Present: All the Justices
WJLA-TV, ET AL.
OPINION BY
v. Record No. 012050 JUSTICE LAWRENCE L. KOONTZ, JR.
June 7, 2002
STEPHEN M. LEVIN, M.D.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jonathan C. Thacher, Judge
In this appeal, we consider various issues arising out of a
judgment in favor of the plaintiff in an action alleging common
law defamation and the unauthorized use of the plaintiff’s image
for advertising purposes in violation of Code § 8.01-40(A).
Much of the evidence adduced at trial was in conflict. However,
applying settled appellate principles, we review the evidence
and all reasonable inferences flowing therefrom in a light most
favorable to the plaintiff-appellee, who prevailed in the trial
court. RF&P Railroad v. Metro. Wash. Airports Auth., 251 Va.
201, 208, 468 S.E.2d 90, 94 (1996). Additionally, we will
recite the voluminous evidence in summary fashion, stating only
the facts and proceedings relevant to appellants’ five
assignments of error, which we will address seriatim. 1 Majorana
1
The trial court record includes more than 3100 pages of
pleadings and court documents, thirteen volumes of trial
transcripts, several more volumes of deposition transcripts, and
hundreds of pages of exhibits.
v. Crown Central Petroleum Corp., 260 Va. 521, 523, 539 S.E.2d
426, 427 (2000).
BACKGROUND
In early 1997, Stephen M. Levin, M.D., an orthopedist whose
professional office is located in Vienna, Virginia, was the
subject of a hearing held by the Virginia Board of Medicine
concerning complaints filed by a number of his female patients
who asserted that certain treatment by him had been medically
inappropriate. The specific medical condition involved was
“piriformis syndrome,” which may be defined generally as a
condition in which the piriformis muscle in the buttock
irritates the sciatic nerve causing pain in the buttock, lower
back, and leg. Dr. Levin’s treatment for piriformis syndrome
involves intravaginal manipulation of the piriformis muscle.
The Board of Medicine dismissed those complaints. One of
the complaining patients publicly criticized the Board’s
decision and brought her complaints to the attention of the
media defendants in the present case. The media defendants’
actions in investigating Dr. Levin’s treatment for piriformis
syndrome and in broadcasting reports concerning that
investigation spawned the present litigation.
On May 28, 1999, Dr. Levin filed a motion for judgment in
the Circuit Court of Fairfax County against WJLA-TV, Allbritton
Communications Company, Allbritton Groups, Inc., Perpetual
2
Corporation, and against Candace Mays and Archie Kelly, two of
WJLA-TV’s newsroom employees, individually (collectively, WJLA).
WJLA-TV broadcasts on Channel 7 in the Washington, D.C.
metropolitan area, including Vienna, Virginia. Relevant to this
appeal, Dr. Levin alleged in count one of his motion for
judgment, and again in a second amended motion for judgment,
that WJLA defamed Dr. Levin in a news story aired as part of
WJLA-TV’s 11:00 p.m. broadcast on November 18, 1997, and in
advance advertisements and promotional announcements relating to
that news story, by accusing him of sexually assaulting female
patients and performing inappropriate medical procedures.
The broadcast of the news story, which identified Dr. Levin
by name and used his image, recounted the allegations of several
of Dr. Levin’s female patients that they had been subjected to
“inappropriate pelvic exams” during treatment by Dr. Levin for
piriformis syndrome. The broadcast recounted that despite the
testimony of other female patients with similar complaints about
his treatment of them, the Board of Medicine had closed the case
against Dr. Levin for insufficient evidence. The broadcast also
recounted that one of Dr. Levin’s patients had filed a
$1 million law suit against him as a result of his treatment of
her. The broadcast included the videotaped statements of Dr.
Loren M. Fishman, who was described as having “literally
[written] the book on piriformis syndrome,” and who was reported
3
to have said that he had never heard of “vaginal manipulation”
as a treatment for this syndrome. Also included were assertions
that leading experts from George Washington University Hospital
and the Mayo Clinic in Rochester, Minnesota had said that they
had never heard of treating piriformis syndrome by “vaginal
manipulation.” Finally, the broadcast concluded with a
statement that Dr. Levin “has denied doing anything wrong,” but
that he “declined an on camera interview.”
In promotional announcements preceding the broadcast, WJLA
referred to its “undercover” investigation “expos[ing] the
intimate violation of women at the hands of their doctor,” which
amounted to “sexual assault,” and repeatedly referred to the
unnamed subject of the news story as “the ‘Dirty Doc’ ” and “the
X-Rated Doctor.” Two of the televised promotional announcements
featured Dr. Levin’s image, which Candace Mays had obtained
without his permission by using a hidden videocamera while
posing as a patient at his office.
Dr. Levin alleged that he had suffered unspecified “general
and special damages” as a result of the defamatory statements.
He further alleged that WJLA had been negligent in making the
defamatory statements and that they had done so with actual
malice, either knowing that the statements were false or in
reckless disregard of the truth or falsity of the statements.
4
In count five of the motion for judgment, Dr. Levin alleged
that the use of his image without his consent in two of the
televised promotional announcements constituted a
misappropriation of his likeness for advertising or trade
purposes in violation of Code § 8.01-40(A). Dr. Levin alleged
that as a result of this misappropriation he had suffered
humiliation, mental anguish, and damage to his status and
reputation.
