IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-10681
_____________________
JOSEPH C. KETTLES,
Plaintiff-Appellant,
versus
PETROLEUM HELICOPTERS, INC.,
a Delaware Corporation,
Defendant-Appellee.
_______________________________________________________
Appeal from the United States District Court for
the Northern District of Texas
(3:94-CV-25-H)
_______________________________________________________
July 11, 1996
Before REAVLEY, GARWOOD and JOLLY, Circuit Judges.
PER CURIAM:*
Plaintiff/appellant Joseph C. Kettles appeals the district
court’s grant of summary judgment entered in favor of
defendant/appellee Petroleum Helicopters, Inc. (PHI), on
Kettles’s claims for defamation, tortious interference with
business relations, and intentional infliction of mental
distress. We affirm.
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In 1992, Kettles was the West Africa area manager and check
airman for PHI, a world-wide helicopter company primarily
providing helicopter transport to offshore oil rigs. As check
airman Kettles was responsible for recurrent flight training and
check rides for PHI’s pilots in Angola. Kettles was also an
independent aviation consultant providing expert advice to
attorneys in aviation litigation.
This dispute arose out of a helicopter accident on March 15,
1992, involving Kettles, the pilot-in-command, and Mike Jimison,
the pilot Kettles was instructing when the accident occurred.
During an impromptu evaluation, Kettles simulated a high side
governor failure and demonstrated the proper emergency procedure
to follow.1 According to Kettles, Jimison caused the accident
when, without warning and against instructions, he put the
governor switch into manual during the mock emergency, causing an
engine to catch fire and forcing Kettles to take control and land
on the deck of a passing ship.
1
A governor is a device that automatically regulates the
amount of fuel going to the helicopter’s engine. The governor
may fail high (allowing too much fuel to the engine) or low
(allowing too little).
2
Following customary practices, PHI convened a safety board
to investigate the accident and issue a safety report.2 The
report described the incident, the board’s conclusions, and the
board’s ultimate recommendations. The report was sent to many
employees within the company, including area managers, base
maintenance managers, quality assurance personnel, and members of
the roving maintenance team. After the incident, Kettles was
denied a safety award and was removed as a check airman. He did
not lose any pay and remained West Africa area manager.
In January 1993 Kettles received a call from an aviation
litigation defense attorney for whom he was consulting. The
lawyer had heard about the accident and administrative action
involving Kettles and demanded an explanation. Kettles sent a
letter describing the report’s conclusions and his own
explanation to the lawyer, who continued to retain Kettles as a
consultant. Kettles sent similar letters to his other clients.
Kettles brought this diversity suit against PHI, claiming
that its report of the accident defamed him, interfered with his
budding consulting business as an expert in litigation involving
helicopter accidents, and constituted intentional infliction of
mental distress. The district court found that Kettles had not
proved any damages for the defamation and tortious interference
2
The safety board was comprised of Kettles’s supervisor,
PHI’s chief pilot, PHI’s assistant safety director, PHI’s
director of training, PHI’s director of maintenance, an
instructor from the training department, and a line pilot.
3
claims; that Kettles had not argued the report was libelous per
se and in any event the report was not libelous per se; and that
Kettles had no intentional infliction claim because PHI’s conduct
was not extreme and outrageous. In finding no evidence of
damages, the court struck the entire original affidavit and
portions of the supplemental affidavit of Larry Boles, Kettles’
expert witness.
On appeal, Kettles argues that the district court erred in
striking Boles’s affidavits, and that even if the affidavits were
properly struck, the district court erred in concluding that no
genuine issues of material fact existed for any of the three
claims asserted.
ANALYSIS
We review the grant of summary judgment de novo.3 We may
affirm a summary judgment on any valid grounds, and are not
limited to the reasoning employed by the district court in
reaching its own decision.4 A trial court’s ruling on the
3
Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1109
(5th Cir. 1991), cert. denied, 503 U.S. 912, 112 S.Ct. 1280
(1992).
4
Coral Petroleum, Inc. v. Banque Paribas--London, 797 F.2d
1351, 1355 n.3 (5th Cir.), rh’g denied, 801 F.2d 398 (5th Cir.
1986).
4
admissibility of expert testimony is protected by an ambit of
discretion and will be sustained unless manifestly erroneous.5
A. Defamation
A defamation plaintiff must prove that the allegedly
defamatory statements are false and that the defendant’s
publication of the statements proximately caused the plaintiff’s
damages.6 In a libel action the initial question, which is a
question of law, is whether the words used were reasonably
capable of a defamatory meaning.7 The court must construe the
statement as a whole in view of the surrounding circumstances
based upon how an ordinary reader would perceive the entire
statement.8 Only if the court determines that the language is
ambiguous should the jury determine the statement’s meaning.9
We find no ambiguity in the safety report and hold that it
is not defamatory as a matter of law. The safety report first
describes the events preceding, during, and succeeding the
5
Christopherson, 939 F.2d at 1109.
