Kettles v. Petroleum Helicopter

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that this opinion should not be published and is not precedent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.

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 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.

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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