Cashion v. Smith

PRESENT: All the Justices
BRADLEY J. CASHION
OPINION BY
v. Record No. 121797 JUSTICE WILLIAM C. MIMS
October 31, 2013
ROBERT S. SMITH, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Jonathan M. Apgar, Judge
In this appeal, we consider whether an endorsement of an
order withdrew or waived issues for appeal under Code § 8.01-
384(A), whether allegedly defamatory statements were non-
actionable expressions of opinion or rhetorical hyperbole, and
whether such statements were protected by qualified privilege.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
In November 2009, Dr. Robert Smith, a trauma surgeon, and
Dr. Bradley Cashion, an anesthesiologist, provided emergency
care to a critically injured patient. Dr. Smith is employed
full-time by Carilion Medical Center (“Carilion”). Dr. Cashion
was employed by Anesthesiology Consultants of Virginia, Inc.,
which provides services to Carilion. Despite the efforts of
Dr. Smith and Dr. Cashion, the patient died during surgery.
Following the patient’s death, Dr. Smith criticized Dr.
Cashion in the operating room. Dr. Smith, in front of several
other members of the operating team, made the following remarks
to Dr. Cashion: 1
“He could have made it with better
resuscitation.”
“This was a very poor effort.”
“You didn’t really try.”
“You gave up on him.”
“You determined from the beginning that he
wasn’t going to make it and purposefully
didn’t resuscitate him.”
Immediately thereafter, Dr. Smith addressed Dr. Cashion in
the hallway outside the operating room, stating: “You just
euthanized my patient.” Nurse Sherri Zwart, who also had been
in the operating room, and Dr. James Crawford, Chief of
Anesthesia at Carilion, were present in the hallway at the
time. In a subsequent meeting that evening between Drs. Smith,
Cashion, and Crawford, Dr. Smith repeatedly stated that Dr.
Cashion “euthanized” the patient.
Dr. Cashion filed an amended complaint alleging defamation
and defamation per se against Dr. Smith and Carilion, which Dr.
Cashion alleged to be liable under a theory of respondeat
superior. Dr. Smith and Carilion filed demurrers and pleas in
bar asserting, among other things, that Dr. Smith’s statements
were non-actionable expressions of opinion or rhetorical
1
We refer to these statements collectively as “the non-
euthanasia statements.”
2
hyperbole. They also asserted that qualified privilege applied
to the statements yet the amended complaint failed to allege
facts establishing common law malice to overcome the privilege.
After a hearing, the circuit court entered an order (“the
Demurrer Order”) sustaining the demurrers and granting the
pleas in bar as to the non-euthanasia statements on the ground
that they were non-actionable expressions of opinion.
Concomitantly, the court overruled the demurrers and denied the
pleas in bar as to the euthanasia statements. Dr. Smith and
Carilion annotated the Demurrer Order with their objections on
the grounds asserted in their pleadings and at the hearing.
Dr. Cashion endorsed it “WE ASK FOR THIS.”
Following discovery, Dr. Smith and Carilion moved for
summary judgment, again asserting their rhetorical hyperbole
and qualified privilege arguments. Dr. Cashion responded by
arguing, among other things, that qualified privilege did not
apply because Dr. Smith did not make the euthanasia statements
in good faith and was not discussing the care of the patient
when he made them.
After a hearing, the circuit court ruled that the
euthanasia statements were not rhetorical hyperbole. However,
it ruled that qualified privilege applied to Dr. Smith’s
statements and there was no evidence of common law malice on
the part of Dr. Smith necessary to overcome the privilege.
3
Accordingly, it awarded Dr. Smith and Carilion summary judgment
and dismissed the amended complaint. We awarded Dr. Cashion
this appeal.
II. ANALYSIS
A. OPINION OR STATEMENTS OF FACT
Dr. Cashion asserts the circuit court erred by sustaining
the demurrers and pleas in bar as to the non-euthanasia
statements and ruling that they were non-actionable expressions
of opinion. As an initial matter, Dr. Smith and Carilion argue
that he has withdrawn or waived this argument for appeal under
Code § 8.01-384(A) because he endorsed the Demurrer Order “WE
ASK FOR THIS.” They assert that endorsement stated his express
written agreement with the rulings it contained. We disagree.
Code § 8.01-384(A) provides in relevant part that
No party shall be deemed to have agreed to,
or acquiesced in, any written order of a
trial court so as to forfeit his right to
contest such order on appeal except by
express written agreement in his
endorsement of the order. Arguments made
at trial via written pleading, memorandum,
recital of objections in a final order,
oral argument reduced to transcript, or
agreed written statements of facts shall,
unless expressly withdrawn or waived, be
deemed preserved therein for assertion on
appeal.
We have on several occasions interpreted this statute to
clarify the ambiguity of what constitutes a waiver by “express
written agreement in [an] endorsement of [an] order.” We have
4
repeatedly held that “once a litigant informs the circuit court
of his or her legal argument, in order for a waiver to occur
within the meaning of Code § 8.01-384(A), the record must
affirmatively show that the party who has asserted an objection
has abandoned the objection or has demonstrated by his conduct
the intent to abandon that objection.” Kellermann v.
