Pro Publica, Inc. and Charles Ornstein, Hearst Newspapers, LLC D/B/A the Houston Chronicle and Mike Hixenbaugh v. Dr. O. Howard Frazier

Opinion issued January 23, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-0009-CV
———————————
PROPUBLICA, INC.; HEARST NEWSPAPERS, LLC D/B/A THE
HOUSTON CHRONICLE, CHARLES ORNSTEIN, AND MICHAEL
HIXENBAUGH, Appellants
V.
DR. O. HOWARD “BUD” FRAZIER, Appellee
On Appeal from the 234th District Court
Harris County, Texas
Trial Court Case No. 2018-45639
MEMORANDUM OPINION
Dr. O. Howard “Bud” Frazier sued ProPublica, Inc., Hearst Newspapers, LLC
doing business as The Houston Chronicle, Charles Ornstein, and Michael
Hixenbaugh [collectively, “ProPublica”], for defamation and intentional infliction
of emotional distress [“IIED”] in relation to a news story published about him on
ProPublica’s website and in The Houston Chronicle. ProPublica moved to dismiss
under the Texas Citizens Participation Act [“TCPA”]1, and the trial court denied its
motion. Because the trial court failed to follow the proper procedures in TCPA
cases, we reverse the trial court’s order and remand for further proceedings.
BACKGROUND
Dr. O. Howard “Bud” Frazier is one of the world’s leading heart transplant
surgeons and is one of the medical researchers responsible for the development of
the Left Ventricular Assist Device [“LVAD”], a device implanted in patients that
pumps blood through the heart when the heart can no longer do so on its own.
Frazier is the Director of Cardiovascular Surgery Research at Texas Heart Institute
[“THI”], which is affiliated with, and housed and supported by, St. Luke’s Episcopal
Health System.
1
See TEX. CIV. PRAC. & REM. CODE §§27.001–27.011. The Texas Legislature
amended certain provisions of the TCPA in 2019. Act of May 17, 2019, 86th Leg.,
R.S., ch. 378, §§ 1–9, § 12, sec. 27.001, 27.003, 27.005–.007, 27.0075, 27.009–.010
(to be codified at TEX. CIV. PRAC. & REM. §§ 27.001, 27.003, 27.005–.007, 27.0075,
27.009–.010). The amendments became effective September 1, 2019. Id. at § 11.
Because suit was filed before the effective date of the amendments, this case is
governed by the statute as it existed before the amendments. See id. All our citations
and analyses are to the TCPA as it existed prior to September 1, 2019.
2
The Article
On May 24, 2018, ProPublica published an article about Frazier on its website;
the identical article appeared on the Houston Chronicle website on the same date.
On Sunday, May 27, 2018, a print version of the article appeared in the Houston
Chronicle. The article contained a quote in the headline: “Things . . . I just couldn’t
imagine,” followed by the title: “A PIONEERING SURGEON’S HIDDEN
HISTORY OF RESEARCH VIOLATIONS, CONFLICTS OF INTEREST AND
POOR OUTCOMES.”
The article recognized Frazier’s status as a pioneer in the field of mechanical
heart pumps, but also focused on:
(a) findings of research protocol violations that led St. Luke’s/THI to
voluntarily report the violations to the federal Office for Human
Research Protections (“OHRP”), pledging several reforms, and
repaying millions of dollars to the government;
(b) allegations contained in a prior federal lawsuit filed against St.
Luke’s/THI and Frazier;
(c) assertions from several of Frazier’s colleagues about his conduct
regarding the experimental LVAD research and reporting of its
results;
(d) Frazier’s failure to disclose conflicts of interest in medical journals;
and
(e) the high rate of mortality among Frazier’s patients, as reflected in
official Medicare statistics.
3
The online versions of the article contain links to many of its authors’ sources.
Some of those sources include:
(1) “The Self-Reporting Letter”—a July 2008 letter from St.
Luke’s/THI to OHRP, in which it disclosed that it found “instances on
ongoing research noncompliance in connection with” the HeartMate II
Study. Specifically, the hospital reported that patients participated in
Frazier’s HeartMate II Study even though they did not meet the
qualifications for participation. St. Luke’s/THI agreed to repay
millions of dollars that it had received in federal funding, to audit all
then-current studies in which Frazier was the Principal Investigator, and
to outsource their Institutional Review Board (“IRB”).
