Tom Workman, Respondent, vs. Eric Serrano, et al., Appellants.

Tom Workman, Respondent, vs. Eric Serrano, et al., Appellants. A05-834, Court of Appeals Unpublished, March 28, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-834

 

Tom Workman,
Respondent,
 
vs.
 
Eric Serrano, et al.,
Appellants.

 

Filed March 28, 2006

Affirmed in part, reversed in part, and remanded

Stoneburner, Judge

 

Carver County District Court

File No. CV03579

 

Julianne E. Ortman, Raymond C. Ortman, Jr., Ortman & Associates, P.L.C., Suite 750, 1851 Lake Drive West, Chanhassen, MN 55317 (for respondent)

 

Mark R. Anfinson, Lake Calhoun Professional Building, 3109 Hennepin Avenue South, Minneapolis, MN 55408; and

 

John M. Baker, Greene, Espel, P.L.L.P., Suite 1200, 200 South Sixth Street, Minneapolis, MN 55402 (for appellants)

 

            Considered and decided by Stoneburner, Presiding Judge; Lansing, Judge; and Collins, Judge.*

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Respondent in this defamation case obtained a favorable jury verdict awarding compensatory and punitive damages against appellants, who challenge the denial of their posttrial motion for judgment notwithstanding the verdict (JNOV) or a new trial.  Appellants argue that respondent did not satisfy his pretrial burden of proving that statements in an editorial were capable of being defamatory; did not satisfy his burden at trial to prove falsity, actual malice, or injury to reputation; and, alternatively, that evidentiary errors, errors in jury instructions, and errors in the special-verdict form require a new trial.  Because we conclude that one of the two statements that the district court found actionable was not defamatory as a matter of law, we reverse in part.  Because we conclude that the evidence supports the jury's determination that the other statement was defamatory and made with actual malice, we affirm that portion of the verdict.  But because the damages awarded related to both statements, we remand for a new trial on damages attributable only to the single defamatory statement in the editorial.

FACTS

 

            Respondent Tom Workman is a former state legislator and current Carver County commissioner.  Prior to being sworn in as a county commissioner, respondent talked separately to another newly elected board member and to a board member about the possible firing of Richard Stolz, who had been the Carver County administrator for 17 years.  After respondent was sworn in and elected board chair, which occurred at the first meeting of the board, respondent spoke with Stolz and requested his resignation.  Stolz, believing that respondent had the votes necessary to terminate his employment, agreed to resign and negotiated a severance agreement with the county.  Shortly before the second board meeting, the agenda was amended to include approval of the termination agreement.  There was very little discussion about the termination of Stolz's employment at the meeting, and the commissioners voted 3-2 to accept the agreement. 

            Appellant Eric Serrano was the editor of appellant Chanhassen Villager (the Villager) at all times relevant to this lawsuit.  The Villager is a weekly newspaper with a circulation of between 6,000 and 7,000, serving the cities of Chanhassen and Victoria.  Appellant Southwest Publishing publishes and distributes the Villager.  Southwest Publishing is a wholly owned division of appellant Red Wing Publishing. 

            On January 23, 2003, the Villager published an editorial written by Serrano entitled "The right foot?"  The editorial was critical of respondent and the manner in which the decision to terminate Stolz's employment was made.  The relevant portion of the editorial states:

                        We won't go so far as some residents in wondering whether the move was rooted in some ancient grudge between county officials and new County Commission Chair Tom Workman (the latter was sued by the former a few years back, and lost)we like to think our elected officials are above such petty motives.[1]

 

What we do worry about, however, is the manner in which the decision was made and whether or not it will become the common practice of this new panel of commissioners to reach consensus after discussing public business one-on-one out of the purview of the public.  It's a practice that, if continued, will likely find these commissioners facing a challenge in a courtroom somewhere down the roada course that would divert county resources which several commissioners contend are in short supply.[2]

 

Respondent sued appellants, alleging that several items published by appellants, including the editorial, defamed him.  Pretrial rulings limited respondent's claims to the two above-quoted statements from "The right foot?"  Respondent asserted that the quoted paragraphs falsely insinuated that his participation in the board's decision to dismiss the county administrator was motivated by the falsely asserted fact that respondent had, in the past, been sued by the county and lost, which caused him to have a petty grudge, which in turn led him to violate the Open Meeting Law to obtain consensus on termination of Stolz's employment. 

