limited-purpose public figure. See,
e.g., Wolston v. Reader’s Digest Ass’n, 443 U.S. 157, 166 (1979) (holding an individual to not be
a limited-purpose public figure who was “dragged unwillingly into the controversy”); Time, Inc. v.
Firestone, 424 U.S. 448, 454–55 (1976) (holding an individual to not be a public figure, in part,
because she had done nothing voluntary to assume special prominence).
On these facts, we cannot say this is the exceedingly rare case in which a person has become
a limited-purpose public figure against his will. Before the broadcast in question, Neely was
mentioned in a 1996 newspaper article about settling a malpractice lawsuit and a December 2003
newspaper statement that Neely was placed on probation for self-prescribing medications. Neely
was not quoted in either article. Neely also refrained from talking to Wilson regarding the broadcast
at issue. Because Neely is not a limited-purpose public figure, he need not prove actual malice, and
this ground cannot support the trial court’s summary judgment.
H. Evidence of Negligence
KEYE next argues that the trial court properly granted summary judgment because there was
no evidence of negligence. For the purposes of defamation liability, a broadcaster is negligent if she
knew or should have known a defamatory statement was false. Foster v. Laredo Newspapers, Inc.,
541 S.W.2d 809, 820 (Tex. 1976). But that liability may not be predicated on “a factual
29
misstatement whose content [would] not warn a reasonable prudent editor or broadcaster of its
defamatory potential.’” Id. (quoting Gertz, 418 U.S. at 348) (alteration in original).
The broadcast opened by asking viewers if they would want to know if their doctor “had
been disciplined for prescribing himself and taking dangerous drugs . . . .” Neely raised a fact issue
as to the truth or falsity of the gist that he was disciplined for taking medications. See supra Parts
III.D.3 and III.E. This creates a fact issue regarding whether the statement in the broadcast that
Neely had been disciplined for taking medication would warn a reasonably prudent broadcaster of
its defamatory potential. Foster, 541 S.W.2d at 820.
I. Professional Association
Finally, KEYE argues that professional associations cannot maintain defamation claims and
thus the claim by Neely’s professional association must be dismissed. We disagree.
Our precedent makes clear that corporations may sue to recover damages resulting from
defamation. Gen. Motors Acceptance Corp. v. Howard, 487 S.W.2d 708, 712 (Tex. 1972);
Newspapers, Inc. v. Matthews, 339 S.W.2d 890, 893 (Tex. 1960). In Howard, Howard Motor
Company, Inc. and its owner, Hugh Howard, both sued General Motors Acceptance Corporation
(GMAC), alleging it had libeled them in a letter to Howard’s bank. 487 S.W.2d at 709–10. GMAC
argued that our holding in Matthews precludes corporations from maintaining causes of action for
libel. Id. at 712. We rejected that assertion, pointing out that Matthews specifically recognized that
a corporation may be libeled. Id. Accordingly, we permitted Howard Motor Company, Inc., a
corporate entity, to maintain a libel suit against GMAC. See id.
30
The Legislature has endowed professional associations with many of the same privileges that
corporations enjoy. Indeed, the Business Organizations Code specifies that, “[e]xcept as provided
by Title 7, a professional association has the same powers, privileges, duties, restrictions, and
liabilities as a for-profit corporation.” TEX. BUS. ORGS. CODE § 2.108. Nothing in Title 7 of the
Business Organizations Code precludes professional associations from bringing defamation suits.
See id. chs. 301–02. Because professional associations share the same rights as for-profit
corporations as to maintaining defamation claims, Texas law does not preclude the professional
association, Byron D. Neely, M.D., P.A., from maintaining a libel suit.27
IV. Response to the Dissent
The dissent would hold that the broadcast was substantially true as a matter of law because
there was circumstantial evidence that Neely could have been under the influence of dangerous
drugs and controlled substances while operating on patients, and that the Board, though not
expressly disciplining Neely for taking medications, implicitly did so. __ S.W.3d __, __ (Jefferson,
C.J., dissenting). But at summary judgment, “[w]e must review the record ‘in the light most
favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against
the motion.’” Buck, 381 S.W.3d at 527 (quoting City of Keller, 168 S.W.3d at 824) (emphasis
added). The dissent disregards these principles in two ways. First, the dissent ignores Neely’s
evidence, which includes the Board Order indicating its discipline of him was not for his use of
27
While professional associations may maintain defamation claims, recovery by the association and its members
for the same particular injury is a precluded double recovery. See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299,
303 (Tex. 2006) (“There can be but one recovery for one injury, and the fact that . . . there may be more than one theory
of liability[] does not modify this rule.” (quoting Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 8 (Tex. 1991))
(alterations in original)). Instead, it is for the trier of fact to simply determine what portion, if any, of the total damages
inflicted were incurred by each entity.