(2) “The Board Summary”—a document prepared by St. Luke’s
executives and presented to its Board of Directors, which was also
described in the Self-Reporting Letter. The Board Summary found
“ongoing research noncompliance” in connections with the protocols
governing the HeartMate II Study. The Board Summary recommended
repaying millions to the Centers for Medicare and Medicaid Services
because of protocol violations in the HeartMate II Study “for claims
associated with the use of the investigations devices in these patients.
The Board review also references a Legal Compliance Review
conducted by the Anson Group that focused on the HeartMate II study
and its protocols. Finally, the Board Summary included information
submitted by Dr. James Young, who was retained to assess the
transplant program led by Frazier. In the Board Summary, Young
characterized the program as “an aggressive program that pushes the
limits.”
(3) “The Federal Qui Tam Lawsuit”—a lawsuit filed by St. Luke’s
employee, Joyce Riley, against St. Luke’s. In the lawsuit, Riley alleged
that an unlicensed physician, Dr. Branislav Radovanevic (“Brano”),
illegally treated heart failure patients at St. Luke’s/THI. The article
quoted from Riley’s pleadings: “Dr. Frazier knew of, directed, and
personally participated in the fraudulent conduct and false claims
described herein.” The Article then summarized portions of Frazier’s
deposition in the lawsuit regarding Brano’s participation in treating
Frazier’s patients.
4
(4) “Statements by Frazier’s Former Colleagues”—Dr. Frank Smart,
a THI transplant cardiologist from 2003-2006, stated that Frazier
implanted heart pumps in some patients that were not sick enough to
justify the implant and that it was not the right thing to do. He also
reported that there were instances in which, once a patient received a
pump, Frazier would then turn down donor hearts for those patients.
Smart also reported “hiding” patients from Frazier so that he would not
recommend experimental heart pumps to them. Dr. Billy Cohn, a THI
heart surgeon reported that Frazier did not want to publish their findings
that a quarter of the initial 71 patients implanted with the heart pump
had suffered strokes. Cohn said that Frazier didn’t want to “freak people
out” with research showing a high rate of serious complications. The
Article says that the “initial stroke findings were never published in a
formal study,” but acknowledged that they were included in short
abstracts at presentations.
(5) “Evidence Regarding Failure to Disclose Conflicts”—the Article
discussed research the reporters had obtained showing that Frazier
disclosed conflicts of interest in only 10% of his papers. When one
journal was contacted, its editor contacted Frazier for a response. The
editors reported back that Frazier had agreed to submit revised
disclosure forms, which he did. And, the Board Summary had noted
that he had failed to accurately complete a conflict of interest form and
that the hospital had addressed the issue with him, but “Dr. Frazier still
doesn’t understand.”
(6) “Medicare Data Regarding Dr. Frazier’s High Mortality Rate”—
the Article stated that from 2010-2015, Frazier’s mortality rate for
LVAD patients was almost 50%, which the Article described as “one
of the highest mortality rates in the nation.” The Article included
Frazier’s objection to using only Medicare patients in his mortality, but
included an explanation of why it used such data, as well as including
a hyperlink showing how it conducted its analysis.
After the Article was published, ProPublica made two minor corrections, as
follows:
An earlier version of this article incorrectly said that an abstract
describing strokes in patients who received HeartMate II LVADs had
5
been presented at one conference. It was presented at two conferences.
It also said that the abstract was not available online; the second abstract
was online prior to publication of this article. The article also
incorrectly characterized a legal settlement involving St. Luke’s
hospital, O.J. “Bud” Frazier and other defendants. The story said the
$500,000 settlement did not include the share given to the nurse who
brought the suit; the settlement did include the nurse’s share.
The TCPA Motion to Dismiss Proceedings
On July 9, 2018, Frazier sued for defamation and intentional infliction of
emotional distress. After ProPublica filed its answer, it filed, within the statutory
deadline, a Motion to Dismiss pursuant to the TCPA. Regarding Frazier’s
defamation claim, the motion alleged that (1) Frazier could not establish material
falsity; (2) the article is privileged as a fair report of official proceedings and fair
comment on matters of public concern; (3) that the Article accurately reported third-
party allegations on matters of public concern, and that (4) many of the statements
mentioned in Frazier’s Petition are nonactionable opinion. Regarding Frazier’s IIED
claim, ProPublica argued it should be dismissed because (1) IIED is a “gap-filler”
under Texas law and is barred by the First Amendment, and (2) its conduct was not
“extreme and outrageous” as a matter of law.