            The district court held that the statement that respondent had been sued and lost (sued-and-lost statement), which appellants admitted was false, and the statement about one-on-one meetings outside of county board meetings (decision-making statement), were capable of a defamatory meaning and respondent had met his pretrial burden of showing actual malice such that the statements should be submitted to the jury for a determination of whether the statements were, in fact, defamatory and made with actual malice.  The district court also permitted respondent to amend his complaint to add a claim of punitive damages against Serrano.  The district court did not grant appellant's motion to assert a claim of punitive damages against Serrano's employers, but held that the question of whether Serrano's employers authorized the editorial would be submitted to the jury. 

            The matter was tried to a jury over the span of seven days.  The district court denied appellants' motion for a directed verdict at the close of respondent's case.  The jury returned a special verdict finding that each statement was false, defamatory, and referred to respondent.  The jury also found that the "statement or communication" (encompassing both the sued-and-lost and decision-making statements) was made by Serrano with actual malice.  The jury awarded compensatory damages in the amount of $425,000.  In a bifurcated proceeding on punitive damages, the jury found that Serrano acted with "deliberate disregard for the rights or safety of others" and that Southwest Publishing "authorize[d] . . . Serrano's act and how in fact it was done."  The jury assessed punitive damages of $500 against Serrano and $200,000 against Southwest Publishing.

            Appellants moved for JNOV, modified findings, a new trial, and/or remittitur.  The district court denied the motions.  This appeal followed.

D E C I S I O N

 

            Generally, when JNOV has been denied by the district court, the denial must be affirmed on appellate review if "there is any competent evidence reasonably tending to sustain the verdict."  Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998) (quotation omitted).  But appellants' primary argument is not based on the sufficiency of evidence at trial.  Rather, appellants contend that the district court erred in the pretrial determinations that the sued-and-lost and decision-making statements, in the context of the editorial, could be defamatory and that respondent presented a jury question on actual damages.  Appellants argue that the statements constitute fair comment, albeit critical, on government conduct, are not actionably false, and are protected by the First Amendment.

"[I]n cases raising First Amendment issues . . . an appellate court has an obligation to ‘make an independent examination of the whole record' in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.'"  Bose Corp. v. Consumers Union of U. S., Inc., 466 U.S. 485, 499, 104 S. Ct. 1949, 1958 (1984) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 284-86, 84 S. Ct. 710, 728-29 (1964)).  The district court initially determines as a matter of law whether a statement is reasonably capable of carrying a defamatory meaning, and this determination is subject to de novo review.  Schlieman v. Gannett Minn. Broad., Inc., 637 N.W.2d 297, 307 (Minn. App. 2001), review denied (Minn. Mar. 19, 2002).  Only if a statement is capable of carrying a defamatory meaning must the jury determine whether the statement is, in fact, defamatory.  Id.

I.          Pretrial determination of whether statements could be defamatory

Minnesota defamation law categorizes statements as (1) those that are defamatory on their face; (2) those that could not convey a defamatory meaning; and (3) those that are reasonably susceptible to a defamatory meaning as well as an innocent one.  Id.(citing Church of Scientology v. Minn. State Med. Ass'n Found., 264 N.W.2d 152, 155 (Minn. 1978)).  A statement is defamatory "if it causes enough harm to a person's reputation to lower the community's estimation of the individual or to deter others from associating or dealing with the individual."  Weissman v. Sri Lanka Curry House, 469 N.W.2d 471, 473 (Minn. App. 1991).  Defamation requires that the plaintiff "prove that a statement was false, that it was communicated to someone besides the plaintiff, and that it tended to harm the plaintiff's reputation and to lower him in the estimation of the community."  Rouse v. Dunkley & Bennett, P.A., 520 N.W.2d 406, 410 (Minn. 1994).  Additionally, when the plaintiff is a public official, the plaintiff must establish "clear and convincing proof of actual malice."  Jadwin v. Minneapolis Star & Tribune Co., 367 N.W.2d 476, 480 (Minn. 1985).[3]

            Appellants first argue that respondent did not meet his burden of proving that the statements at issue are actionably false.  See Hunter v. Hartman, 545 N.W.2d 699, 705 (Minn. App. 1996) (citing Moldea v. New York Times Co., 22 F.3d 310, 317 (D.C. Cir. 1994), cert. denied, 513 U.S. 875 (1994), for the proposition that "only if ‘no reasonable person could find' the allegedly defamatory statements ‘supportable interpretations' of the situation being described are the statements actionable in defamation" and Liberty Lobby v. Dow Jones & Co.,838 F.2d 1287, 1292 (D.C. Cir. 1988), cert. denied, 488 U.S. 825 (1998), for the proposition that "[w]here the question of truth or falsity is a close one, a court should err on the side of nonactionability"), review denied (Minn. June 19, 1996)).