McDonough, 278 Va. 478, 491, 684 S.E.2d 786, 792 (2009)
(quoting Helms v. Manspile, 277 Va. 1, 6, 671 S.E.2d 127, 129
(2009)) (internal alterations and quotation marks omitted).
We discussed waiver by endorsement at length in Chawla v.
BurgerBusters, Inc., 255 Va. 616, 499 S.E.2d 829 (1998). In
that case, the appellants assigned error to the circuit court’s
ruling that they bore the burden of proof on the question of
the reasonableness of a claim for attorneys’ fees. They noted
objections to the interlocutory order effectuating that ruling
but when the court restated it in a subsequent interlocutory
order, they endorsed the second order as “SEEN AND AGREED.”
They again noted their objection to the ruling on the final
order. Id. at 621-22, 499 S.E.2d at 832.
On appeal, the appellee argued the “SEEN AND AGREED”
endorsement waived the issue. We disagreed, holding:
Waiver is the voluntary and intentional
abandonment of a known legal right,
advantage, or privilege. Weidman v.
Babcock, 241 Va. 40, 45, 400 S.E.2d 164,
167 (1991); Fox v. Deese, 234 Va. 412, 425,
5
362 S.E.2d 699, 707 (1987). The essential
elements of waiver are knowledge of the
facts basic to the exercise of the right
and intent to relinquish that right.
Weidman, 241 Va. at 45, 400 S.E.2d at 167;
Fox, 234 Va. at 425, 362 S.E.2d at 707.
Waiver of a legal right will be implied
only upon clear and unmistakable proof of
the intention to waive such right for the
essence of waiver is voluntary choice.
Weidman, 241 Va. at 45, 400 S.E.2d at 167;
May v. Martin, 205 Va. 397, 404, 137 S.E.2d
860, 865 (1964).
In the present case, the [appellants]
made clear to the trial court [their]
objection to the ruling respecting the
burden of proof issue and never abandoned
or evidenced an intent to abandon the
objection. Thus, [they] preserved the issue
for appeal.
Id. at 622-23, 499 S.E.2d at 833 (emphasis added). In short,
the endorsement itself did not constitute a waiver.
We reached the same result in Helms, even though the
appellant never noted an objection on any order. In that case,
the appellants assigned error to the circuit court’s ruling
that they had failed to prove adverse possession by clear and
convincing evidence. They endorsed as “Seen” the court’s final
order effectuating that ruling. 277 Va. at 5-6, 671 S.E.2d at
129. Noting that the appellants had argued adverse possession
in a written memorandum, we held that the court was thereby
informed of their position, which they had not subsequently
expressly withdrawn or waived. Id. at 7, 671 S.E.2d at 129-30.
Again, the endorsement itself did not constitute a waiver.
6
We considered the endorsement “Seen and consented to” in
Johnson v. Hart, 279 Va. 617, 692 S.E.2d 239 (2010). In that
case, the appellee assigned cross-error in an appeal from the
circuit court’s award of summary judgment in favor of the
appellee. Considering whether the appellee’s endorsement
waived the issue argued in the assignment of cross-error, we
noted that the order contained elements favorable to both
parties. We concluded that the appellee’s endorsement “Seen
and consented to” indicated his consent only to the elements
favorable to him, just as the appellant’s endorsement “Seen and
objected to” objected only to the elements adverse to her. Id.
at 624, 692 S.E.2d 243 (alterations omitted). We also again
observed that the appellee’s legal argument had been presented
to the court in written memoranda and acquiescence to the entry
of an order partly in his favor did not affirmatively waive or
abandon it.
The most recent case in which we considered the effect of
a “WE ASK FOR THIS” endorsement was Lamar Corp. v. City of
Richmond, 241 Va. 346, 402 S.E.2d 31 (1991). 2 However, our
2
In Lamar Corp., the City of Richmond condemned a parcel of
real property. Portions of the parcel had been leased to two
billboard advertising companies. The lessees were not parties
to the condemnation proceeding. To the contrary, they entered
a special appearance to assert that the city was required to
institute a separate condemnation proceeding against them to
acquire their interests in the parcels. Id. at 348-49, 402
S.E.2d at 32.
7
analysis did not address Code § 8.01-384(A). The statute did
not then include the provision, “[n]o party shall be deemed to
have agreed to, or acquiesced in, any written order of a trial
court so as to forfeit his right to contest such order on
appeal except by express written agreement in his endorsement
of the order.” The General Assembly amended Code § 8.01-384(A)
The city and the landowners ultimately reached an
agreement as to the value of just compensation. The circuit
court entered a consent order awarding the landowners $360,000
for “all right, title and interest in the property and property
rights acquired” in the condemnation proceeding. The order
noted that the lessees appeared by special appearance, “without
intending to subject either [of them] to the jurisdiction of
th[e c]ourt in this action,” and further directed that “the
compromise and settlement between the City and [the landowners]
shall have no effect upon further proceedings by the City
against [the lessees] and neither the City nor [the lessees]
shall be prejudiced in any way by such settlement in subsequent
proceedings between the City and” the lessees. Although the
landowners and lessees endorsed the order “WE ASK FOR THIS,”
the lessees included “(special appearance)” in their
endorsement.