The Hearing on the Motion to Dismiss
On December 11, 2018, the trial court held a hearing on ProPublica’s Motion
to Dismiss. Before the hearing, ProPublica moved to strike several of Frazier’s
exhibits, primarily the expert report of Shannon LeBove. ProPublica argued that
6
LeBove’s report “purport[ed] to interpret the meaning of the article.” Specifically,
ProPublica complained that LaBove “was asked by [Frazier’s] counsel to evaluate
whether an ordinary reader would believe the false impressions of Dr. Frazier
created by the May 2018 article.” ProPublica objected that LeBove’s report
constituted improper evidence because it purported to determine what a
“hypothetical, objectively reasonable reader” would believe based on the article, and
that such a determination was “a quintessentially judicial test.” ProPublica also
objected that LeBove’s report was based, in part, on a survey of 12 people, who were
asked to give their impressions of the story. The trial court denied ProPublica’s
motion to strike LeBove’s report, stating that “I will give it the weight it deserves.”
In the trial court’s Findings of Fact and Conclusions of Law, the trial court
referenced the LeBove report four times as evidence it had relied on in reaching its
decision.
At the hearing on the Motion to Dismiss, the parties also argued to the trial
court about whose evidence it should consider in determining whether both parties
had met their respective burdens of proof on the issue of falsity/substantial truth. At
trial, Frazier’s counsel argued that substantial truth was not a proper defense to be
raised at the dismissal stage of the case.
[Frazier’s counsel]: And I think to be very, very clear that substantial
truth, first of all, is not a defense at this stage. The Texas Supreme Court
has been clear that because the . . Plaintiffs have the burden at this stage
of litigation that to establish falsity, substantial truth is not a defense.
7
And that is the D Magazine case[.] . . . And the Texas Supreme Court
is clear. At this juncture it’s substantial truth, which are all of the
arguments that the Defendants are making that they had all of these
different things that showed that what they wrote in the report or that
article is true. That’s not a defense at this stage. So, what we’ve heard
from most of the Defendants’ argument is not relevant to what the Court
has to decide. The only thing for us is establishing a prima facie case
of defamation and the Defendants establishing their defense by a
preponderance of the evidence. That’s it. We’re not here at this point
trying to establish fact questions. And the Fort Worth Court said it best.
“That the Supreme Court has rejected an argument that in a case
involving a matter of public concern once a Plaintiff in a TCPA case
has met her burden to establish by clear and specific evidence a prima
facie case for falsity the Motion to Dismiss can be defeated by
providing evidence to the contrary.” The Texas Supreme Court has
rejected the idea that if they provide evidence contradicting what we
said is false that that helps them in any way. (Emphasis added).
[Trial Court]: That sounds very similar to the Supreme Court standard
of disregarding evidence to the contrary. Maybe not indulging all
inferences in your favor, but at least it sounds like the idea that we’ve
had for a while of disregarding evidence to the contrary, which I know
they told me some case law that says that’s not the case here. But you’re
saying the D Magazine case supports your proposition? (Emphasis
added).
[Frazier’s counsel]: Yes, Your Honor. Like I said . . . . It’s very clear. .
..
ProPublica’s counsel responded on the substantial-truth issue as follows:
[W]ith regard to the D Magazine case. They are trying to turn First
Amendment law on its head and completely misinterpreting this case.
We’re talking about two sides of the same claim, material falsity and
substantial truth. We’re allowed to show our side of that claim. So
they’re trying to turn that on its head and that is entirely inapposite with
the First Amendment. So, they’re supposed to be able to establish
material falsity. We do have the right to establish substantial truth and
D Magazine does not say differently. (Emphasis added).
8
After the trial court denied ProPublica’s motion, it filed Findings of Fact and
Conclusions of Law. The Findings of Fact reference only evidence presented by
Frazier, and the Conclusions of Law state, “Defendants cannot raise the “substantial
truth” defense at this stage of the proceedings as a matter of law.”
