Opinion
Civil Docket No.: CL17-2351
03-20-2018
RE: Jesse Andre Thomas v. Elizabeth M. Psimas
Christian L. Connell, Esq.
Christian L. Connell, P.C.
555 East Main Street, Suite 1102
Norfolk, VA 23510 Alan B. Rashkind, Esq.
James A. Cales, III, Esq.
Furniss, Davis, Rashkind, and Sunders, PC
6160 Kempsville Circle, Suite 341B
Norfolk, VA 23502 Dear Counsel:
This matter comes before the Court on Defendant Elizabeth M. Psimas' Motion in Limine Re Pecuniary Damages. Defendant seeks to exclude any evidence of pecuniary damages such as loss of income, based on Plaintiff's failure to disclose any witness or exhibit that supports the claim that any such loss resulted from the alleged defamation. Plaintiff argues in opposition that these damages are presumed in cases' involving defamation per se. Because Virginia law provides that presumed damages include only injury to reputation, humiliation, and embarrassment, and not out-of-pocket losses such as lost income, the Court SUSTAINS Defendant's Motion.
FACTUAL BACKGROUND
Plaintiff Jesse Thomas formerly served as Portsmouth City Auditor. Defendant Elizabeth Psimas serves on the Portsmouth City Council. Plaintiff claims that on March 8 or 9, 2016, Defendant made statements that were defamatory per se to a WAVY-TV 10 reporter that were later transmitted to the public through the internet and television. Plaintiff alleges the statements relate to his fitness and integrity to perform his professional duties. Plaintiff was fired from his position as Portsmouth City Auditor on April 26, 2016. The parties have stipulated that Plaintiff is a public figure who will be held to the stricter requirements articulated in N.Y. Times, Co. v. Sullivan, 376 U.S. 254 (1964), and its progeny.
Plaintiff does not allege in his Second Amended Complaint that the City Council fired him from his position as Portsmouth City Auditor as a result of Defendant's alleged defamation. However, he claims that the defamatory statement "negatively impacted [his] ability to obtain employment both at the time and into the foreseeable future. Thomas was unemployed from April 2016 until July 25, 2017... He had been earning roughly $95,000 ... when he was terminated by City Counsel. He is currently making $60,000 per year." (Def.'s Br. in Supp., Ex. 2 at 5.)
ANALYSIS
"[D]efamatory words which are actionable per se . . . '[include t]hose which impute to a person unfitness to perform the duties of an office or employment of profit, or want of integrity in the discharge of the duties of such an office or employment.'" Great Coastal Express v. Ellington, 230 Va. 142, 146-47 (1985) (quoting Fleming v. Moore, 221 Va. 884, 889 (1981)). Unlike general defamation, defamation per se presumes damage to reputation, humiliation, or embarrassment; and such damage need not be proven. Poulston v. Rock, 251 Va. 254, 260-61 (1996) (citing Slaughter v. Valleydale Packers, Inc., 198 Va. 339, 347 (1956) and Great Coastal Express, 230 Va. at 152).
In contrast, actual or special harm "is the loss of something having economic or pecuniary value... [and there is a] limitation that has persisted in the requirement that special harm [] serve as a foundation of an action for slander that is not actionable per se." RESTATEMENT (SECOND) OF TORTS § 575, cmt. b (AM. LAW INST. 1977). Special damages are further defined as having "actually occurred as the result of or consequence of the injury complaint of, and not implied by law." MICHIE'S JURISPRUDENCE § 33 (Matthew Bender & Co. 2015). "[S]pecial damages cannot be recovered for a publication libelous per se without an allegation and proof of loss or damages as a consequence of the publication." MICHIE'S JURISPRUDENCE § 33 (Matthew Bender & Co. 2015).
Case law supports the separation of pecuniary damage from damage to reputation, humiliation, or embarrassment. In WJLA-TV v. Levin, the Court determined that the plaintiff was entitled to recover "presumed as well as actual damages." 264 Va. 140, 156 (2002). In Shnupp v. Smith, the Court confirmed that in a case involving only presumed damages for reputational injury the jury "could not consider evidence of pecuniary loss, out-of-pocket expense and injury to business." 249 Va. 353, 366 (1995); see also Poulston, 251 Va. at 261 (finding that "in the absence of [] pecuniary loss, the damages which the injured party is entitled to recover may be substantial").
The Virginia Model Jury Instructions likewise separate presumed damages for harm to reputation, humiliation and embarrassment, which may be recovered without proof of pecuniary injury (VMJI No. 37.105) from "actual out-of-pocket losses" that must be proven to be "caused by the statement" (VMJI No. 37.100).
CONCLUSION
Pecuniary damages in defamation cases, unlike presumed damages, must be proven to be causally related. The jury will not be permitted to consider Plaintiff's claim for pecuniary damages, including lost income, based upon Plaintiff's failure to describe evidence suggesting that such damages were caused by the alleged defamation.
Counsel argued at oral argument that Plaintiff should not be permitted even to mention his period of unemployment following the alleged defamation. Such evidence could potentially be relevant to humiliation, embarrassment or reputational harm; and the Court therefore reserves ruling on the admissibility of such evidence until trial.
Counsel for the Defendant is directed to prepare and submit an Order incorporating this opinion and sustaining the Motion in Limine.
Sincerely,
/s/
Mary Jane Hall
Circuit Court Judge MJH/MAN/nm