In a general ad damnum clause at the conclusion of the
amended motion for judgment, Dr. Levin sought $30 million in
compensatory damages. He also sought $350,000 in punitive
damages.
WJLA filed an answer generally denying the allegations of
Dr. Levin’s amended motion for judgment. WJLA also raised
various affirmative defenses, including assertions that the
alleged defamatory statements were newsworthy and fair comment
on a matter of public concern. Additionally, WJLA asserted that
their use of Dr. Levin’s image was not in violation of Code
§ 8.01-40 because it was used to promote a newsworthy story and
not for advertising.
A jury trial was held in the trial court and extended over
a period of three weeks. The respective positions of the
parties that developed from the evidence during the trial, and
5
which they have continued to maintain in this appeal, can be
summarized fairly as follows.
Dr. Levin presented evidence that he had practiced
orthopedic medicine for more than thirty years. He established
that diagnosing piriformis syndrome through intravaginal
manipulation of the piriformis muscle is a recognized medical
procedure. He also established that he was regarded by some as
an expert in the field of the diagnosis and treatment of
piriformis syndrome, having diagnosed and treated thousands of
patients for this condition, having written articles and given
lectures on his treatment modality of this syndrome, and having
received referrals from other doctors for his treatment of this
syndrome. Dr. Levin also presented evidence that his treatment
modality is widely accepted in the medical community.
Dr. Levin presented evidence that the complaints to the
Board of Medicine were made by a small number of his patients
who were included among those interviewed by WJLA for the news
story. He contended that the Board of Medicine had conducted a
thorough investigation and had dismissed their complaints, fully
exonerating him of any wrongdoing.
Dr. Levin further established that approximately five
months after the Board of Medicine had concluded its
investigation, Candace Mays, a television news producer, was
contacted by Jean Jessup, one of the patients whose complaint
6
had been reviewed by the Board of Medicine. Based on this
contact, and despite having been informed by the Board of
Medicine that Dr. Levin had been exonerated of any wrongdoing,
Mays and Archie Kelly, a television news reporter, ultimately
determined to make Dr. Levin the subject of an undercover
investigation to be broadcast during the television ratings
“sweeps” period in November 1997.
At the conclusion of Dr. Levin’s case-in-chief, WJLA moved
to strike his evidence regarding counts one and five of the
motion for judgment and filed briefs in support of those
motions. The trial court denied both motions. WJLA also filed
a motion and supporting brief to bar any claim by Dr. Levin for
damages to his incorporated medical practice. The arguments
made on these motions form the basis for much of the argument of
the issues raised in this appeal and, accordingly, we will
address them in more detail within our subsequent discussion of
the individual assignments of error.
WJLA presented, among other things, testimony from nine of
Dr. Levin’s patients and a medical expert. Each patient
testified to her subjective belief that Dr. Levin’s treatment
had been abusive and humiliating. Some of the patients also
testified that Dr. Levin had fondled their breasts on what they
considered to be a pretext of performing exams for breast
cancer.
7
Dr. William C. Lauermann, an orthopedic surgeon, testified
on behalf of WJLA that piriformis syndrome is a controversial
diagnosis. Dr. Lauermann further testified that in his opinion
intravaginal manipulation of the piriformis muscle would not be
a proper treatment modality for piriformis syndrome, which is
generally treated with rest, physical therapy, and anti-
inflammatory drugs. Dr. Lauermann also testified that
performing breast exams was “completely out of the realm of
orthopedics.”
The jury returned its verdict in favor of Dr. Levin on
counts one and five of the motion for judgment, awarding him
$2 million damages for defamation and $575,000 for the
unauthorized use of his image. 2 WJLA filed a post-verdict
“motions to strike Count Five . . . and for a new trial on Count
One and Count Five.” In a final judgment order dated June 22,
2001, the trial court denied the post-verdict motions and
entered judgment for Dr. Levin on the jury’s verdict. In an
order dated December 20, 2001, we awarded WJLA this appeal.
2
Prior to submitting the case to the jury, Dr. Levin
withdrew his claim for punitive damages and no punitive damages
were awarded to him.
8
DISCUSSION
Assignments of Error
WJLA assigns five errors to the judgment of the trial
court:
1. The Trial Court erred by declining to hold that
each of the six separate publications at issue
are not actionable as a matter of law.
2. The Trial Court erred by submitting to the jury a
verdict form that permitted it to base its
verdict on six separately allegedly defamatory
publications collectively.
3. The Trial Court erred by failing to strike Count
5 or to set aside the verdict because the record
does not support a cause of action for violation
of Va. Code § 8.01-40(A).
4. The Trial Court erred by failing to set aside or
reduce the jury’s $2,000,000 defamation award of
undifferentiated actual and presumed damages.
5. The Trial Court erred by declining to instruct
the jury that it could not award damages based on
the decline in value of Dr. Levin’s incorporated
medical practice.