            a.         Sued-and-lost statement

Appellants admit that the sued-and-lost statement is "not precisely correct," but argue that because it produced no greater effect than the true description of the event would have, it was "substantially true" and therefore not actionable.  "A statement is

substantially accurate if its gist or sting is true, that is, if it produces the same effect on the mind of the recipient which the precise truth would have produced."  Jadwin v. Minneapolis Star and Tribune Co., 390 N.W.2d 437, 441 (Minn. App. 1986) (quotation omitted); see also Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517, 111 S. Ct. 2419, 2433 (1991) ("minor inaccuracies do not amount to falsity so long as the substance, the gist, the sting of the libelous charge be justified."(quotation omitted)).[4]

Appellants assert that the "sting" in this case came from the allegation that respondent was motivated by a petty grudge and that an error in the precise facts of how that grudge arose did not affect the gist of the allegation.  We disagree.  An accurate account of what occurred would not have cast respondent in the light of a public official who brought an unsuccessful lawsuit against the county.  In fact, the county imposed penalties on a business of which respondent was general manager.  The company challenged the penalties in district court, and the district court determined that the county was without jurisdiction to impose the penalties.  The false statement consisted of more than "minor inaccuracies" and was capable of causing harm to respondent's reputation.  The district court did not err in concluding that the sued-and-lost statement should be submitted to the jury.

b.         Decision-making statement

            Appellants argue that if respondent's claim regarding the decision-making statement is any type of defamation, it is "defamation by implication."  Respondent, with whom the district court agreed, characterized the statement as defamatory on its face, arguing that the language directly asserts that the manner in which the decision was made violated the Open Meeting Law.  If the statement is defamatory by implication, appellants argue that in Minnesota a public official cannot allege a cause of action for a false implication based on true statements of fact.  See Diesen v. Hessburg, 455 N.W.2d 446, 452 (Minn. 1990) (arguably foreclosing public-official defamation actions that attempt to establish defamation through false implication from true statement) cert. denied, 498 U.S. 1119 (1991).   

            We agree with respondent and the district court that the decision-making statement is not defamation by implication, a term of art defined as occurring "when a defendant (1) juxtaposes a series of facts to imply a defamatory connection between them; or (2) creates a defamatory implication by omitting facts."  Metge v. Cent. Neighborhood Improvement Ass'n,649 N.W.2d 488, 498 (Minn. App. 2002), see e.g. page 20 review dismissed (Minn. Oct. 15, 2002).  Furthermore, we agree with the district court that the decision-making statement contains a statement of fact.  But with due respect to the district court's careful analysis of this issue, we conclude that the district court erred in setting out the fact stated. 

The district court concluded that on its face, the decision-making statement is a statement that respondent violated the Open Meeting Law.  The fact actually stated, however, is that the manner of making the decision about Stolz consisted of the "commissioners [reaching] consensus after discussing public business one-on-one out of the purview of the public."  The decision-making statement does not mention the Open Meeting Law, does not accuse respondent of having violated the Open Meeting Law, and does not state that a legal action based on the manner in which the decision was made would be successful on any grounds. 

Unlike the sued-and-lost statement, the fact asserted in the decision-making statement is substantially true, given the context in which the statement was made.  See Huyen v. Driscoll, 479 N.W.2d 76, 79 (Minn. App. 1991) (stating that context in which a statement is made is relevant in determining its falsity), review denied (Minn. Feb. 10, 1992).  A news article that appeared in the Villager one week before the publication of the editorial covered the board meeting in which Stolz's employment-termination agreement was approved.  The article attributed three statements to respondent relevant to the context in which the editorial was written.  First, quoting respondent, the reporter wrote that the commissioners "individually had discussions" about Stolz.  Second, paraphrasing respondent, the reporter wrote that respondent told the reporter after the meeting that Stolz's employment termination had not been discussed at a work session or a board meeting in 2003.  Third, the reporter paraphrased respondent as saying that only current board members were involved in his discussions about Stolz's employment termination.  We conclude that the underlying facts known to Serrano when he wrote the editorial (and not significantly contradicted at trial) support a determination of the substantial truth of the fact asserted in the decision-making statement.