When the city subsequently obtained permission from the
court to remove the lessees’ billboards from the parcel, the
lessees appealed. We held that a lessee is entitled by virtue
of his lease to a portion of a landowner’s award of
compensation following a condemnation proceeding. Id. at 350,
402 S.E.2d at 33. We also held that a lessee who improves a
parcel by constructing a fixture annexed to it (such as the
billboards) is entitled to a portion of the landowner’s award
of compensation if the parcel is subsequently taken by
condemnation. Id. at 352, 402 S.E.2d at 34. Nevertheless, we
concluded that the lessees had waived any claim on the $360,000
awarded to the landowners because they had “asked for and
consented to” the consent order, even though they had only
entered a special appearance to argue that the city was
required to commence a separate condemnation proceeding to
acquire their interests. Id.8
to add this language in its session following our Lamar Corp.
decision. 1992 Acts ch. 564.
Like the order in Johnson, the Demurrer Order contains
elements favorable and unfavorable to Dr. Cashion. Although it
sustains demurrers by Dr. Smith and Carilion to the non-
euthanasia statements, it overrules their demurrers to the
accusations of euthanasia. We have noted that “[i]t is
entirely proper for a party to request that a court memorialize
in an order a ruling made from the bench, even when that ruling
is contrary to the party's interest.” Levisa Coal Co. v.
Consolidation Coal Co., 276 Va. 44, 56 n.4, 662 S.E.2d 44, 50
n.4 (2008). Dr. Cashion’s “WE ASK FOR THIS” endorsement on the
Demurrer Order therefore reflects only his request that the
court enter an order memorializing its ruling, not his
agreement to the portion of the Demurrer Order adverse to him.
It therefore does not constitute an “express written agreement”
to waive this argument on appeal.
The question of whether the non-euthanasia statements were
expressions of opinion is a question of law. Hyland v.
Raytheon Tech. Servs. Co., 277 Va. 40, 47, 670 S.E.2d 746, 750
(2009). We therefore review the circuit court’s ruling de
novo. Board of Supervisors v. Davenport & Co. LLC, 285 Va.
580, 585, 742 S.E.2d 59, 61 (2013).
9
“When a statement is relative in nature and depends
largely on a speaker's viewpoint, that statement is an
expression of opinion.” Hyland, 277 Va. at 47, 670 S.E.2d at
750. However, statements may be actionable if they have a
“‘provably false factual connotation’” and thus “are capable of
being proven true or false.” Fuste v. Riverside Healthcare
Ass'n, 265 Va. 127, 575 S.E.2d 858, 861-62 (2003) (quoting
WJLA-TV v. Levin, 264 Va. 140, 156, 564 S.E.2d 383, 392
(2002)).
The statements “[t]his was a very poor effort,” “[y]ou
didn’t really try,” and “[y]ou gave up on him,” fall into the
former class because they are subjective and wholly depend on
Dr. Smith’s viewpoint. However, the statements that the
patient “could have made it with better resuscitation” and
“[y]ou determined from the beginning that he wasn’t going to
make it and purposefully didn’t resuscitate him” do not.
The statement that the patient “could have made it with
better resuscitation” directly attributes the patient’s death
to Dr. Cashion, insinuating that he either failed to perform
some action necessary to the patient’s recovery or acted
affirmatively to prevent it. Insinuations may constitute
defamatory statements. Hyland, 277 Va. at 47, 670 S.E.2d at
751. The statement asserts that the patient was capable of
surviving, but for the quality of Dr. Cashion’s treatment.
10
Whether the quality of Dr. Cashion’s treatment caused or even
contributed to the patient’s death is an allegation of fact
capable of being proven true or false, such as through expert
opinion testimony. The second statement goes further, not only
attributing the patient’s death to Dr. Cashion’s action or
inaction but accusing him of purposefully causing the death by
withholding treatment. Such a statement is indistinguishable
from the alleged accusations of euthanasia.
Accordingly, the circuit court erred by ruling that these
two statements were non-actionable expressions of opinion. We
therefore will reverse this portion of its judgment and remand
for further proceedings.
B. QUALIFIED PRIVILEGE
Dr. Cashion also asserts that the circuit court erred by
ruling that Dr. Smith’s euthanasia statements are protected by
a qualified privilege and that Dr. Smith did not lose or abuse
that privilege. A qualified privilege attaches to
“[c]ommunications between persons on a subject in which the
persons have an interest or duty.” Larimore v. Blaylock, 259
Va. 568, 572, 528 S.E.2d 119, 121 (2000). Whether a
communication is privileged is a question of law. Fuste, 265
Va. at 135, 575 S.E.2d at 863.
