McDowell v. Paiewonsky

• Citation: 769 F.2d 942
• Decision Date: 10 September 1985
• Docket Number: Nos. 83-3008,No. 83-3007,83-3007,No. 83-3008,83-3008,s. 83-3008
• Parties: 11 Media L. Rep. 2396 E.H. McDOWELL, Appellant in, v. Michael PAIEWONSKY, Appellant in
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 942

769 F.2d 942

11 Media L. Rep. 2396

E.H. McDOWELL, Appellant in No. 83-3008, v. Michael PAIEWONSKY, Appellant in No. 83-3007.

Nos. 83-3008, 83-3007.

United States Court of Appeals, Third Circuit.

Argued April 22, 1985.

Decided August 7, 1985.

Rehearing and Rehearing In Banc Denied Sept. 10, 1985.

Samuel H. Seymour (argued), Barbara Schneider Jost Chapman, Duff and Paul, Washington, D.C., for appellant Michael A. Paiewonsky.

Samuel H. Hall, Jr. (argued), St. Thomas, U.S. Virgin Islands, for appellee E.H. McDowell.

Before ADAMS, GARTH and BECKER, Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

An architect-engineer with a long history of work on public projects brought a defamation suit against a senator in the Virgin Islands legislature based on allegedly false remarks made by the senator during a weekly political broadcast. Ruling that the plaintiff was a private figure, the district court permitted recovery upon a showing of negligence on the part of the senator. Because we determine that plaintiff was a limited purpose public figure and that no evidence of actual malice was adduced, we will reverse the judgment of the district court and order that judgment be entered for the defendant.

I.

Plaintiff, E.H. McDowell, is a licensed architect and civil engineer who has participated in numerous public building projects over the years, including the Evelyn Williams School, the psychiatric wing of the Knud-Hansen Memorial Hospital, and the Bovoni Junior High School. According to the district court, "the record reflects that McDowell has regularly contracted with the Government of the Virgin Islands to perform work on public building projects, some of which have been controversial in nature...." App. at 1120a.

Defendant Michael Paiewonsky served two terms as a senator in the Virgin Islands legislature, from 1979-83. During his tenure, like many other politicians in the Virgin Islands, Paiewonsky paid for a weekly radio broadcast. He called these five-minute broadcasts "Small Talk." Prior to his election to the Virgin Islands Senate, Paiewonsky was a member of the Virgin Islands Board of Education, and served as Chairman of the Board's Committee on School Construction. During that time, he became very involved in the areas of school construction and design. Defendant continued to be concerned with these subjects after his election to the Virgin Islands Senate, and served as Chairman of the Senate Committee on Education and Health from 1979-81. Based on these facts, the district court concluded that Paiewonsky "devoted a good deal of his energies while in elective office toward the government's planning and construction of various public facilities." App. at 1111a.

It was not unusual, therefore, that defendant's April 24, 1981 "Small Talk" broadcast discussed, as had several previous broadcasts, certain problems encountered in publicly financed building projects, such as the Bovoni Junior High School. In particular, the broadcast focused on the possibility that John Harding, the Executive Director of the Port Authority, had a conflict of interest. Harding had been appointed an arbitrator on a panel reviewing a million dollar claim filed by McDowell against the Government of the Virgin Islands for allegedly wrongfully withholding funds in regard to the construction of the Bovoni School. Paiewonsky charged that there was a major conflict of interest because Harding and McDowell supposedly were personal friends and because Harding had recommended McDowell to conduct a $183,000 proposal study for the Port Authority. In addition, Paiewonsky criticized Harding for attempting to hire McDowell for the Port Authority project in light of McDowell's performance on previous government projects. Specifically, Senator Paiewonsky stated that:

Mr. McDowell has done a number of projects for the Government of the Virgin Islands. He did the engineering on the Evelyn Williams School in St. Croix which has been plagued with flooding problems since its inception. He has done the entire drawings and plans for the Bovoni Junior High School in St. Thomas--a trouble-plagued project. He did the newest section of the Knud Hansen Hospital about five or six years ago, the obstetrics neuro-psychiatric ward which has leaked since its inception and has had to have its entire gallery removed and replaced as well as having been plagued with air conditioning problems relating to the design of the system from its inception. Mr. McDowell has also done the drawings of the waterfront highway extension that the Governor wanted that was rejected out-of-hand by the federal authorities who were going to fund the project because of inadequacies in the design.

