Oweida v. Tribune-Review Pub. Co.

• Citation: 599 A.2d 230,410 Pa.Super. 112
• Decision Date: 18 November 1991
• Docket Number: TRIBUNE-REVIEW
• Parties: , 19 Media L. Rep. 1801 Nizar N. OWEIDA v. ThePUBLISHING COMPANY, Richard M. Scaife, William T. Dymond, Robert J. Broderick and Richard Gazarik.
• Court: Superior Court of Pennsylvania

Page 230

599 A.2d 230

410 Pa.Super. 112, 19 Media L. Rep. 1801

Nizar N. OWEIDA v. The TRIBUNE-REVIEW PUBLISHING COMPANY, Richard M. Scaife, William T. Dymond, Robert J. Broderick and Richard Gazarik.

Superior Court of Pennsylvania.

Argued April 18, 1991.

Filed Nov. 18, 1991.

Susan A. Yohe, Pittsburgh, for appellants.

Robert W. Doty, Pittsburgh, for appellee.

Before McEWEN, DEL SOLE and HESTER, JJ.

McEWEN, Judge:

This libel action was commenced by appellee's decedent, Nizar N. Oweida, M.D. (hereinafter "appellee") ¹, following publication in the Sunday Tribune-Review and The Sunday Tribune, two newspapers of general circulation in Westmoreland County, of essentially identical articles reporting that serious charges of medical malpractice had been set forth in a civil complaint filed against Dr. Oweida by his former patient, Bonnie Filabaum, and her husband. Dr. Oweida sought compensatory and punitive damages from appellants ² based upon their respective roles in publishing the articles, which appellee maintained were false, defamatory and beyond the scope of the fair report privilege. Following a trial before a jury during which neither appellant Richard M. Scaife, publisher of the Sunday Tribune, nor Bonnie Filabaum, the plaintiff in the medical malpractice action, testified, the jury awarded appellee $100,000.00 in compensatory damages and $100,000.00 in punitive damages. ³ Delay damages in the amount of $47,480.14 were subsequently awarded by the trial court on motion of appellee. This appeal was taken from the judgment entered on the verdict as molded by the court.

Appellants have presented the following arguments in support of their request for judgment n.o.v. or a new trial:

I. News articles which restated the allegations of a lawsuit were protected by the fair report privilege because they were not overly embellished and did not contain independently defamatory material.

II. An instruction to the jury that not contacting Oweida prior to publication, without more, will support a finding that the fair report privilege was abused, was erroneous.

III. An award of punitive damages cannot be supported in the absence of proof, by clear and convincing evidence, that the articles were published with a serious doubt as to their truth.

IV. The instruction that the jury could infer actual malice from clear departures from accepted journalistic standards was erroneous.

V. Scaife could not be liable for defamation because he did not personally participate in the publications.

VI. It was error to instruct the jury that falsity could be established by a fair preponderance of the evidence, and plaintiff did not discharge his burden to prove falsity by his self-serving assertion that he had treated his patient competently.

VII. It was error to instruct the jury, as a matter of law, that one statement in the articles, although correctly reported, was false, without further instructing how the defense of the fair report privilege related to the issue of falsity.

VIII. It was error to charge the jury that it could draw an adverse inference from the failure to call a witness equally available to both sides.

IX. The award of Rule 238 delay damages was improper in a defamation action and where plaintiff caused at least part of the delay.

Section 8343(a) of the Judicial Code provides that in an action for defamation, the plaintiff has the burden of proving:

(1) The defamatory character of the communication.

(2) Its publication by the defendant.

(3) Its application to the plaintiff.

(4) The understanding by the recipient of its defamatory meaning.

(5) The understanding by the recipient of it as intended to be applied to the plaintiff.

(6) Special harm resulting to the plaintiff from its publication.

(7) Abuse of a conditionally privileged occasion.

42 Pa.C.S. § 8343(a) (emphasis supplied). The defendant has the burden of proving, when relevant to the defense:

(1) The truth of the defamatory communication.

(2) The privileged character of the occasion on which it was published.

(3) The character of the subject matter of defamatory comment as of public concern.

