                       IN THE SUPREME COURT OF MISSISSIPPI

                                    NO. 2003-CA-02223-SCT

WALTER W. ECKMAN

v.

COOPER TIRE & RUBBER COMPANY AND
SHANAN PROFESSIONAL REVIEW SERVICES,
INC.

DATE OF JUDGMENT:                               9/3/2003
TRIAL JUDGE:                                    HON. THOMAS J. GARDNER, III
COURT FROM WHICH APPEALED:                      LEE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                         THOMAS WICKER
ATTORNEY FOR APPELLEE:                          WILLIAM C. MURPHREE
NATURE OF THE CASE:                             CIVIL - TORTS-OTHER THAN PERSONAL
                                                INJURY & PROPERTY DAMAGE
DISPOSITION:                                    AFFIRMED - 09/09/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

        BEFORE SMITH, C.J., EASLEY AND DICKINSON, JJ.

        EASLEY, JUSTICE, FOR THE COURT:

                                 STATEMENT OF THE CASE

¶1.     This is an appeal from a summary judgment granted in favor of Cooper Tire & Rubber Company

(Cooper) and Shanan Professional Review Services, Inc. (Shanan). The trial court granted summary

judgment on the basis that Cooper and Shanan were immune from liability for defamation based upon

qualified privilege.

¶2.     Walter W. Eckman, M.D. (Eckman), sued Cooper and Shanan alleging that they prepared and

published reports which contained false, defamatory and libelous statements concerning him. Eckman also

alleged that Cooper and Shanan exceeded the scope of any qualified privilege regarding any legitimate
review process. Cooper and Shanan subsequently filed their motion for summary judgment, and the trial

court entered a partial summary judgment, noting that the motion only addressed the issue of defamation

and qualified privilege. The trial court found that the alleged defamatory statements were protected by

qualified privilege, they were not excessively published, and that Eckman failed to create a genuine issue

of material fact regarding actual malice. As authorized by M.R.C.P. 54(b), the trial court certified that

judgment as final. It is from this judgment that Eckman appeals to this Court and submits the following

issues:

          I.      Whether the trial court erred in finding that the defendants were
                  protected by qualified privilege.

          II.     Whether the trial court erred in finding that there was no genuine
                  issue of material fact regarding actual malice.

                                                  FACTS

¶3.       Eckman is a physician specializing in neurological surgery in Tupelo, Mississippi. In 1998, Eckman

treated two patients, Tony Wood and Danny Jarvis, both of whom were employed by Cooper. Both

patients underwent surgical procedures which were submitted to Cooper for reimbursement under its

employee healthcare plan. Under Cooper’s healthcare plan, payment would be made for “medically

necessary” services, which are defined as medical services which are required and appropriate for the

treatment of a specific medical condition.

¶4.       Eckman’s office submitted billings to Cooper for reimbursement for Eckman’s professional

services. Pursuant to Miss. Code Ann. § 41-63-3 (Rev. 2001), Cooper engaged Shanan Professional

Review Services to evaluate the medical services Eckman provided. Shanan provided “retrospective

utilization reviews,” which were to be based upon all medical records, hospital bills and such other

information as would be necessary for the purpose of evaluating the medical services, level of care, and


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billing practices pertaining to such claims. Shanan in turn engaged two physicians, Dr. P. L. Soni and Dr.

John Lehman, to do the evaluations. In their evaluations, both physicians questioned the necessity of the

surgeries Eckman performed, and Dr. Soni commented: "It is embarrassing to me that there are people in

my profession which would resort to tactics like these and give the entire profession a bad name. To me,

this borders on white collar crime." (emphasis added).

¶5.     Cooper and Shanan kept the review confidential, and no one other than persons

at Cooper and Shanan had access to these reviews.

¶6.     After receiving the reviews, Cooper declined to pay for Eckman’s professional services. Eckman

then requested a copy of the reviews and learned of the comments concerning his practice. During

depositions, Eckman testified that the only people who have read or heard the allegedly defamatory

remarks about him worked for Aurora Spine Center, Eckman’s clinic. These people testified that anything

they read about Eckman from Cooper or Shanan, they read during their work in communicating with

Cooper as to the denial of payment for Jarvis or Wood.

                                              ANALYSIS

¶7.     The standard for review for summary judgments in Mississippi is well established. The Court

reviews summary judgments de novo. Hardy v. Brock, 826 So.2d 71, 74 (Miss. 2002). The facts are

viewed in light most favorable to the nonmoving party. Id. The existence of a genuine issue of material fact

will preclude summary judgment. Id. Where disputed facts exist or where different interpretations or

inferences may be drawn from undisputed facts, summary judgment is inappropriate. See Johnson v.

City of Cleveland, 846 So.2d 1031, 1036 (Miss. 2003).

        I.      Whether the trial court erred in finding that the defendants were
                protected by qualified privilege.


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¶8.       Whenanalyzing defamation claims, Mississippi courts employ a bifurcated process. First, the Court

must determine whether the occasion called for a qualified privilege. If a qualified privilege does exist, the

Court must then determine whether the privilege is overcome by malice, bad faith, or abuse. Garziano

v. E.I. Dupont de Nemours & Co., 818 F.2d 380, 386-87 (5th Cir. 1987) (applying Mississippi law).