31
medications, evidence that Neely never performed surgery while impaired, that his evaluation prior
to the Board Order indicated he never had a drug abuse or dependence problem, and that Wilson
never found any independent evidence that Neely performed surgery while impaired.28
Second, the dissent inverts our time-honored summary judgment standard by indulging every
reasonable inference and resolving every doubt against Neely. Its foremost implicit finding against
Neely is that the Board disciplined him for taking medications. __ S.W.3d at __ (Jefferson, C.J.,
dissenting). The dissent indicates that it “is not hard to understand the Board’s concerns” regarding
Neely’s use of medications. Id. But the Board Order did not discipline Neely for taking
medications, it disciplined him for self-prescribing them. The Order states, in relevant part:
FINDINGS OF FACT
...
6. [Neely] suffered various injuries and ailments, which required a variety of
medications. [Neely’s] treating physician legitimately and appropriately prescribed
a number of medications to treat these conditions. However, between 1999, and
2002, [Neely] began to refill the medications himself in lieu of scheduled visits.
7. Upon review of statements of [Neely] and the September 27, 2000 medical
records of [Neely] obtained from his treating physician, the Panel concluded that
[Neely] had a prior history of tremors.
...
CONCLUSIONS OF LAW
28
The dissent believes this evidence that Neely was not operating while impaired is immaterial to the gist of
whether he was disciplined for operating on patients while taking dangerous drugs. __ S.W.3d at __ (Jefferson, C.J.,
dissenting). This is precisely why we first examined the Board Order itself to determine whether it disciplined Neely
for the conduct the gist of the broadcast indicates. See supra Part III.D.3. Neely’s additional evidence supports why
the Order did not discipline him for operating on patients while taking dangerous drugs. And if evidence of Neely’s use
of medication is truly as irrelevant as the dissent suggests, one wonders why the dissent only finds support in this very
type of evidence.
32
...
2. [Neely] is subject to action by the Board under Sections 164.051(a)(4) and
164.056 of the Act due to [Neely’s] inability to practice medicine with reasonable
skill and safety to patients, due to mental or physical condition.
3. [Neely] is subject to disciplinary action pursuant to Section 164.051(a)(3)
of the Act by committing a direct or indirect violation of a rule adopted under this
Act, either as a principal, accessory, or accomplice, to wit, Board Rule
190.1(c)(1)(M)—inappropriate prescription of dangerous drugs or controlled
substances to oneself, family members, or others in which there is a close personal
relationship.
(Emphases added.) The first conclusion of law above references section 164.051(a)(4) of the
Occupations Code, which allows the Board to discipline a person for illness, drunkenness,
“excessive use of drugs, narcotics, chemicals, or another substance,” or “a mental or physical
condition.” TEX. OCC. CODE § 164.051(a)(4). The Order states that it was disciplining Neely “due
to mental or physical condition”—not excessive drug use as the dissent reads between the lines to
infer.29 At a minimum, the Order at least creates a fact issue in Neely’s favor as to whether he was
disciplined for taking medications. If one does endeavor to draw inferences and resolve doubts, they
29
The dissent relies on a statement by a Board investigator in its “summary of allegations” that Neely could
be subject to disciplinary action under section 164.051(a)(4) for “[i]nability to practice medicine with reasonable skill
and safety because of illness or substance abuse”(emphasis added), and a statement on the Board’s website that its
investigation of Neely “was based on allegations that Dr. Neely had self-prescribed medications with the potential to
interfere with his ability to perform surgery.” __ S.W.3d at __ (Jefferson, C.J., dissenting) (emphases added). The Board
Order ultimately did not discipline Neely under section 164.051(a)(4) for substance abuse but only for a “mental or
physical condition,” which was his hand tremor. Though the Board did not discipline Neely for taking medications, a
reasonable view of the gist of the broadcast was that Neely had been so disciplined.