42 Pa.C.S. § 8343(b).

Appellee, in his complaint and at trial, alleged that the articles were "sensationalized accounts" which falsely implied, inter alia, that Bonnie Filabaum had been mistreated and misdiagnosed by appellee and had been incorrectly informed that she suffered from terminal cancer. Appellee contended that the articles "contained numerous other false and defamatory statements reflecting upon Dr. Oweida's character and competency purportedly directly attributed to one Bonnie J. Filabaum which also were false, scandalous, malicious, defamatory and libelous." (Appellee's Complaint, Paragraph 17). Appellants contended that the truth or falsity of the allegations concerning the treatment provided by appellee to Filabaum were irrelevant as appellants enjoyed a qualified privilege to report the allegations of the complaint, a privilege which appellants contended they had not abused. ⁴

"Although Pennsylvania law affords absolute immunity for defamatory statements contained in pleadings, if relevant to the proceeding in which they are made, Greenberg v. Aetna Insurance Co., 427 Pa. 511, 235 A.2d 576 (1967), cert. denied, 392 U.S. 907, 88 S.Ct. 2063, 20 L.Ed.2d 1366 (1968), statements about them made outside the judicial proceedings are subject to a qualified privilege only; the burden is on the plaintiff to show that defendant abused its privilege." Denenberg v. American Family Corp. of Columbus, Ga., 566 F.Supp. 1242, 1254 n. 12 (E.D.Pa.1983). Accord: Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 254 (4th Cir.1988); Medico v. Time, Inc., 643 F.2d 134, 146 (3rd Cir.), cert. denied, 454 U.S. 836, 102 S.Ct. 139, 70 L.Ed.2d 116 (1981); Williams v. WCAU-TV, 555 F.Supp. 198, 201 (E.D.Pa.1983); Hanish v. Westinghouse Broadcasting Co., 487 F.Supp. 397, 402 (E.D.Pa.1980).

"The Pennsylvania Supreme Court has recognized that '[i]f the ... account is fair accurate and complete, and not published solely for the purpose of causing harm to the person defamed, it is privileged and no responsibility attaches, even though information contained therein is false or inaccurate.' " Lal v. CBS, Inc., 726 F.2d 97, 99 (3rd Cir.1984) quoting Sciandra v. Lynett, 409 Pa. 595, 600, 187 A.2d 586, 588-589 (1963).

The fair report privilege developed as an exception to the common law rule that the republisher of a defamation was subject to liability similar to that risked by the original defamer. Pennsylvania had adopted the republication rule by the turn of the century, and no case brought to our attention suggests that Pennsylvania has abandoned it. With this rule, the law indulged the fiction that the republisher of a defamatory statement "adopted" the statement as his own. The common law regime created special problems for the press. When a newspaper published a newsworthy account of one person's defamation of another, it was by virtue of the republication rule, charged with publication of the underlying defamation. Thus, although the common law exonerated one who published a defamation as long as the statement was true, a newspaper in these circumstances traditionally could avail itself of the truth defense only if the truth of the underlying defamation were established.

To ameliorate the chilling effect on the reporting of newsworthy events occasioned by the combined effect of the republication rule and the truth defense, the law has long recognized a privilege for the press to publish accounts of official proceedings or reports even when these contain defamatory statements. So long as the account presents a fair and accurate summary of the proceedings the law abandons the assumption that the reporter adopts the defamatory remarks as his own.

Medico v. Time, Inc., 643 F.2d 134, 137-138 (3rd Cir.), cert. denied, 454 U.S. 836, 102 S.Ct. 139, 70 L.Ed.2d 116 (1981) (footnotes omitted). See also: Schiavone Construction Co. v. Time, Inc., 847 F.2d 1069, 1085 (3rd Cir.1988).

The distinguished Common Pleas Court Judge Raymond L. Scheib, in ruling upon preliminary objections, correctly held that, as a matter of law, the articles at issue were subject to the "fair report" qualified privilege since the subject matter was a civil complaint filed in a judicial proceeding involving issues of public concern. ⁵ The question of the applicability of the privilege having been determined prior to trial, the issues to be submitted to the jurors for their determination included:

Whether the appellants had abused their qualified privilege by publishing articles which were not accurate, complete, and fair accounts of the civil complaint.

If the appellants had lost the qualified privilege through abuse, whether the allegations of negligence on the part of Dr. Oweida and the harm suffered by the Filabaums as recounted in the articles were false.

Whether the appellants had published the articles in spite of serious doubts as to the truth of the material contained therein, i.e., whether the articles were published with actual malice.

As observed by Judge Scheib, the question of whether the fair report privilege was abused was a difficult issue, not easily resolved. Section 611 of the Restatement (Second) of Torts provides that a report of a judicial proceeding is privileged if it is "accurate and complete or a fair abridgement of the occurrence reported." Comment f explains:

Not only must the report be accurate, but it must be fair. Even a report that is accurate so far as it goes may be so edited and deleted as to misrepresent the proceeding and thus be misleading. Thus, although it is unnecessary that the report be exhaustive and complete, it is necessary that nothing be omitted or misplaced in such a manner as to convey an erroneous impression to those who hear or read it.... The fact that the report of one side of a trial is not as complete as that of the other is a...