DAMAGES IN MASSACHUSETTS WORKPLACE DEFAMATION CASES

Kevin G. Powers

Robert S. Mantell

March 1997

This article will explore issues relating to damages in Massachusetts workplace defamation actions. For such torts, proof of damages is important for establishing liability, as well as for establishing appropriate recovery.

At common law, victims of defamation could be awarded “presumed” damages, even in the absence of proof of actual damage. Lakian v. Globe Newspaper Co., 399 Mass. 379 (1987).

However, the current state of the law is that there is probably no recovery in slander or libel without proof of actual damage, especially where First Amendment protections apply. See Nolan, 37 Mass. Practice, at 185-8, 193; Lakian, 399 Mass. at 382-4 (where jury found defamation but no actual damage, it was not reversible error for trial judge to dismiss case); Jackson v. Longcope, 394 Mass. 577, 476 N.E.2d 617, 619-20 (1985) (in public figure cases, proof of actual damages may be required); but see Dexter’s Hearthside Restaurant v. Whitehall Co., 24 Mass. App. 217, 221 (1987) (failure to establish out of pocket loss is not tenable basis for granting summary judgment).

The actual damage must be suffered by the party seeking recovery. For example, in Dexter’s Hearthside Restaurant, 24 Mass. App., at 218, a corporate officer’s defamation claim based on the Defendant’s statement about the corporation, was dismissed, because an officer of a corporation may not recover damages for a libel published about the corporation.

Slander claims based on statements that are not within the slander per se categories, i.e. charges of criminal conduct, or misconduct in public office, etc. (see Nolan, 37 Mass. Practice, at 192), were historically non-actionable if there were no allegations of, or proof of, special damages. That is, for some slander actions, special damages must be specifically alleged and proven, or else no finding of liability will obtain.[1] Craig v. Proctor, 229 Mass. 339, 118 N.E. 647, 647-8 (1918) (slander claims based on statements not falling within slander per se categories must include allegations of special damages, or else are non-actionable); Lynch v. Lyons, 20 N.E.2d 593, 594 (Mass. 1939) (same); Morrill v. Crawford, 278 Mass. 250, 179 N.E. 609, 610 (Mass. 1932) (same).

Thus, it is important to consider damages at the outset of the case, even if the action is brought solely on principle.

I. Types of Damages Available

Damages in a defamation case are limited to actual damages, which are compensatory for the wrong that has been done. Actual injury includes not only out-of-pocket expenses, but also harm inflicted by impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Draghetti v. Chmielewski, 416 Mass. 808, 815-6 (1994); Dexter’s Hearthside Restaurant, 24 Mass. App., at 220.

Damages for alienation of friends, and physical illness are recoverable. See Nolan, 37 Mass. Practice, at 193. Pain inflicted from seeing family members suffer because of a defamatory attack are recoverable. Brewster v. Boston Herald-Traveler Corp., 188 F. Supp. 565, 575 (D. Mass. 1960).

A plaintiff may recover lost wages and benefits if the defamation caused him or her to lose employment. Tosti v. Ayik, 400 Mass. 224, 228 (1987). At some point, lost future wages might not be recoverable unless there is evidence that the defamatory statements caused prospective employers to reject plaintiff’s applications for employment. Tosti v. Ayik, 394 Mass. 482, 476 N.E.2d 928, 939 (1985).

A corporation may not recover for emotional distress and humiliation. A corporation may recover for damage to its reputation to conduct its affairs honestly and competently, even without establishing out of pocket losses. Dexter’s Hearthside Restaurant, 24 Mass. App., at 220.

Although a libel plaintiff who cannot prove damages is normally entitled to nominal damages if she was libeled, First Amendment considerations necessitate the dismissal of claims against public figures where solely nominal damages may be recovered. Jackson, 394 Mass. 577, 476 N.E.2d, at 619-20 (“In any event, we accept the principle that a libel-proof plaintiff is not entitled to burden a defendant with a trial in which the most favorable result the plaintiff could achieve is an award of nominal damages”). In Lakian, 399 Mass., at 382-4, the Court held open the possibility that a plaintiff could receive nominal damages in absence of actual damage. Nevertheless, the Court refused to require the award of nominal damages where the jury found the existence of defamation but failed to find any actual damages. Id.

