March 3, 2006

Gilliam v. Pikeville United Methodist Hospital, No. 2004-CA-001573-MR, published by the Court of Appeals. Gilliam was a hospital employee who served on the local contract negotiating committee. At issue was employee tardiness. During a meeting the Hospital accused Gilliam of being habitually tardy. Shortly thereafter a sarcastic flyer regarding the proposed tardiness policy was posted on the employee bulletin board. The Hospital suspected Gilliam and retaliated with a flyer of its own. While it did not mention Gilliam, it mentioned an “employee of the Hospital” and further identified him as “a member of the … negotiating committee.”

Gilliam sued. Because the statements occurred during a labor dispute, federal law preempted. Federal law required “actual malice”, as defined in New York Times v. Sullivan, 376 U.S. 254 (1964), and proof of damage to reputation and related damages. This is a higher standard than Kentucky law, which characterized the statements as “defamatory per se,” which are presumed injurious. The Hospital moved for summary judgment after Gilliam failed to testify to any damages in his deposition. In response Gilliam presented an affidavit outlining the actual injuries suffered.

The trial court granted summary judgment. The court of appeals affirmed. It noted; “[A]n affidavit which merely contradicts earlier testimony cannot be submitted for the purpose of attempting to create a genuine issue of material fact to avoid summary judgment.” The Court found the affidavit was merely an attempt to create an issue which was resolved by deposition testimony. It noted that, “Gilliam’s failure to set forth his damages during his deposition constitutes a judicial admission, which forecloses further dispute on the issue.”

Comment: The discussion of the difference in defamation “per se” and “per quod” is interesting, but the most important part of this opinion is the part dealing with the affidavit. Anyone who has had this happen knows the frustration when a party is allowed to avoid summary judgment by essentially contradicting his or her own testimony. This case puts together the case law on this issue and provides a good fact situation for future guidance.

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