Dr. Smith’s statements were communications on the subject
of Dr. Cashion’s care of the patient. Dr. Smith, Dr. Cashion,
11
and the medical professionals in the operating room during the
patient’s treatment all had a continuing interest in the level
of care that had been provided and the cause of death. Dr.
Crawford, as the Chief of Anesthesiology, is charged with
managing and supervising the anesthesiologists; thus, he too
shared an interest in Dr. Cashion’s performance in the
operating room. The circuit court therefore correctly
determined that Dr. Smith’s euthanasia statements were
privileged as a matter of law.
Dr. Cashion argues that qualified privilege did not apply
because Dr. Smith’s statements were not made in good faith.
This Court has on occasion previously included good faith as a
factor in the determination of whether a qualified privilege
exists. Great Coastal Express, Inc. v. Ellington, 230 Va. 142,
153, 334 S.E.2d 846, 853 (1985) (citing Taylor v. Grace, 166
Va. 138, 144, 184 S.E. 211, 213 (1936)). However, we recognize
today that the inclusion of good faith in this context is
unwarranted, and hereby overrule the inclusion of that
language.
Indeed, historically, this Court has repeatedly recognized
that the question of whether a statement was made in good faith
is a question of fact for the jury to decide when determining
whether a qualified privilege has been lost or abused, and is
not a question of law for the court to answer in deciding
12
whether a privilege has attached. Aylor v. Gibbs, 143 Va. 644,
654, 129 S.E. 696, 699 (1925); Farley v. Thalhimer, 103 Va.
504, 507-08, 49 S.E. 644, 646 (1905); Tyree v. Harrison, 100
Va. 540, 542, 42 S.E. 295, 295 (1902); Strode v. Clement, 90
Va. 553, 556-57, 19 S.E. 177, 178 (1894). We reaffirm that
approach.
Once a qualified privilege has attached to a
communication, the plaintiff has the burden to prove that the
privilege has been lost or abused, Preston v. Land, 220 Va.
118, 121, 255 S.E.2d 509, 511 (1979), which must be shown by
clear and convincing proof. See Government Micro Res., Inc. v.
Jackson, 271 Va. 29, 43, 624 S.E.2d 63, 71 (2006). In this
case, the circuit court determined that a qualified privilege
may be lost only by clear and convincing evidence of personal
spite or ill will, independent of the occasion on which the
communication was made. Dr. Cashion argues this ruling was
erroneous because the issue of whether there was malice is a
question of fact for the jury, and a showing of pre-existing
personal spite or ill will is only one of several ways in which
a privilege can be lost. We agree.
In Great Coastal Express, Inc. v. Ellington, 230 Va. 142,
154, 334 S.E.2d 846, 854 (1985), we approved a jury instruction
on the elements of common law malice that will serve to defeat
a qualified privilege that “incorporate[d] language used in a
13
number of our earlier cases which discuss elements of common
law malice and abuse of privilege.” A non-exhaustive list of
such elements included a showing that: (1) the statements were
made with knowledge that they were false or with reckless
disregard for their truth, Raytheon Technical Servs. Co. v.
Hyland, 273 Va. 292, 301, 641 S.E.2d 84, 89-90 (2007); (2) the
“statements [we]re communicated to third parties who have no
duty or interest in the subject matter,” Larimore, 259 Va. at
575, 528 S.E.2d at 122; (3) the statements were motivated by
personal spite or ill will, Preston, 220 Va. at 120-21, 255
S.E.2d at 511; (4) the statements included “strong or violent
language disproportionate to the occasion,” Story v. Norfolk-
Portsmouth Newspapers, Inc., 202 Va. 588, 591, 118 S.E.2d 668,
670 (1961); or (5) the statements were not made in good faith,
Chalkley v. Atlantic Coast Line R.R. Co., 150 Va. 301, 325, 143
S.E. 631, 637-38 (1928). We held that “[a]ny one of the
elements if proved” by clear and convincing evidence, defeats
the privilege. Great Coastal Express, 230 Va. at 154, 334
S.E.2d at 854.
Today we reiterate the rule of Great Coastal Express.
Personal spite or ill will, independent of the occasion on
which it was made, is certainly one of the elements that will
establish common law malice. However, it is not the only
14
element, and any one of the elements, if pled and proved, will
suffice. Id. at 154, 334 S.E.2d at 854.
The question of whether a defendant has lost or abused the
privilege is a question of fact for the jury. Fuste, 265 Va.
at 135, 575 S.E.2d at 863 (collecting cases). Because the
circuit court limited the elements capable of defeating a
qualified privilege to the showing of personal spite or ill
will, independent of the occasion on which it was made, it
erred by deciding as a matter of law that Dr. Smith did not
lose or abuse the privilege. We therefore will reverse this
portion of the circuit court’s judgment and remand for further
proceedings.
C. RHETORICAL HYPERBOLE
Dr. Smith and Carilion assert in assignments of cross-
error that Dr. Smith’s statements accusing Dr. Cashion of
committing euthanasia constitute nothing more than rhetorical
hyperbole and therefore are not actionable. We disagree.