After asserting as fact the manner in which the decision to terminate Stolz's employment was made, the decision-making statement warns or predicts that, if continued, this practice "will likely find the commissioners facing a challenge in a courtroom somewhere down the roada course that would divert county resources."  The assertion about what is "likely" to occur if this manner of decision making becomes a practice is a statement of opinion.  Although opinions are not per se protected from being defamatory, a statement of opinion "which does not contain a provably false factual connotation will receive full constitutional protection."  Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 110 S. Ct. 2695,  2706 (1990).  Because it is not possible to prove the truth or falsity of the prediction contained in the decision-making statement, the opinion is entitled to full constitutional protection and is not actionable as a matter of law.  We therefore conclude that the district court erred in its pretrial determination that the decision-making statement is capable of defamatory meaning.  The decision-making statement was erroneously submitted to the jury, and the district court erred in denying JNOV with regard to this statement.

II.        Pretrial determination of fact question regarding actual malice

When the plaintiff is a public official, "an essential element of the plaintiff's claim is clear and convincing proof of actual malice."  Jadwin, 367 N.W.2d at 480.  "The question whether the evidence in the record in a defamation case is sufficient to support a finding of actual malice is a question of law."  Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 685, 109 S. Ct. 2678, 2694 (1989).  This court reviews de novo whether the record supports a finding of actual malice.  Diesen, 455 N.W.2d at 453.

To show "actual malice," a plaintiff must demonstrate by clear and convincing evidence that the defendant made defamatory statements either (1) knowing that the statements were false or (2) while acting recklessly with regard to whether the statements were true.  N.Y. Times, 376 U.S. at 279-80, 84 S. Ct. at 726; see also Harte-Hanks, 491 U.S. at 667, 109 S. Ct. at 2686 (stating that actual malice requires, at a minimum, that the statements were made with a reckless disregard for the truth).  Clear and convincing evidence is more than a "preponderance of the evidence" and less than "beyond a reasonable doubt."  Bose Corp. v Consumers Union of U.S., 692 F.2d 189, 195 (1st Cir. 1982), aff'd, 466 U.S. 485 (1984).

            Because we have determined that the decision-making statement was not defamatory as a matter of law, we do not reach the issue of actual malice with regard to that statement.  Regarding the sued-and-lost statement, respondent asserts that appellant Serrano "deliberately disregarded warnings and inconsistencies between the verifiable facts" and the false statement that he made in the editorial, such that he acted recklessly with regard to the truth of the statement he made.  Reckless conduct

is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing.  There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.  Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.

 

St. Amant v. Thompson, 390 U.S. 727, 731, 88 S. Ct. 1323, 1325 (1968).  "[M]otives of diminishing plaintiff's credibility" do not establish actual malice where there is no evidence that the defendant had actual knowledge of falsity.  Fitzgerald v. Minn. Chiropractic Ass'n Inc., 294 N.W.2d 269, 271 (Minn. 1980); see also Harte-Hanks, 491 U.S. at 666 n.7, 109 S. Ct. at 2685 n.7 ("The phrase ‘actual malice' . . . has nothing to do with bad motive or ill will."). 

But a public official "is entitled to prove the defendant's state of mind through circumstantial evidence, and it cannot be said that evidence concerning motive [for publishing] or [of accepted industrial standards] never bears any relation to the actual malice inquiry."  Harte-Hanks, 491 U.S. at 668, 109 S. Ct. at 2686 (citations omitted).  "Although failure to investigate will not alone support a finding of actual malice, the purposeful avoidance of the truth is a different category."  Id. at 692, 109 S. Ct. at 2698 (citation omitted).  Recklessness may be found when there is reason to doubt the source's truth or when key witnesses and other sources of information are purposefully ignored.  Id.at 692-93, 109 S. Ct. at 2698-99.  A "highly slanted perspective" may contribute to a finding of actual malice but cannot alone establish actual malice.  Chafoulias v. Peterson, 668 N.W.2d 642, 655 (Minn. 2003).

