From Fagan v. Faulkner, decided Thursday by the Mississippi Supreme Court, in an opinion by Justice Josiah Coleman, joined by Justices James Maxwell, Dawn Beam, Robert Chamberlin, and Kenneth Griffis:
The issues before the Court arose from a dispute between [Judy] Faulkner and [Dr. Bryan] Fagan at North Mississippi Surgery Center in Tupelo, Mississippi. The two parties worked together for fourteen years. Fagan has an individual ownership interest in the center and has conducted orthopedic surgeries there since 2010. Faulkner works at the center as a clinical manager, a role she has held for approximately twenty years. As clinical manager, Faulkner is tasked with scheduling surgeries and assigning operating rooms for various surgeons affiliated with the center, including Fagan.
The matter in question occurred on February 16, 2016, when Fagan had two surgeries scheduled, first a knee reconstruction surgery and then a shoulder surgery that typically involves the use of a piece of equipment called a "Spider." Since that particular knee reconstruction surgery was estimated to take significantly longer than the shoulder surgery, and the shoulder surgery patient had already arrived, Fagan approached Faulkner, seeking to swap the surgeries for efficiency. Faulkner informed Fagan that the surgeries could be swapped but that he could not use the Spider because it was scheduled for another surgeon at that time.
Fagan did not wish to perform the surgery without the Spider, and he became upset when he realized that he would not be able to switch the surgeries and have the use of it. Fagan then repeatedly told Faulkner that she should be the one to inform the patient and the patient's family that they would have to wait until after the knee surgery. Faulkner refused, and Fagan demanded that she call her boss and discuss the matter with him. Importantly, Faulkner did not put on any evidence at trial that the persons present in the operating room later had any knowledge of the above-described events leading up to the subject utterance.
Evidently still upset with the situation, according to his own testimony, Fagan called Faulkner a "f*****g c**t" during a surgery later on in the day in the presence of four or five staff members. No witnesses other than Fagan himself testified regarding events in the operating room, and no witness, including Fagan, offered any other testimony quoting any other statements made by him in the operating room….
Faulkner's claim fails at the threshold because name-calling is simply not actionable in Mississippi, and Faulkner's proof fell short of a prima facie case of defamation per se. While Fagan voiced complaints about Faulkner's job performance on the morning in question, the record contains no evidence that he made statements rising to the level required to prove slander per se by imputing to Faulkner "a want of integrity or capacity … in the conduct of [her] profession, trade or business …." …