Findings of Fact and Conclusions of Law
In its Findings of Fact and Conclusions of Law, the trial court found that the
Article created five materially false impressions: (1) that Frazier had federal
research violations, (2) that Frazier had ethical violations, (3) that Frazier hid
research showing an increased rate of stroke in LVAD patients, (4) that Frazier had
conflicts of interest that impacted the accuracy of his research about the HeartMate
II, and (5) that Frazier was an old and incompetent surgeon who should not have
been operating in his seventies. After concluding that Frazier had presented clear
and specific evidence that these impressions were false, the trial court denied
ProPublica’s Motion to Dismiss, and this interlocutory appeal followed.
DENIAL OF MOTION TO DISMISS
In its first issue, ProPublica contends that the trial court erred in denying its
Motion to Dismiss under the TCPA. In connection with this issue, ProPublica
contends that the trial court failed to properly apply the TCPA by (1) refusing to
consider its arguments and evidence establishing that the article is substantially true;
(2) refusing to consider its arguments and evidence establishing the fair reporting
9
and fair comment privileges set forth in TEX. CIV. PRAC. & REM. CODE §
73.002(b)(1),(2); (3) refusing to consider appellant’s arguments and evidence
establishing a complete defense for Frazier’s intentional-infliction-of-emotional-
distress claim; and (4) relying on a “legally irrelevant and fatally flawed expert report
and survey” in finding that Frazier had met his evidentiary burden to overcome
dismissal. We address each argument respectively.
Standard of Review and Applicable Law
The Texas Citizens Participation Act is a bulwark against retaliatory lawsuits
meant to intimidate or silence citizens on matters of public concern. Dallas Morning
News, Inc. v. Hall, 579 S.W.3d 370, 376 (Tex. 2019); see In re Lipsky, 460 S.W.3d
579, 586 (Tex. 2015). A defendant in a case that “is based on, relates to, or is in
response to a party’s exercise of the right of free speech” may move for dismissal
under the Act. TEX. CIV. PRAC. & REM. CODE § 27.003(a). Dismissal requires two
steps. First, the party moving for dismissal must show, by a preponderance of the
evidence, that the “legal action is based on, relates to, or is in response to a
[movant]’s exercise of the right of free speech.” Id. § 27.003(a) (internal punctuation
omitted). The burden then shifts to the plaintiff to establish “by clear and specific
evidence a prima facie case for each essential element of the claim in question.” Id.
§ 27.005(c). Additionally, subsection (d) requires a court to dismiss the legal action
10
if “the moving party establishes by a preponderance of the evidence each essential
element of a valid defense to the nonmovant’s claim.” Id. § 27.005(d).
A prima facie case is “the minimum quantum of evidence necessary to support
a rational inference that the allegation of fact is true.” Hall, 579 S.W.3d at 377;
KBMT Operating Co. v. Toledo, 492 S.W.3d 710, 721 (Tex. 2016) (citing Lipsky,
460 S.W.3d at 590). Requiring “clear and specific evidence” means the plaintiff
“must provide enough detail to show the factual basis for its claim” and must provide
enough evidence “to support a rational inference that the allegation of fact is true.”
Hall, 579 S.W.3d at 377; Lipsky, 460 S.W.3d at 590–91; TEX. CIV. PRAC. & REM.
CODE § 27.005(c). The plaintiff may rely on circumstantial evidence—indirect
evidence that creates an inference to establish a central fact—unless “the connection
between the fact and the inference is too weak to be of help in deciding the case.”
Hall, 579 S.W.3d at 377; Lipsky, 460 S.W.3d at 589.
If the plaintiff fails to carry its burden—or if the movant establishes by a
preponderance of the evidence the essential elements of a valid defense under former
section 27.005(d) —the trial court must dismiss the suit. Hall, 579 S.W.3d at 377.
In deciding if dismissal is warranted, we consider all the “pleadings and supporting
and opposing affidavits stating the facts on which the liability or defense is based.”
Hall, 579 S.W.3d at 377; TEX. CIV. PRAC. & REM. CODE § 27.006(a). We review de
novo the court’s determinations that the parties met or failed to meet their burdens
11
of proof under section 27.005. See Hall, 579 S.W.3d at 377; see generally TEX. CIV.
PRAC. & REM. CODE § 27.005.
