JACKSON, Miss. (Legal Newsline) - A surgeon who assailed a nurse administrator out of her hearing with foul expletives didn’t commit slander even though earlier he had loudly criticized her over how she did her job, the Mississippi Supreme Court ruled.
In a closely divided decision that drew a strenuous dissent from the chief justice, a majority on the court held Dr. Bryan Fagan didn’t defame Judy Faulkner when he called her a “f*****g c**t” in a surgery suite after disagreeing with Faulkner over a scheduling decision. Faulkner had refused to change the time of a shoulder surgery so Dr. Fagan could use a specialized device for holding the patient’s arm.
“The vulgarity at issue here might be highly offensive but by itself says nothing about Faulkner’s ability to do her job,” the Mississippi Supreme Court said. “Name-calling is simply not actionable in Mississippi.”
After learning of Dr. Fagan’s expletive-laden rant, Faulker sued the surgeon for slander and emotional distress. A trial court dismissed the emotional damages claim but awarded Faulkner $30,000 for slander, ruling Dr. Fagan’s comments amounted to unfounded criticism of how she performed her job.
An appeals court reversed that decision, ruling profanities alone couldn’t be judged true or false. The Mississippi Supreme Court affirmed, albeit for different reasons, in a Nov. 14 opinion by Justice Josiah Coleman.
Faulkner’s case should have been dismissed on a motion for directed verdict since Faulkner presented no evidence she was harmed, the court said. “As atrocious as Fagan’s use of the vulgarity was, as to the audience to which it was published, it amounted to name-calling—not defamation,” the court concluded.
Chief Justice Michael K. Randolph dissented, joined by three other justices, saying Dr. Fagan had criticized Faulkner repeatedly that day before uttering the insult in front of coworkers in the surgery room. The doctor’s criticism had terrified Faulkner with fear of losing her job, the chief justice wrote, and even though she didn’t hear the profanities her coworkers did.
“Judy Faulkner did not deserve Dr. Fagan’s untruthful tirade or to have her livelihood threatened,” he said. “Our laws exist to protect against such damaging statements.”
The majority opinion singled out the chief justice himself for criticism, saying “it is almost as though if the Chief Justice repeats the words slander and slanderous enough, his readers will forget that he identifies no actual slanderous language.”
The dissent’s “most egregious attempt to create evidence where none exists” was quoting a defense lawyer who asked Dr. Fagan on cross examination whether he said: “This place isn’t run the right f***king way. It will never get better with c***ts, like Judy, running the f***king desk?”
Dr. Fagan replied he didn’t recall saying that.
“To take from it that he did make the statement is not taking evidence in a light favorable to the plaintiff, it is creating evidence out of the ether,” the majority opinion said.