(specially concurring):
Under the compulsion of Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and what appears to be Nevada case law, I concur.
The critical fact in the defamation cause of action was that at least one witness testified that a defendant, in the presence of at least three other members of a sales force, gave as a reason for the plaintiffs success as a sales person: ‘Well, you could sell like that if you had tits and could give a blow job as good as she could.”
This, and similar language used on other occasions by two defendants with reference to the plaintiff, in the work place, was found by the jury to have been uttered, and heard by fellow workers. The jury, not surprisingly, found that the plaintiff was defamed. The defendants moved for judgment as a matter of law on the ground that the Nevada cases have established a rule that in-house libel and slander communicated by one employee to another employee about a third employee is not “published.”
The language which appears to be the fount of this knowledge is as follows: “---- This rule of law as to defamatory communications between officers, agents and employees of a corporation is hereby adopted as the law of the State of Nevada.” Jones v. Golden Spike Corp., 97 Nev. 24, 623 P.2d 970, 971 (1981).
“This rule,” referred to above, was lifted from a Fifth Circuit case saying, inter alia: “This court has held that where the language complained of was communicated only by one corporate officer to another in thé regular course of the corporation’s business, such communication did not amount to a publication which would support an action for libel.” Mims v. Metropolitan Life Ins. Co., 200 F.2d 800, 802 (5th Cir.1952).
Whatever one may think of the Nevada Supreme Court’s selection of language from a federal case, expanding it generously to cover entire work environments, and then enacting it as the law of the State of Nevada, it is not for this court to refuse to apply the substantive law of Nevada in a diversity tort case. The state court, in 1987, had an opportunity to review the matter and chose to follow its earlier case. A Nevada jury had found defamation when a casino customer, suspected of being a card counter, was pursued through one casino and into the doorway of another by security personnel who classified him as a “thief’ and a “trespasser.” The court held that there was no publication, because there was no proof that anyone other than a fellow employee heard the derogatory remarks about the customer, who was not an employee. See M & R Inv. Co. v. Mandarino, 103 Nev. 711, 748 P.2d 488, 491 (1987).
In the diversity case presently before us, the appellant has argued that the damage to one’s reputation from defamation in a work place with many workers can be worse than having the same defamation published in a newspaper. As a matter of common sense, her argument is difficult to refute, but it must be made to the Nevada courts or legislative assembly; we are bystanders in the law making function of the several states.
I concur, but not happily.