Whether the Publications were Defamatory
In count one of his motion for judgment, Dr. Levin cited
collectively the following statements made or published by WJLA
as having defamed him:
An advertisement in the Washington, D.C. metropolitan area
television supplement of the Washington Post that read:
Q: When does a physical examination become a sexual
assault? A: When you go to the ‘Dirty Doc’.
9
FIND OUT WHAT THIS ‘DOCTOR’ HAS DONE AND YOU’LL BE
APPALLED. FIND OUT HOW MANY WOMEN HE HAS DONE IT TO
AND YOU’LL BE ASTONISHED. THE DETAILS ON THE ‘DIRTY
DOC’ IN A NEWS 7 SPECIAL REPORT
TONIGHT 11:00
An advertisement played on various radio stations in the
Washington, D.C. metropolitan area that stated:
A story so outrageous it almost defies description.
There is a local doctor here who has a very, very
peculiar method for treating his patients. He calls
it a cure. The women who have received his treatment
call it sexual assault. What exactly does he do?
When you find out, you’ll be outraged. When you find
out how many women he has done it to, you’ll be
amazed. Reminder: The X-rated doctor, tonight on News
7 at 11:00.
A promotional segment on WJLA featuring Dr. Levin’s image
with an audio announcement that stated:
“When does a doctor’s treatment become a sexual
assault? The story Tuesday at eleven.”
Another similar segment featuring Dr. Levin’s image with an
audio announcement that stated:
“News 7 goes under cover to expose the intimate
violation of women at the hands of their doctor.
Don’t miss this special report Tuesday on News 7 at
eleven.”
Dr. Levin also asserted that various statements made during
the broadcast of the news story on November 18, 1997, were
defamatory. Those statements included references to “vaginal
manipulation,” “highly unusual pelvic examinations,” and
“inappropriate pelvic exams.” Dr. Levin asserted that these
10
terms were intended to convey that his treatment modality for
piriformis syndrome was not a medically recognized procedure and
were intended to convey that he had sexually assaulted his
patients.
Dr. Levin also asserted that he was defamed by statements
made to Dr. Fishman by Mays and Kelly that they were
investigating an unnamed doctor who was “sexually approaching
his female patients,” “digitally stimulating [his patients] in
the vagina and causing pain to them,” and similar statements.
It was subsequently established at trial that Dr. Levin
contacted Dr. Fishman, after Dr. Fishman had spoken with Mays
and Kelly, and provided him with details of his professional
background and the procedure he performed on his patients with
piriformis syndrome. After receiving this information, Dr.
Fishman contacted WJLA and retracted statements that he had made
during the taped interview that he considered the unnamed
doctor’s actions to be inappropriate. Nonetheless, WJLA cited
Dr. Fishman in its news story as confirming that the procedure
was not medically appropriate.
“Whether statements complained of in a defamation action
fall within the type of speech which will support a state
defamation action is a matter for the trial judge to determine
as a matter of law” before the matter may be properly submitted
11
to the jury. Yeagle v. Collegiate Times, 255 Va. 293, 296, 497
S.E.2d 136, 138 (1998).
[A defamation] plaintiff must show that the alleged
[defamation] was published “of or concerning” him. He
need not show that he was mentioned by name in the
publication. Instead, the plaintiff satisfies the ‘of
or concerning’ test if he shows that the publication
was intended to refer to him and would be so
understood by persons reading [or hearing] it who knew
him . . . . But if the publication on its face does
not show that it applies to the plaintiff, the
publication is not actionable, unless the allegations
and supporting contemporaneous facts connect the
[defamatory] words to the plaintiff.
The Gazette, Inc. v. Harris, 229 Va. 1, 37, 325 S.E.2d 713, 738
(1985) (internal citations omitted).
WJLA asserts in its first assignment of error that none of
the publications in question are actionable in defamation as a
matter of law and, accordingly, that the trial court erred by
failing to strike count one of Dr. Levin’s motion for judgment
at the conclusion of his case-in-chief. Our consideration of
this issue, however, is limited by the procedural posture in
which it necessarily comes to us in this particular case. At
trial, without objection by WJLA, the trial court granted Dr.
Levin’s requested instruction 27 which told the jury that it
could return a verdict for Dr. Levin if he proved by the greater
weight of the evidence that WJLA made “any one” of the
statements in question. Accordingly, WJLA has waived the issue
whether all the publications are actionable and has limited our
12
independent review of the record regarding this assignment of
error to whether any one publication was actionable as a matter
of law.
As we have noted above, in the trial court the various
alleged defamatory publications were collectively asserted and
presented as one count of defamation. While it is true, as WJLA
points out, that each publication of a defamatory statement is a
separate tort and, indeed, generally subsequent republications
of such a statement are separate torts, Weaver v. Beneficial
Finance Co., 199 Va. 196, 199, 98 S.E.2d 687, 690 (1957), a
plaintiff is not required to bring a defamation action in that
fashion. Of course, a plaintiff is not entitled to recover
damages for publications that are not actionable as a matter of
law or that are not proven to be “of or concerning” him.