6
Brown v. Petrolite Corp., 965 F.2d 38, 43 (5th Cir. 1992).
7
Musser v. Smith Protective Servs., Inc., 723 S.W.2d 653,
654-55 (Tex. 1987).
8
Brown, 965 F.2d at 43 (citing cases); Musser, 723 S.W.2d at
655.
9
Musser, 723 S.W.2d at 655.
5
accident. The report then reaches four conclusions about the
incident, to be discussed below. Next, the report indicates that
it is to serve as a written reprimand and that Kettles, but not
Jimison, is disqualified for a safety award. Finally, the report
recommends that Kettles should not be retained as a check airman;
that Jimison should undergo a post-incident check ride; and that
the company should reevaluate both the desirability of having
area managers serve as check airmen in remote locations, and the
necessity for check pilot recurrent training.
The report reaches four conclusions, set out verbatim below:
1.) The check pilot was well aware that high side governor
failure demonstrations are not included in the approved
company training manual. This emergency procedure is
to be covered orally.
2.) The check pilot did not follow good, standardized
practices. There was no plan of actin (sic) for the
checkride and no oral prior to the flight. No
preparations led the pilot to expect a check ride, in
fact he believed the only reason the check pilot was
going along on this flight was to take aerial photos.
Only at the time of closing one throttle to idle while
at a hover, did the check pilot mention the possibility
of this trip becoming a check ride.
3.) Good cockpit resource management was not utilized in
either the simulated high side governor failure, nor in
the actual emergency that followed. This was evidenced
by the fact that there was no discussion regarding
confirmation by both pilots prior to moving any
switches and throttles.
4.) The checklist was not used.
6
Kettles cannot deny that he was aware, as conclusion one
states, that high side governor failures were to be covered only
orally. The cockpit recording preceding the accident reveals
that Kettles was aware that high side governor failures were not
part of the standard PHI training program. Kettles does not
assert in his brief that conclusion 1 is false.
Kettles complains that conclusion 2 is false, but he
admitted in his deposition that he did not announce a plan of
action for the check ride before he and Jimison got into the
helicopter; that there was no oral prior to flight; and that he
had done nothing before the flight to lead Jimison to believe he
was to be getting an update on his check ride. Given these
admissions, there is nothing defamatory about conclusion 2.
Kettles complains that conclusion 3 is false because it
faults Kettles for not using “good cockpit resource management.”
As PHI points out, conclusion 3 faults both Kettles and Jimison
for not giving verbal confirmations prior to moving switches or
throttles. The safety report notes that during the mock
emergency Kettles failed to give confirmation to Jimison after
identifying the number 2 governor switch. Kettles has not
disputed the truth of this statement on appeal. Furthermore,
Kettles admitted in deposition that he and Jimison did not speak
to each other during the actual emergency and did not follow
normal, usual and customary crew coordination.
7
Kettles complains that conclusion 4 is false, but again he
admitted in deposition that after the actual emergency he did not
call for or use a checklist.
Finally, Kettles argues that the report as a whole is false
and defamatory because its overall effect is to fault Kettles for
the accident. We believe that those in charge of safety must
have some discretion in determining the cause of accidents, in
reporting them, and in using accident reports to improve safety
in the future. It is clear that the primary focus of the safety
report is on the failure to follow company procedures and the
role that this failure played in the accident. Thus the report
emphasized that (a) Kettles sprang the check ride on Jimison with
no warning; (b) Kettles and Jimison did not give proper
confirmations; and (c) the check ride covered an emergency
procedure that Kettles knew was to be covered only orally.
Pointing this out in a safety report is not defamatory.
Even if we considered the safety report to be ambiguous with
regard to its defamatory nature, we would still hold for PHI on
numerous grounds. We will only briefly discuss two of them.
First, there is no evidence in the record that any third party
has understood the safety report to be defamatory. Without such
evidence, Kettles cannot support an action for defamation.10
10
See Farias v. Bexar County Bd. of Tr. for M.H.M.R. Servs.,
925 F.2d 866, 878 (5th Cir.), cert. denied, 502 U.S. 866, 112
S.Ct. 193 (1991) (citing Texas cases); Adler v. American Standard
Corp., 830 F.2d 1303, 1307 (4th Cir. 1987).
