      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00495-CV



          Byron D. Neely, Individually and Byron D. Neely, M.D., P.A., Appellants

                                                  v.

  Nanci Wilson; CBS Stations Group of Texas, L.P., d/b/a KEYE-TV; and Viacom, Inc.,
                                      Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
     NO. D-1-GN-04-001858, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING



                                           OPINION


               Following an Austin television station’s broadcast of an “investigative” news report

that negatively portrayed his work as a neurosurgeon, Dr. Byron Neely and the professional

association through which he practiced, Byron D. Neely, P.A. (collectively “Neely,” except when

the distinction is relevant), asserted causes of action for libel against the reporter who had written

and presented the story, Nanci Wilson; the television station, CBS Stations Group of Texas, L.P.

d/b/a KEYE-TV (“KEYE”); and KEYE’s owner, Viacom, Inc. The defendants moved for and

obtained summary judgment as to each of Neely’s claims. Neely appeals. For the reasons explained

herein, we will affirm the district court’s judgment.
                     FACTUAL AND PROCEDURAL BACKGROUND

               The facts summarized below are taken from the summary-judgment evidence,

presented in the light most favorable to Neely, the non-movant.

               As of the time of the broadcast in question, Neely was a board-certified neurosurgeon

who had maintained a private practice in Austin for more than twenty-five years. At relevant times,

Neely had privileges at Austin’s St. David’s Hospital. By the time the broadcast aired, Neely had

performed over four thousand surgeries. Of these, seven had given rise to medical-malpractice suits

in which Neely was named as a defendant. All of the suits had been predicated on alleged acts

occurring in 1994 or after, and at least four had arisen in 1999 or later. In four of the suits, the

claims against Dr. Neely had been settled. In one suit, the claims against Dr. Neely had been non-

suited “with prejudice.” In the remaining two cases, both of which had been filed by pro se

plaintiffs, the claims against Dr. Neely had been involuntarily dismissed.

               As we will detail below, the broadcast stated that Neely had been sued four times but

explored the subject matter of only two of these actions. The first, brought by former patient

Paul Jetton and his then-wife, Sheila, on behalf of themselves and their three children, alleged that

Neely, another neurosurgeon, and St. David’s Hospital had been negligent in providing medical care

to Paul in September 1999.1 Paul had been referred to Neely by another physician after an MRI

had detected a small mass in his midbrain. Neely diagnosed Paul as having a lesion in his brain and

secondary hydrocephalus (a build-up of fluid on the brain). Neely performed surgery to insert a




       1
         Because Paul Jetton and Sheila Jetton had the same last name, for clarity we will refer to
them by their first names.

                                                 2
shunt to draw fluid from Paul’s brain, utilizing a “Torkildsen shunt” procedure, which entailed

inserting the shunt near the base of Paul’s brain. The surgical team encountered difficulties that

included challenges in positioning Paul—a former University of Texas and NFL lineman who stood

6’ 4” and still weighed almost 300 pounds—and the procedure ultimately lasted almost eight hours.

While Paul was hospitalized after surgery, he developed an enterobacterial infection. Neely

recommended removing the shunt, but Paul, at Sheila’s insistence, chose to follow the advice of an

infectious disease doctor who recommended discharging Paul and treating the infection at home

with antibiotics. Reluctantly, Neely approved Paul’s discharge from the hospital, although he did

not indicate “AMA” (against medical advice) in Paul’s medical records. After discharge, Paul

developed serious complications from the infection, including a brain abscess, meningitis, and syrinx

(accumulation of fluid in the spinal cord). Paul returned to the hospital where Neely removed the

shunt. As of the time of the broadcast, Paul had undergone as many as twelve additional brain

surgeries and was physically disabled, requiring aid of a walker to walk.

               In their suit, the Jettons alleged that Neely had been negligent in performing surgery

to insert a shunt to drain fluid without proper indications for such surgery, in opting to utilize the

Torkildsen shunt procedure, in performing the procedure improperly, in allowing the surgical site

to get infected, in positioning Paul in a way that caused permanent damage to his ulnar nerve, and

in failing to remove Paul’s infected shunt before discharging him. Additionally, the Jettons alleged

that when providing medical care to Paul, Neely had been impaired by dependency on steroids and

opiates and had hand tremors attributable to the medications he was allegedly taking.




                                                  3
                Over the years, Neely had suffered from a variety of ailments and injuries—including

severe asthma and allergies, spastic colon, and a torn rotator cuff—for which other physicians had

prescribed him pain-killers, muscle relaxants, and other medications. These medications included

steroids, narcotics, and opiates. By 1999, it is undisputed that Neely had begun self-prescribing

refills of many of these medications. Neely asserted that this was a common practice among

physicians and one that at the time was not explicitly prohibited by any law. While Neely

acknowledged that some of these medications were capable of impairing his medical competence,

he steadfastly maintained that he never used them at times or in amounts that actually did impair

him. After discovery uncovered information regarding Neely’s use of these medications, the Jettons

alleged otherwise.

                Relatedly, Neely acknowledged that he suffered from hand tremors beginning in 1999

that several other individuals, including Sheila Jetton, had witnessed. He attributed the tremors to

his “tapering” of his dosage of a steroid allergy medication that he had taken for decades. Neely

claimed that he could predict when the tremors would occur and that he could “control” them by

“holding [his] hands down on the patient.”

                In June 2003, the Jettons’ claims against Neely were settled for $500,000—the limits

of Neely’s professional liability insurance policy. Neely did not admit liability, but settled the claims

because of Paul Jetton’s “high profile status” as a former Texas Longhorn and NFL player and the

“sympathetic nature of his injuries.”

                Along with their suit, the Jettons filed a complaint against Neely with the

Texas Board of Medical Examiners (now the Texas Medical Board) (“the Board”) regarding his



                                                   4
medical care of Paul. The Board dismissed the complaint in June 2003 after finding no violations

of the medical practice act. Although the district court excluded from evidence a letter from the

Board informing Neely of its disposition of the complaint, the broadcast, which was in evidence,

noted that the Board had found “no wrong doing” in Neely’s care of Paul.

               The second suit discussed in the broadcast had been brought by Li Yu, the ex-wife

of a former Neely patient, Wei Wu. In November 1999, Neely had performed surgery on Wu to

remove a brain tumor. A biopsy of the tumor revealed it to be a malignant metastatic melanoma

(skin cancer that had spread to his brain).       Neely also determined, upon visual inspection

during surgery, that the cancer had spread to numerous other sites throughout Wu’s brain. Based on

the surgery results and the pathology report, Wu’s oncologist informed Wu that, all other things

being equal, he would probably have a short time to live and recommended that he be evaluated

at M.D. Anderson for experimental melanoma treatments. Several days later, Wu, a TxDOT

engineer, committed suicide by jumping from the U.S. 183 overpass over MoPac in Austin. The

Travis County Medical Examiner’s office conducted an autopsy and concluded that, contrary to the

diagnosis Wu had been given, Wu’s brain following surgery showed “no residual metastatic

melanoma on gross inspection.”

               Yu, acting pro se, sued Neely, the oncologist, and St. David’s for medical

malpractice, alleging, in part, that Neely and the oncologist misdiagnosed Wu as having cancer

throughout his brain when, in fact, he did not. This and other actions, Yu further alleged, contributed

to Wu’s suicide. In a separate proceeding, Yu also sued various TxDOT personnel for allegedly

causing Wu’s suicide through their mistreatment of him. Although pro se and no longer married



                                                  5
to Wu, Yu purported to sue on behalf of Wu’s estate and a minor child of their marriage. The

district court dismissed Yu’s suit in part because Yu was not a licensed attorney and thus could

not act as counsel for the estate and the child. A complaint was also filed with the Board, but it

was dismissed after the Board found that Neely had not violated the medical practice act. The

district court excluded from evidence a letter from the Board advising Neely that it had found

no violations.

                 The broadcast also discussed a 2003 disciplinary action that the Board had taken

against Neely on a 2002 complaint that he had been prescribing controlled substances to himself

that had the potential to interfere with his ability to perform surgery.2 The Board investigated the

complaint and, on December 12, 2003, Neely and the Board entered into an agreed order in which

Neely, “[t]o avoid further investigations, hearings, and the expense and inconvenience of litigation,”

accepted a three-year probated suspension of his medical license along with other terms and

conditions. Of significance to this case, the agreed fact findings set forth in the order included:


       6.        Respondent suffered various injuries and ailments, which required a variety
                 of medications.      Respondent’s treating physician legitimately and
                 appropriately prescribed a number of medications to treat these conditions.
                 However, between 1999 and 2002, Respondent began to refill the
                 medications himself in lieu of scheduled visits. The list of medications
                 Respondent has self-prescribed include Hydrocodone, Soma, Darvocet,
                 Paregoric, Propoxyphene, Carisoprodol, Medrol, Phenergan, Azmacort,
                 Cardura, Prilosec, Lomotil, Ventolin, Norco, and Flonase.

       7.        Upon review of statements of Respondent and the September 27, 2000
                 medical records of Respondent obtained from his treating physician, the




       2
            Neely attributed this complaint to Sheila Jetton.

                                                   6
                 Panel of [Board representatives] concluded that Respondent had a prior
                 history of tremors.

       8.        The Panel took notice of the fact that the Board’s investigator claims to have
                 witnessed a tremor during the 2002 interview. Respondent asserted the
                 tremor was the result of nervousness about the interview.


The order also included findings that Neely had presented evidence that he had undergone a full

physical examination by a board-certified family practitioner, who found him to be in “relatively

good health, with no need of chronic medications,” and “did not detect a medically significant

tremor,” but “felt unqualified to determine” Neely’s ability to perform surgery. Neely had also relied

upon the examination of a board-certified psychiatrist and addictionologist to determine the

possibility of substance abuse or addiction, who “found no underlying psychiatric condition that

would inhibit Respondent’s ability to practice medicine.” However, the findings reflected, “[t]he

Board is requesting independent physical and psychiatric evaluations to determine Respondent’s

capacity to practice medicine in general, and specifically, to perform surgery.”