Under Virginia law, rhetorical hyperbole is not
defamatory. Yeagle v. Collegiate Times, 255 Va. 293, 295-96,
497 S.E.2d 136, 137 (1998). Statements characterized as
rhetorical hyperbole are those from which “no reasonable
inference could be drawn that the individual identified in the
statements, as a matter of fact, engaged in the conduct
described.” Id. at 296, 497 S.E.2d at 137. Whether a
15
statement constitutes rhetorical hyperbole is a question of law
for the court to determine. Id. at 296, 497 S.E.2d at 138.
In this case, as noted above, some of Dr. Smith’s
statements can reasonably be interpreted as allegations of fact
capable of being proven true or false. Considering the context
in which the statements were made, a listener could believe
that Dr. Cashion engaged in the conduct Dr. Smith attributed to
him, i.e., euthanizing the patient or causing or contributing
to the patient’s death by providing deficient care. Dr.
Smith’s position as a surgeon, having just left the operating
room where the patient died, and his relationship to Dr.
Cashion, an anesthesiologist whose participation in the surgery
afforded him the opportunity to cause or contribute to the
patient’s death, support the inference that Dr. Smith was
conveying what he believed to be factual information about Dr.
Cashion. Thus, we agree with the circuit court’s determination
that the statements were not rhetorical hyperbole. We
therefore will affirm this portion of the circuit court’s
judgment.
III. CONCLUSION
For the foregoing reasons, we will affirm the circuit
court’s rulings that Dr. Smith’s statements are not rhetorical
hyperbole and that the statements enjoy a qualified privilege.
However, we conclude that the circuit court erred by ruling
16
that Dr. Smith’s statements that the patient “could have made
it with better resuscitation” and that Dr. Cashion “determined
from the beginning that he wasn’t going to make it and
purposefully didn’t resuscitate him” were non-actionable
expressions of opinion. We also conclude that the circuit
court erred by ruling that qualified privilege can be lost or
abused only upon a showing of personal spite or ill will. We
therefore will reverse those portions of the circuit court’s
judgment and remand for further proceedings consistent with
this opinion.
Affirmed in part,
reversed in part,
and remanded.
JUSTICE McCLANAHAN, dissenting.
I agree with Justice Powell that Dr. Cashion waived any
objection to challenge the non-euthanasia statements for the
reasons stated in her analysis of that issue. Therefore, I
also would not reach the merits of Dr. Cashion’s argument that
the circuit court erred in determining that the non-euthanasia
statements were expressions of opinion. As to the euthanasia
statements, however, I would hold they are protected by the
First Amendment to the United States Constitution and Article
I, Section 12 of the Constitution of Virginia as rhetorical
hyperbole and, therefore, not actionable.
17
Both the United States Supreme Court and this Court have
recognized that putatively defamatory statements that are not
literal assertions of “actual fact” but, instead, “rhetorical
hyperbole,” are constitutionally protected free speech. See,
e.g., Milkovich v. Lorain Journal Co., 497 U.S. 1, 16-17
(1990); Letter Carriers v. Austin, 418 U.S. 264, 284-86 (1974);
Greenbelt Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6, 13-14
(1970); Yeagle v. Collegiate Times, 255 Va. 293, 295-96, 497
S.E.2d 136, 137-38 (1998); Crawford v. United Steel Workers,
AFL-CIO, 230 Va. 217, 234-35, 335 S.E.2d 828, 838-39 (1985).
“The First Amendment’s shielding of figurative language
reflects the reality that exaggeration and non-literal
commentary have become an integral part of social discourse.”
Levinsky’s, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 128
(1st Cir. 1997). Such protected speech specifically includes
words that are “sure to be understood as merely a label for the
labeler’s underlying assertions,” Dilworth v. Dudley, 75 F.3d
307, 309 (7th Cir. 1996), and exaggerated rhetoric intended to
convey outrage or condemnation. Greenbelt, 398 U.S. at 14;
CACI Premier Technology, Inc. v. Rhodes, 536 F.3d 280, 301-03
(4th Cir. 2008); Horsley v. Rivera, 292 F.3d 695, 701-02 (11th
Cir. 2002). In other words, rhetorical hyperbole is not
actionable because the speaker is not asserting a statement of
18
fact, but is using exaggerated or figurative language to drive
home an underlying factual assertion or point of view.
In assessing Dr. Cashion’s claim of defamation based on
the euthanasia statements, we must consider those statements in
the context of the entirety of the statements made by Dr. Smith
and the circumstances in which the statements were made.
Yeagle, 255 Va. at 297-98, 497 S.E.2d at 138; Lewis v. Kei, 281
Va. 715, 725-26, 708 S.E.2d 884, 891-92 (2011). Dr. Cashion
alleges in his amended complaint that, outside of the operating
room, Dr. Smith accused him of euthanizing the patient when
Nurse Zwart and Dr. Crawford, Chief of Anesthesia at the
Carilion Clinic, were both present, and, again, during a
conversation between Dr. Cashion, Dr. Crawford, and Dr. Smith
shortly thereafter. Dr. Cashion’s allegations in his amended
complaint and his responses to requests for admission make
clear that Dr. Smith made the euthanasia statements immediately
following a high-stress trauma situation, in the context of
criticizing Dr. Cashion’s efforts to resuscitate a “critically
injured patient” whose “demise seemed imminent.”