However, we are of opinion that statements or publications by
the same defendant regarding one specific subject or event and
made over a relatively short period of time, some of which
clearly identify the plaintiff and others which do not, may be
considered together for the purpose of establishing that the
plaintiff was the person “of or concerning” whom the alleged
defamatory statements were made. This is so even where the
publication identifying the plaintiff is made subsequent to
those that do not identify him. See M.C. Dransfield,
Annotation, What evidence is admissible to identify plaintiff as
13
person defamed, 95 A.L.R.2d 227 § 4 (1964); see also Gelencser
v. Orange County Publications, 498 N.Y.S.2d 13, 14 (N.Y. App.
Div. 1986) (no error to permit plaintiff to include allegations
that references from which he could be identified that appeared
in subsequent news story concerning allegations of child abuse
provided the context whereby he could be identified as the
subject of two prior articles which used fictitious names).
This principle is manifestly applicable to the undisputed
facts of the present case. The thrust of Dr. Levin’s claim of
defamation was that WJLA’s publications collectively accused him
of sexually assaulting some of his female patients under the
guise of treating them for piriformis syndrome. It is
undisputed that all of WJLA’s publications concerned Dr. Levin’s
treatment modality and were made within a relatively short
period of time. WJLA concedes that its televised promotional
publications, which included Dr. Levin’s images, were “of or
concerning” Dr. Levin. That being the case, it cannot be said
that the other publications, including the statements to Dr.
Fishman, considered collectively were not as a matter of law “of
or concerning” Dr. Levin.
In The Gazette, we held, as a matter of state law, that
[I]n an action brought by a private individual to
recover actual, compensatory damages for a defamatory
publication, the plaintiff may recover upon proof by a
preponderance of the evidence that the publication was
false, and that the defendant either knew it to be
14
false, or believing it to be true, lacked reasonable
grounds for such belief, or acted negligently in
failing to ascertain the facts on which the
publication was based . . . . In addition, . . . such
liability may be based upon negligence, whether or not
the publication in question relates to a matter of
public or general concern.
229 Va. at 15, 325 S.E.2d at 724-25.
We went on to say that “this negligence standard is
expressly limited, however, to circumstances where the
defamatory statement makes substantial danger to reputation
apparent.” Id., 325 S.E.2d at 725. Whether a defamatory
statement “makes substantial danger to reputation apparent” is a
question of law to be resolved by the trial court. Id.
As to each of the alleged defamatory publications, it is
self-evident that when these statements are understood to apply
to Dr. Levin, it is manifestly apparent that they posed a
substantial danger to his reputation as a physician. Moreover,
in its brief in support of the motion to strike count one of the
motion for judgment at the conclusion of Dr. Levin’s case-in-
chief, WJLA conceded that “[l]ooked at most favorably to [Dr.
Levin] . . . there may be negligence.” 3 For these reasons, the
3
During the trial, WJLA at times contended that Dr. Levin
was a public figure and, thus, could prevail only upon a showing
of actual malice. WJLA has not expressly raised this contention
on appeal. Moreover, it is apparent on the record that Dr.
Levin “did not occupy a position of ‘such persuasive power and
influence’ [in society] that he could be deemed a public figure”
for all purposes, Fleming v. Moore, 221 Va. 884, 891-92, 275
15
trial court did not err in concluding that there was sufficient
evidence to submit to the jury the issue whether WJLA was
negligent in making any of the six publications and, if so, for
a determination of the actual damages Dr. Levin suffered as a
result.
WJLA asserts, however, that because Dr. Levin sought
presumed as well as actual damages, the trial court was required
to make the further determination whether there was evidence of
actual malice before submitting the case to the jury. See Gertz
v. Robert Welch, Inc., 418 U.S. 323, 349 (1974); Shenandoah
Publishing House v. Gunter, 245 Va. 320, 324, 427 S.E.2d 370,
372 (1993). WJLA contends that there was insufficient evidence
of actual malice and, thus, the trial court erred in submitting
each of the six instances of publication to the jury with
instructions that presumed damages could be awarded.
In the context of a claim of defamation, “actual malice,”
often called New York Times malice in reference to the United
Stated Supreme Court’s decision in New York Times v. Sullivan,
376 U.S. 254 (1964), requires that “the plaintiff show[] that
S.E.2d 632, 637 (1981), nor would the fact that he was a subject
of complaints to the Board of Medicine place him so
significantly in the public eye as to make him a “public figure”
except for the limited purpose of reporting on the specifics of
the Board’s public proceedings. Accordingly, in this case Dr.
Levin is to be considered a private individual for purposes of
his claims against WJLA.
16
the defendant knew the publication to be false or evidenced
reckless disregard for the truth.” Great Coastal Express, Inc.
v. Ellington, 230 Va. 142, 149, 334 S.E.2d 846, 851 (1985). We
agree with WJLA that where a private individual alleges
defamation by a news-media defendant involving a matter of
public concern, presumed damages cannot be awarded in the
absence of actual malice. Id.
In instructing the jury, the trial court directed that the
jury should answer the following special interrogatory after
reaching its verdict on the claim for defamation:
If you found for Dr. Levin on the Defamation
count against [WJLA], do you further find by clear and
convincing evidence that [WJLA] knew the defamatory
statements were false or made them so recklessly as to
amount to a willful disregard for the truth, that is
with a high degree of awareness that the statements
probably were false?