                 Based on these findings, the order concluded that Neely was subject to Board

discipline under sections 164.051(a)(4) and 164.056 of the occupations code “due to Respondent’s

inability to practice medicine with reasonable care and safety to patients, due to mental or

physical condition.” Section 164.051 authorizes the Board to take disciplinary action against a

doctor under various circumstances, and the order’s language tracks the circumstances stated in

subsection (a)(4)(D) of section 164.051. See Tex. Occ. Code Ann. § 164.051(a)(4)(D) (West 2004).3


       3
            Section 164.051(a)(4) provides in full:



                                                      7
Section 164.056 empowers the Board, when enforcing section 164.051(a)(4), to compel physical or

mental examinations by physicians designated by the Board. See id. § 164.056 (West Supp. 2009).

The order further concluded that Neely was subject to disciplinary action under section 164.051(a)(3)

of the code, see id. § 164.051(a)(3) (committing or attempting to commit a direct or indirect violation

of a Board rule), with regard to Board Rule 190.1(c)(1)(M), which was identified as “inappropriate

prescription of dangerous drugs or controlled substances to oneself, family members, or others in

which there is a close personal relationship.”

               The Board suspended Neely’s medical license but stayed the suspension and

placed Neely on probation for three years. Additionally, the order prohibited Neely from serving as

a physician for his immediate family members or prescribing, dispensing, administering, or

authorizing “controlled substances or dangerous drugs with addictive potential or potential for

abuse” to himself or his immediate family. The order further required Neely to be examined by a



       The board may refuse to admit a person to its examination or refuse to issue a license
       to practice medicine and may take disciplinary action against a person if the person:

       ***

       (4) is unable to practice medicine with reasonable skill and safety to patients because
       of:

               (A) illness;

               (B) drunkenness;

               (C) excessive use of drugs, narcotics, chemicals, or another substance; or

               (D) a mental or physical condition

Tex. Occ. Code Ann. § 164.051(a)(4) (West 2004) (emphasis added).

                                                  8
Board-approved physician and evaluated by a Board-appointed psychiatrist who was board certified

in forensic or addictive psychology. If it was determined by the physician that Neely had a

medical condition that, without adequate treatment, could adversely affect Neely’s ability to practice

medicine safely, Neely was required to undergo continuing care and treatment for such condition.

Similarly, if the evaluating psychiatrist recommended, Neely was to submit to continuing psychiatric

care and treatment by a psychiatrist approved by the Board.

               Later in December 2003, the Board published a press release announcing that it

had taken public disciplinary actions against sixty-one doctors, including Dr. Neely. Subsequently,

the Austin American Statesman published an article on December 20, 2003, with the headline,

“6 physicians disciplined for substance abuse.” The article reported that “The Texas board that

polices doctors recently disciplined six Austin physicians for violations involving either drug

or alcohol abuse.” While the article focused primarily on another physician whose license had

been suspended by the Board, it mentioned, in bullet points at the end, each of the five other

Austin physicians who had been disciplined. Regarding Dr. Neely, the Statesman reported that

the Board:


       Put Dr. Byron Davis Neely, a neurosurgeon, on probation for three years for self-
       prescribing medications, according to board records. The order prohibits him from
       prescribing drugs to himself or his immediate family and includes requirements for
       a psychiatric evaluation and board monitoring. Neely did not return a call to his
       office.


Similarly, the Board placed the following statement in its online profile of Dr. Neely on its website:




                                                  9
       ON 12-12-03 THE BOARD AND DR. NEELY ENTERED INTO AN AGREED
       ORDER SUSPENDING THE PHYSICIAN’S LICENSE; STAYING THE
       SUSPENSION, AND PLACING THE PHYSICIAN ON PROBATION FOR
       THREE YEARS. THIS ACTION WAS BASED ON ALLEGATIONS THAT
       DR. NEELY HAD SELF-PRESCRIBED MEDICATIONS WITH THE
       POTENTIAL TO INTERFERE WITH HIS ABILITY TO PERFORM SURGERY.
       THE TERMS OF THE ORDER FORBID DR. NEELY FROM
       SELF-PRESCRIBING MEDICATIONS, AND REQUIRE CONTINUING
       PHYSICAL AND PSYCHIATRIC EVALUATIONS TO VERIFY HIS FITNESS TO
       PERFORM SURGERY.


               The Statesman article attracted the attention of appellee Wilson, who at the time

was a television news reporter for KEYE. Wilson’s role with KEYE was focused on researching,

writing, and presenting periodic “KEYE Investigates” reports during the station’s newscasts. Wilson

began researching issues related to the Board and its disciplinary measures against doctors. She

compiled background information that included issue advocacy from the debates earlier in 2003

regarding legislative and constitutional measures to limit medical-malpractice lawsuits in Texas.

During those often-heated debates, opponents of the measures had argued in part that the

Board’s disciplinary apparatus at the time was an ineffective alternative to the tort system in

eliminating unsafe doctors and ensuring patient safety.4 Wilson also compiled information about

the specific disciplinary proceedings referenced in the December notice, including Neely’s, which

led her to the statement in his online Board profile and the agreed order. She also researched court




       4
            Among other research, Wilson stated that she obtained a February 2003 report from
Public Citizen, “Medical Misdiagnosis in Texas: Challenging the Medical Malpractice Claims of
the Doctors’ Lobby.” The report included a section titled “Where’s the Doctor Watchdog?” that was
critical of the frequency and severity of the Board’s discipline of doctors.

                                                10
filings, which led her to the Jettons’ counsel and interviews with the Jettons, Yu, and a close friend

of Wu’s, Peter Gao.

               Wilson taped on-camera interviews with the Jettons (in their home, with their

three young children present), Gao, and a spokesperson for the Board, Jill Wiggins. Wilson also

interviewed a physician representative from St. David’s, Steve Berkowitz, M.D., questioning him

about the hospital’s peer review processes. Wilson also made several attempts to contact Neely. Out

of what Neely claims was fear of saying anything that might antagonize the Board and perceiving

that the report would be biased anyway, Neely declined to be interviewed for the broadcast.

However, Neely’s medical-malpractice counsel and his counsel in the Board proceedings both spoke

to Wilson and supplied her with materials and information favorable to Neely.

               Drawing on her research, interviews, and video footage, Wilson ultimately prepared

an investigative report that discussed Dr. Neely, some of his medical-malpractice suits, and

the Board’s disciplinary action. The report was broadcast during the station’s evening newscast on

Monday, January 19, 2004. The report consisted of edited excerpts from Wilson’s taped on-camera

interviews with the Jettons, Gao, the Board’s Wiggins, and St. David’s Berkowitz; Wilson’s

own narratives and visuals of such things as the Board’s order, the pleadings in Neely’s medical-

malpractice suits, and Wu’s autopsy report (including highlighting and enlargement of certain

excerpts); footage of Paul Jetton struggling to rise from a chair and walk with aid of a walker;

a graphic of Dr. Neely’s name; and footage of Neely’s place of business featuring a sign, “Byron D.

Neely, P.A.” Also, while Dr. Neely was not interviewed, Wilson included an excerpt from a

videotaped deposition of him.



                                                 11
               The appellate record includes a DVD of the original broadcast. A complete transcript

of the audio portion of the broadcast follows:


       Fred Cantu (Anchor): If you were told you needed surgery would you want to
       know if your surgeon had been disciplined for prescribing himself and taking
       dangerous drugs, had a history of hand tremors and had been sued several times for
       malpractice in the last few years?

       Judy Maggio (Anchor): A central Texas couple says they didn’t learn about this
       until it was too late. They’re outraged the State Board of Medical Examiners is
       allowing Dr. Byron Neely to continue to practice. KEYE news investigative reporter
       Nanci Wilson tells us if you go to St. David’s Hospital with a head injury you could
       be Dr. Neely’s next patient.

       Paul Jetton: I’ve been in, in and out of the hospital, you know, for the last four
       years. Uh, I had twelve, I believe, I’ve even lost count, I believe twelve brain
       surgeries, one spinal surgery.

       Wilson: This is Paul Jetton’s life.

       Paul Jetton: I can’t walk. You know, I still, I can walk with a walker, but I still
       can’t walk on my own.

       Wilson: Each step is a struggle, but it wasn’t always this way. In 1982 Paul Jetton
       was a linebacker for the University of Texas. He was so good he went on to play in
       the pros. His first year with the Cincinnati Bengals the team went to the Super Bowl.
       But in 1999 . . .

       Paul Jetton: I just wasn’t feeling well. When I went, you know, for I just wanted
       to get a physical.

       Wilson: Something unusual showed up on the MRI scan of his brain.

       Paul Jetton: He told me that I had this, this tumor in my brain and, and that I had
       to, had to have it operated on.

       Wilson: His doctor, Austin neurosurgeon Byron Neely, who has been in practice
       since 1977, said an operation would help.




                                                 12
Paul Jetton: You know it would only be a two hour surgery and that I’d be in, I’d
only be in the hospital for two or three days and I’d go on with the rest of my life.

Wilson: The two hour surgery stretched into almost eight hours and Paul was in
the hospital for six weeks. While in the hospital Paul developed an infection in his
brain. However, he was discharged from the hospital anyway. The result: numerous
surgeries and a life of disability. Paul’s wife Sheila says what they learned from
other doctors was the final blow.

Sheila Jetton: Every neurosurgeon that’s looked at Paul’s MRIs from before Neely
operated on him have said they would have never done surgery. They would have
watched him with MRIs over years.

Wilson: The Jettons aren’t the only patients to raise questions about Dr. Neely.
Wei Wu, a software engineer with two PhDs was referred to Dr. Neely. Neely
explains the case in this deposition from 2002.

Dr. Neely: [From the video of his deposition] He came in very confused one day,
uh, was found to have a uh, very major brain tumor thought to be a meningioma at
the time because it, of the location in the brain. Uh, the patient was taken to the OR
thereafter and found to malignant melanoma [sic].

