St. Louis County District Court

File No. C5-93-600375

Karla R. Wahl, Karla R. Wahl, P.A., 4840 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for Appellant)

John D. Kelly, Robin C. Merritt, Hanft, Fride, O'Brien, Harries, Swelbar & Burns, P.A., 1000 First Bank Place, 130 W. Superior Street, Duluth, MN 55802 (for Respondent)

Considered and decided by Harten, Presiding Judge, Kalitowski, Judge, and Foley, Judge.

Peggy Cuderman appeals the district court's grant of respondent's motion for directed verdict on her defamation claim. We affirm.

In February 1993, Cuderman commenced this action against St. Luke's Hospital, Dr. Charles Barbee, Dr. William Merrick, and Dr. Douglas Berry. Cuderman's claims were dismissed by summary judgment, except for the defamation claim against Dr. Berry and the retaliatory discharge claim against St. Luke's. The district court ordered separate trials on these remaining claims; trial commenced on Cuderman's defamation claim against Dr. Berry on February 27, 1996. At the close of Cuderman's case, the district court granted Dr. Berry's motion for a directed verdict, and Cuderman appealed.

1. Cuderman argues that the district court erred by directing a verdict because the court's written findings failed to refer to certain allegedly defamatory statements. We have reviewed the record and find there was no evidence before the district court to support Cuderman's contention that Berry made these statements. Therefore, we conclude that the district court's findings are not erroneous.

2. Cuderman alleges that Berry otherwise defamed her by stating: "I won't work with that bitch," "I don't want to work with Peggy, and "Is this the good Peggy or the bad Peggy." The district court directed a verdict on Cuderman's defamation claim because the court found that these statements could not be proven false or interpreted as stating facts. On appeal, Cuderman argues that Minnesota common law does not distinguish between statements of opinion and fact in private plaintiff/private issue defamation, and therefore, the court erred by protecting the opinion statements. See Weissman v. Sri Lanka Curry House, Inc., 469 N.W.2d 471, 473 (Minn. App. 1991) (noting that Minnesota common law makes no distinction between fact and opinion). But see Lund v. Chicago & N.W. Transp. Co., 467 N.W.2d 366, 369 (Minn. App. 1991), review denied (Minn. June 19, 1991) (holding that some derogatory statements are not actionable because they are constitutionally protected expressions of opinion).

To establish a common law defamation claim, a plaintiff must show a statement, communicated by the defendant to someone other than the plaintiff, that was false, and harmed the plaintiff's reputation. Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980)). Under the common law, rhetorical expressions and figurative language are not actionable, however, if they cannot be construed as stating facts. See Beatty v. Ellings, 285 Minn. 293, 300, 173 N.W.2d 12, 16-17 (Minn. 1969) ("Not all abusive or vulgar epithets * * * are inherently defamatory."). Moreover, "statements which cannot be reasonably interpreted as stating actual facts, are absolutely protected by the First Amendment." Hunt v. University of Minn., 465 N.W.2d 88, 94 (Minn. App. 1991) (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 19-21, 110 S. Ct. 2695, 2706-07 (1990)).

In order to determine whether a statement is actionable, this court has applied a four-factor test that examines the precision and specificity of the statement, its verifiability, and the social, literary and public context in which the statement was made. Huyen v. Driscoll, 479 N.W.2d 76, 79 (Minn. App. 1991), review denied (Minn. Feb. 10, 1992); Lund, 467 N.W.2d at 368-69. The question of whether a claimed defamatory meaning is reasonably conveyed by the language used is a question of law to be determined by the court. Utecht v. Shopko Dept. Store, 324 N.W.2d 652, 653 (Minn. 1982).

We have examined the alleged defamatory statements in light of the four factor test and conclude that the district court properly directed a verdict in favor of Berry because these statements cannot be reasonably interpreted as stating facts.[1] The statement that Cuderman was "bad" lacks the precision, specificity, and verifiability for the inference that Cuderman had committed any specific reprehensible acts. See McGrath v. TCF Bank Sav., 502 N.W.2d 801, 808 (Minn. App. 1993) ("troublemaker" not defamatory under common law or constitutional law), modified, 509 N.W.2d 365, 366 (Minn. 1993). Moreover, we conclude that the statement "I don't want to work with Peggy" does not imply underlying facts other than Berry's preference not to work with Cuderman. Additionally, we conclude the statement that Berry "won't work with that bitch" cannot be interpreted as stating facts. Lee v. Metropolitan Airport Comm'n, 428 N.W.2d 815, 821 (Minn. App. 1988) (holding that the word "bitch" used in a similar context is not defamatory as a matter of law). Rather than a case of defamation, the record reflects more a clash of personalities.

3. Further, Cuderman argues that the district court erroneously found that she failed to prove damages on her defamation claim. In view of this court's holding sustaining the directed verdict we need not consider the damages claim.

Affirmed.

[ ]^* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]¹ Although the court's disposition is correct, the district court erred in holding that the statements are not actionable because they cannot be proven false. See Myers, ex rel. Myers v. Price, 463 N.W.2d 773, 775 (Minn. App. 1990) (court will affirm summary judgment if it can be sustained on any ground), review denied (Minn. Feb. 4, 1991). Defamatory statements in cases involving issues of public concern are constitutionally protected if the statement cannot be proven false. Milkovich, 497 U.S. at 18-21, 110 S. Ct. at 2705-07. The same is not true for statements made in a private context. See id.