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January 2012

Dallas Office Obtains Appellate Victory in Defamation Case and Makes Law

Dallas Senior Counsel Christina McCracken recently prevailed in an appeal heard at the 12th Court of Appeals in Tyler, Texas, in the case of Steven F. Hotze, M.D. vs. Keith M. Miller, M.D.  This was a hotly-contested case involving two physicians sued by another physician for defamation.  What made this case so unique is that the Plaintiff (Miller) sat in an appointed position on the Texas Medical Board (TMB), an executive agency in the State of Texas.  Plaintiff claimed he was defamed by both Defendants based on publications written by them about Plaintiff's conduct while serving on the TMB.  Plaintiff sought $1 million in actual and $3 million in exemplary damages.  Gordon & Rees represented Defendant, Steven F. Hotze.  The other Defendant physician settled prior to the appeal.

Because this case asserted defamation claims, the First Amendment was asserted as a defense.  Texas law allows an expedited appeal to the Court of Appeals of the denial of a Motion for Summary Judgment when a defamation claim is brought and the defense asserts First Amendment protection.  With this expedited procedural mechanism in place, the case was strategically positioned for the filing of a summary judgment in the trial court, with the expectation the motion would not be granted, but that an expedited appeal would be filed in the 12th Court of Appeals for a final determination.

In a published opinion, an undivided Court determined that:  1) Plaintiff was a public official while serving on the TMB; 2) Defendant, although an individual, was considered a "media" defendant due to his journalistic background; and, as a result, 3) the burden shifted to Plaintiff to prove that Defendant published the statements about Plaintiff with actual malice (proof of Defendant's state of mind, which includes knowledge that the statement was false or that it was published with reckless disregard of whether it was true or not).  Because Plaintiff failed to prove actual malice by Defendant, the Court reversed the trial court's denial of Defendant's Motion for Summary Judgment and rendered Plaintiff take nothing on his defamation claim.

The decision marks the first case in Texas to hold that members of the TMB are public officials which, in defamation law, requires a heightened standard of proof.  The decision also joins the ranks of only a few cases in Texas that affirm that individuals with journalistic backgrounds can be considered media defendants in defamation cases.