Wilson: Peter Gao was a friend of Wei Wu’s. Gao says Wu struggled with the
diagnosis that Wu had only a few months to live.

Peter Gao: The doctor is more like persuasive say, well the doctor have seen when
he open, when he opened your skull, seen everywhere. So, all we need to do right
now I guess, is face, kind of like to face the music.

Wilson: It may have been too much for Wei Wu to handle. A few days later Gao
found Wu’s abandoned car near the 183 overpass at Mopac. Then discovered Wu had
jumped off the overpass taking his own life. But when his body was sent to the
Travis County Medical Examiner’s office analyzing Wu’s brains, examiners noted
no residual metastatic melanoma. Meaning Wei Wu did not have brain cancer.

Both the Jetton and the Wu cases happened in 1999. Two other patients also filed
suit against the doctor.

The State Board of Medical Examiners investigated Dr. Neely. The board found
Neely had a history of hand tremors and that between 1999 and 2002, Dr. Neely
was writing prescriptions, not only for his patients but for himself as well. Narcotics,
muscle relaxers and pain killers. Something former patient Paul Jetton
finds shocking.

                                          13
Paul Jetton: Narcotics, opiates, I mean it’s just things that, I mean things that they
don’t even let people operate machinery or drive cars when they’re, when they’re
taking them and this guy’s doing brain surgery on people. I mean it’s just, even now
I’m just, it’s just incredulous, you just can’t even believe that it even happened.

Wilson: The State Board of Medical Examiners did discipline Dr. Neely. This past
December, they suspended his license but gave it right back by staying the
suspension. Now he’s on probation for three years. The only requirements are that
he see a psychiatrist and not write prescriptions for himself or his family. A decision
the board defends.

Jill Wiggins [caption identifies her as a Board representative]: We have compliance
officers and the compliance officers will definitely follow to make sure that he’s
doing the things that his order requires him to do.

Wilson: But how would they know if he is using? He can get somebody else to
prescribe him. I mean he could say, “I’ve followed the order.”

Wiggins: Right.

Wilson: I didn’t prescribe myself.

Wiggins: Right, right.

Wilson: How do we, how do we know that he’s, that we’re not putting somebody
right back out there to do the same thing he was doing before?

Wiggins: That’s a very good question and why this order doesn’t include drug
testing, I, I honestly don’t know the answer to that.

Paul Jetton: I think it’s just deplorable, I mean if, if it was another profession, uh,
the guy would be in jail.

Wilson: We contacted Dr. Neely for his side to the story. He declined to participate,
but his attorney told us that two highly qualified neurosurgeons who reviewed
the case agree with the medical decisions made by Dr. Neely. In addition, the
State Board of Medical Examiners office investigated the Jetton case and found
no wrong doing. We also contacted St. David’s Medical Center, its chief medical
officer believes they have a strong peer review process. That’s where individual
doctors review each other’s work and decide who should have privileges.




                                          14
       Steve Berkowitz, M.D.: In this particular case the investigation is incomplete
       and when we actually find the, get the findings we will then be able to make
       a determination uh, as to whether the privileges should be continued or not. We
       strongly value quality of course, we value the due process and most importantly we
       value patient safety.

       Wilson: Nanci Wilson, KEYE News investigates.


The camera then returns to the anchors, Cantu and Maggio.


       Maggio: The Jettons settled their suit against Dr. Neely. The suit filed on behalf of
       Wu’s son was dismissed because it was not filed by an attorney. The other suits are
       pending.

       Cantu: The Texas Board of Medical Examiners does post final actions taken against
       doctors on its web site, but all other information about complaints is kept secret.


               Neely sued Wilson, KEYE, and Viacom for libel. Appellees filed a motion for

summary judgment asserting both traditional and no-evidence grounds. Neely filed a response with

evidence. Both sides filed objections to the other party’s summary-judgment evidence. Following

a hearing, the district court sustained some of appellees’ objections to Neely’s evidence and granted

appellees’ summary-judgment motion without stating the grounds. Subsequently, the district court

signed a final judgment that Neely take nothing on his claims. Neely appealed.


                                   STANDARD OF REVIEW

               We review the district court’s summary judgment de novo. Valence Operating Co.

v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott,

128 S.W.3d 211, 215 (Tex. 2003). Defamation cases are reviewed under the same summary-




                                                 15
judgment standards as other cases even though they involve constitutional considerations. See

Casso v. Brand, 776 S.W.2d 551, 556-57 (Tex. 1989).

                Under rule 166a(i), a movant must assert that, after adequate time for discovery, there

is no evidence of one or more essential elements of a claim or defense on which the adverse party

would have the burden of proof at trial. Tex. R. Civ. P. 166a(i); see Fort Worth Osteopathic Hosp.,

Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004). To defeat a rule 166a(i) motion, the non-movant must

produce more than a scintilla of summary-judgment evidence raising a genuine issue of material fact

on the challenged elements. Tex. R. Civ. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d

598, 600 (Tex. 2004). A no-evidence summary judgment is essentially a directed verdict granted

before trial, to which we apply a legal-sufficiency standard of review. King Ranch, Inc. v. Chapman,

118 S.W.3d 742, 750-51 (Tex. 2003); Perdue v. Patten Corp., 142 S.W.3d 596, 603

(Tex. App.—Austin 2004, no pet.). A no-evidence summary judgment will be sustained when:

(1) there is a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or

of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence

offered to prove a vital fact is no more than a scintilla; or (4) the evidence conclusively establishes

the opposite of a vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005); King Ranch,

118 S.W.3d at 751. More than a scintilla of supporting evidence exists if the evidence would allow

reasonable and fair-minded people to differ in their conclusions. King Ranch, 118 S.W.3d at 750-51.

“Less than a scintilla of evidence exists when the evidence is ‘so weak as to do no more than create

a mere surmise or suspicion’ of a fact.” Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63

(Tex. 1983)).



                                                  16
               On the other hand, a defendant moving for a traditional summary judgment under

rule 166a(c) must conclusively negate at least one essential element of each of the plaintiff’s causes

of action or conclusively establish each element of an affirmative defense. Tex. R. Civ. P. 166a(c);

Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Once the defendant has done

so, the burden shifts to the plaintiff to produce evidence creating a fact issue on the element

or defense in order to defeat the summary judgment. See Walker v. Harris, 924 S.W.2d 375, 377

(Tex. 1996).

               Where, as here, the trial court does not specify its basis for granting summary

judgment, the judgment must be affirmed if any of the grounds asserted in the motion has merit. See

Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).


                                            ANALYSIS

               To maintain a cause of action for defamation, as Neely asserts here, a plaintiff

must prove that the defendant: (1) published a statement “of and concerning” him; (2) that

was defamatory; (3) with the requisite degree of fault with respect to whether it was false. See

WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998); Carr v. Brasher, 776 S.W.2d 567,

569 (Tex. 1989). Because the published statements made the basis for Neely’s claims were read

from a script and broadcasted, Neely’s defamation claims allege libel rather than slander, and are

thus governed by chapter 73 of the civil practice and remedies code. See Christy v. Stauffer Publ’ns,

Inc., 437 S.W.2d 814, 815 (Tex. 1969). Chapter 73 defines a libel in relevant part as “a defamation

expressed in written or other graphic form . . . that tends to injure a living person’s reputation and

thereby expose the person to public hatred, contempt, ridicule, or financial injury or to impeach

                                                 17
any person’s honesty, integrity, virtue, or reputation.” Tex. Civ. Prac. & Rem. Code Ann. § 73.001

(West 2005); Abbott v. Pollock, 946 S.W.2d 513, 519 (Tex. App.—Austin 1997, writ denied).

                Implicit in the elements of defamation, and explicit under chapter 73, is that a

true statement is not actionable as libel, although the Texas Supreme Court has not yet definitively

resolved, for all fact situations, whether a plaintiff must prove the falsity of a statement as an element

of his libel claim as opposed to the defendant having the burden of proving the statement’s truth as

an affirmative defense. See Tex. Civ. Prac. & Rem. Code Ann. § 73.005 (West 2005) (“The truth

of the statement in the publication on which an action for libel is based is a defense to the action.”);

Bentley v. Bunton, 94 S.W.3d 561, 586 n.63 (Tex. 2003) (reserving question of whether non-public

figure is required to prove falsity of statement made by media defendant).

                In addition, a libel plaintiff must establish injury and damages from the statement.

If the statement is “defamatory per se”—of a nature that the law considers so damaging to reputation

that harm to the plaintiff’s reputation is presumed—the plaintiff need not plead or prove

specific injury or damage to reputation. See Bentley, 94 S.W.3d at 604-05; but see id. at 605-07

(First Amendment may limit such awards). Otherwise, the statement is “defamatory per quod,” and

the plaintiff must prove specific injury and damages to prevail. See Texas Disposal Sys. Landfill,

Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 580 (Tex. App.—Austin 2007, pet. denied).

                In their summary-judgment motion, appellees asserted essentially five sets of

traditional grounds. First, appellees argued that the statements in question were “substantially true”

as a matter of law, a concept that we explore in detail below. Among their arguments in support of

this ground, appellees advocated what they term the “third-party allegation rule,” urging that a



                                                   18
media defendant can establish the substantial truth of a publication reporting that third parties

are asserting or alleging facts by proving that the allegations were made and accurately reported,

without regard to whether the underlying allegations being reported are in themselves true or false.

Relying on this concept, appellees argued that Neely’s claims were predicated on accurately

reported third-party allegations or investigatory conclusions actually made by the Jettons, Yu,

the Travis County Medical Examiner, and the Board. Second, appellees relied upon the statutory

privileges for “fair, true, and impartial” reporting of judicial or other official proceedings and “fair

comment.” See Tex. Civ. Prac. & Rem. Code Ann. § 73.002 (West 2005). Third, appellees sought

to demonstrate that Neely was a limited-purpose public figure who was required to prove that they

had published the statements with actual malice as to their truth or falsity, not merely negligence.

