From Fagan v. Faulkner, decided Tuesday by the Court of Appeals of Mississippi, in an opinion by Chief Justice Donna Barnes, joined by Judges Jim Greenlee, Anthony Lawrence, Joel Smith, and John Emfinger (expurgations in original):
Judy Faulkner sued Dr. Bryan Fagan for defamation of character and intentional infliction of emotional distress in the County Court of Lee County. At the time of the incident at issue, Faulkner was a surgical scheduler at the center where Dr. Fagan, an orthopaedic surgeon, worked in Tupelo, Mississippi. The suit arose from a one-time outburst Dr. Fagan had in the operating room where he called Faulkner a "f––king c-nt" ("FC") in front of approximately four other individuals after the parties had an argument over surgical scheduling.
After a bench trial, the county court entered a judgment in favor of Faulkner for $30,000 on the defamation claim of slander. Dr. Fagan appealed, and the Lee County Circuit Court affirmed the county court's judgment. Now, on appeal before this Court, we find the elements of slander were not met; therefore, we reverse and render the circuit court's judgment….
The trial court's ruling that the elements of falsity (unprivileged due to malice) and actionability were met was based on the finding that Dr. Fagan used the words as commentary on Faulkner's job performance. We do not find that to be the case.
"The common law has always differentiated sharply between genuinely defamatory communications as opposed to obscenities, vulgarities, insults, epithets, name-calling, and other verbal abuse." "Such statements may be hurtful to the listener and are to be discouraged, but … are not actionable" "no matter how obnoxious, insulting, or tasteless." … The Mississippi Supreme Court has recognized that "name calling and verbal abuse are to be taken as statements of opinion, not fact, and therefore will not give rise to an action for libel." …
No evidence showed that Dr. Fagan called Faulkner this expletive because he was disparaging her professional capabilities. Dr. Fagan testified that he did "[n]ot necessarily" use the words because he did not like how she performed her job; instead, he "was upset about the situation that happened, and that was just what I said." He testified that he "was not happy that the cases didn't get switched. That was the whole point of the argument." He later testified, "I don't think I was making a generalized statement at that point about how she overall does her job…. I think it was more … about that situation…. That I don't think it was handled correctly." He also testified that he was upset and embarrassed by what he said, that he should not have said it, and that he has not used that language since then….
