In 2017, I penned The Litigation Privilege (October 2017). It is an overview of the privilege that applies to statements and comments in litigation. It is similar to the privilege that applies to debates in legislative processes. The crux is to allow the parties in litigation to make their respective allegations and arguments without fear of being sued for the defamation torts, "slander" and "libel." A great many people struggle to remember the distinction between these. I remember by association, that "slander" is "spoken," both beginning with "s," and the written defamation, "libel" is the one that is written (or "not spoken").
In 2018, the Nevada Supreme Court decided Fitzgerald v. Mobile Billboards, Case 72803 (May 3, 2018). The Court was called upon to explain the difference between "absolute" privilege and "conditional" privilege. Under Nevada law, there is a distinction when it comes to litigation.
The injured worker filed a workers' compensation claim. The employer "made statements to the insurance company expressing concern regarding appellant's usage of prescription pain medication." Specifically, the injured worker "was attempting to obtain more and different prescription painkillers after his industrial injury, that multiple prescription painkillers, and prescriptions for additional painkillers, were found in [his] personal property."
The insurance company wrote to the injured worker regarding the employer's concerns and "repeated the statements to (his) workers' compensation doctor." The injured worker therefore filed a complaint for defamation in the district court the carrier for repeating those statements. He alleged they "were false and harmed his reputation and livelihood."
The Court explained that in Nevada, the absolute common law privilege applies to workers' compensation proceedings, and other "quasi-judicial proceedings." That is a general rule regarding the "litigation privilege."
However, the legislature specifically addressed privilege as regards the inappropriate seeking of medication. For that specific provision of the law, the legislature instead created a specific "conditional privilege." The "common law" as inherited from our British roots, and as comprised of judicial decision after decision (precedent) can be changed, or "abrogated," by legislative action. Statutes can change the common law.
In analyzing the employer's statements at issue in this case, the trial court (not the workers' compensation judge as this dispute was in the defamation legal proceeding in which the employee sued for damages) applied the overarching common-law absolute privilege. The Nevada Supreme Court reversed and instructed that the analysis, when there is a specific statutory provision, should focus on that specific rather than on the general provisions of the common law. That in itself is a pertinent reminder for practitioners.
The trial court applied the absolute privilege and dismissed the injured worker's case. The Supreme Court cautioned that dismissal before trial was appropriate in Nevada only when "it appears beyond a doubt that [the plaintiff] could prove no set of facts, which, if true, would entitle [him] to relief."
The Court explained that the absolute privilege requires a demonstration of two elements:
"(1) a judicial for quasi-judicial] proceeding must be contemplated in good faith and under serious consideration, and (2) the communication must be related to the litigation."
If these are satisfied, then the privilege applies and "acts as a complete bar to defamation claims based on privileged statements."
However, the Court explained that the workers' compensation law has a more specific privilege. It "precludes liability in a defamation suit for certain statements made in relation to a violation of" that law. This privilege provides protection within workers' compensation proceedings, but only if the "defamatory statement is made in good faith." The Court concluded that the "Legislature did not believe that, in the context of a workers' compensation claim, speaking freely about a person's actual or perceived violation of NRS 616D.300 outweighed the risks of statements made with malicious intent."
Thus, the Court concluded that the "absolute privilege" with no reference to malice or good faith, had been rejected by the legislature in these specific proceedings. Thus, it had constructed an alternative, conditional, privilege in the workers' compensation law. The Court held "the common law absolute privilege has been abrogated by the statutory conditional privilege" in this context.
The case was remanded (back to the trial court) for re-analysis of the allegations in light of that conditional privilege. The Court instructed that the case would proceed to a jury only if the trial court determined that there was "sufficient evidence for the jury reasonably to infer that the publication was made with malice in fact." If there was not sufficient evidence of actual malice, then the appropriate outcome would be the dismissal of the case based on the conditional privilege.
The decision is instructive on the process of statutory abrogation of the common law. Litigants may wish to be aware of how statutes like the workers' compensation law change common law. It is also of interest regarding the expression of information that is potentially libel or slander. The definition of defamation includes that statements are "untrue." Possibly the best defense against such allegations, therefore, is not the legal analysis of privilege as explained by the Nevada court. Perhaps instead, the best defense is truth?