See WFAA-TV, Inc., 978 S.W.2d at 571. They further presented evidence—including a lengthy

affidavit from Wilson detailing her research prior to the broadcast—in an attempt to conclusively

negate actual malice.

                In addition to the traditional grounds applicable to Neely’s claims against all three of

them, appellees sought summary judgment on Neely’s claims against Viacom on grounds that the

evidence conclusively negated any involvement by Viacom in the news gathering or publication of

the broadcast. Finally, appellees also sought summary judgment on all claims asserted by Neely’s

professional association on grounds that it could not maintain its libel action as a matter of law.

                Appellees’ no-evidence grounds challenged the existence of evidence that (1) the

statements in question were false or not substantially true; (2) the statements had a defamatory

meaning; (3) the statements were not privileged or that appellees had abused applicable privileges;



                                                  19
(4) appellees acted with fault (either actual malice or negligence); (5) Neely was injured; (6) Neely

incurred damages; (7) Viacom published the statements in question; or (8) Viacom was otherwise

involved in preparing the broadcast.

                On appeal, Neely brings seven issues challenging the district court’s

summary judgment.        He first complains generally that the district court erred in granting

appellees’ summary-judgment motion and rendering a take-nothing judgment on his claims. In his

second issue, Neely asserts that the district court erred in granting summary judgment because he

presented evidence raising a fact issue as to each element of his libel claim. In his third through

fifth issues, Neely challenges the judgment to the extent it is based on appellees’ contentions

regarding the “third-party allegation rule” (fourth issue), privileges (fifth issue), or a determination

that Neely is a limited-purpose public figure (third issue). In the event he is held to be a limited-

purpose public figure, Neely argues in the alternative that he presented summary-judgment evidence

raising a fact issue as to actual malice. In his sixth issue, Neely urges that the district court erred in

granting summary judgment against the claims of his professional association on grounds that

it could not maintain a defamation claim. Finally, in his seventh issue, Neely complains of the

district court’s rulings excluding some of his summary-judgment evidence, including the two letters

from the Board advising him of its determination that he had not violated the medical practice act

in his care for Paul Jetton and Wu.

                Although Neely’s first and second issues are stated more broadly, he has

not presented argument or authorities challenging summary judgment as to his claims against

Viacom on the ground that the company had no involvement in the alleged acts or omissions that



                                                   20
are the bases for Neely’s suit. Consequently, Neely has waived any challenge with respect to

that ground. See Tex. R. App. P. 38.1(i). And, because that ground can independently support the

summary judgment as to Neely’s claims against Viacom, we must affirm that portion of the

judgment regardless of our disposition of the other summary-judgment grounds. See Star-Telegram,

Inc., 915 S.W.2d at 473.

               Remaining at issue is the summary judgment as to Neely’s claims against Wilson and

KEYE (the “KEYE defendants”).


Defamatory meaning and substantial truth

               The parties join issue primarily with respect to whether the statements published by

the KEYE defendants had a defamatory meaning and, if so, whether the summary-judgment evidence

presents a fact issue as to their falsity. Courts decide, as a threshold matter, whether or not a

publication is capable of a defamatory meaning. See Turner v. KTRK Tel., Inc., 38 S.W.3d 103,

114 (Tex. 2000). When doing so, the publication “should be construed as a whole in light of the

surrounding circumstances based upon how a person of ordinary intelligence would perceive it.”

Id. Thus, we do not engage in “a technical analysis” of each statement in isolation, but consider the

publication as a whole, New Times, Inc. v. Isaacks, 146 S.W.3d 144, 154 (Tex. 2004), viewed

“‘not so much by its effect when subjected to the critical analysis of a mind trained in the law, but by

the natural probable effect on the mind of the average [viewer].’” Turner, 38 S.W.3d at 114 (quoting

Kapellas v. Kofman, 459 P.2d 912, 920 (Cal. 1969) (en banc)). If the publication’s meaning is

ambiguous or doubtful, the jury must determine its meaning. See id.




                                                  21
                In suits against media defendants, a statement is not actionable if it is “substantially

true.” Under the “substantial truth” doctrine, minor inaccuracies are not actionable as long as the

publication’s “gist” or “sting” is true, see id. at 115, and a “true” statement for these purposes is one

that is not more damaging to the plaintiff’s reputation than a literally true statement would have

been. McIlvain v. Jacobs, 794 S.W.2d 14, 16 (Tex. 1990). Furthermore, a true or substantially true

account of facts is not made actionable merely because a viewer might infer additional but unstated

false or defamatory facts from that account. See Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d

640, 646 (Tex. 1995) (true statements that a grocery store manager had failed to pay for item

at check-out were not false and defamatory merely because hearers might have inferred that she was

dishonest; “Randall’s never accused [the manager] of theft or of having the intent to steal,” nor

did employees “speculate or make accusations regarding [the manager’s] intent”). Similar to the

question of defamatory meaning, “substantial truth” can be decided as a matter of law if the meaning

of the publication (i.e., a reasonable person’s perception of the publication as a whole) is

unambiguous and the material underlying facts are not in dispute; otherwise, the jury must first

determine these matters. See id.

                Neely has briefed and argued the issue of whether the KEYE defendants’ statements

at issue are true or false as if he had the burden, in responding to appellees’ summary-judgment

motion, to raise a fact issue as to whether they were not substantially true, and he does not

contend otherwise. We will, therefore, assume without deciding that it was Neely’s burden to

present a fact issue that any allegedly defamatory statements at issue are not substantially true.




                                                   22
                Viewing the broadcast as a whole, it was, consistent with its origins, plainly

calculated to raise questions regarding how effectively the Texas Board of Medical Examiners

and the medical peer review process ensure patient safety by taking action against doctors who

endanger patients. To that end, the broadcast featured a negative portrayal of Dr. Neely and his

medical practice. The parties dispute whether this portrayal consisted of defamatory and false

statements that are actionable against the KEYE defendants. Neely insists that the broadcast as a

whole was capable of being perceived by the ordinary viewer as asserting that he (1) had used

“dangerous drugs” and was impaired during surgeries; (2) had performed unnecessary surgeries; and

(3) had hand tremors that undermined his surgical competence. None of these assertions, Neely

insists, is substantially true. Appellees counter that the broadcast does not actually contain all of the

defamatory assertions Neely attributes to it, see id. at 646, and that any defamatory assertions it does

contain are substantially true. See Bentley, 94 S.W.3d at 587 (“That a statement is defamatory—that

is, injurious to reputation—does not mean that it is false, and vice versa.”).


        Third-party allegations

                The parties dispute the legal significance of allegedly defamatory assertions

Neely perceives in the numerous statements, findings, or allegations made by persons other than

the KEYE defendants that were presented or reported during the broadcast. A media defendant’s

reporting of a statement or allegation made by a third party may communicate factual assertions, and

thus potentially be false or defamatory, at two levels—(1) the media defendant’s own statements

regarding whether the third party made a statement or allegation and depicting the content of the

statement or allegation; and (2) the facts communicated in the underlying third-party statement or

                                                   23
allegation itself. The parties advance diametrically opposed positions as to which levels are relevant

to our analysis.

               In his fourth issue, Neely urges that we must consider both levels, including whether

the underlying third-party allegation is in itself defamatory and not substantially true. In contrast,

appellees’ “third-party allegation rule” would look only to the first level, in essence viewing the

reported third-party allegation not as an assertion of any facts the third party is stating, but as

an assertion only of the fact that the third party has said them. If the media defendant accurately

reported the fact that the third-party allegation was made and its content, appellees reason, the

report is substantially true and not actionable against the media defendant, regardless of whether

the underlying third-party allegation was in itself defamatory and false. This conclusion, in turn,

impacts how we assess the broadcast’s meaning to the ordinary viewer—whether reported third-party

allegations are viewed in themselves as factual assertions being republished by and attributable to the

KEYE defendants who reported them, as Neely suggests, or regarded merely as reports about the

existence or fact of “various third-party allegations, lawsuits, proceedings, and public controversies

related to Neely” being asserted by others, and whose underlying content is not attributable to the

KEYE defendants, as appellees urge.

               Neely argues that appellees’ third-party allegation rule “is not, and never has been, the

law in Texas (or, as far as [he] can discern, anywhere else in the country),” and that it would effect

“a radical, indeed breathtaking, departure from long established bedrock principles of defamation

law,” would give media defendants “immunity to knowingly publish false and defamatory

statements” (so long as such statements are originated by third parties), and would effectively destroy



                                                  24
whatever remaining protections citizens still possess when their reputations are attacked by the

media. In support of his view, Neely emphasizes that liability for defamation and libel is predicated

on the act of publication rather than origination or authorship. See Tex. Civ. Prac. & Rem. Code

Ann. § 73.002, §§ .003, .004 (West 2005); WFAA-TV, Inc., 978 S.W.2d at 571 (“To maintain a

defamation cause of action, the plaintiff must prove that the defendant: (1) published a statement

. . . .”). Consequently, as Neely observes, it has long been the rule that one who republishes a

defamatory statement published by another may be held liable for his own act of publication. See,

e.g., Dement v. Houston Printing Co., 37 S.W. 985, 986 (Tex. Civ. App.—Galveston 1896,

writ ref’d n.r.e.) (“The law is clear upon the subject. One who publishes a defamatory statement

made by another cannot justify by proving that the other made the statement. By publishing it, he

becomes responsible for his own act in doing so, and, if he seeks to justify, he must prove the truth of

the charge published.”); see also Liberty Lobby, Inc. v. Dow Jones & Co., Inc., 838 F.2d 1287, 1289

(D.C. Cir. 1988) (“The common law of libel has long held that one who republishes a defamatory

statement ‘adopts’ it as his own, and is liable in equal measure with the original defamer.”). Neely

further observes that the legislature in chapter 73 of the civil practice and remedies code enacted

privileges that limit liability for publication or republication of third-party defamations under certain

circumstances, thereby presuming the existence of the general rule of liability for republication on

which he relies. See Tex. Civ. Prac. & Rem. Code Ann. §§ 73.002(a) (privileges for “fair, true, and

impartial” accounts of certain governmental proceedings and “reasonable and fair comment or

criticism” of “matter[s] of public concern”; privileges “do[] not extend to the republication of a

matter if it is proved that the matter was republished with actual malice after it had ceased to be of



                                                   25
public concern”), .004(a) (“A broadcaster is not liable in damages for a defamatory statement

published or uttered in or as part of a radio or television broadcast by one other than the broadcaster

unless the complaining party proves that the broadcaster failed to exercise due care to prevent the

publication or utterance of the statement in the broadcast.”).

