Miami Dolphins offensive line coach Jim Turner sued law firm Paul, Weiss, Rifkind, Wharton & Garrison, and its partner Ted Wells earlier this month in the Southern District of Florida after the firm published a report on the Internet. Within days of the report’s publication, Turner was fired from the Dolphins. In his suit, Turner alleges that the Wells report was defamatory and caused Turner damages.
According to the court docket, the Defendants’ answer is due on September 3, 2015. The presiding judge is William J. Zloch. The case is Turner v. Wells, Case No. 0:15-cv-61658-WJZ (S.D. Fla.).
Turner’s allegations of defamation in Wells Report
In his 30-page lawsuit (copy here), Turner contends that the Defendants withheld or ignored key information, testimony, facts, and evidence in the Wells report, which was commissioned by the NFL with a pre-determined outcome in mind (¶¶ 6 and 50-52). For instance, the report did not include testimony from former assistant line coach Chris Mosley that conveys Turner as a “great leader” and “great person” (¶ 25), or from players concerning how Turner had an open door policy with players, how Turner is “one of the best coaches” players had ever worked with, and that Turner was held in high esteem by several players on the team (¶¶ 26-30), the lawsuit alleges.
The lawsuit asserts that the Wells report misrepresents and distorts the facts and presents a false, one-sided narrative that falsely accuses Turner of participating in and condoning the alleged bullying and harassment of player Jonathan Martin (¶ 8), and creating an atmosphere that allowed for locker-room bullying, harassment, and a “code” against “snitching” on fellow teammates. Turner also alleges that the report falsely stated that he knew about the alleged bullying and harassment but did nothing to try and stop it (¶¶ 7 and 47).
Turner contends that the Defendants had a duty to conduct an independent and fair investigation into the circumstances leading to Martin’s departure from the team, and that false statements contained in the report imputed to Turner conduct and characteristics that are incompatible with his profession as a professional football coach (¶¶ 8-9 and 57).
The lawsuit alleges that the false and defaming statements have rendered Turner unable to obtain employment as a professional football coach and caused him psychological and emotional pain and suffering (¶¶ 124, 130 and 141-142).
Defamation & Defamation ‘Per Se’ in Florida
Turner’s lawsuit sues for both defamation and defamation per se. Defamation is “per se” when the offending statements are so “damaging to [one’s] reputation” that they “give[ ] rise to an absolute presumption both of malice and damage.” Klayman v. Judicial Watch, Inc., 22 F. Supp. 3d 1240, 1247 (S.D. Fla. 2014) (quoting Wolfson v. Kirk, 273 So.2d 774, 776 (Fla. 4th DCA 1973); citing Campbell v. Jacksonville Kennel Club, Inc., 66 So. 2d 495, 497 (Fla. 1953)).
In Florida, a published statement is defamatory per se without a showing of special damage if:
(1) it charges that a person has committed an infamous crime; (2) it charges a person with having an infectious disease; (3) it tends to subject one to hatred, distrust, ridicule, contempt, or disgrace; or (4) it tends to injure one in his trade or profession.
Klayman, 22 F. Supp. 3d at 1247 (quoting Campbell, 66 So. 2d at 497) (quoting Richard v. Gray, 62 So. 2d 597, 598 (Fla. 1953)).
To establish a cause of action for defamation alone (without the “per se”), a plaintiff must show:
(1) publication; (2) falsity; (3) the actor acted with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private person; (4) actual damages; and (5) the statement is defamatory.
Klayman, 22 F. Supp. 3d at 1250 (citations omitted).
If the plaintiff bringing a defamation claim is determined to be a “public figure,” he or she must also demonstrate with clear and convincing evidence “actual malice” by the person publishing the statement. New York Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964). In other words, the Plaintiff must prove that the Defendant “either knew the alleged defamatory statements were false, or published them with reckless disregard despite awareness of their probable falsity.”Klayman, 22 F. Supp. 3d at 1251 (citing Mile Marker, Inc. v. Petersen Publ’g, L.L.C., 811 So. 2d 841, 845 (Fla. 4th DCA 2002)). As to whether a person is a “public figure” is a question of law for the court to decide.