The jury responded in the affirmative. Thus, although we
conduct an “independent examination of the whole record” to
determine whether the evidence was sufficient to support a
finding of actual malice, The Gazette, 229 Va. at 19, 325 S.E.2d
at 727, we view the record in a light favorable to Dr. Levin,
including the jury’s finding as demonstrated by its response to
the special interrogatory, and we will affirm the trial court’s
decision to submit that issue to the jury, unless it is plainly
wrong or without support in the record. See id.; Code § 8.01-
680.
17
We need not recount all the evidence that would support the
trial court’s decision to submit the question of actual malice
to the jury and the jury’s affirmative finding. Rather, we
simply note that the jury could have based its finding of actual
malice, for example, on WJLA’s use of Dr. Fishman’s statement
that Dr. Levin’s treatment modality for piriformis syndrome was
improper despite its knowledge that Dr. Fishman had retracted
that statement. The jury could also have found that in its
promotional publications WJLA, directly or by implication,
accused Dr. Levin of committing criminal sexual assaults while
knowing that no criminal charges had been brought against him
and having reason to know, based on the results of the Board of
Medicine’s investigation, that such charges probably could not
be sustained.
In short, the question whether WJLA acted with actual
malice was sufficiently at issue to warrant having the jury
decide the matter. The jury having found by special
interrogatory that WJLA acted with actual malice, Dr. Levin was
entitled to receive presumed as well as actual damages.
Accordingly, we hold that the trial court did not err in
submitting the issues of actual malice and presumed damages to
the jury.
Finally, WJLA asserts that the November 18, 1997 news story
was not defamatory as a matter of law because the statements
18
made therein were either not proven to be false or were
statements of opinion not actionable as defamation. WJLA
contends that when the broadcast is viewed as a whole, it “does
not accuse Levin of anything; rather, it raises legitimate
questions about his conduct arising from charges made against
him by his former patients.” We disagree.
Speech that does not contain a provably false factual
connotation is sometimes referred to as “pure expressions of
opinion,” and cannot normally form the basis of an action for
defamation. See, e.g., Williams v. Garraghty, 249 Va. 224, 233,
455 S.E.2d 209, 215 (1995); Chaves v. Johnson, 230 Va. 112, 119,
335 S.E.2d 97, 101 (1985). However, the United States Supreme
Court has specifically declined to hold that statements of
opinion are categorically excluded as the basis for a common law
defamation cause of action. Milkovich v. Lorain Journal Co.,
497 U.S. 1, 18-21 (1990). Moreover, factual statements made to
support or justify an opinion can form the basis of an action
for defamation. Williams, 249 Va. at 233, 455 S.E.2d at 215;
see also Swengler v. ITT Corp., 993 F.2d 1063, 1071 (4th Cir.
1993). Whether an alleged defamatory statement is one of fact
or of opinion is a question of law to be resolved by the trial
court. Chaves, 230 Va. at 119, 335 S.E.2d at 102.
As we have already noted in discussing whether the evidence
was sufficient to support the jury’s finding of actual malice,
19
statements made during the broadcast accused Dr. Levin of having
committed criminal sexual assault. Moreover, WJLA did not
object to Dr. Levin’s jury instruction 34 providing, inter alia,
that the statements attributed to WJLA were “understood to mean
that Dr. Levin has committed the crime of sexually assaulting
his patients and that Dr. Levin had intimately violated his
patients.” The news story also stated that Dr. Levin’s
treatment modality for piriformis syndrome was not medically
appropriate, and WJLA used statements by Dr. Fishman to support
that assertion while knowing that Dr. Fishman had retracted
those statements.
In this context, the statements made by Dr. Levin’s former
patients were arguably expressions of their own subjective
opinions about the treatment they had received. However, WJLA
reported the allegations contained in these statements as fact.
Indeed, it did so after having told its viewers to watch this
broadcast to find out what the “Dirty Doc” had done to his
patients and that his treatments were sexual assaults on his
patients. WJLA simply ignored or minimized competent data and
opinions that contradicted the image of Dr. Levin that it
conveyed to its viewing audience. Therefore, this particular
news story contained factual statements, which were verifiably
false and can form the basis of a defamation action. Thus, we
hold that the trial court did not err in rejecting WJLA’s
20
argument that the statements made in the news story were
constitutionally protected opinion.
For these reasons, we hold that the trial court did not err
in failing to strike the evidence on count one of the motion for
judgment.
The Verdict Form
Over WJLA’s objection, the case was submitted to the jury
with a verdict form that did not require the jury to make a
specific finding that each of the six publications was
defamatory. Rather, the verdict form permitted the jury to make
a single general finding for Dr. Levin “on the Defamation count
against [WJLA] and assess compensatory damages in the amount of
$ _______.” WJLA contends that this was error because the jury
could have awarded damages for publications that it did not find
to be defamatory.
Under different circumstances, we well might agree with
WJLA’s position on this issue. This case, however, does not
involve separate and distinct defamation claims based on
separate and distinct publications or statements. As we have
explained above, the case was filed and tried on one count of
defamation based collectively on publications and statements by
the same defendant, its agents, and its employees and all
regarding Dr. Levin’s treatment modality of piriformis syndrome.