                In support of their “third-party allegation rule,” appellees rely on a line of Texas court

of appeals cases that apply what the courts perceive to be the Texas Supreme Court’s holding in

McIlvain v. Jacobs, 794 S.W.2d 14 (Tex. 1990). McIlvain involved a libel suit complaining of a

television news broadcast concerning an internal investigation being conducted by the City of

Houston’s Public Integrity Review Group (“PIRG”) into allegations that some municipal employees

were misusing public resources for personal ends. The report discussed both the existence of the

investigation and various allegations by city employees and law enforcement that the investigation

had uncovered. See id. at 15.5 Two employees who had been implicated in the broadcast, Jacobs


       5
           The audio portion of the report as broadcast consisted of the following statements:

       The city’s public integrity section is investigating the use of city employees for
       private work in the home of the city water maintenance manager.

       The employees of the city water maintenance division say four payroll employees
       were used, on city time, to care for the elderly father of Emerick Jacobs, the manager
       of water department maintenance division.

       The employees say they were sent by a supervisor each day to the manager’s home
       to care for his father and do other tasks around the house.

       On top of this, these same employees are putting in for overtime so they could get
       their city jobs done later on.




                                                   26
and Moore, sued the reporter and television station for defamation. The defendants moved for

summary judgment on grounds that included the truth of the broadcast. The trial court granted the

motion. The Fourteenth Court of Appeals reversed, holding that there were fact issues as to whether

the broadcast was true. See Jacobs v. McIlvain, 759 S.W.2d 467, 469 (Tex. App.—Houston

[14th Dist.] 1988), rev’d, 794 S.W.2d 14 (Tex. 1990). The court of appeals focused solely on the

truth of the underlying allegations contained in the broadcast and emphatically rejected the

defendants’ arguments that it should consider only whether the report accurately reported the

investigation and allegations:


       The summary judgment evidence certainly does not show that the underlying charges
       were true as a matter of law. Appellees stand by their story, maintaining that the
       essence of the broadcast was that charges had been made. In other words, journalists
       should be able to report the very fact of governmental self-scrutiny. And presumably
       under this umbrella they can publish potentially defamatory statements as a matter
       of law. We disagree. Merely alleging that an investigation was in progress does not
       entitle a journalist to publish free-standing allegations which are, as a matter of law,
       legally immune from examination under the law of libel.


Id. The court went on to invoke the longstanding rule that a republisher of a defamation is

independently liable for that publication. Id. (“Although [defendants’] argument of ‘truth’ as a




       Police investigators who are conducting the investigation were looking for a
       gun, but they didn’t find the gun at the Dalton Street Water Facility. They found
       liquor bottles. One city employee says drinking on the job there is not so unusual.

       The information about the alleged theft of City time may be turned over to a
       grand jury. Judd McIlvain, News Center 11.

McIlvain v. Jacobs, 794 S.W.2d 14, 15 (Tex. 1990).


                                                 27
complete defense has much to commend it, the law does not generally immunize the propagation of

defamatory statements. It is no defense to say, ‘It is alleged that . . . .’”).

                In a two-page opinion, the Texas Supreme Court reversed. See 794 S.W.2d at 15-16.

After quoting the statements made in the broadcast, the court began its analysis by emphasizing

that summary judgment would be appropriate if the statements were shown to be substantially

true, and that this standard “involves consideration of whether the alleged defamatory statement

was more damaging to Jacob’s reputation, in the mind of the average listener, than a truthful

statement would have been.” Id. at 16. This emphasis contrasts with the court of appeals’ opinion,

which did not mention the substantial-truth standard or purport to apply its substance when analyzing

whether the underlying factual allegations had been shown to be true as a matter of law. See Jacobs,

759 S.W.2d at 468-69.

                The supreme court then compared the broadcast to evidence concerning the

investigation and concluded, “McIlvain’s broadcast statements are factually consistent with PIRG’s

investigation and its findings.” McIlvain, 794 S.W.2d at 16. The court then compared the contents

of the broadcast to the PIRG investigative report:


•       “The broadcast stated that an investigation into the use of city employees for private work
        was underway. The affidavits of assistant city attorney Brenda Loudermilk and city legal
        department investigator V.H. Shultea, Jr. confirm the existence of the investigation.” Id.

•       “The broadcast further stated that employees of the city water maintenance division allege
        four employees were used on city time to care for the elderly father of Emerick Jacobs.
        According to the City of Houston’s legal department report, employees of the water
        maintenance division had gone on separate occasions with Joyce Moore to St. Joseph’s
        Hospital or to the home of Jacob’s father and sat with him while he was ill. Sworn
        statements by a division employee indicate that on three occasions, Moore and other water



                                                   28
       division employees would visit Jacob’s father in the hospital during work hours, staying there
       for a half day or longer. While on these visits, the employees were paid their regular city
       wages.” Id.

•      “According to the broadcast, these employees put in overtime so they could get their jobs
       done. The PIRG investigation found from the payroll division office records that on several
       occasions, when these employees were absent from the office for as long as four hours caring
       for the elder Mr. Jacobs, they requested and received overtime.” Id.

•       “The broadcast further stated that police investigators were looking for a gun at the water
       facility but instead found liquor bottles and that one city employee claimed drinking on the
       job was not unusual. The report stated that the search of Joyce Moore’s desk produced a
       liquor bottle but no gun. The PIRG report also contained statements by employees that
       Moore and Jacobs were seen in Moore’s office drinking alcohol.” Id.


The supreme court concluded that this “comparison of the contents of the broadcast and the PIRG

report demonstrates that the broadcast was substantially correct, accurate, and not misleading,” and

that McIlvain had established the substantial truth of the broadcast as a matter of law. Id.

               The Fourteenth Court of Appeals—the same court of appeals as in

McIlvain—subsequently addressed the implications of McIlvain in KTRK Television v. Felder,

950 S.W.2d 100 (Tex. App.—Houston [14th Dist.] 1997, no writ). Felder arose from a series of

television news broadcasts that reported on third-party allegations that a teacher had physically

and verbally abused students and a subsequent school district investigation. See id. at 103-04. The

broadcast station moved for summary judgment on grounds that included the substantial truth of the

broadcast, which the trial court denied. In analyzing the substantial-truth issue, the court of appeals

considered whether McIlvain required it to evaluate the truth of the underlying allegations or only

whether the allegations had been accurately reported. See id. at 106. “Based on our reading of both

the Supreme Court and appellate court opinions,” the court concluded, “when, as in this case, the



                                                  29
report is merely that allegations were made and they were under investigation, McIlvain only

requires proof that allegations were in fact made and under investigation in order to prove substantial

truth.” Id. The court further reasoned that this was the only conceivable reading of McIlvain if one

considers the practical implications of a contrary interpretation:


       Otherwise, the media would be subject to potential liability everytime it reported
       an investigation of alleged misconduct or wrongdoing by a private person,
       public official, or public figure. Such allegations would never be reported by the
       media for fear an investigation or other proceeding might later prove the allegations
       untrue, thereby subjecting the media to suit for defamation. Furthermore, when
       would an allegation be proven true or untrue for purposes of defamation? After an
       investigation? After a court trial? After an appeal? Undoubtedly, the volume of
       litigation and concomitant chilling effect on the media under such circumstances
       would be incalculable. First Amendment considerations aside, common sense does
       not dictate any conclusion other than the one we reach today.


Id. The court went on to hold that summary judgment was warranted based on the substantial truth

of the broadcast because it had accurately depicted the third-party allegations and the existence of

the investigation into the teacher’s conduct. Id. at 106-07.

               Following the lead of the Fourteenth Court in Felder, the San Antonio and Fort Worth

courts of appeals, as well as the Fifth Circuit, have relied on McIlvain and Felder for the proposition

that a media defendant’s reporting of third-party allegations and any investigation thereof is

substantially true if it accurately depicts the allegations being made and the existence of any

investigation, regardless of whether the underlying allegations are themselves substantially true. See

ABC Inc. v. Gill, 6 S.W.3d 19, 33 (Tex. App.—San Antonio 1999, pet. denied) (“In sum, ABC

accurately reported the rise and fall of Gill Savings and the RTC’s investigation of and allegations

against the Gills. No more is required.”); UTV of San Antonio, Inc. v. Ardmore, Inc., 82 S.W.3d 609,

                                                  30
611-12 (Tex. App.—San Antonio 2002, no pet.) (“When a case involves a media defendant,

the defendant need only prove that third party allegations reported in a broadcast were, in fact, made

and under investigation; it need not demonstrate the allegations themselves are substantially true.”);

Grotti v. Belo Corp., 188 S.W.3d 768, 771 (Tex. App.—Fort Worth 2006, pet. denied) (“We hold

that the Media Defendants established the substantial truth of each broadcast by accurately reporting

third-party allegations and investigations.”); Green v. CBS, Inc., 286 F.3d 281, 284 (5th Cir. 2002)

(Texas law) (broadcast reported sensational allegations against lottery winner and ex-wife; “In

cases involving media defendants, such as this, the defendant need not show the allegations are

true, but must only demonstrate that the allegations were made and accurately reported.”); see also

Associated Press v. Boyd, No. 05-04-01172-CV; 2005 Tex. App. LEXIS 3715, at *3

(Tex. App.—Dallas May 16, 2005, no pet.) (mem. op.) (“[M]edia defendants need only prove third-

party allegations reported were made, not that the allegations themselves were true.”).6 This Court

has also relied on this concept when analyzing whether there was evidence of a media defendant’s

actual malice in publishing an article reporting that a complaint of official misconduct had been

filed against a local prosecutor. See Cox Newspapers, L.P. v. Penick, 219 S.W.3d 425, 431, 443




       6
         The Fourteenth Court has also relied on Felder for this proposition in subsequent decisions.
See Dolcefino v. Randolph, 19 S.W.3d 906, 918 (Tex. App.—Houston [14th Dist.] 2000, no pet.)
(“When, as here, a case involves media defendants, the defendants need only prove that the
third party allegations reported in the broadcast were, in fact, made and under investigation;
they need not demonstrate the allegations themselves were substantially true.”); Dolcefino v. Turner,
987 S.W.2d 100, 109 (Tex. App.—Houston [14th Dist.] 1998) (“This court has recently interpreted
McIlvain to require only proof that third party allegations reported in the questioned broadcast
were made and under investigation in order to prove substantial truth; media defendants need
not demonstrate the underlying allegations are substantially true.”), aff’d on other grounds, Turner
v. KTRK Television, Inc., 38 S.W.2d 103 (Tex. 2000).