Furthermore, we must accept Dr. Cashion’s theory of
defamation that Dr. Smith accused him of “the commission of a
criminal offense involving moral turpitude, specifically,
deliberately causing the death of another person, for which Dr.
19
Cashion may be indicted and punished.” 1 See Horsley, 292 F.3d
at 701 (having alleged that defendant defamed plaintiff by
stating he is chargeable with a felony, plaintiff is bound by
that construction of the statements). Dr. Cashion argued in
the circuit court that the accusation of euthanasia was “a
straightforward allegation of the purposeful killing” through
the use of a “calculated medical term to proclaim that another
doctor had executed [the patient].” Similarly, in this Court,
he argues that Dr. Smith accused him of “purposefully kill[ing]
the patient like he was an animal.” 2
Examining the context surrounding the euthanasia
statements and considering the entirety of the statements made
by Dr. Smith in light of Dr. Cashion’s theory of defamation, I
would conclude that no reasonable hearer would have understood
Dr. Smith’s euthanasia statements as literally accusing Dr.
Cashion of a crime for which he could be indicted and punished,
1
Virginia does not permit “mercy killing or euthanasia” or
“any affirmative or deliberate act or omission to end life
other than to permit the natural process of dying.” See Code §
54.1-2990(D).
2
Dr. Cashion’s theory of defamation is advanced repeatedly
throughout his brief wherein he argues that in making the
euthanasia statements, Dr. Smith “accused Dr. Cashion of
killing the patient,” made a “statement of medical fact that
Dr. Cashion had killed a patient,” and “suggested that Dr.
Cashion had intentionally dispatched the patient as if he were
an animal.”
20
i.e., criminal homicide. 3 Dr. Smith allegedly accused Dr.
Cashion of “euthaniz[ing his] patient” while criticizing Dr.
Cashion for what he viewed as poor resuscitation efforts on a
critically injured patient whose death was imminent. 4 The
statements were made in the presence of Dr. Crawford, who was
familiar with the medical condition of the patient and the
nature of Dr. Smith’s criticisms of Dr. Cashion, and a nurse
involved in the resuscitation of the patient. All of the
statements related to the treatment Dr. Cashion rendered to an
already dying patient in the presence of numerous medical
3
In concluding the euthanasia statements could be
construed as stating facts about Dr. Cashion, the circuit court
reasoned that “it is believable that a surgeon’s euthanasia
comment about an anesthesiologist, directly after a patient has
died on the operating table, meant that the anesthesiologist
committed malpractice, and euthanized a hopeless patient.”
Likewise, the majority states that a listener could believe Dr.
Cashion “caus[ed] or contribut[ed] to the patient’s death by
providing deficient care.” This reasoning wholly ignores Dr.
Cashion’s theory of defamation regarding the euthanasia
statements, which is that Dr. Smith accused him of a crime, not
just malpractice or deficient care. See Horsley, 292 F.3d at
701.
4
In fact, because as Dr. Cashion asserts, the patient’s
death from his injuries was imminent and the prohibition on
euthanasia in Virginia does not extend to permitting the
natural process of dying, see Code § 54.1-2990(D), the actual
circumstances in which the statements were made would not
permit a reasonable inference that Dr. Cashion criminally
euthanized the patient or that Dr. Smith was stating, as a
literal fact, that Dr. Cashion had criminally euthanized the
patient.
21
providers. 5 Thus, the reasonable hearer of the euthanasia
statements would have understood Dr. Smith’s statements as an
exaggerated expression of outrage at Dr. Cashion’s
resuscitation efforts, not a literal accusation of fact – that
Dr. Cashion committed a criminal homicide. 6 See Greenbelt, 398
U.S. at 14 (even the most careless reader would have perceived
the word “blackmail” as a vigorous epithet used by those who
considered a real estate developer’s negotiating position
unreasonable and not as a charge of the commission of a
criminal offense); Horsley, 292 F.3d at 702-03 (reasonable
viewer would have understood defendant’s use of phrase
“accomplice to murder” as an expression of outrage, and not an
accusation of the commission of a crime). Accordingly, the use
5
Although Dr. Cashion acknowledges that if taken
literally, Dr. Smith would have been accusing him of the
intentional killing of a patient in the presence of other
health care providers, he posits that because the euthanasia
could have been performed “without attracting attention,” the
statement could reasonably be believed.
6
Dr. Cashion argues that because he was an
anesthesiologist and, therefore, capable of euthanasia, the
statement could be taken to be literally true. While out of
context, accusing an anesthesiologist of euthanizing a patient
because an anesthesiologist is capable of such an act could be
taken as a literal statement of fact, we must examine the
entirety of the statements in the context in which the
statements were allegedly made, consider the identity of those
who allegedly heard them, and determine what they reasonably
would have believed under those circumstances. Yeagle, 255 Va.
at 297-98, 497 S.E.2d at 138-39; Lewis, 281 Va. at 725-26, 708
S.E.2d at 891-92.