App. at 1069a.

On May 6, 1981, McDowell brought a five-count defamation suit against Senator Paiewonsky based on defendant's allegedly false remarks made during two "Small Talk" broadcasts, during a speech, and in a letter. The district court dismissed Count II, which involved a letter sent by defendant to McDowell, because of a lack of publication. Count I concerned defendant's statements regarding plaintiff during an earlier "Small Talk" broadcast in 1979, and Count III was predicated upon remarks the Senator made on the steps of the Virgin Islands Capitol to a disgruntled group of teachers. Count IV dealt with the April 24 broadcast, and Count V requested punitive damages. After refusing to grant the Senator immunity from suit on the basis of the speech or debate clause contained in section 6(d) of the Revised Organic Act of 1954, 48 U.S.C. Sec. 1572(d) (1982), and after finding that McDowell was not a public figure, the district court permitted the case to proceed to trial.

The jury found for plaintiff on Count IV and awarded him $50,000 in compensatory damages. It did not award punitive damages and was unable to reach a decision on Counts I and III. The district court entered judgment for plaintiff on Count IV, without disposing of Counts I and III. After plaintiff waived his right to a retrial on those claims, the district court entered an amended final judgment granting McDowell relief on Count IV and dismissing the remaining counts. It is from this order that defendant brings his appeal.

II.

This Court has repeatedly noted that although a defamation suit has profound First Amendment implications, it is fundamentally a state cause of action. Accordingly, adjudicating such claims requires inquiries under both state and federal law. See Marcone v. Penthouse International Magazine for Men, 754 F.2d 1072, 1077 (3d Cir.1985). In the first instance, the Court must determine whether the defendant has injured the plaintiff's reputation under the applicable state law. If so, then the Court must ascertain whether the First Amendment nevertheless prohibits the imposition of liability. Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 270 (3d Cir.1980).

Attacking the jury's verdict under the first consideration, Paiewonsky asserts that the award for plaintiff must be reversed because the "Small Talk" broadcast contained no actionable defamation under applicable Virgin Islands law. As a matter of substantive law, the Virgin Islands has adopted the restatements of law. ¹ According to the Restatement (Second) of Torts Sec. 558 (1977):

To create liability for defamation there must be:

(a) a false and defamatory statement concerning another;

(b) an unprivileged publication to a third party;

(c) fault amounting at least to negligence on the part of the publisher; and

(d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.

Under the Restatement (Second) of Torts, to be actionable a communication must be a misstatement of fact ² capable of defamatory meaning ³ that is of and concerning the plaintiff. ⁴

Paiewonsky challenges the jury's verdict as inconsistent with these rules. He asserts that the April 24 "Small Talk" remarks are not actionable because the remarks: (1) are not capable of defamatory meaning, (2) are substantially true, (3) do not concern McDowell, and (4) are protected opinions not based on undisclosed defamatory facts. In contrast, during his opening and closing remarks to the jury, plaintiff represented that a number of statements in the broadcast were false and defamatory. For example, McDowell asserted that

(1) his work on the Evelyn Williams School had nothing to do with the flooding at the school;

(2) his work on the Bovoni School had nothing to do with its being "a trouble-plagued project;"

(3) he had not "built" the wing of the Knud Hansen Hospital that housed the psychiatric ward;

(4) the hospital ward had not "leaked since its inception;" its gallery had not been removed; and problems with the air conditioning did not relate to the design of the system;

(5) plaintiff had not done the drawings for a proposed waterfront extension project;

(6) although John Harding, Executive Director of the Port Authority, and plaintiff admittedly were personal friends, they had not lunched together several times a week over a period of years;

(7) Harding did not have a conflict of interest, stemming from his friendship with plaintiff, in acting as an arbitrator on plaintiff's claim against the Government of the Virgin Islands for withholding payments on the Bovoni School; and (8) plaintiff had not tried to use his friendship with Harding to obtain a contract from the Port Authority.

App. at 126a-29a; 961a-78a.

Although defendant may be correct that much of the broadcast is not defamatory, we are unable to say that as a matter of law the jury could not have found at least some of the statements actionable. For example, Paiewonsky declared that McDowell had designed the "newest section of the Knud Hansen Hospital ... [which was] plagued with air conditioning problems relating to the design of the system from its inception." App. at 1069a. This statement is clearly of and concerning plai...