Neither party disputes that the Act applies to this case. Thus, the burden under
subsection (c) shifts to Frazier to make out a prima facie case for each element of
his claims. See TEX. CIV. PRAC. & REM. CODE § 27.005(c), (d). The essential
elements of a defamation claim are (1) the publication of a false statement of fact to
a third party, (2) that was defamatory concerning the plaintiff, and (3) was made
with the requisite degree of fault. Dall. Morning News, Inc. v. Tatum, 554 S.W.3d
614, 623 (Tex. 2018). Of these elements, only falsity is in dispute. To not be false,
“[a] statement need not be perfectly true[ ] as long as it is substantially true.” Toledo,
492 S.W.3d at 714 (citing Neely v. Wilson, 418 S.W.3d 52, 63–64 (Tex. 2013)). If
Frazier successfully makes a prima facie showing, ProPublica must establish its
subsection (d) claim that a preponderance of the evidence supports its defenses. TEX.
CIV. PRAC. & REM. CODE § 27.005(d).
Refusing to Consider ProPublica’s Substantial-Truth Defense
It is clear from the Findings of Fact and Conclusions of Law that the trial court
disregarded, as it was urged to do so by Frazier’s counsel, all ProPublica’s evidence
and arguments about substantial truth. ProPublica contends this was error. We
agree.
12
The case that Frazier urged the trial court to rely on is D Magazine Partners,
LP v. Rosenthal, 529 S.W.3d 429 (Tex. 2017). In D Magazine, the gist of the alleged
defamatory story was that the plaintiff, Rosenthal, had fraudulently obtained welfare
benefits. Id. at 439. The court held that Rosenthal presented a prima facie showing
of falsity by introducing evidence that the Texas Health and Human Services
Commission had conducted an investigation and had concluded that she engaged in
no wrongdoing in obtaining the welfare benefits. Id. On appeal, D Magazine argued
that it was entitled to dismissal because it had established its truth defense by a
preponderance of the evidence. Id. at 440. The court disagreed that D Magazine
had proved its defense by a preponderance of the evidence. Id. In so holding, it
noted that, “[b]ecause falsity is an element of Rosenthal’s claim, at this stage of the
proceeding she was required to make a prima facia case by clear and specific
evidence that the gist of the article was not substantially true. As discussed,
Rosenthal has met this burden.” Id. (citation omitted).
At least one appellate court has interpreted D Magazine to mean that if a
plaintiff makes a prima facia showing of falsity, the media defendant is prohibited
from attempting to prove its substantial-truth defense by a preponderance of the
evidence by producing evidence that contradicts the plaintiff’s prima facia evidence.
See Van Der Linden v. Khan, 535 S.W.3d 179, 200 (Tex. App.—Fort Worth 2017,
pet. denied) (“[T]he supreme court has rejected the argument that in a case involving
13
a matter of public concern, once a plaintiff has met his burden to establish by clear
and specific evidence a prima facia case for falsity, the motion to dismiss can be
defeated by providing evidence to the contrary.”).
We believe that the Fort Worth court reads D Magazine too broadly. While it
is true that D Magazine does not detail the media defendant’s substantial-truth
evidence, it does not say that the defendant’s arguments and evidence should not be
considered at all. We believe that, even if the plaintiff makes a prima facia showing
of falsity with its own evidence, the defendant should be given the opportunity to
meet its higher burden of proof—preponderance2—on the falsity/substantial truth
issue.
Indeed, a more recent case from the Texas Supreme Court indicates that the
substantial-truth defense continues to exist, and the defendant may attempt to
establish it by a preponderance, even after a prima facia case of falsity has been
made. In Dallas Morning News, Inc. v. Hall, the court noted that “[if] the plaintiff
fails to carry its [prima facie] burden—or if the movant establishes the essential
elements of a valid defense under section 27.005(d)—the trial court must dismiss
the suit.” 579 S.W.3d at 377. The court first considered only the plaintiff’s evidence
2
We note that, effective September 1, 2019, defendants must prove their defenses “as
a matter of law,” an even higher standard than “preponderance.” See TEX. CIV.
PRAC. & REM. CODE § 27.005(d).