No punitive damages or exemplary damages are permitted in libel or slander actions. G.L. c. 231, § 93; Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 330 N.E.2d 161, 169 (1975). Generally, no attorneys fees are awarded to those prevailing under Massachusetts tort law.

Special Damages

Plaintiffs may recover damages naturally and necessarily to be expected from the defamatory publication. Muchnick v. Post Pub. Co., 332 Mass. 304, 308 (1955). Such damages are called “general damages.”

“Special damages” are damages that are naturally, but not necessarily, caused by defamation. Craig v. Proctor, 229 Mass. 339, 118 N.E. 647, 648 (1918). Special damages are recoverable, but only if they are specifically described in the Complaint. Muchnick, 332 Mass., at 308.

An example of special damages is as follows: where a lawyer was defamed, and the defamation was not concerning the lawyer in his profession, the lawyer’s loss of clients is considered special damages. Id. The fact that the defamation was not concerning the lawyer in his profession means that the loss would not be necessarily expected from the defamatory publication. Id. see also Craig v. Proctor, 229 Mass. 339, 118 N.E. 647, 648 (1918) (special damages demonstrated where third parties severed business relationships with Plaintiff due to Defendant’s slander); Bander v. Metropolitan Life Ins. Co., 47 N.E.2d 595, 601 (Mass. 1943) (refusal of third parties to hire Plaintiff based on Defendant’s defamatory statement could constitute special damages, but neither Plaintiff’s emotional distress, nor loss of his job with Defendant constituted special damages); Morrill, 278 Mass. 250, 179 N.E., at 611 (humiliation and injury to reputation are general damages, not special damages); see also Tosti, 394 Mass. 482, 476 N.E.2d, at 938 (special damages suffered that have been pleaded and proved, are recoverable); Lewis v. Vallis, 356 Mass. 662, 255 N.E.2d 337, 339 (1970).

II. Quantum of Evidence Necessary to Prove Damages

The amount of evidence necessary to support a finding of actual damage is an open question, and depends heavily on the facts. In Tosti v. Ayik, 400 Mass. 224, 229 (1987), the SJC recognized that damages resulting from personal humiliation and mental anguish are compensable even though their translation into money damages is necessarily imprecise. The SJC referred to Tosti’s evidence demonstrating harm to Tosti’s reputation and emotional suffering as “sparse indeed,” and noted that Tosti did not received any medical or psychiatric treatment as a result of the defamation. Tosti, 394 Mass. 482, 476 N.E.2d at 939. Nevertheless, the Court found that there was enough evidence of injury, observing:

Despite this characterization . . . we must acknowledge that the evidence did portray a man who, before being discharged by G.M., owned two homes that he had to sell as a result of the defendant’s conduct, uprooting his family from an area in which they had lived their entire lives. Also, there was evidence that the plaintiff and his family were forced to relocate seven times to various rental properties, sell their furniture, and borrow money from relatives to survive, and there was evidence of a deterioration in the plaintiff’s social life.

Tosti, 400 Mass., at 229. The Court upheld a substantial award, which, with interest included, came to $428,187.17.

In the case of Draghetti v. Chmielewski, 416 Mass. 808, 817 (1994), the Court upheld an award of damages based on the following evidence:

the articles were published in a newspaper of general circulation throughout the area. In essence, they accused Draghetti, a police officer, of a crime. Draghetti testified that he was ridiculed by his colleagues; a strong indication that his reputation had been damaged. He experienced emotional distress, which resulted in marital stress and physical symptoms.

Id.

The case of Bowman v. Heller, 1 Mass. L. Rptr. No. 3, 51, 58 (September 27, 1993), is an example of a failure to prove damage adequately. Bowman posted a copy of a memorandum stating that she was a victim of a Heller’s “sexual assault.” However, Heller’s defamation claim against Bowman was dismissed for a variety of reasons, including because Heller did not present more than his own speculation as to how the statements damaged his reputation or held him up to ridicule and contempt. In addition, Heller failed to offer corroborating testimony concerning injury, and submitted only vague testimony about his emotional distress. Because Heller provided insufficient evidence on the issue of damages, he could not prevail on the issue of liability. Id.[2]

III. Enhancement or Mitigation of Damages

A Defendant may seek to mitigate damages by proving that the plaintiff created a reasonable suspicion that the allegations concerning the plaintiff were true. G.L. c. 231, § 94. Moreover, a Defendant may seek to mitigate damages by publishing a retraction. Id. In order to benefit from this doctrine of mitigation by retraction, the Defendant must inform the Plaintiff in writing of the Defendant’s intent to publish the retraction, prior to the deadline for filing Defendant’s Answer. Id.