8
Second, the evidence indicates that publication of the
safety report was protected by a qualified privilege. Whether a
qualified privilege exists is a question of law.11 Under Texas
law, “[a] qualified privilege comprehends communications made in
good faith on subject matter in which the author has an interest
or with reference to which he has a duty to perform to another
person having a corresponding interest or duty.”12 References
and accusations made by an employer about an employee to one with
a common interest clearly come within this doctrine.13
Kettles does not argue that PHI published the report to
those outside the company. Rather, Kettles argues that the
safety report was distributed too widely within PHI, to officials
and employees around the world who had no common interest in the
contents of the report. Kettles cites no case law indicating
that publication within a company is not privileged, and on these
facts we refuse to so limit the privilege. The report emphasized
the importance of following company procedures, and was therefore
of broad interest to many in the company, even those not dealing
directly with pilots. We are reluctant in the extreme to tell
the safety director of a helicopter transport company how to do
11
Boze v. Branstetter, 912 F.2d 801, 806 (5th Cir. 1990).
12
Id. (quoting Houston v. Grocers Supply Co., Inc., 625
S.W.2d 798, 800 (Tex.Ct.App. 1981).
13
Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312
(5th Cir. 1995).
9
his job. There is nothing in this record to indicate that those
who sent and received the report lacked a common interest in
safety.
Kettles also complains that a PHI employee informed a third-
party aviation consultant about the accident and the subsequent
investigation. Even if this were a “secondary publication,” it
does not destroy the privilege. Unauthorized gossip spread by
employees does not take the employer outside the scope of their
qualified privilege.14
At oral argument, Kettles’s counsel argued that Kettles was
forced to publish the conclusions of the safety report to
attorneys for whom he was consulting once they learned of the
administrative action taken against him. Kettles failed to brief
the issue of self-compelled publication. We consider the
argument waived.15
The qualified privilege is lost if the plaintiff shows that
the statements were published with actual malice.16 In order to
show actual malice, a plaintiff must show that a defendant
published the statement knowing it to be false, or with a high
14
Danawala v. Houston Lighting & Power Co., 14 F.3d 251, 255
(5th Cir. 1993).
15
However, we note that after Kettles showed the report to
the attorney, the attorney continued to employ Kettles and
Kettles has introduced no evidence that the attorney understood
the safety report to be defamatory.
16
Id.
10
degree of awareness of its probable falsity.17 Negligence, lack
of investigation, or failure to act as a reasonably prudent
person are insufficient to show actual malice.18 Only clear and
convincing proof of malice will defeat the defendant’s
privilege.19
Kettles has presented insufficient evidence to raise a
genuine issue of fact that the report was published with actual
malice. At most, Kettles presented the affidavit of Boles, who
speculated about the mindset of members of the safety board.
Initially, we find no error in the district court’s evidentiary
rulings striking these portions of Boles’s affidavit, for the
affidavit made no showing that Boles was familiar with PHI’s
safety board or had any direct knowledge of their deliberations
or analysis in arriving at their conclusions. But even if we
considered Boles competent to testify on such matters, his
speculations about what the board members must have known or
thought fall short of the quantum of proof necessary to raise a
genuine issue of fact regarding actual malice.
17
Id.
18
Duffy, 44 F.3d at 313.
19
Id.; Howell v. Hecht, 821 S.W.2d 627, 630 (Tex.App.--
Dallas 1991, writ denied).
11
B. Tortious Interference and Intentional Infliction
In order to prevail on a claim of tortious interference with
business relations, a plaintiff must prove: (1) the existence of
an economic right subject to interference; (2) willful and
intentional acts of interference; (3) legal malice; (4) proximate
cause; and (5) actual damage.20 Kettles asserts that the
economic right subject to interference was his aviation
consulting business. We fail to see how PHI interfered with that
business, and our disposition of the defamation claim disposes of
the elements of intent and malice.
In order to prevail on a claim of intentional infliction of
mental distress, a plaintiff must prove that: (1) the defendant
acted intentionally or recklessly; (2) the defendant’s conduct
was extreme and outrageous; (3) the defendant’s conduct caused
emotional distress; and (4) the emotional distress was severe.21
Whether a defendant’s conduct may reasonably be considered
extreme and outrageous is a question of law.22 Texas courts have
defined outrageous conduct as that which goes beyond all possible
bounds of decency and is atrocious and utterly intolerable in a
20
Cadle Co. v. Schultz, 779 F.Supp. 392, 401 (N.D. Tex.
1991).
21
Danawala, 14 F.3d at 256.
22
Id.
12
civilized community.23 There is nothing in this record, viewed
in the light most favorable to Kettles, that leads to a
reasonable inference that PHI’s conduct was extreme or
outrageous.
AFFIRMED.
23
Id.
13