14
of falsity before concluding that the plaintiff had failed to make a prima facie
showing of falsity. Id. at 379. The defendant had also argued that the trial court
improperly rejected its substantial-truth defense under section 27.005(d). The
supreme court did not evaluate whether the defendant had met its defense burden,
noting that “[b]ecause we hold that [the plaintiff] failed to carry its burden to survive
dismissal under section 27.005(c), we need not decide whether [the defendant]
established its substantial-truth defense under section 27.005(d).” Id. at 380. The
clear implication of these words is that, had the plaintiff made a prima facie showing
of falsity, the supreme court would have considered whether the defendant had
proved its substantial-truth defense. The supreme court did not question whether the
substantial-truth defense could be proved by a defendant even after a plaintiff had
made a prima facie showing of falsity.
Indeed, other courts have considered media defendants’ defenses even after a
plaintiff makes a prima facie showing. See Tervita, LLC v. Sutterfield, 482 S.W.3d
280, 285 (Tex. App.—Dallas 2015, pet. denied) (dismissing based on defendant’s
judicial-proceeding privilege and stating that “even if plaintiff met this [prima facie]
burden, the trial court was required to dismiss his claims if [defendant] established
by a preponderance of the evidence each essential element of a valid defense to
[plaintiff’s] claim”). This is true even when a plaintiff makes a prima facie showing
in a defamation claim. See Camp v. Patterson, No. 03-16-00733-CV, 2017 WL
153378904, at *10 (Tex. App.—Austin August 3, 2017, no pet.) (considering
defendant’s substantial-truth defense and concluding that it had not been proven by
preponderance of evidence after plaintiff’s prima facie showing of defamation).
We believe that our interpretation is consistent with the statute, which
provides: “Notwithstanding the provisions of Subsection (c) [which requires the
plaintiff to make a prima facia showing], the court shall dismiss a legal action against
the moving party if the moving party establishes by a preponderance of the evidence
each essential element of a valid defense to the nonmovant’s claim.” TEX. CIV. PRAC.
& REM. CODE § 27.005(d). The statute itself makes it clear that the defendant’s
ability to put on evidence of its substantial-truth defense is not affected by the
plaintiff’s prima facie showing of falsity. Although falsity and substantial truth are
two sides of the same coin, the parties, under the statute, have different burdens of
proof. It makes no sense that a prima facie showing of falsity would always defeat
a preponderance of substantial-truth. To accept the trial court’s interpretation of the
burden-shifting analysis in TCPA cases, i.e., that the burden never shifts on falsity
if the plaintiff makes a prima facie showing, would deny media defendants the right
to attempt to meet their own preponderance burden of proof. In fact, even before
the defenses were incorporated into the TCPA in section 27.005(d), this Court held
that “[a]n interpretation of the TCPA that would prohibit a movant from procuring
dismissal based on a showing of truth would thwart the Legislature’s declared
16
purpose for enacting the TCPA . . . .” Newspaper Holdings, Inc. v. Crazy Hotel
Assisted Living, Ltd., 416 S.W.3d 71, 82 (Tex. App.—Houston [1st Dist.] 2013, pet.
denied).
Because the trial court erred in not affording ProPublica the opportunity to
attempt to prove its substantial-truth defense by a preponderance of the evidence, we
sustain this portion of ProPublica’s first issue.
ProPublica’s Fair-Report and Fair-Comment Privileges
In its Conclusions of Law, the trial court stated, “Defendants are not entitled
to dismissal based upon the fair reporting privilege or the fair comment privilege,
because neither privilege applies when a defendant acts with actual malice, as was
unilaterally stipulated for purposes of this motion, and when a plaintiff establishes
that defendants published false statements and impressions to a third party.”
ProPublica contends the trial court erred by refusing to consider its arguments
and evidence establishing the fair reporting and fair comment privileges set forth in
section 73.002 of the Texas Civil Practices and Remedies Code, which provides:
(a) The publication by a newspaper or other periodical of a matter
covered by this section is privileged and is not a ground for a libel
action. This privilege does not extend to the republication of a
matter if it is proved that the matter was republished with actual
malice after it had ceased to be of public concern.
TEX. CIV. PRAC. & REM. CODE § 73.002(a) (emphasis added).
17
The fair-report privilege bars liability for defamation when the publication is
a “fair, true, and impartial account” of judicial, executive, and other official
proceedings. Id. § 73.002(b)(1)(A-D). The fair-comment privilege covers
“reasonable and fair comment on or criticism of . . . matter[s] of public concern
published for general information. Id. § 73.002(b)(2). Neither privilege applies “to
the republication of a matter if it is proved that the matter was republished with
actual malice after it had ceased to be of public concern.” Id. § 73.002(a).