 In Smith v. White, 799 So. 2d 83, 86 (Miss. 2001), this Court described the qualified privilege:

          A communication made in good faith and on a subject matter in which the person making
          it has an interest, or in reference to which he has a duty, is privileged if made to a person
          or persons having a corresponding interest or duty, even though it contains matter which
          without this privilege would be slanderous, provided the statement is made without malice
          and in good faith.

¶9.       Eckman avers that the statements made by Soni and Lehman are not subject to qualified privilege.

He contends that there is nothing in the contractual relationships existing between Cooper and Shanan

which calls for statements regarding criminal culpability or professional competency. Rather, the scope of

the communications involves the limited questions of medical necessity and the reasonableness of the

charges. However, Cooper and Shanan assert that they both had an interest in the subject matter of the

communications. Additionally, the doctors statements were made in reference to their interest and duties

in regard to the review process and in accordance with Miss. Code Ann. § 41-63-3, which provides for

the evaluation of medical services by independent reviewers. We find that a qualified privilege existed as

to Shanan and Cooper because the statements were made to those with a direct interest in the subject

matter.

¶10.      A qualified privilege does not protect a defamatory statement where there is excessive publication

to persons not within the “circle” of those people who have a legitimate and direct interest in the subject

mater of the communication. Garziano, 818 F.2d at 391-92. In the case at bar, the only people who

read or heard of the defamatory remarks were Cooper, Shanan, and Eckman’s own employees, who

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testified that they read the remarks in the routine course of their business. Eckman avers that the remarks

were excessively published because his employees either heard or read the defamatory remarks. However,

this argument is without merit.

¶11.    This Court’s holding in Staheli v. Smith, 548 So.2d 1299 (Miss. 1989), is applicable to the case

at bar. In Staheli, the University of Mississippi denied tenure to Staheli, who subsequently sued Smith,

Dean of the School of Engineering, for defamation. Staheli charged that Smith defamed him by remarks

and writings about him during the tenure process. This Court considered the issue of excessive publication

and held that there was no publication “outside the circle” as the faculty senate were included in the tenure

process, and Staheli brought the senate into the circle when he appealed the chancellor’s decision. Id. at

1395-96. We find that as in Staheli, Eckman’s employees were brought inside the circle when he

requested a review of the statements. Therefore, there was not excessive publication because Cooper and

Shanan confined the remarks about Eckman to those interested in the review process.

        II.      Whether the trial court erred in finding that there was no genuine
                 issue of material fact regarding actual malice.

¶12.    If the publication is subject to the qualified privilege from business communications, liability for

defamation may still attach upon a finding of malice, defined by this Court as “knowledge of falsity or

reckless disregard to as to truth or falsity.” Hayden v. Foryt, 407 So.2d 535, 536 (Miss. 1981). This

Court further stated that if the defendant honestly believed the plaintiff’s conduct to be such as he described

it, the mere fact that he used strong words in describing it is no evidence of malice. Id. at 539. The fact

that the expressions are angry and intemperate is not enough; the proof must go further and show that they

are malicious. Id.




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¶13.    The trial court held that Eckman failed to present any evidence that Cooper or Shanan acted with

actual malice in publishing the statements. Furthermore, the trial court held that while some of the

statements may indeed be characterized as intemperate, Eckman failed to create a genuine issue of material

fact regarding malice. Eckman avers that the question of whether or not the statement was made with

malice is an issue for the jury. Smith, 799 So.2d at 87. However, Smith is distinguished from the case

at bar in that the jury in Smith heard testimony from witnesses regarding defamatory statements, and the

evidence regarding such statements was widely disputed. Therefore, this Court found that the question of

whether the statements were made with actual malice was a question for the jury.

¶14.    In the case sub judice, the trial court considered this case on a motion for summary judgment

pursuant to M.R.C.P. 56. A jury does not decide whether a defendant acted with actual malice unless a

genuine issue of material fact exists. This Court has made it clear that a plaintiff bears a heavy burden in

proving actual malice. In Scott-Burr Stores Corp. v. Edgar, 181 Miss. 486, 177 So. 766, 770

(1938), this Court ruled:

        Actual or express malice, as distinguished from malice in law, in its ordinary sense denotes
        ill will, a sentiment or hate or spite, especially when harbored by one person toward
        another, and exists when one with a sedate, deliberate mind and formed design injures
        another, as where a person is actuated by ill will in what he does and says, with a design
        to willfully and wantonly injure another. Newell on Slander and Libel, 4th Ed. § 271
        et seq.

        It is undisputed in the case at bar that Swanson had never before seen the appellee, and
        had no reason to entertain any ill will toward him.

¶15.    As in Scott-Burr, the two doctors reviewing Eckman’s records and billings do not live in

Mississippi; they do not know Eckman; and they have never had professional or personal contact with him.

Eckman has not presented any affirmative evidence demonstrating that the physicians intentionally and



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maliciously made these statements. Therefore, we find that there is no proof that these reviewing physicians

harbored ill will toward Eckman and deliberately sought to injure him.

                                            CONCLUSION

¶16.    We find that a qualified privilege existed and that Cooper and Shanan did not abuse this privilege

with excessive publication. Additionally, we find that Eckman did not meet his burden of production and

persuasion on the issue of actual malice. Therefore, we affirm the trial court's judgment.

¶17.    AFFIRMED.

     SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON, DICKINSON AND
RANDOLPH, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. DIAZ, J.,
NOT PARTICIPATING.




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