33
must be drawn and resolved in favor of Neely at this summary judgment stage.30 Buck, 381 S.W.3d
at 527.
In addition, the dissent further draws inferences against Neely by assuming that the Board’s
order for Neely to undergo a psychiatric evaluation indicates the Board must have been concerned
about Neely’s use of medications. On the contrary, the Board Order notes that Neely retained a
doctor to perform a physical examination who detected no medically significant tremor but “felt
unqualified to determine [Neely’s] ability to perform surgery, and recommended a disability
assessment or a Neuro-psyche evaluation.” Neely then retained Dr. Nace to perform the psychiatric
evaluation the physical examination recommended. The Board then followed the same model,
“requesting independent physical and psychiatric evaluations to determine [Neely’s] capacity to
practice medicine in general, and specifically, to perform surgery.” Far from disciplining Neely for
operating on patients while taking medications, the Order simply confirmed a psychiatric evaluation
was needed because a physical evaluation alone might not fully assess the impact of Neely’s hand
tremor on his ability to perform surgery.
Moreover, by inverting the standard of review for summary judgments, the dissent
prematurely cuts off Neely’s right to a trial on this reputational tort. Our constitution assures that
the “right of trial by jury shall remain inviolate.” TEX. CONST. art. I, § 15. Additionally, the Texas
Constitution’s free speech clause guarantees the right to bring reputational torts: “Every person shall
30
In its effort to indulge reasonable inferences against Neely, the dissent also relies on an Austin American
Statesman article that indicates Neely was one of six Austin doctors the Board had recently disciplined for “violations
involving either drug or alcohol abuse.” __ S.W.3d at __ (Jefferson, C.J., dissenting). But the specific reference to
Neely was that he was disciplined “for self-prescribing medications, according to board records.” We find nothing
questionable about this specific reference to Neely. Nor does the gist of the article appear to be that Neely was
disciplined for operating on patients while using dangerous drugs and controlled substances.
34
be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse
of that privilege . . . .” TEX. CONST. art. I, § 8 (emphasis added). Likewise, the open courts
provision guarantees the right to bring reputational torts: “All courts shall be open, and every person
for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course
of law.” TEX. CONST. art. I, § 13 (emphasis added). As we observed in Casso,
While we have recently recognized the possibility that our state free speech
guarantee may be broader than the corresponding federal guarantee, that broader
protection, if any, cannot come at the expense of a defamation claimant’s right to
redress. Unlike the United States Constitution, which contains no explicit guarantee
of the right to sue for defamation, the Texas Constitution expressly protects the
bringing of reputational torts.
776 S.W.2d at 556 (emphasis added) (citation omitted). In short, the dissent’s upending of our time-
honored summary judgment principles infringes upon Neely’s constitutional right to bring suit for
reputational torts and to have a jury trial.
The dissent also attempts to use a discrete portion of the broadcast that, standing alone, could
appear to be substantially true to vindicate the remainder of the broadcast. The dissent focuses on
the portion of the broadcast addressing Neely’s hand tremors as justification for the broadcast being
substantially true as a matter of law. But the broadcast references Neely’s hand tremors twice in the
seven-minute segment. Drugs or medications are expressly referenced eight times and discussed
without naming those precise terms a number of other times. The dissent’s analysis falls short of
respect for our precedent dictating the manner in which we review substantial truth. Turner, 38
S.W.3d at 115 (“[T]he meaning of a publication, and thus whether it is false and defamatory,
35
depends on a reasonable person’s perception of the entirety of a publication and not merely on
individual statements.”).
Additionally, the dissent contends that a report about a government investigation is always
substantially true. __ S.W.3d at __ (Jefferson, C.J., dissenting). In Texas, the Legislature long ago
protected reports about government investigations under the official/judicial proceedings privilege.
TEX. CIV. PRAC. & REM. CODE § 73.002(b)(1). But as explained above, the privilege only protects
such reports if they are fair, true, and impartial accounts of such proceedings. Id. There is at least
a fact issue on whether the broadcast was a fair, true, and impartial account of the Board Order
because the gist of the broadcast to a person of ordinary intelligence could be that Neely was
disciplined for taking dangerous drugs and controlled substances when the Order indicates he was
not so disciplined.31 See Part III.E, supra.
Finally, the dissent perceives that our holding “collides violently with the First Amendment.”
