                           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.

                           ON MOTION FOR REHEARING

DATE OF JUDGMENT:                           09/03/2003
TRIAL JUDGE:                                HON. THOMAS J. GARDNER, III
COURT FROM WHICH APPEALED:                  LEE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     THOMAS A. WICKER
ATTORNEY FOR APPELLEES:                     WILLIAM C. MURPHREE
NATURE OF THE CASE:                         CIVIL - TORTS-OTHER THAN PERSONAL
                                            INJURY & PROPERTY DAMAGE
DISPOSITION:                                AFFIRMED - 02/17/2005
MOTION FOR REHEARING FILED:                 09/27/2004
MANDATE ISSUED:




        EN BANC.

        EASLEY, JUSTICE, FOR THE COURT:

                                 STATEMENT OF THE CASE

¶1.     The motion for rehearing is denied. The original opinion is withdrawn, and this opinion

is substituted therefor.

¶2.     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.

¶3.     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

¶4.     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




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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.

¶5.     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 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). 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.

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

Cooper and Shanan had access to these reviews.

¶7.     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


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during their work in communicating with Cooper as to the denial of payment for Jarvis or

Wood.

                                              ANALYSIS

¶8.     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.

¶9.     When analyzing 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.




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¶10.     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.

¶11.     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 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.

¶12.     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

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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.

¶13.   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.

¶14.   The plaintiff in a defamation action bears the burden of proving the falsity of the

statement. Blake v. Gannett Co., 529 So.2d 595, 602 (Miss. 1988) (citing Reaves v. Foster,

200 So.2d 453 (Miss. 1967)); see Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767,

776, 106 S.Ct. 1558, 1563, 89 L.Ed.2d 783, 792 (1986) (mandated that the plaintiff in a

defamation action bears the burden of proving falsity, as well as fault, before recovering


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damages).     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.

¶15.    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.          Eckman has not presented any

affirmative evidence demonstrating actual malice to defeat the qualified privilege. Therefore,

we find that this issue is without merit.

                                            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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