Defamation liability isn’t limited to false statements made in direct and unequivocal terms; liability may also arise out of statements made by inference, implication, or insinuation. If a jury verdict is based on a statement of opinion (which might happen if the trial court erroneously overrules a demurrer), the verdict should be set aside or reversed because statements of opinion are protected by the First Amendment and are not actionable. Upholding the verdict, however, doesn’t necessarily require that the verdict be based on a factual assertion that is false on its face. If the words at issue are reasonably capable of a defamatory interpretation through inference or innuendo, that will be sufficient to uphold the verdict. A statement may be actionable if the words carry a provably false factual connotation, even if not expressed directly.
Earlier this week, the Virginia Court of Appeals decided Brown v. Grundy, Record No. 1467-23-4, which involved a challenge to a defamation verdict of $2 million (reduced by trial court to $1.85 million). The case centered on a letter sent by Charles H. Brown, III, D.D.S., to patients of his dental practice, explaining the supposed reasons for the termination of his associate, Dr. Richard B. Grundy. On December 4, 2018—two days before officially terminating Dr. Grundy’s employment—Dr. Brown sent a letter to patients in which he offered an explanation that included the following: