Zambrano v. Devanesan

• Decision Date: 22 January 1986
• Docket Number: No. 83-2685,83-2685
• Citation: 11 Fla. L. Weekly 255,484 So.2d 603
• Court: Florida District Court of Appeals
• Parties: 11 Fla. L. Weekly 255 Gabriel ZAMBRANO, Appellant/Cross Appellee, v. Jegadees D. DEVANESAN, M.D., and Mona Devanesan, M.D., Appellees/Cross Appellants, and Devanesan & Zambrano, M.D., P.A., Appellee.

Page 603

484 So.2d 603

11 Fla. L. Weekly 255

Gabriel ZAMBRANO, Appellant/Cross Appellee, v. Jegadees D. DEVANESAN, M.D., and Mona Devanesan, M.D., Appellees/Cross Appellants, and Devanesan & Zambrano, M.D., P.A., Appellee.

No. 83-2685.

District Court of Appeal of Florida,

Fourth District.

Jan. 22, 1986.

Motions for Clarification, Rehearing

and Certification Denied March 26, 1986.

Terence J. Watterson and Cort A. Neimark of Watterson & Dickenson, P.A., West Palm Beach, for appellant/cross appellee.

Larry Klein of Klein & Beranek, West Palm Beach, for appellees/cross appellants.

HURLEY, Judge.

This appeal arises from a defamation action instituted by Dr. Zambrano after he allegedly was slandered during a medical staff meeting. The jury found in favor of Dr. Zambrano but, upon motion by the defendants, the trial court granted a remittitur as to compensatory and punitive damages. We affirm in part and reverse in part.

Dr. Zambrano was engaged in the practice of medicine with Dr. Jegadees Devanesan. Defendant Mona Devanesan, the wife of Jegadees Devanesan, is also a physician who maintains a separate practice. Zambrano and Jegadees Devanesan, both surgeons, began their partnership in July of 1980. Both were members of the staff at Hendry General Hospital in Clewiston and, consequently, both had staff privileges there. Mona Devanesan was also a staff member at the hospital and had similar privileges and duties. As part of their obligation to the hospital, Zambrano and Jegadees Devanesan were required to be on-call for the hospital emergency room. This required their availability on a twenty-four hour basis for emergency patients who did not have a personal physician. The on-call schedule for each month was prepared by the hospital's chief of staff, Dr. Shupe. Zambrano and Jegadees Devanesan, in turn, would make arrangements between themselves to meet their on-call obligations.

In the course of their practice, both physicians applied for staff privileges at a second hospital. Jegadees Devanesan was granted privileges first, in December of 1980. Zambrano was awarded similar privileges two months later. Jegadees Devanesan's receipt of privileges carried with it an obligation to be on-call at the second hospital. Consequently, he devised a new schedule for himself and Zambrano, whereby each would handle an equal number of on-call days. Devanesan's schedule contained the sum of the on-call days for both hospitals and he proposed that the total figure be split equally, even though Zambrano had not yet received privileges at the second hospital. Zambrano declined to accept this proposal. He concluded that the revised schedule required him to cover most of Devanesan's on-call obligations at Hendry as well as his own, with no attendant benefits for Zambrano at the second hospital. When the two physicians were unable to resolve their differences, they decided to terminate their partnership in early January of 1981.

As a result of this decision, Zambrano lost the use of a house which the two doctors had used as a temporary residence while on-call. Therefore, Zambrano asked the hospital's chief of staff, Dr. Shupe, to relieve him of his on-call duties for the month of January. Shupe agreed to rearrange the schedule and told Zambrano not to worry. Zambrano also sought to have his regular staff privileges converted to consulting staff privileges, and this request was granted during the regular January meeting of the Hendry Hospital's medical staff. Neither of the Devanesans were present during this meeting.

The Devanesans, however, did attend the February staff meeting and made certain statements which gave rise to the present suit. The February meeting was not transcribed, but the participants later testified about what occurred. According to the testimony at trial, the Devanesans stated that Zambrano had neglected his practice and abandoned his obligations. Further, they said that Zambrano had deserted his responsibilities and duties; that he had walked away from his private practice, and his hospital on-call schedule, without prior notice; and that he had acted in an unprofessional and unethical manner.