However, as Frazier agrees in his brief, “the elements of falsity and of actual
malice overlap with the privileges.” And, the Supreme Court has noted that the
privileges found in section 73.002 “bear[] on substantial truth.” See Hall, 579
S.W.3d at 380. Because the trial court erroneously failed to consider ProPublica’s
substantial-truth defense, it similarly erred in refusing to consider its section 73.002
privileges.3
Accordingly, we sustain this portion of ProPublica’s first issue.
ProPublica’s Intentional-Infliction-of-Emotional-Distress Defense
In its conclusions of law, the trial court stated, “Defendants are not entitled to
dismissal based on defenses raised to Plaintiff’s claim of intentional infliction of
emotional distress because such defenses are dispositive legal questions and the
3
We need not address ProPublica’s argument that it did not stipulate to actual malice,
but that it only agreed not to require Frazier to prove it at the Motion to Dismiss
stage. It is clear from the record that ProPublica did not stipulate to falsity.
18
Texas Citizens Participation Act does not provide a procedural avenue for raising
such questions.” Specifically, Frazier argues that ProPublica presents “legal
questions about IIED claims, not factual defenses that courts can weigh by the
preponderance standard”4 and that “[t]he proper avenue for Appellants’ IIED
arguments is not a TCPA motion but a motion to dismiss [under Rule 91a of] the
Texas Rules of Civil Procedure.”
In support, Frazier cites only to a footnote in Youngkin v. Hines, 524 S.W.3d
278, 289 n.7 (Tex. App.—Waco 2016), rev’d, 546 S.W.3d 675 (Tex. 2018), in which
the appellate court refused to address a legal defense raised for the first time on
appeal and noted, in dicta, that “the TCPA does not provide a procedural avenue for
raising potentially dispositive legal questions; it only provides for the nonmovant’s
establishment of a prima facie case or the movant’s establishment of a valid defense
by a preponderance of the evidence.” Id.
However, Youngkin has been reversed and Frazier cites no other authority
suggesting that legal defenses, in addition to factual defenses that must be proved by
a preponderance, may not be raised in response to a TCPA motion to dismiss. Such
an interpretation would also seem to run afoul of section 27.011 of the TCPA, which
provides that “[t]his chapter does not abrogate or lessen any other defense, remedy,
4
In its Motion to Dismiss, ProPublica made the legal argument that Frazier’s IIED
claim was not permissible because it is a “gap-filler” claim and that an alternative
cause of action, i.e., defamation, would provide him a remedy.
19
immunity, or privilege available under other constitutional, statutory, case, or
common law or rule provisions.” TEX. CIV. PRAC. & REM. CODE § 27.011.
But, we also note that ProPublica did, in fact, raise a factual defense to
Frazier’s IIED claim. Specifically, ProPublica claimed that Frazier could not make
a prima facia showing for his IIED claim because he could not show “extreme and
outrageous” conduct by ProPublica. Indeed, Frazier’s claim that ProPublica caused
him severe emotional distress is based on his claim that it published a false story
about him. But, publication of a substantially true but embarrassing story is not
extreme and outrageous conduct. See KTRK Television v. Felder, 950 S.W.2d 100,
108 (Tex. App.—Houston [14th Dist.] 1997, no writ) (holding that “substantially
true” broadcast was not outrageous conduct as matter of law). Thus, just as the trial
court erred in refusing to consider ProPublica’s substantial-truth defense and its
section 73.002 privileges, it also erred in failing to consider ProPublica’s IIED
defense.
Consideration of Irrelevant Expert Report
At the Motion to Dismiss hearing, Frazier offered, and the trial court admitted,
over objection, a report and survey conducted by Dr. Shannon LaBove. LaBove
stated that she “was instructed to assume that the impressions made by the
Defendants,” i.e., Frazier’s interpretation of the “gist” of the statements in the article,
were false. LeBove then conducted a survey and asked whether the participants
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would agree with the article if they were given additional information that Frazier
claimed was favorable to him. The trial court relied on the LaBove Report and
Survey in its Findings of Fact, stating four times, “Dr. Frazier presented clear and
specific evidence—in the form of an expert report and the impressions of focal group
participants—that an average reader would not have agreed with the false impression
. . . if the reader had known the truth and full context.”