Additionally, WJLA agreed to instructions 26 and 27 which
21
permitted the jury to return a verdict for Dr. Levin if “any” of
the publications were made by WJLA and were defamatory. Because
the case was submitted to the jury in that fashion and our
independent review of the record does not reveal that the use of
a special verdict form would have altered the jury’s award of
damages or the amount of those damages, we are of opinion that
the use of the general verdict form was not reversible error in
this particular case. 4
Failure to Strike or Set Aside Verdict on Count Five
WJLA contends that the trial court erred in failing to
strike count five of the motion for judgment because Code
§ 8.01-40 is not applicable to promotional announcements for
news reports on matters of public concern. Dr. Levin responds
that WJLA has waived this issue because it submitted an
instruction which stated that this “newsworthiness exception”
would not apply to a use which was “willful, wanton, and
reckless.” We disagree with Dr. Levin.
Initially, we reject Dr. Levin’s assertion of a waiver on
this issue. WJLA’s motion to strike count five, asserted at the
4
We also reject WJLA’s contention that because each
publication could be considered a separate tort, the trial court
was required to use a special verdict form. WJLA again relies
on Weaver, supra, to support this proposition, and, as we have
already explained, Weaver is inapposite in this case because of
the fashion in which the present case was submitted to the jury.
22
close of Dr. Levin’s case-in-chief and reasserted at the close
of all the evidence, was premised, in part, on the contention
that there should be a “newsworthiness exception” to Code
§ 8.01-40. Responding to the motion to strike, Dr. Levin
contended that such an exception would not apply in this case
because the “promotional and so-called ‘news’ broadcasts were
infected with substantial and material falsification.” The
trial court apparently concurred in this contention and denied
WJLA’s motion to strike count five.
Both parties proffered instructions on the application of
Code § 8.01-40. Dr. Levin’s proposed instruction did not
address the “newsworthiness exception” and his proposed
limitation, but merely stated the elements of misappropriation
as defined by the statute. WJLA objected to this instruction,
and, while continuing to contest the applicability of Code
§ 8.01-40 to the facts of this case, proffered an alternative
instruction consistent with the position Dr. Levin had asserted
in arguing against the motion to strike.
Upon WJLA’s objection, the trial court initially took Dr.
Levin’s proposed instruction under advisement. When WJLA’s
competing instruction was proffered, Dr. Levin at first
objected, then agreed to its being given, but further stated
that the trial court should also give his instruction. The
trial court indicated that both instructions would be given.
23
Dr. Levin’s counsel then inquired whether the trial court
had “rule[d] on the motion to strike” count five. The trial
court indicated that the motion to strike had been denied. WJLA
then objected to the granting of Dr. Levin’s instruction because
it did not include the “newsworthiness exception,” which had
been the basis of Dr. Levin’s argument against the motion to
strike count five. Despite having concurred in WJLA’s
instruction, Dr. Levin insisted that the “[newsworthiness
exception] is not the law.” WJLA indicated to the trial court
that its instruction included the elements of the statute given
in Dr. Levin’s instruction. The trial court agreed and reversed
its decision to give Dr. Levin’s instruction.
Normally, when a party proffers or agrees to an instruction
which is contrary to a position previously argued during trial,
the agreed instruction becomes the law of the case, and the
party is deemed to have waived its previous objection. See,
e.g., T.L. Garden & Associates v. First Savings Bank of
Virginia, 262 Va. 28, 31, 546 S.E.2d 705, 706 (2001). However,
when the record is clear that the party is not waiving its
objection to the prior ruling, but merely proffering or agreeing
to an instruction consistent with the trial court’s prior
ruling, the previous objection will not be waived. See, e.g.,
Wright v. Norfolk & Western Ry. Co., 245 Va. 160, 169-70, 427
S.E.2d 724, 729 (1993); see also Code § 8.01-384.
24
In the present case, Dr. Levin’s proffered instruction, to
which WJLA objected, did not comport with his prior argument or
the ruling of the trial court. By contrast, WJLA’s instruction
merely stated the law that the trial court had adopted in
overruling WJLA’s motion to strike. Moreover, it is clear from
the post-verdict record that WJLA continued to assert in its
motion to set aside the jury’s verdict that Code § 8.01-40 was
not applicable on the facts of this case. Accordingly, we hold
that WJLA did not waive its objection to the trial court’s
ruling denying the motion to strike count five. The record
establishes that WJLA was not inviting error by proffering the
instruction, but was merely seeking to have the trial court’s
position on the law, to which WJLA had previously objected,
clearly stated to the jury. Wright, 245 Va. at 170, 427 S.E.2d
at 129.
We now turn to the question whether the nonconsensual use
of a person’s name or image by the news media to promote a news
story about that person is a tortious unauthorized use under
Code § 8.01-40. Code § 8.01-40 is a statutory codification of
one of the four common law torts of invasion of privacy. 5 We
5
The common law torts of invasion of privacy are (1)
unreasonable intrusion upon the plaintiff’s seclusion, or
solitude, or into his private affairs; (2) public disclosure of
true, embarrassing private facts about the plaintiff; (3)
publicity which places the plaintiff in a false light in the
25
discussed the application of Code § 8.01-40 in some detail in
Town & Country Properties, Inc. v. Riggins. There we stated
that:
Code § 8.01-40(A) provides that if a person’s
“name, portrait, or picture” is used for “advertising
purposes or for the purposes of trade” without written
consent, the person may maintain a suit in equity to
prevent the use, and may sue and recover damages for
any injuries resulting from such use.