__ S.W.3d at __ (Jefferson, C.J., dissenting). But the United States Supreme Court has only
discussed the truth defense as a creature of state common law and not the First Amendment.
Masson, 501 U.S. at 516 (“The common law of libel . . . overlooks minor inaccuracies and
concentrates upon substantial truth.”). Accordingly, the only collision is between the dissent’s
implicit findings and our six-decade-old standard for reviewing summary judgments. See
31
The dissent’s reliance on Global Relief Foundation, 390 F.3d at 973, only furthers our conclusion. There,
the New York Times prevailed on the truth defense because it was substantially true that the government was suspicious
about Global Relief funding terrorism. Id. at 986. Global Relief’s affidavits indicating it did not fund terrorism did not
render false the media statements about the government’s suspicions. Id. at 983. The present case would be more akin
to the New York Times reporting that Global Relief had been convicted of something it had not been convicted of. See
id. at 987 (“none of the articles concluded that [Global Relief] was actually guilty of the conduct for which it was being
investigated”).
36
Gulbenkian v. Penn, 252 S.W.2d 929, 931 (Tex. 1952) (requiring a trial court at summary judgment
to give the nonmovant “the benefit of every reasonable inference which properly can be drawn in
favor of his position” and that if “a mere ground of inference” supports the motion, it will not be
granted).
V. Conclusion
The key question in this appeal is whether Neely raised a fact issue as to the truth or falsity
of the broadcast at issue in his defamation suit. We examine substantial truth based on what a
person of ordinary intelligence would understand the gist or meaning of the broadcast to be. Here,
a person of ordinary intelligence could conclude that the gist of the broadcast was that Neely was
disciplined for operating on patients while using dangerous drugs and controlled substances. Neely
raised a genuine issue of material fact as to the truth or falsity of that gist with evidence that he was
not disciplined for taking dangerous drugs or controlled substances and he never performed surgery
while using dangerous drugs or controlled substances. We further conclude: (1) there are fact issues
on whether part of the broadcast is protected by the judicial/official proceedings or fair comment
privileges; (2) Neely was not a limited purpose public figure; (3) Neely raised a fact issue as to
KEYE’s negligence; and (4) Neely’s professional association may maintain a cause of action for
defamation. We reverse the judgment of the court of appeals and remand the case to trial court for
further proceedings consistent with this opinion.
37
____________________________________
Eva M. Guzman
Justice
OPINION DELIVERED: June 28, 2013
38
Appendix A
KEYE January 19, 2004 Broadcast
Fred Cantu (Anchor): If you needed surgery would you want to know if your surgeon had been
disciplined for prescribing himself and taking dangerous drugs, had a history of hand tremors and
had been sued several times for malpractice in the last few years?
Judy Maggio (Anchor): A central Texas couple says they didn’t learn about this until it was too
late. They’re outraged the [Texas Medical Board] is allowing Dr. Byron Neely to continue to
practice. KEYE news investigative reporter Nanci Wilson tells us if you go to St. David’s Hospital
with a head injury you could be Dr. Neely’s next patient.
Paul Jetton: I’ve been in, in and out of the hospital, you know, for the last four years. Uh, I had
twelve, I believe, I’ve even lost count, I believe twelve brain surgeries, one spinal surgery.
Wilson: This is Paul Jetton’s life.
Paul Jetton: I can’t walk. You know, I still, I can walk with a walker, but I still can’t walk on my
own.
Wilson: Each step is a struggle, but it wasn’t always this way. In 1982 Paul Jetton was a linebacker
for the University of Texas. He was so good he went on to play in the pros. His first year with the
Cincinnati Bengals the team went to the Super Bowl. But in 1999 . . .
Paul Jetton: I just wasn’t feeling well. When I went, you know, for I just wanted to get a physical.
Wilson: Something unusual showed up on the MRI scan of his brain.
Paul Jetton: He told me that I had this, this tumor in my brain and, and that I had to, had to have
it operated on.
39
Wilson: His doctor, Austin neurosurgeon Byron Neely, who has been in practice since 1977, said
an operation would help.
Paul Jetton: You know it would only be a two hour surgery and that I’d be in, I’d only be in the
hospital for two or three days and I’d go on with the rest of my life.
Wilson: The two hour surgery stretched into almost eight hours and Paul was in the hospital for six
weeks. While in the hospital Paul developed an infection in his brain. However, he was discharged
from the hospital anyway. The result: numerous surgeries and a life of disability. Paul’s wife,
Sheila, says what they learned from other doctors was the final blow.
