Did winning a defamation case in Missouri just get more difficult? The Supreme Court will let us know as they have agreed to hear the case decided by the Court of Appeals in Apperson v. Kaminsky.
The defendants in Apperson all but admitted that they made an array of brutal public accusations against the plaintiff, including that he was a serial rapist and tax evader. Many of the accusations were publicized on Facebook. The plaintiff testified that the public accusation damaged his reputation. For example, the plaintiff testified that people confronted him regarding the allegations, accused him of being a rapist, and lost employment opportunities.
First, some law, according to the court:
“Defamation law protects an individual against harm to his or her reputation.” Smith v. Humane Soc’y of United States, 519 S.W.3d 789, 798 (Mo. Banc 2017). To prevail on a defamation claim, a plaintiff must plead and prove: “1) publication, 2) of a defamatory statement, 3) that identifies the plaintiff, 4) that is false, 5) that is published with the requisite degree of fault, and 6) damages the plaintiff’s reputation.” Id. (citation omitted).
The Supreme Court of Missouri has made clear that “proof of actual reputational harm is an absolute prerequisite in a defamation action.” Kenney v. Wal-Mart Stores, Inc., 100 S.W.3d 809, 817 (Mo. Banc 2003) (emphasis added). To establish actual damages, a plaintiff must proffer evidence that is not “too speculative and must be founded upon more than the plaintiff’s embarrassment or perception of their own reputation.” The Fireworks Restoration Co. v. Hosto, 371 S.W.3d 83, 87 (Mo. App. E.D. 2012).
The Court of Appeals, in my opinion, applied a nearly impossible standard of proof to the plaintiff’s damages testimony, holding that he “had the burden of showing how each individual statement directly caused him… - actual harm” and concluding that the plaintiff’s “conclusory assertions his reputation was damaged as a result of [the defendants’] statements fall short of what is required to present a submissible case of defamation.” I couldn’t disagree more. And tellingly, the court doesn’t provide much guidance as to exactly how one proves the obvious—being publicly accused of being a rapist will damage your reputation. Stay tuned for what the Supreme Court has to say.
Cosgrove Simpson handles defamation matters, primarily in the financial industry arena. If you have been defamed publicly and you have substantial damages subject to direct evidence, give us a call.