                                                 31
(Tex. App.—Austin 2007, pet. denied). We held that there was no evidence of actual malice because

the prosecutor “cannot show that the primary contents of the . . . article were false,” reasoning that

except for three “misstated errors” that had been corrected by a subsequent letter to the editor by the

complainant, the article “accurately reported that the allegations had been filed . . . and were

pending.” Id. (citing Grotti for the proposition that “to prove substantial truth, the defendants need

only prove that the third party allegations were in fact made and that the allegations were under

investigation”).

                Appellees view McIlvain and its progeny, including Penick, as establishing as a

clear principle of Texas law that a media defendant’s statements about third-party allegations are

“substantially true” if accurate in reporting that the allegations were made and their content,

regardless of whether the allegations are themselves true. In other words, as appellees put it,

media defendants thus need not “prove the truth of the third-party allegations before they may

report on the allegations.”7 Neely counters that appellees’ arguments and the court of appeals cases


        7
           Appellees also assert that Neely “conceded that the third-party allegation rule is ‘the rule of
law’ in Texas” in his summary-judgment response. We disagree. Neely’s grounds for denying
summary judgment included assertions that the gist of the broadcast was false and defamatory and
that the summary-judgment evidence raised fact issues in that regard. He argued that various specific
third-party allegations were defamatory, false, and actionable. In claiming that Neely conceded the
validity of the “third-party allegation rule,” appellees rely on a statement to the effect that this “rule,”
as it has been recognized by Texas courts of appeals, would not apply in this case because it is
limited to reporting “that the third-party allegations were in fact made and accurately reported
and that the allegations were under investigation.” (Emphasis in original). In this regard, Neely
goes on to argue that “the Broadcast was reporting on past allegations, which do not fall under the
third-party allegation rule in Texas,” and that, in any event, “the theory does not allow the media to
publish defamatory falsehoods uttered by third parties regardless of their context, or their own
knowledge of falsity.” In a subsequent brief, Neely was more explicit that “the so-called ‘third-party
allegation rule’” does not correctly reflect Texas law, advocating essentially the same arguments he
advances now. We conclude that Neely has preserved his arguments that we must consider not only

                                                    32
on which they rely are founded on a misreading of McIlvain, that this Court did not squarely

adopt the third-party allegation rule in Penick, and that we are not bound by and should not follow

the decisions from our sister courts that apply the concept. In Neely’s view of McIlvain, the

Texas Supreme Court looked not only to whether McIlvain accurately reported the investigation

and allegations in question, but also considered whether the underlying allegations made the subject

of the investigation were substantially true. Neely emphasizes that the supreme court in McIlvain

compared the broadcast’s account of city employee allegations with the PIRG report’s findings. See

McIlvain, 794 S.W.2d at 16. This, in Neely’s view, is an analysis of whether the substantial truth

of the underlying allegations was conclusively established by the summary-judgment evidence,

not merely an analysis of whether the broadcast had accurately reported the existence of the

investigation and allegations.

               Neely further suggests that it is unlikely, given McIlvain’s brevity and the fact that

it never mentions the concept, that the supreme court perceived it was altering or creating

an exception to the traditional rule of liability for republication that had been emphasized by the

court of appeals. As Neely observes, McIlvain “consumes just over two pages,” “does not purport

to examine the long-standing republication rule, much less reverse or carve out an exception to it,”

“does not announce any new rule of law, nor does it contain the constitutional or other analysis one

would expect if the court had intended such a change.” With this, Neely questions whether any

doctrinal basis would exist for such a holding. To the extent such a holding was based on



whether appellees accurately reported the various third-party allegations contained in the broadcast,
but also whether the underlying third-party allegations were in themselves defamatory or not
substantially true.

                                                 33
Texas common law, Neely urges, it would amount to judicial abrogation of the legislature’s

balancing of interests reflected in chapter 73’s privileges in a manner that renders the statutory

privileges superfluous. See Tex. Civ. Prac. & Rem. Code Ann. §§ 73.002(a), .004(a). Nor, Neely

asserts, would there be any textual support in the Texas Constitution, which, “[u]nlike the United

States Constitution, . . . expressly guarantees the right to bring reputational torts” under common

law. See Turner, 38 S.W.3d at 117 (citing Tex. Const. Ann. art. I, §§ 8, 13); see also Ex parte Tucci,

859 S.W.2d 1, 19-23 (Tex. 1993) (Phillips, C.J., concurring) (analyzing this feature of article I,

section 8). As for the First Amendment to the federal constitution, what appellees ultimately

advocate, Neely urges, is a greatly expanded version of the “neutral reportage doctrine” that some

federal courts have derived from the First Amendment. See Harte-Hanks Comm’n v. Connaughton,

491 U.S. 657, 660 n.1 (1989) (doctrine as recognized in some lower courts “immunizes from liability

the accurate and disinterested reporting of serious charges made against a public figure by a

responsible, prominent organization”). However, the U.S. Supreme Court has never adopted this

doctrine, see id.; see also id. at 689 (“In a case such as this involving the reporting of a third party’s

allegations, recklessness may be found where there are obvious reasons to doubt the veracity of the

informant or the accuracy of his reports.” (citation omitted)), nor has the Texas Supreme Court ever

purported to do. See also Brady v. Cox Enters., Inc., 782 S.W.2d 272, 275-76 (Tex. App.—Austin

1989, no writ) (observing that “[a] privilege of accurate re-publication has not, to our knowledge,

been recognized in Texas courts” and declining to accept it as a basis for affirming summary

judgment for newspaper in libel suit). Indeed, in their briefing on appeal, appellees never identify




                                                   34
a doctrinal basis for their third-party allegation rule beyond insisting that this is what McIlvain and

its progeny have held.

                   In the alternative, Neely argues that to the extent that Texas courts of appeals

have recognized appellees’ third-party allegation rule, the present case is distinguishable because

“the relevant governmental body [the Board] had completed its investigation prior to the Broadcast

and had made findings, which demonstrated that the gist of the broadcast, and certain allegations in

it, were false.”

                   Although we agree with Neely that this Court has not previously addressed the

question head-on, we are compelled to agree with appellees that McIlvain stands for the proposition

that a media defendant’s reporting that a third party has made allegations is “substantially true” if,

in fact, those allegations have been made and their content is accurately reported. Although McIlvain

is somewhat oblique in its analysis, a close examination reveals that the supreme court was focused

on whether the third-party allegations reported in the broadcast to be under investigation had, in fact,

been made and investigated, as reflected in the PIRG report. See McIlvain, 794 S.W.2d at 16.

Contrary to Neely’s assertions, the supreme court’s analysis is not couched in terms of determining

whether summary-judgment evidence conclusively established the substantial truth of the underlying

allegations themselves, but in terms of whether the evidence (the PIRG report, which itself was a

series of allegations and findings about those allegations) demonstrated that the allegations had in

fact been made and investigated as reported. See id. The supreme court’s reasoning implies that

when a media defendant reports on the existence of third-party allegations (what appellees term

allegations “presented as just that—allegations”), the focus of the substantial-truth inquiry is on



                                                  35
whether the allegations were in fact made and accurately reported, regardless of the truth of

the allegations themselves. In effect, we assume that the ordinary viewer perceives “allegations

presented as allegations” to assert merely the fact that the allegations had been made rather than

asserting or vouching for any facts referenced in the allegations.

               We acknowledge that Neely raises some perplexing questions regarding the doctrinal

basis for the supreme court’s holding, questions that the McIlvain opinion did not clearly answer.

We must conclude nonetheless that Neely’s arguments are ultimately complaints that McIlvain was

wrongly decided. As an intermediate appellate court, we are bound to follow McIlvain unless and

until the Texas Supreme Court instructs us otherwise. See Petco Animal Supplies, Inc. v. Schuster,

144 S.W.3d 554, 565 (Tex. App.—Austin 2004, no pet.). We overrule Neely’s fourth issue.


       Neely’s complaints

               Informed by our conclusions about McIlvain, we now turn to whether the broadcast

as a whole was capable of the defamatory meanings Neely perceives and, if so, whether Neely raised

a fact issue as to whether these assertions, so perceived, were not substantially true.


               Use of and impairment from“dangerous drugs”

               Neely emphasizes that the broadcast begins with a question posed by anchor

Fred Cantu (but written by Wilson) inquiring, “If you were told you needed surgery would you

want to know if your surgeon had been disciplined for prescribing himself and taking dangerous

drugs . . .?” The report then identifies Neely as the surgeon who is the focus of the broadcast. After




                                                 36
a discussion of the Jetton and Wu lawsuits, the broadcast proceeds to the following discussion of the

Board’s order and disciplinary action:


       Wilson: . . . The State Board of Medical Examiners investigated Dr. Neely. The
       board found Neely had a history of hand tremors and that between 1999 and 2002,
       Dr. Neely was writing prescriptions, not only for his patients but for himself as well.
       Narcotics, muscle relaxers and pain killers. Something former patient Paul Jetton
       finds shocking.