Sheila Jetton: Every neurosurgeon that’s looked at Paul’s MRIs from before Neely operated on him
have [sic] said they would have never done surgery. They would have watched him with MRIs over
years.
Wilson: The Jettons aren’t the only patients to raise questions about Dr. Neely. Wei Wu, a software
engineer with two PhDs was referred to Dr. Neely. Neely explains the case in this deposition from
2002.
Dr. Neely: [From the video of his deposition] He came in very confused one day, uh, was found to
have a uh, very major brain tumor thought to be a meningioma at the time because it, of the location
in the brain. Uh, the patient was taken to the OR thereafter and found to malignant melanoma [sic].
Wilson: Peter Gao was a friend of Wei Wu’s. Gao says Wu struggled with the diagnosis that Wu
had only a few months to live.
40
Peter Gao: The doctor is more like persuasive say, well the doctor have seen when he open, when
he opened your skull, seen everywhere. So, all we need to do right now I guess, is face, kind of like
to face the music.
Wilson: It may have been too much for Wei Wu to handle. A few days later Gao found Wu’s
abandoned car near the 183 overpass at Mopac. Then discovered Wu had jumped off the overpass
taking his own life. But when his body was sent to the Travis County Medical Examiner’s office,
analyzing Wu’s brains, examiners noted no residual metastatic melanoma. Meaning Wei Wu did
not have brain cancer. Both the Jetton and the Wu cases happened in 1999. Two other patients also
filed suit against the doctor. The [Texas Medical Board] investigated Dr. Neely. The Board found
Neely had a history of hand tremors and that between 1999 and 2002, Dr. Neely was writing
prescriptions, not only for his patients but for himself as well. Narcotics, muscle relaxers and pain
killers. Something former patient Paul Jetton finds shocking.
Paul Jetton: Narcotics, opiates, I mean it’s just things that, I mean things that they don’t even let
people operate machinery or drive cars when they’re, when they’re taking them and this guy’s doing
brain surgery on people. I mean it’s just, even now I’m just, it’s just incredulous, you just can’t even
believe that it even happened.
Wilson: The [Texas Medical Board] did discipline Dr. Neely. This past December, they suspended
his license but gave it right back by staying the suspension. Now he’s on probation for three years.
The only requirements are that he see a psychiatrist and not write prescriptions for himself or his
family. A decision the Board defends.
41
Jill Wiggins [caption identifies her as a Board representative]: We have compliance officers and
the compliance officers will definitely follow to make sure that he’s doing the things that his order
requires him to do.
Wilson: But how would they know if he is using? He can get somebody else to prescribe him. I
mean he could say, “I’ve followed the order.”
Wiggins: Right.
Wilson: I didn’t prescribe myself.
Wiggins: Right, right.
Wilson: How do we, how do we know that he’s, that we’re not putting somebody right back out
there to do the same thing he was doing before?
Wiggins: That’s a very good question and why this order doesn’t include drug testing, I, I honestly
don’t know the answer to that.
Paul Jetton: I think it’s just deplorable, I mean if, if it was another profession, uh, the guy would
be in jail.
Wilson: We contacted Dr. Neely for his side to the story. He declined to participate, but his
attorney told us that two highly qualified neurosurgeons who reviewed the case agree with the
medical decisions made by Dr. Neely. In addition, the [Texas Medical Board] investigated the
Jetton case and found no wrong doing. We also contacted St. David’s Medical Center, its chief
medical officer believes they have a strong peer review process. That’s where individual doctors
review each other’s work and decide who should have privileges.
42
Steve Berkowitz, M.D.: In this particular case the investigation is incomplete and when we actually
find the, get the findings we will then be able to make a determination uh, as to whether the
privileges should be continued or not. We strongly value quality of course, we value the due process
and most importantly we value patient safety.
Wilson: Nanci Wilson, KEYE News investigates.
[The camera then returns to the anchors, Cantu and Maggio.]
Maggio: The Jettons settled their suit against Dr. Neely. The suit filed on behalf of Wu’s son was
dismissed because it was not filed by an attorney. The other suits are pending.
Cantu: The Texas Board of Medical Examiners does post final actions taken against doctors on its
web site, but all other information about complaints is kept secret.
43