22
of the word “euthanize” in this context was, in my view, a
figurative label for Dr. Smith’s underlying criticisms, and
would have been understood as such by the medical personnel who
heard the euthanasia statements. 7
Further supporting the conclusion that Dr. Smith used the
term “euthanasia” figuratively is Dr. Cashion’s own allegation
in his amended complaint that Dr. Smith admitted he never
believed Dr. Cashion actually committed euthanasia. Thus, the
circuit court could not properly conclude, as it did, that
“[i]f that is what Smith believed to have occurred, then a
euthanasia comment would not be hyperbole.”
For these reasons, I would hold the circuit court erred in
its determination that the euthanasia statements were not
rhetorical hyperbole. However, because I believe the circuit
court reached the right result, I would affirm the circuit
court’s grant of summary judgment. See Deerfield v. City of
Hampton, 283 Va. 759, 767, 724 S.E.2d 724, 728 (2012) (applying
the right result for the wrong reason doctrine).
7
Dr. Smith’s use of non-literal language to make his point
was not limited to his euthanasia statements since, as Dr.
Cashion alleges in his amended complaint, Dr. Smith used a
basketball analogy when he told Dr. Cashion in the presence of
other medical personnel: “We [the trauma surgeons] were playing
full court press and you were playing four corners” with the
patient’s life.
23
JUSTICE POWELL, with whom JUSTICE GOODWYN joins, concurring in
part and dissenting in part, and with whom JUSTICE McCLANAHAN
joins in part.
I concur in the Court’s judgment in all respects with
regard to the euthanasia statements. However, I believe that
we need not reach the merits of Dr. Cashion’s argument that the
circuit court erred in determining that the non-euthanasia
statements were protected statements of opinion instead of
actionable statements of fact, as Dr. Cashion expressly waived
any such argument regarding the non-euthanasia statements.
Therefore, I respectfully dissent from Part II.A. of the
majority opinion.
Although we have previously considered the endorsement,
“WE ASK FOR THIS” as indicating that a party has “asked for and
consented to an order,” Lamar Corp. v. City of Richmond, 241
Va. 346, 349, 352, 402 S.E.2d 31, 32, 34 (1991), I recognize
that we have yet to consider such an endorsement in the context
of Code § 8.01-384(A).
Code § 8.01-384(A) provides in relevant part as follows:
No party shall be deemed to have agreed to,
or acquiesced in, any written order of a
trial court so as to forfeit his right to
contest such order on appeal except by
express written agreement in his
endorsement of the order.
(Emphasis added.)
In the present case, it is undisputed that counsel for Dr.
Cashion endorsed the Demurrer Order with the signature-block
notation: “WE ASK FOR THIS.” The only logical interpretation
of such an endorsement is that it is a request for the circuit
court to enter the order as drafted, and therefore it
constitutes an “express written agreement” with the terms of
the order pursuant to Code § 8.01-384(A). Dr. Cashion, having
agreed with “the action taken by the trial court [entering the
order], should not [now] be allowed to assume an inconsistent
position.” Clark v. Commonwealth, 220 Va. 201, 214, 257 S.E.2d
784, 792 (1979).
Code § 8.01-384(A) goes on to state:
Arguments made at trial via written
pleading, memorandum, recital of objections
in a final order, oral argument reduced to
transcript, or agreed written statements of
facts shall, unless expressly withdrawn or
waived, be deemed preserved therein for
assertion on appeal.
(Emphasis added.)
A review of the orders in the case also indicates that
counsel for Dr. Cashion knew the difference between objecting
to a ruling as opposed to expressly agreeing with one. When
endorsing an order with which he agreed, i.e., the order
granting leave to amend his complaint, the order granting the
motion to correct misnomer and the order at issue here, counsel
25
for Dr. Cashion used the language: “WE ASK FOR THIS.” 1 However,
when objecting to an order, such as the final order granting
summary judgment, Dr. Cashion’s counsel used the endorsement
language “Seen and objected to,” despite the fact the circuit
court ruled partly in Dr. Cashion’s favor by denying the motion
for summary judgment on the issues relating to treating the
statements made in the hallway as non-actionable rhetorical
hyperbole. Clearly, when Dr. Cashion intended to object to a
ruling of the circuit court, he did so. Here, he did not.
Contrary to the majority opinion, there is nothing in the
record indicating that the Demurrer Order “reflects only [Dr.
Cashion’s] request that the court enter an order memorializing
its ruling.” Indeed, it is clear that the circuit court
ordered counsel for Dr. Cashion to “prepare an appropriate
order and, after endorsements, send it to the Court for entry.”
(JA 67). Levisa Coal Co. v. Consolidation Coal Co., 276 Va.