       Paul Jetton: Narcotics, opiates, I mean it’s just things that, I mean things that they
       don’t even let people operate machinery or drive cars when they’re, when they’re
       taking them and this guy’s doing brain surgery on people. I mean it’s just, even now
       I’m just, it’s just incredulous, you just can’t even believe that it even happened.

       Wilson: The State Board of Medical Examiners did discipline Dr. Neely. This past
       December, they suspended his license but gave it right back by staying the
       suspension. Now he’s on probation for three years. The only requirements are that
       he see a psychiatrist and not write prescriptions for himself or his family. A decision
       the board defends.

       Jill Wiggins [Board representative]: We have compliance officers and the
       compliance officers will definitely follow to make sure that he’s doing the things that
       his order requires him to do.

       Wilson: But how would they know if he is using? He can get somebody else to
       prescribe him. I mean he could say, “I’ve followed the order.”

       Jill Wiggins: Right.

       Wilson: I didn’t prescribe myself.

       Jill Wiggins: Right, right.

       Wilson: How do we, how do we know that he’s, that we’re not putting somebody
       right back out there to do the same thing he was doing before?

       Jill Wiggins: That’s a very good question and why this order doesn’t include drug
       testing, I, I honestly don’t know the answer to that.




                                                 37
       Paul Jetton: I think it’s just deplorable, I mean if, if it was another profession, uh,
       the guy would be in jail.


               Neely first complains that this portion of the broadcast, especially in the context

of Cantu’s introductory questions about a hypothetical surgeon who “had been disciplined for

prescribing himself and taking dangerous drugs,” is capable of being understood by an ordinary

viewer as asserting that he had been disciplined by the Board for taking “dangerous drugs,” not

merely self-prescribing them. We agree that the broadcast is capable of being so understood by the

ordinary viewer. Indeed, this was the import of Cantu’s introductory statement referring to a surgeon

(soon identified as Neely) who “had been disciplined for prescribing himself and taking dangerous

drugs.” This message was reinforced by Wilson’s subsequent questions to Board representative

Wiggins regarding Neely’s “using” and the advisability of mandatory drug testing.

               Appellees contend, however, that to the extent the broadcast indicates that Neely

was disciplined by the Board for “taking dangerous drugs,” it was a substantially true account of

the Board’s disciplinary action. We agree with appellees. Appellees emphasize, and Neely does not

dispute, that the Board disciplined him for self-prescribing medications that included narcotics

and other substances that had the potential to impair his ability to perform surgery. Such substances

could accurately be described as “dangerous drugs” in terms of their potential risks to someone

consuming them, including surgeons—and, in fact, the Board’s order uses that term, prohibiting

Neely from prescribing “controlled substances or dangerous drugs with addictive potential or

potential for abuse” to himself or his immediate family. Neely also admitted during his deposition

that he not only self-prescribed these substances, but used some of them. Neely insists, however,



                                                 38
that the broadcast nonetheless departed from the true facts because he was not disciplined by the

Board for taking these medications, per se. Instead, Neely insists, the Board disciplined him solely

for self-prescribing the medications.

               We conclude that any factual discrepancies here would not rise to the level of

rendering an assertion that Neely was “disciplined for . . . taking dangerous drugs” not substantially

true. Neely’s use of self-prescribed medications was plainly a focus of the Board’s order. The order

prohibited Neely from prescribing, dispensing, or administering “controlled substances or dangerous

drugs with addictive potential or potential for abuse” to himself. Furthermore, the order was

consistent with a concern of the Board that Neely might have become addicted to medications he was

self-administering. The order required him to be evaluated by a Board-appointed psychiatrist who

was board-certified in forensic or addictive psychology. These evaluations had not yet been

performed, or the underlying issues resolved, at the time of the broadcast. In short, even if it was

not literally true that Neely had been “disciplined for . . . taking dangerous drugs” in terms of the

precise legal bases of the Board’s order, that assertion would at least be substantially true because

it would be no more damaging to Neely’s reputation in the eyes of the ordinary viewer than a literally

true recitation of the Board’s order would have been. See McIlvain, 794 S.W.2d at 16.

               Neely further complains that the broadcast is capable of being understood by the

ordinary viewer as going farther to assert that (1) he had operated on patients while under the

influence of the medications he was self-prescribing (and/or using) and that (2) this was the

conduct for which the Board had disciplined him. Neither assertion, Neely insists, is substantially

true. While acknowledging that he had used narcotics and other medications he had self-prescribed,



                                                 39
Neely presented summary-judgment evidence that he did so only at times when it would not affect

his treatment of patients, that his use was for legitimate medical needs, and that he had never

treated or operated on patients while under the influence of drugs. Similarly, while a fully accurate

depiction of the Board’s order would have been damaging to Neely’s reputation as a neurosurgeon

(as was the broadcast’s substantially true depiction of the order as disciplining him for “taking . . .

dangerous drugs”), to suggest that the Board disciplined him for operating on patients while under

the influence of those drugs, Neely suggests, would be so much more egregious a disciplinary ground

as to exceed the limits of the substantial-truth doctrine. See Turner, 38 S.W.3d at 118.

               In response, appellees insist that the broadcast is not capable of being understood as

asserting that Neely had operated on patients while under the influence of drugs or that the Board had

disciplined him for such acts. Appellees emphasize that no one from KEYE made such an assertion

during the broadcast and that, to the contrary, Wilson provided an accurate (or at least substantially

true) description of the Board’s order. Neely’s arguments to the contrary center on Paul Jetton’s on-

camera statements, “Narcotics, opiates . . . things that they don’t even let people operate machinery

or drive cars when they’re, when they’re taking them and this guy’s doing brain surgery on people,”

and “if it was another profession, uh, the guy would be in jail.” Paul’s comments are presented in

the broadcast as referring specifically to Wilson’s preceding revelation that the Board had disciplined

Neely in connection with his self-prescription of medications. After Wilson recounts that “[t]he

State Board of Medical Examiners investigated Dr. Neely” and “found . . . that between 1999 and

2002, Dr. Neely was writing prescriptions, not only for his patients but for himself as well.

Narcotics, muscle relaxers and pain killers,” she segues to Paul’s comments with, “[s]omething



                                                  40
former patient Paul Jetton finds shocking.” Then, Paul, with apparent reference to what the Board

“found,” observes, “[n]arcotics, opiates, I mean it’s just things that, I mean things that they don’t

even let people operate machinery or drive cars when they’re, when they’re taking them.” He then

states, “. . . and this guy’s doing brain surgery on people.” Wilson then continues with her critical

discussion of the Board’s disciplinary action and the Board’s “defen[se]” or justification for it.

               Considered in context, Paul’s statements were capable of being understood by the

ordinary viewer as Paul’s own factual inferences or allegations that he derived from the Board’s

agreed finding that Neely had self-prescribed medications, namely, that Neely had treated patients

while under their influence.8 Appellees rely on their “third-party allegation rule,” urging that this

portion of the broadcast is substantially true and not actionable against them because it accurately

depicted Paul’s own allegations. Under McIlvain, we agree. The broadcast explicitly presented

Paul’s “allegations as allegations,” as indicated by Wilson’s preface that the Board’s finding was

“[s]omething that former patient Paul Jetton finds shocking.”




       8
           While relying primarily on their “third-party allegation rule,” appellees argue that
Paul Jetton’s statements would not be actionable even in themselves because they represent Paul’s
“opinions” or “rhetorical hyperbole” rather than actionable assertions of fact. This argument alludes
to the principle that the First Amendment may, in certain contexts, restrict defamation liability
for utterances that cannot reasonably be interpreted as stating actual facts about an individual. See
New Times, Inc. v. Isaacks, 146 S.W.3d 144, 155-61 (Tex. 2004); Bentley v. Bunton, 94 S.W.3d 561,
579-81 (Tex. 2003) (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 19-20 (1990)). Assuming
without deciding that this limitation would apply to Paul’s statements here, we cannot conclude, as
a matter of law, that the statements cannot be reasonably interpreted to state actual facts
about Neely—that Neely had operated on patients while under the influence of self-prescribed
“[n]arcotics, opiates.”


                                                 41
                In contending that the KEYE defendants’ reporting of Paul’s statements is actionable,

Neely argues that the KEYE defendants “juxtaposed” Paul’s statements with other facts or “omitted”

other material facts to create misleading “impressions” that he had operated on patients while under

the influence of self-prescribed drugs or that the Board had disciplined him for such conduct. He

further complains that the KEYE defendants “linked” these “impressions” to Paul’s and Wu’s

adverse outcomes and related allegations. Neely relies on the principle—implicit in the rule that

allegedly defamatory publications must be construed as a whole—that a publication comprised of

statements that would each be substantially true or non-defamatory in isolation may nonetheless be

susceptible to a false and defamatory meaning due to the selective juxtaposition or omission of

material facts to create a misleading impression. See Turner, 38 S.W.3d at 114-15. This principle

“represent[s] the converse of the substantial truth doctrine. . . . [it] permit[s] liability for the

publication that gets the details right but fails to put them in their proper context and thereby gets

the story’s ‘gist’ wrong.” Id. at 115. For example, in Turner, the Texas Supreme Court held that

a television news investigative report selectively omitted material facts to convey a substantially

false and defamatory impression regarding a then-Houston mayoral candidate’s actions as an

attorney in a probate proceeding in which the purported decedent faked his own death. The

report had emphasized that the candidate, Hon. Sylvester Turner, “[d]espite the signs of something

fishy . . . began the legal effort to get millions in insurance money released and get his mutual friend

. . . appointed as administrator over the estate,” and aided the friend as he “sought control of the

estate” and “petitioned the court to become administrator.” Id. In support of its holding, the

supreme court observed that the report omitted mention that the purported decedent’s will had



                                                  42
named the “mutual friend” as independent executor and that the primary beneficiary of the funds

was to be the decedent’s father. Id. The supreme court concluded that, because of these selective

omissions and juxtapositions of facts, the report was susceptible to the false and defamatory meaning

that Turner had taken these actions on his own volition and perhaps was seeking to benefit personally

from the “death.” Id.