            In this case, we conclude that the pretrial record before the district court was sufficient to raise a genuine issue of material fact and create a triable issue on the question of actual malice.  The Villager's reporter kept a file that contained articles she had written concerning the county's dispute with respondent's employer that was the basis of the sued-and-lost statement.  Serrano testified in his deposition that he received and read this file the night before he wrote the editorial.   The very week that Serrano became the editor of the Villager, the Villager ran a front-page story detailing the district court's reversal of the administrative-penalty order that the county had issued against respondent's employer.  A later edition of the Villager published a letter to the editor from respondent stating that the county attorney "lost the [administrative-penalty order] case" and "had no authority to use the [administrative-penalty order] to enforce state laws."  Serrano had spoken to respondent to verify authenticity of this letter before it was published, and he was responsible for reviewing, selecting, and editing all letters to the editor.  Most significantly, in the same issue in which the "The right foot?" editorial appeared, a published letter from a citizen raised the issue of whether respondent acted out of a grudge, but speculated that the basis of such a grudge was the fact that "the county had charged the garbage company [respondent] was managing with improper handling of recyclables."  Serrano selected this letter for publication and verified its authenticity with the citizen-author before he wrote the editorial.  The district court correctly determined that with regard to the sued-and-lost statement, the issue of actual malice was for the jury.

III.       Sufficiency of evidence to support verdict

            "Unless the evidence is practically conclusive against the verdict, [this court] will not set the verdict aside."  Pouliot,  582 N.W.2d at 224 (alteration in original) (quotation omitted).  "The evidence must be considered in the light most favorable to the prevailing party and an appellate court must not set the verdict aside if it can be sustained on any reasonable theory of the evidence."  Id.

            Appellants argue that respondent failed to establish, and the jury was not required to find, actual damage to respondent's reputation, one of the elements of defamation.  The jury was instructed that

[a] communication is defamatory if it tends to so harm the reputation of a person that it lowers his or her esteem in the community, or deter third persons from associating or dealing with him or her, or injured his or her character, or subjects this person to ridicule, contempt or distrust, or degrades or disgraces this person in the eyes of others.

 

The special-verdict form asked separately whether the decision-making and sued-and-lost statements were defamatory.  Under the instruction quoted above, because the jury answered "yes" to the question about whether the sued-and-lost statement was defamatory, the jury must have concluded that the sued-and-lost statement harmed respondent's reputation.[5] 

            Respondent testified about the impact of the editorial on him.  He specifically testified that, after the editorial, his constituents had the "general idea that [he] sued people" and that he was "generally up to something no good or being sued or suing people."  Respondent's witnesses testified about respondent's reputation before and after the editorial.  One witness testified that he often heard comments from community members about the editorial and that people he spoke to were always concerned about respondent's integrity, motives, and leadership abilities.  This evidence is sufficient to support the jury's finding that the sued-and-lost statement harmed respondent's reputation and was therefore defamatory.

            The jury was further instructed that if it found that the statement was made with actual malice, it must presume respondent had been harmed and that no evidence of actual harm is required.[6]  The special-verdict form, however, did not contain separate questions on actual malice for each statement and asked only whether Serrano made "the statement or communication" with actual malice.  Because we have held that the decision-making statement was erroneously submitted to the jury, the failure to ask separate questions about actual malice is problematic.  But as appellants noted in oral argument, evidence of actual malice was stronger concerning the sued-and-lost statement than concerning the decision-making statement.  Based on our review of the record, which supports a conclusion that evidence of actual malice regarding the sued-and-lost statement is sufficient to support the jury's finding and is significantly stronger than evidence of actual malice regarding the decision-making statement, we determine that the jury's finding must relate at least in part to the sued-and-lost statement and a remand on this issue is not necessary.

            But because the decision-making statement was erroneously submitted to the jury, the more problematic issue becomes the failure of the special-verdict form to have the jury specify what portion of respondent's damages specifically relate to the sued-and-lost statement.  A significant portion of the evidence regarding damages related to the decision-making statement or the impact of the editorial as a whole, including negative statements and implications that did not constitute defamation.  We conclude that a new trial on the issue of damages is required for a determination of the amount of damages related solely to the sued-and-lost statement and not to the decision-making statement or non-defamatory portions of the editorial that may have damaged respondent's reputation.

IV.       Punitive damages

            Appellants argue that the punitive-damage award against Southwest Publishing should be reversed because respondent amended his complaint to include a claim for punitive damages against only Serrano.  When no constitutional issue is raised as to the amount of punitive damages, this court's "review of an award of punitive damages is whether there was an abuse of discretion."  Ray v. Miller Meester Adver., Inc., 664 N.W.2d 355, 371 (Minn. App. 2003), aff'd, 684 N.W.2d 404 (Minn. 2004). 