At the conclusion of their remarks, Mona Devanesan made a motion to withdraw all of Zambrano's staff privileges. The motion was seconded and passed on a vote of five in favor, none opposed, and one abstention. The testimony at trial revealed that not everyone present during this meeting knew all of the facts underlying the controversy. For example, one physician, Dr. Khanna, testified that he had based his vote to revoke Zambrano's privileges solely on the information presented by the Devanesans, and that the information had been presented as fact, not opinion. Khanna also said that he would not have voted as he did if all of the facts had been presented, viz., that Zambrano had given advance notice and made arrangements with the hospital's chief of staff to cover the days for which he had been scheduled for on-call duty. This information apparently never surfaced at the meeting. Interestingly, both Devanesans testified that they considered this information irrelevant, and Jegadees Devanesan testified that he had no knowledge that Zambrano had made prior arrangements with Dr. Shupe, the chief of staff, until Dr. Shupe took the stand and testified at trial.

In any event, Zambrano's hospital privileges were never actually revoked. The staff's recommendation to revoke his privileges was not accepted by the Hospital Authority. During the March 1981 staff meeting at the hospital, there was further discussion on the matter, including additional comments by Jegadees Devanesan. At the conclusion of the discussion, a motion was made to rescind the earlier decision on withdrawing Zambrano's privileges, and it passed unanimously.

Zambrano subsequently sued the Devanesans for defamation based on their statements at the staff meetings. The jury awarded Zambrano $75,000 as compensatory damages and $100,000 as punitive damages. After the verdict, the Devanesans renewed their earlier motion for a directed verdict, contending that their comments were pure opinion and thus protected speech. The trial court denied the motion, concluding that the combination of the Devanesans' remarks, together with their motion at the February meeting (to rescind Zambrano's privileges) created a factual question for the jury's resolution. The court, however, did find that the damage awards were excessive and, therefore, ordered a new trial on both liability and damages unless Zambrano agreed to a remittitur reducing the compensatory damages to $7,867.50 and the punitive damages to $7,000. Zambrano declined the remittitur and initiated this appeal. The Devanesans cross appeal and challenge the lower court's ruling regarding the actionable nature of their statements.

We start with the cross appeal, wherein the Devanesans urge that their statements to the medical staff, in reference to Zambrano, were pure opinion and thus not actionable. The determination whether a statement is fact or opinion is a question of law for resolution by the court. From v. Tallahassee Democrat, Inc., 400 So.2d 52 (Fla. 1st DCA 1981), review denied, 412 So.2d 465 (Fla.1982). Moreover, an appellate court may make the determination of opinion versus fact on review. The distinction between fact and opinion is not always easy to perceive. Thus, the law recognizes that some comments may be pure expressions of opinion whereas others may be mixed expressions of opinion. The distinction between these concepts was discussed in Hay v. Independent Newspapers, Inc., 450 So.2d 293 (Fla. 2d DCA 1984), where the court said:

Pure opinion is based upon facts that the communicator sets forth in a publication, or that are otherwise known or available to the reader or the listener as a member of the public. Mixed opinion is based upon facts regarding a person or his conduct that are neither stated in the publication nor assumed to exist by a party exposed to the communication. Rather, the communicator implies that a concealed or undisclosed set of defamatory facts would confirm his opinion. Pure opinion is protected under the First Amendment, but mixed opinion is not.

Hay, 450 So.2d at 295 (citations omitted).

A similar commentary appears in Rand v. New York Times Co., 75 A.D.2d 417, 430 N.Y.S.2d 271 (1980):

According to the Restatement ... a mixed opinion "is one which, while an opinion in form or context, is apparently based on facts regarding the plaintiff or his conduct that have not been stated by the defendant or assumed to exist by the parties to the communication." It differs from pure opinion which is "[a] simple expression of opinion based on disclosed or assumed nondefamatory facts...."

Rand, 430 N.Y.S.2d at 274 (citations omitted).

An important factor in the process of analyzing a comment is determining whether the speaker accurately presented the underlying facts of the situation before making the allegedly defamatory remarks. Where the speaker or writer presents the facts at the same time he or she offers independent commentary, a finding of pure opinion will usually result. E.g., Lampkin-Asam v. Miami Daily News, Inc., 408 So.2d 666 (Fla. 3d DCA 1981), review denied, 417 So.2d 329 (Fla.), cert. denied, 459 U.S. 806, 103 S.Ct. 29, 74 L.Ed.2d 44 (1982); Hay v. Independent Newspapers, Inc., supra. Alternatively, even if the speaker or writer does not present the facts, or does not present all of them, like comments may still justify a finding of pure opinion where the facts are already known to the audience. See From v. Tallahassee Democrat, Inc., supra. A number of cases have held that a statement which is pure opinion is such because it is tantamount to rhetorical hyperbole. Rand v. New York Times Co., supra; Tanner v. Western Publishing Co., 682 P.2d 239 (Okla.Ct.App.1984). Conversely, where the speaker or writer neglects to provide the audience with an adequate...