               Although it is theoretically possible for a report comprised of otherwise non-

actionable third-party allegations to nonetheless convey a defamatory or false meaning through

the selective juxtaposition or omission of other material facts, as appellees seem to acknowledge,

Neely cannot identify any such juxtapositions or omissions here. The “juxtaposition” of which

Neely complains seems to be that the KEYE defendants included Paul Jetton’s statements in the

broadcast to create the “misleading impression” that Jetton’s allegations were true. As for “omitted”

material facts, Neely merely contrasts Paul’s allegations with the actual content of the Board’s order.

Without more, we believe that McIlvain precludes us from holding that these aspects of the broadcast

can be considered to convey the sort of false or defamatory impression that could support a libel

claim against the KEYE defendants. To the contrary, this is a case closer to Randall’s, in which

Neely is advocating the imposition of defamation liability based on additional but unstated

inferences that he would derive from a “substantially true” report of third-party allegations. See

Randall’s Food Mkts., Inc., 891 S.W.2d at 646.

               In sum, we conclude that, as a matter of law, the KEYE defendants did not

make actionable assertions that Neely had operated on patients while under the influence of the

medications he had self-prescribed or that the Board had disciplined him for such actions. To the



                                                  43
extent that Neely complains that the KEYE defendants asserted that he had been disciplined by the

Board for “taking dangerous drugs,” those assertions are “substantially true” under Texas law.


               Surgeries

               Neely also asserts that the broadcast created the defamatory and false “impression”

that he performed unnecessary surgeries. He complains in particular of Sheila Jetton’s statement that

“[e]very neurosurgeon that’s looked at Paul’s MRIs from before Neely operated on him have said

they never would have done surgery [but] would have watched him with MRIs over years.” Sheila’s

assertion was immediately preceded by Wilson’s statement, “Paul’s wife Sheila says what they

learned from other doctors was the final blow.” Thus, considering these statements together, Sheila

is making an allegation regarding what “other doctors” told the Jettons about the necessity or

advisability of surgery. Under McIlvain, this accurate depiction of Sheila’s statement is not

actionable because it is considered to be “substantially true.” See McIlvain, 794 S.W.2d at 16. Nor

does Neely identify any juxtaposition or omission of facts that would cause the broadcast as

a whole to convey an actionably false impression regarding the necessity of Paul’s surgery. See

Turner, 38 S.W.3d at 117-19. To the contrary, the broadcast included Wilson’s acknowledgment

of Neely’s position that “two highly qualified neurosurgeons who reviewed the case agree with the

medical decisions made by Dr. Neely.” In short, the gist of this aspect of the broadcast is that the

Jettons and some doctors were of the opinion that Paul’s surgery had not been indicated while

other doctors believed it was. Neely has not raised a fact issue as to whether the broadcast was not

substantially true with respect to the necessity of Paul’s surgery. See McIlvain, 794 S.W.2d at 16.




                                                 44
               Neely also asserts that the broadcast created a false impression that he had performed

surgery on Wei Wu to treat brain cancer that had never actually existed. The broadcast, as previously

noted, displayed a video clip of Neely testifying during his deposition that Wu “was found to have

a . . . very major brain tumor thought to be a meningioma at the time because it, of the location in

the brain . . . was taken to the OR thereafter and found to [have] malignant melanoma.” It then

proceeded to emphasize the impact of the “diagnosis that Wu had only a few months to live,”

concluding with Wilson’s suggestion that “[i]t may have been too much for Wei Wu to handle”

and her account of Wu’s suicide. Then, as a visual image of the autopsy report was displayed on the

television screen, Wilson proceeded to recount, “But when his body was sent to the Travis County

Medical Examiner’s office analyzing Wu’s brains, examiners noted no residual metastatic

melanoma.” As Wilson made this statement, the phrase “no residual metastatic melanoma” in

the image of the report was highlighted and enlarged to cover the entire width of the screen. Wilson

then offered her own explanation of that phrase’s significance: “Meaning Wei Wu did not

have brain cancer.”

               Neely insists that Wilson’s statement, “Meaning Wei Wu did not have brain cancer”

could be perceived by an ordinary viewer as an assertion that Wu had never had cancer after all—

i.e., that for some inexplicable reason (or, e.g., the influence of self-prescribed medications) Neely

had performed brain surgery on Wu to treat a “very major brain tumor” that was never really there.

Appellees counter that the broadcast’s gist was instead that Neely and the medical examiner had

differed as to whether Wu had any cancer remaining in his brain after Neely’s surgery. In support,

appellees emphasize the examiner’s phrase “no residual metastatic melanoma” (a phrase that



                                                 45
was highlighted and enlarged in the visual portion of the broadcast), the broadcast indication that

Wu’s autopsy had occurred after Neely had performed surgery, and the fact that Wilson’s statement

is a present-tense description of whether Wu had cancer at that time, not an assertion that he

never had brain cancer. We agree with appellees. Considering the broadcast as a whole, see Turner,

38 S.W.3d at 114, we conclude as a matter of law that a viewer of ordinary intelligence would

necessarily perceive Wilson’s no-cancer explanation to refer to Wu’s condition after Neely had

performed surgery, not as an assertion as to whether Wu had ever had cancer. The broadcast’s

depiction of the competing views of Neely and the medical examiner regarding the continued

presence of cancer, furthermore, was substantially true. See McIlvain, 794 S.W.2d at 16; see also

Randall’s Food Mkts., Inc., 891 S.W.2d at 646 (absent factual omissions and juxtapositions, a

substantially true account of facts is not actionable, regardless of any false or defamatory facts a

viewer might infer from that account). In sum, Neely has not raised a fact issue as to whether the

broadcast was not substantially true with respect to whether he performed unnecessary surgeries.


               Hand tremors

               Finally, Neely argues that the broadcast created the false and defamatory impression

that he suffered from hand tremors that impacted his surgical competence. The broadcast mentions

hand tremors in the anchors’ introductory remarks (“If you needed surgery would you want to know

if your surgeon . . . had a history of hand tremors . . . ?”) and in Wilson’s summary of the Board’s

findings (“The board found Neely had a history of hand tremors . . . .”). This is an accurate depiction

of the Board’s agreed order. The order, as previously explained, included findings that Neely “had

a prior history of tremors,” and that “the Board’s investigator claims to have witnessed a

                                                  46
tremor during the 2002 interview” (which Neely did not dispute but attributed to “nervousness about

the interview”). Further, the Board ordered that Neely undergo evaluation by a Board-approved

physician for any condition which, without adequate treatment, could adversely affect Neely’s ability

to safely practice medicine. We conclude, as a matter of law, that the broadcast was substantially

true with respect to its account of Neely’s “history of hand tremors.” See McIlvain, 794 S.W.2d

at 16. As for Neely’s assertion that this substantially correct portrayal created the “impression” that

hand tremors impacted his surgical competence, this additional inference is not actually stated in the

broadcast. See Randall’s Food Mkts, Inc., 891 S.W.2d at 646.


       Conclusion regarding defamatory meaning and substantial truth

               Under McIlvain, we conclude that, as a matter of law, the KEYE defendants

(KEYE and Wilson) stopped short of making actionable defamatory and false assertions about

Dr. Neely in their January 19, 2004 broadcast. We hold that the district court did not err in granting

summary judgment on the grounds that the statements in question were, as a matter of law, not

actionable because they are considered to be either “substantially true” or not defamatory.


Remaining issues

               The foregoing holdings would require us to affirm summary judgment as to all

of Neely’s claims unless there is merit to Neely’s seventh issue, in which he contends that

the district court abused its discretion in excluding some of his summary-judgment evidence.

Two evidentiary rulings are the focus of Neely’s seventh issue. First, Neely complains of the

district court’s exclusion of certain excerpts from the affidavits of two of his attorneys, the



                                                  47
attorney who represented him in his medical-malpractice litigation and the attorney who represented

him before the Board. These excerpts concern communications the attorneys had with Wilson

prior to the broadcast which, in Neely’s view, are relevant to Wilson’s actual malice. Because the

summary judgment can stand on grounds other than absence of evidence of fault, any error in the

district court’s exclusion of these excerpts is harmless. See Tex. R. App. P. 44.1(a)(1).

               The second evidentiary ruling of which Neely complains is the district court’s

exclusion of the two letters from the Board concerning its investigations of complaints regarding

Neely’s care of Paul Jetton and a group of patients that included Wu. Each letter, as previously

discussed, indicates that the Board had found no violation of the medical practice act and was closing

its investigation. Appellees objected to each letter as “irrelevan[t] and inadmissible hearsay if

offered for the truth.” The district court sustained the objection without specifying the grounds. On

appeal, Neely argues that the letters are relevant to show that “the gist and impressions created by

the Broadcast are false.” In light of our holdings regarding the broadcast’s meaning and third-party

allegations, we cannot conclude that Neely has shown harm from any error in these rulings. See id.

We overrule Neely’s seventh issue.

               The district court did not err in granting summary judgment on the grounds that, as

a matter of law, the KEYE defendants did not make actionably defamatory or false (i.e., not

substantially true) assertions in the broadcast and that Viacom had no involvement in preparing or

publishing the broadcast. Accordingly, we overrule Neely’s first and second issues. We do not




                                                 48
reach—and express no opinion regarding—Neely’s remaining issues challenging appellees’ other

summary-judgment grounds.9 See Tex. R. App. P. 47.1.


                                            CONCLUSION

                 We affirm the district court’s judgment.




                                                  _____________________________________________

                                                  Bob Pemberton, Justice

Before Justices Pemberton, Rose and Goodwin

Affirmed

Filed: February 9, 2011




       9
           I.e., Neely’s third, fifth and sixth issues.

                                                    49