. . . .
Use for “advertising purposes” and use “for the
purposes of trade” are separate and distinct statutory
concepts. Claims based, as here, on the use of a name
“for advertising purposes” have received a more
liberal treatment by the courts than those based on
use “for purposes of trade.” The unauthorized use of
a person’s name as an integral part of advertising
matter “has almost uniformly been held actionable.”
And, a name is used “for advertising purposes” when
“it appears in a publication which, taken in its
entirety, was distributed for use in, or as part of,
an advertisement or solicitation for patronage of a
particular product or service.”
public eye; and (4) misappropriation of plaintiff’s name or
likeness for commercial purposes. William L. Prosser, The Law
of Torts § 117 (4th ed. 1971). By codifying only the last of
these torts, the General Assembly has implicitly excluded the
remaining three as actionable torts in Virginia. See Falwell v.
Penthouse, 521 F. Supp. 1204, 1206 (W.D. Va. 1981).
Accordingly, we agree with WJLA and the amici curiae that, to
the extent that count five asserts a claim for false light
publicity, it fails to state a proper cause of action. Rather,
in Virginia where, as here, a plaintiff alleges that the
defendant made an unauthorized use of the plaintiff’s name or
image in a context that is false and would be highly offensive
to a reasonable person, his remedy is to prove that the context
was defamatory, and not that the use was a misappropriation.
Cf. Rodney A. Smolla, 2 Law of Defamation, § 10:10 (2d ed.
2000) (contrasting the elements of privacy torts and
defamation).
26
249 Va. 387, 394-95, 457 S.E.2d 356, 362 (1995) (citations
omitted).
We recognized in Town & Country Properties that Virginia is
among the few states, including New York, that have limited the
application of the common law privacy torts by statute. We
further recognized that under certain circumstances we may “look
to New York courts for guidance” by considering the construction
given by that state’s courts to the similar statutory right of
privacy enacted by its legislature. Id. at 394, 457 S.E.2d at
362.
In Messenger v. Gruner+Jahr Printing and Publishing, 727
N.E.2d 549 (N.Y. 2000), the New York Court of Appeals reiterated
its long-standing position that the right of privacy does not
extend “to reports of newsworthy events or matters of public
interest.” Id. at 552. So long as there is a “real
relationship between” the use of a person’s name or image and
the report, and the report is not merely “an advertisement in
disguise,” there is no misappropriation. Id. at 554. Applying
this principle to the facts in Messenger, the New York Court of
Appeals concluded that this was so even where a “false
implication . . . might be reasonably drawn” from the use of the
plaintiff’s name or image. Id.
27
Dr. Levin asserts that the promotional announcements were
intended, in part, to entice the public to view the WJLA news
broadcast in order to increase the station’s ratings during a
critical “sweeps” period and, thus, potentially increase future
advertising revenue. While this may be so, it cannot reasonably
be disputed that the principal purpose of WJLA’s announcements
was to promote a report “of [a] newsworthy event[] or matter[]
of public interest.” It is a newsworthy event and a matter of
public interest when a physician is accused by his patients of
sexually assaulting them. Accordingly, we hold that the use of
Dr. Levin’s image in WJLA’s promotional announcements was not an
unauthorized use prohibited under Code § 8.01-40, and the trial
court erred in failing to strike count five. For these reasons,
we will reverse the judgment in favor of Dr. Levin and the award
of $575,000 on count five and enter final judgment on that count
for WJLA. 6
Failure to Set Aside or Reduce Damages for Defamation
We have already determined that the evidence was sufficient
to support an award in favor of Dr. Levin for both actual and
presumed damages resulting from WJLA’s defamatory statements.
6
Because we conclude that count five was improperly
submitted to the jury, we do not address WJLA’s further
contention that the damages awarded for count five were
duplicative of the damages awarded for defamation.
28
WJLA nonetheless contends that the amount of those damages was
excessive, and that the trial court erred in failing to set
aside or reduce that award. The substance of WJLA’s argument on
appeal is that the award of $2 million, which it contends is ten
times larger than any prior award in a defamation action
sustained by this Court, bears no reasonable relationship to the
actual loss suffered by Dr. Levin. Thus, it further contends
that the trial court should have set aside the verdict and
awarded WJLA a new trial or ordered a substantial remittitur. 7
Dr. Levin responds that he presented evidence of actual damages
in excess of $900,000 and that the balance of the verdict
represents adequate compensation for the injury to his
reputation and the humiliation and mental anguish he suffered as
a result of WJLA’s defamatory conduct. 8
7
In its post-trial brief, WJLA contended that an award of
$50,000 would be appropriate.
8
Some courts have noted that it is the injury to reputation
which is the essence of a claim for defamation, citing not legal
precedent, but Shakespeare’s Iago:
Good name in man and woman, dear my lord,
Is the immediate jewel of their souls.
Who steals my purse steals trash;
'Tis something, nothing;
'Twas mine, 'tis his, and has been slave to thousands;
he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.
