#TheyLied Defamation Plaintiff, Suing Over Rape Allegations, Can Prove Reputational Harm with His Own Testimony

In Apperson v. Kaminsky, decided Friday by the Missouri Supreme Court (opinion by Justice Paul Wilson, Apperson sued his ex-romantic partners Kaminsky and Norman for defamation (see the intermediate appellate decision for more factual details):

After [their] involvements ended, Norman told more than one person Apperson raped and abused her, and Kaminsky told others (in person and through an extensive social media campaign intended to reach those with whom Apperson dealt personally and professionally) that Apperson stalked and raped her, was a serial rapist and serial abuser, was restrained from coming within 500 feet of her, and threatened to kill both her and Norman.

As a result of these statements, Apperson was confronted in his home by a group of people (several of whom were armed) supporting Kaminsky and Norman. Because of this confrontation, Apperson was forced out of his home for seven months. Kaminsky’s statements also resulted in Apperson being asked not to patronize a local coffee shop, being made to disassociate himself from two organizations he founded, and losing a speaking engagement. Finally, Apperson was involuntarily removed from shared office space after Kaminsky told the management Apperson raped her and insisted management take action against him….

Missouri precedents, unlike those in many other states, require evidence of actual damages in a reputation case; damages may not merely be presumed. The trial court read those precedents as also requiring that the evidence had to go beyond just plaintiff’s testimony on the issue, and thus granted a directed verdict in defendants’ favor. But the Missouri Supreme Court disagreed:

True, a plaintiff’s conclusory assertion of reputational damage is insufficient. A plaintiff’s entirely subjective belief her “integrity” has been damaged also is insufficient. But such holdings are mere applications of the general rule there must be evidence (or a reasonable basis for inferring) the defendant’s defamatory statement caused damage to the plaintiff’s reputation…. If the plaintiff can testify competently to such damage, doing so will suffice to make a submissible case on the issue of reputational injury as readily as evidence from any other source.

In Kenney v. Wal-Mart Stores, Inc. (2003) [the key Missouri Supreme Court precedent], this Court held the plaintiff failed to make a submissible case on the element of reputational damage. The Court explained:

Ms. Kenney made only a conclusory statement that her reputation was injured and that she felt embarrassed, shocked, mad because of the poster. … [She] did not name a single person who held her in lower regard after seeing the poster. … [T]he only witness Ms. Kenney called who actually saw the poster[ ] testified that it did not affect her relationship with Ms. Kenney.

Ms. Kenney’s evidence of actual physical or emotional injury is equally tenuous. The entire presentation of evidence is summed up in [her] statement that she felt embarrassed, shocked, mad. … [She] did not seek medical treatment, psychiatric or psychological counseling, nor was she treated with any medication as a result of the poster. … Ms. Kenney presented no testimony or other evidence of stress or sleeplessness over the incident[ ], and apparently suffered no symptoms associated with mental distress. There was very little, if any, evidence of quantifiable professional or personal injury, such as interference with job performance, psychological or emotional distress, or depression.

In short, the plaintiff testified her feelings were hurt, not her reputation. Defamation allows recovery for damage to reputation, not humiliation…

[I]n Kenney, … this Court quoted [in dictum] from a New Jersey appellate decision: “‘Awards based on a plaintiff’s testimony alone or on ‘inferred’ damages are unacceptable.'” The quotation in Kenney was, at best, poorly vetted…. [T]he troublemaking quote in Kenney was dicta, borrowed from dicta in Rocci [the New Jersey precedent], borrowed from dicta in Sisler [another precedent]. In its full context, which Kenney failed to supply, Sisler requires nothing more or less than what Kenney requires, i.e., the plaintiff must “offer some concrete proof that his reputation has been injured.”

Accordingly, in the future, Kenney should not be understood to suggest a plaintiff’s testimony cannot be considered in determining whether the plaintiff made a submissible case on the element of damages in a defamation case. Rather, as this Court now holds, a plaintiff makes a submissible case on the element of damages in a defamation case if the plaintiff offers evidence (or a basis for a reasonable inference) of actual injury to his or her reputation, regardless of whether that evidence comes from the plaintiff’s testimony, the testimony of others, admissions, documentary evidence, or any other source….

[Apperson] testified about a number of incidents showing—or, at least, supporting a reasonable inference that—the defendants’ defamatory statements caused actual injury to his reputation. His testimony was neither entirely subjective … nor mere speculation …. Instead, he testified he was confronted in—and forced to leave—his home by third persons acting in response to statements by both defendants. He testified he was asked not to patronize a local coffee shop, also due to statements by both defendants. He claims to have lost an important speaking engagement and was ejected from shared office space as a result of Kaminsky’s statements. These are by no means all of the incidents showing (or allowing the jury reasonably to infer) the damage done to Apperson’s reputation, but they are more than sufficient to make a submissible case under Kenney.

The jury, of course, is free to believe all, part, or none of Apperson’s testimony based on its assessment of his credibility. But, under the standard of review, this Court must assume the jury will find him credible. Assigning weight to evidence to decide what and whom to believe is the reserved role of the jury. It plays no part in the purely legal enterprise of ruling on a motion for directed verdict. Then, the question is not the strength of a plaintiff’s case. Instead, it is whether any reasonable juror could find the disputed element. In this case, there is sufficient evidence for a reasonable juror to find Norman’s and Kaminsky’s statements caused damage to Apperson’s reputation….