Damages may be enhanced or decreased, depending on evidence of Plaintiff’s high or low standing in the community. Nolan, 37 Mass. Practice, at 191. Proof of actual malice does not enhance the damages recoverable for injury to the plaintiff’s reputation. G.L. c. 231, § 93.

Damages may be mitigated upon proof that Plaintiff has already recovered for, or has agreed to receive compensation, in respect of the libel at issue. G.L. c. 231, § 94.

IV. Non-Exhaustive List of Massachusetts Jury Awards on Defamation Claims

Foley v. Polaroid Corp., 400 Mass. 82 (1987) (jury awarded $1,000,000 on defamation claim where statements indicated that an employee engaged in misconduct and was drinking; jury award vacated based on defense of conditional privilege).

Tosti v. Ayik, 400 Mass. 224 (1987) (libel suit against author of union newspaper article, and against union, resulted in jury verdicts of $5,000.00 and $495,000, respectively. The $5,000.00 award was vacated, and the other award was remitted to $275,000, which, with interest constituted a judgment of $428,187.17).

Cole v. Westinghouse Broadcasting Co., 386 Mass. 303 (1982) ($100,000.00 award where reporter was alleged to have been fired as a result of sloppy and irresponsible reporting, vacated because allegedly defamatory statement was statement of opinion).

Ezekiel v. Jones Motor Co., 374 Mass. 382 (1978) ($43,120.00 awarded by jury in case where Defendants allegedly made statement at a union grievance hearing that Plaintiff was seen stealing products).

Sibley v. Holyoke Transcript-Telegram Publishing Co., 391 Mass. 468 (1984) (where reporter revealed basis for criminal investigation concerning Sibley and his company, jury awarded Sibley $30,000, and his company nothing. The award was reversed based on the fact that the alleged defamation was privileged as a fair report of judicial proceedings).

Pattison v. Town of South Hadley, C.A. No. 92-12378 , 22 M.L.W. 1510-1 (D. Mass. 1994) (jury verdict of $10,000.00 for libel, where employee was subject of letter accusing him of intending to defraud the town).

Draghetti v. Chmielewski, 416 Mass. 808 (1994) (chief of police’s statements to the effect that there was sufficient cause to suspect a police officer of criminal impropriety warranted jury verdict of $50,000.00 in damages).

St. Clair v. Trustees of Boston University, 25 Mass. App. 662 (1988) (jury verdict of $75,000 in slander case where Plaintiff’s prospective employer was told that Plaintiff had a problem with “dishonesty concerning money”; verdict vacated to the extent that Plaintiff recovered duplicative damages under tortious interference with contractual relations count, and the fact that charitable immunity statute applied)

Rogers v. X-Cel Plastics Corp. 6 Mass. Conn. R.I. Verdict Reporter, at 363 (1994) ($20,000 verdict for malicious prosecution and defamation claims where Plaintiff was discharged based on co-workers allegation that Plaintiff stole materials).

Plouffe v. Charon, 5 Mass. Conn. R.I. Verdict Reporter, at 108 (1993) (defendant police force filed criminal complaint against Plaintiff, allegedly without adequate investigation; jury verdict of $26,000 in punitive damages against individuals).

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[1] Special damages will be described further below.

[2] A later manifestation of this case was Bowman v. Heller, 420 Mass. 517 (1995), in which the SJC considered a First Amendment challenge a verdict in favor of Bowman on her claim of intentional and reckless infliction of emotional distress. Bowman’s claim against Heller arose from a workplace incident in which Bowman, candidate for union election, was portrayed in pornographic caricatures by Heller. The SJC upheld the verdict, finding that Bowman was not a public figure for First Amendment purposes. Heller’s defamation counter-claim was not at issue before the SJC.