Othello, Act III, scene iii.
29
With respect to claims of defamation, we have said that
“[t]o ascertain what is a fair and reasonable compensation for
such an injury, inflicted under the circumstances, is not easy.
It has been repeatedly stated that there is no rule of law
fixing the measure of damages, nor can it be reached by any
process of computation.” News Leader Co. v. Kocen, 173 Va. 95,
103, 3 S.E.2d 385, 388-89 (1939); see also The Gazette, 229 Va.
at 41, 325 S.E.2d at 740. This being so, we must take special
heed of the principle, applicable to any claim that a jury award
is excessive, “ ‘that the verdict of the jury will not be set
aside unless it is so grossly excessive (or inadequate) as to
indicate that the jury in rendering it were actuated by
prejudice, passion or corruption, or that they have been misled
by some mistaken view of the merits of the case.’ ” News Leader
Co., 173 Va. at 103, 3 S.E.2d at 389 (quoting Kroger Grocery Co.
v. Rosenbaum, 171 Va. 158, 164, 198 S.E. 461, 463 (1938)).
Moreover, in such cases we accord the trial court a large
measure of discretion regarding whether a verdict should be
affirmed, set aside, or reduced “because it saw and heard the
witnesses while we are confined to the printed record.”
Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277, 300, 362
S.E.2d 32, 45 (1987). “Unless the amount of the award is so
See, e.g., Milkovich, 497 U.S. at 12.
30
excessive as to shock the conscience of the court . . . a
verdict approved by the trial court will not be disturbed on
appeal.” The Gazette, 229 Va. at 41, 325 S.E.2d at 740.
We find no abuse of the trial court’s discretion in its
refusal to set aside or remit a portion of the damages awarded
for defamation in this case. Dr. Levin’s evidence of actual
damages, though criticized by WJLA in argument to the jury, was
not rebutted. Given that we have found the evidence supports
the jury’s finding of actual malice, we cannot say that its
award was the result of prejudice, passion, or some mistaken
view of the merits of the case. To the contrary, given the
grave nature of the unfounded allegations made against Dr. Levin
and the inevitable damage caused to his professional reputation,
the jury’s award was not excessive. Accordingly, we hold that
the trial court did not err in upholding the award of $2 million
for count one.
Failure to Instruct Jury to Disregard Damages
Sustained by Dr. Levin’s Incorporated Medical Practice
WJLA contends that the trial court erred in failing to
grant a portion of its instruction H directing the jury that it
could not award damages based upon a diminution in the value of
Dr. Levin’s incorporated medical practice. Dr. Levin contends
that WJLA waived its objection to the trial court’s failing to
31
grant instruction H because WJLA agreed to his instruction 30,
which permitted the jury to award damages for “any loss or
injury to [Dr. Levin] in his medical practice.” Although the
argument in the record concerning these two instructions is
quite confused, we will assume that instruction H was intended
to direct the jury not to award damages for losses specific to
the incorporated medical practice as a business that were
separate and apart from the damages suffered by Dr. Levin in
regard to his personal capacity to maintain a medical practice
generally.
WJLA relies upon Landmark Communications, Inc. v. Macione,
230 Va. 137, 140, 334 S.E.2d 587, 589 (1985), for the principle
that a defamation plaintiff cannot recover for losses sustained
by a corporation he controls. This is so because the
corporation is a separate legal entity capable of seeking
redress for the defamation in its own right. Id.; see also
Keepe v. Shell Oil Co., 220 Va. 587, 591, 260 S.E.2d 722, 724
(1979).
WJLA’s reliance on Landmark Communications is misplaced.
In that case, the defamation plaintiff “showed no damages to
himself, as opposed to those his corporation may have suffered”
and did not seek presumed damages. 230 Va. at 140, 334 S.E.2d
at 588-89. Accordingly, in the absence of evidence that he
32
personally suffered actual damages as a result of the
defamation, the plaintiff was entitled to recover nothing.
By contrast, in this case Dr. Levin presented ample
evidence of the personal damages he suffered as a result of
WJLA’s defamatory publications. That evidence included expert
testimony of the actual and potential future loss to Dr. Levin’s
ability to earn a living in the practice of medicine. Even if
Dr. Levin chose to abandon his incorporated medical practice and
seek employment elsewhere, the damage to his reputation caused
by WJLA’s defamation would continue to impair his ability to
earn a living through the practice of medicine. Thus, that
evidence did not relate to an injury that was exclusive to the
incorporated medical practice.
In the second amended motion for judgment, Dr. Levin
neither alleged nor claimed damages specific to his incorporated
medical practice. The evidence presented with respect to that
medical practice related to losses personal to Dr. Levin, and
the jury was properly instructed that it could award damages for
those personal losses. The instruction requested by WJLA to
have the jury disregard damages specific to the incorporated
medical practice would have served only to confuse the jury.
Accordingly, we hold that the trial court did not err in
refusing to grant that instruction.
33
CONCLUSION
For these reasons, we will affirm the judgment of the trial
court in favor of Dr. Levin on count one, reverse the judgment
in favor of Dr. Levin on count five, and enter final judgment.
Affirmed in part,
reversed in part,
and final judgment.
34