At the hearing and on appeal, ProPublica contends, among other things, that
the LeBove report is irrelevant because it provides subjective interpretations of
whether the article is susceptible of defamatory interpretation, which is an issue that
should be objectively determined by the court.
However, in light of this Court’s holding that the trial court erred in failing to
consider any of ProPublica’s substantial-truth, privilege, and IIED defenses, we need
not also determine whether it considered inadmissible evidence by Frazier, and we
decline to do so. The trial court may, of course, revisit its evidentiary rulings on
remand should it decide to do so.
CROSS-POINT ON CONSTITUTIONALITY OF TCPA DEFENSES
In a conditional cross-point on appeal,5 Frazier contends that, even if the trial
court erred by refusing to consider ProPublica’s defenses, this Court should
5
Because Frazier’s cross-point does not seek to alter the trial court’s judgment, no
notice of appeal was required. See Dean v. Lafayette Place (Section One) Council
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nonetheless affirm because section 27.005(d) is unconstitutional. Specifically,
Frazier argues that section 27.005(d), which allows defendants to prove their
defenses by a preponderance of the evidence, usurps a plaintiff’s right to a jury
because it allows the trial court to weigh evidence and determine whether the
defendant has brought forth a preponderance to support its defense.
ProPublica responds that we have no jurisdiction over Frazier’s
constitutionality argument because the trial court did not consider and address it in
its order denying the motion to dismiss. We agree with ProPublica.
In Hearst Newspapers, LLC. v. Status Lounge, Inc., the plaintiff argued in its
response to the TCPA motion to dismiss and in a separate motion that the TCPA was
unconstitutional. 541 S.W.3d 881, 894 (Tex. App.—Houston [14th Dist.] 2017, no
pet.). The trial court denied the defendant’s TCPA motion to dismiss without
mentioning constitutionality and denied by separate order the motion seeking to
declare the statute unconstitutional. Id. The appellate court held that it did not have
jurisdiction over the plaintiff’s constitutional arguments because the applicable
interlocutory appeal statute limits the court’s jurisdiction to review of the order
denying the motion to dismiss. Id. (“Because this court has jurisdiction only over
the trial court’s interlocutory order denying the defendants’ motions to dismiss under
of Co-Owners, Inc., 999 S.W.2d 814, 817 (Tex. App.—Houston [1st Dist.] 1999, no
pet.)
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the TCPA . . . , we cannot consider the order denying Status Lounge’s motion to
declare the TCPA unconstitutional on interlocutory appeal”).
In this case, the trial court’s order denying the motion to dismiss does not
address plaintiff’s constitutionality argument and constitutionality is not mentioned
in the trial court’s Findings of Fact and Conclusions of Law. Indeed, when Frazier
moved for a ruling on his constitutional challenge, he stated that he “does not ask
the Court to modify its December 18 order denying Defendants’ motion to dismiss.”
The trial court did not, even after a request to do so, rule on Frazier’s constitutional
challenge. Because the trial court never ruled on the constitutionality of the TCPA
in connection with the Motion to Dismiss, this Court has no interlocutory jurisdiction
to consider it. See Status Lounge, 541 S.W.3d 894.
CONCLUSION
ProPublica argues not only that the trial court erred by not considering its
substantial-truth defense, it also asks this Court to do so as a matter of first
impression and to render a judgment of dismissal in its favor. However, it is clear
from the record that the trial court never considered ProPublica’s substantial-truth
defense, its privileges, or its IIED defenses when ruling on the motion. All of these
are integral parts of a proper analysis of a motion to dismiss under the TCPA. Thus,
as a court of review, we remand to the trial court to give it an opportunity to do so.
See Iola Barker v. Hurst, No. 01-17-00838-CV, 2018 WL 3059795, at * (Tex.
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App.—Houston [1st Dist.] June 21, 2018, no pet.) (memo. op.) (“We do not,
however, reach the merits of [the defendants’] TCPA motion to dismiss with respect
to [plaintiff’s] claim because there is no indication in the record that the trial court
actually considered the motion in regard to her.”).
Accordingly, we reverse the trial court’s order denying ProPublica’s Motion
to Dismiss and remand for further proceedings. We overrule all pending motions as
moot.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Landau and Hightower.
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