44, 56 n.4, 662 S.E.2d 44, 50 n.4 (2008), the case upon which
the majority relies for this notion, is inapposite to the
present case. The actual issue in Levisa Coal involved the
right of a party to request that a court memorialize its ruling
in an order. As previously noted, there is nothing in the
1
Tellingly, Dr. Cashion signed this order “WE ASK FOR
THIS” despite the fact that the demurrer was filed by Dr. Smith
and Carilion. Additionally, although Dr. Smith and Carilion
prevailed in part, they each noted their objections to the
circuit court’s ruling.
26
record that even remotely indicates that Dr. Cashion requested
the circuit court memorialize its ruling. Furthermore, in
Levisa Coal, the appellant specifically noted its objections
and the trial court expressly reserved those objections by
reference in its order. Id. In the present case, however, the
Demurrer Order was drafted by counsel for Dr. Cashion,
contained no reservation of objections and, in fact,
affirmatively asked the trial court for dismissal of the claims
based on the non-euthanasia statements.
In Johnson v. Hart, 279 Va. 617, 624, 692 S.E.2d 239, 243
(2010), we held that an appellee’s endorsement of an order
granting summary judgment in his favor with “[s]een and
consented to” did not constitute an express waiver under Code §
8.01-384 of the arguments he previously presented to the
circuit court. Considering the context of the endorsement in
that case – that it was made by the prevailing party on a final
order that dismissed the case with prejudice in his favor – we
concluded that “[s]een and consented to” only “indicate[d] that
[appellee] consented to the trial court’s order granting his
motion for summary judgment,” and did not convey his
acquiescence with every ruling the circuit court made in
granting the motion. Id. at 624, 692 S.E.2d at 243.
Johnson differs from the present case in that there is a
distinction between a recognition that the circuit court has
27
ruled for a party and that party “consents” to the entry of a
proper final order and the relief contained therein, and a
party’s affirmative request for the entry of an order and the
relief contained therein. The latter clearly indicates that
the party has yielded its position. Moreover, the Demurrer
Order was not a final order disposing of the case in Dr.
Cashion’s favor; rather, the circuit court ruled both for and
against Dr. Cashion, and the case proceeded.
I feel compelled to point out that the majority has made
it virtually impossible for a party to “forfeit his right to
contest [an] order on appeal” under Code § 8.01-384(A).
According to the majority, an express, written statement asking
for a specific order and the relief contained therein with no
objections noted is insufficient to waive an objection. Thus,
under the majority’s rubric, for Dr. Cashion to waive his
objections, he would be required to endorse the order with the
statement: “I am affirmatively waiving my objection to the
demurrer on the non-euthanasia statements.”
In considering what constitutes waiver under Code § 8.01-
384(A), we have recognized that:
Once a litigant informs the circuit court
of his or her legal argument, in order for
a waiver to occur within the meaning of
Code § 8.01-384(A), the record must
affirmatively show that the party who has
asserted an objection has abandoned the
objection or has demonstrated by his
28
conduct the intent to abandon that
objection.
Helms v. Manspile, 277 Va. 1, 6, 671 S.E.2d 127, 129 (2009)
(internal quotation marks and alteration omitted) (emphasis
added).
In my opinion, the record clearly reveals that, in
addition to expressly abandoning his objection in writing, Dr.
Cashion “demonstrated by his conduct the intent to abandon
[the] objection.” Helms, 277 Va. at 6, 671 S.E.2d at 129(internal quotation marks omitted). The focus of his pleadings
and argument was on the statements relating to “euthanasia” and
not the non-euthanasia statements. For example, in the Amended
Complaint, Dr. Cashion alleged “[a] simple apology from Dr.
Smith acknowledging that Dr. Cashion did not ‘euthanize’ the
patient would have sufficed to end the matter at this early
stage.” Notably, he makes no mention of an apology for the
non-euthanasia comments. Further, during the course of the
hearing, counsel for Dr. Cashion mentioned the word
“euthanasia” or some form of it, (e.g., “purposely killed”) at
least six times. By contrast, he referred to the non-
euthanasia statements only once, and even then, only as factual
support for the euthanasia statements.
Further, the majority fails to consider the unintended
consequences of its holding. In my opinion, the majority fails
29
to give appropriate consideration to Dr. Cashion’s actions. If
the conduct of a party is no longer considered in determining
affirmative waiver, then I believe that the majority has opened
the floodgates to invited error. Under the majority’s
approach, as long as a party does not endorse an order in a
manner that specifically waives the objection, that party’s
objection to that order would be preserved regardless of that
party’s subsequent actions. But see Saunders v. Commonwealth,
211 Va. 399, 401, 177 S.E.2d 637, 638 (1970)) (recognizing that
a party that unsuccessfully objects to an action of the trial
court waives that objection when he subsequently acts in a
manner that runs counter to his objection).
By endorsing the order with “WE ASK FOR THIS” and failing
to note any objections, Dr. Cashion affirmatively requested,
and therefore yielded to, the terms of the entire Demurrer
Order. Thus, he abandoned any objections he may have had to
the order. Accordingly, I would hold that Dr. Cashion has
waived his arguments on appeal regarding the actionability of
the non-euthanasia statements.
30