            Although the district court did not grant respondent's motion to assert a claim against Southwest Publishing, it left to the jury the question of whether Southwest Publishing authorized Serrano's publication, implicitly leaving to the jury the issue of whether Southwest Publishing would be liable for punitive damages.  Stipulated facts were read to the jury, including the fact that "Serrano was authorized to write editorials that were printed in the [Villager]."  The jury found that Southwest Publishing authorized the publication by Serrano.  Appellants argue that respondent failed to prove that Southwest Publishing knowingly authorized him to publish false and defamatory statements about respondent.  But Minn. Stat. § 549.20, subd. 2 (2004), provides:

Punitive damages can properly be awarded against a master or principal because of an act done by an agent only if:

(a)               the principal authorized the doing and the manner of the act, or

(b)              the agent was unfit and the principal deliberately disregarded a high probability that the agent was unfit, or

(c)              the agent was employed in a managerial capacity with authority to establish policy and make planning level decisions for the principal and was acting in the scope of that employment, or

(d)              The principal or a managerial agent of the principal, described in clause (c), ratified or approved the act while knowing of its character and probable consequences.

 

            In this case, there was an admission that Serrano, an agent of Southwest Publishing, was authorized to write editorials and evidence that Serrano managed the Villager'sreporters and staff.  Serrano's direct supervisor testified that Serrano had final judgment over the work of the newspaper and was "charged to work independently as the gatekeeper for news that goes in the paper."  Serrano was not required to submit editorials to his supervisor before publishing them.  The record therefore contains sufficient evidence that Serrano was employed in a managerial capacity with authority to establish policy and make planning-level decisions for Southwest Publishing and was acting in the scope of that employment when he published the defamatory statement such that Southwest Publishing is liable for his act.  See Muehlstedt  v. City of Lino Lakes, 473 N.W.2d 892, 896 (Minn. App. 1991) (stating that "punitive damages can properly be awarded against an employer if the employee worked in a managerial capacity and acted in the scope of employment"), review denied (Minn. Sept. 25, 1991).  The district court did not abuse its discretion by permitting the jury to award punitive damages against Southwest Publishing.    

            But regarding the amount of punitive damages, the award is no less problematic than the award of compensatory damages in that the punitive-damage award was based on an erroneous finding that the decision-making statement defamed respondent, and on arguments that implied that respondent could recover damages for harm caused by non-defamatory negative comment in the editorial.  Therefore, we reverse the amount of the punitive-damages award and remand for a redetermination of the amount based only on the sued-and-lost statement.

V.        Evidentiary issues

            a.         Use of protected expression

            Appellants argue that Workman used "other articles, editorials and publications that were beyond the reach of a defamation suit."  Appellants do not indicate which "other articles, editorials and publications" were used, so it is assumed that appellants refer to trial exhibits of other articles concerning the county's dispute with respondent's employer and letters published by the Villager.  But appellants cite no evidence or testimony that these publications were used to directly establish the elements of defamation.  Instead, they were used mainly as evidence to prove that Serrano knew of the outcome of the county's dispute with respondent's employer and to support that he acted with actual malice in publishing the sued-and-lost statement.  Appellants' argument, in effect, would preclude respondent from relying on anything but the editorial to prove his defamation case, a proposition not supported by case law.  See, e.g., Hunter, 545 N.W.2d at 706 (discussing importance of context in defamation action).  We conclude that the district court did not abuse its discretion in denying the request for a new trial on this ground.

            b.         Inadmissible hearsay and unfounded speculation

            Appellants argue that the testimony establishing injury to respondent's reputation was "inadmissible hearsay or speculation."  We have concluded that respondent submitted sufficient evidence to support the jury's finding that the sued-and-lost statement harmed respondent's reputation.  Regarding the hearsay argument, appellants did not include any objection in their pretrial motion in limine and made no hearsay objection at trial.  See Steiner v. Beaudry Oil & Serv., Inc., 545 N.W.2d 39, 44 (Minn. App. 1996) (stating that when a party fails to object to evidence at trial, that party has generally waived any objection), review denied (Minn. May 21, 1996).  Appellants' claim is without merit.

            c.         Expert testimony

            Appellants argue that the district court erred by permitting an expert witness to testify on respondent's behalf as to actual malice.  They claim that "even an ‘extreme departure from professional standards [is] insufficient'" to show actual malice.  But respondent's expert witness did not testify regarding actual malice.  Instead, the expert testified regarding the publication standards in the industry of journalism.  The United States Supreme Court has stated that a public-figure plaintiff "must prove more than an extreme departure from professional standards" to establish actual motive.  Harte-Hanks, 491 U.S. at 665, 109 S. Ct. at 2685.  But appellants ignore the proposition that "[a]lthough courts must be careful not to place too much reliance on [accepted journalism standards], a plaintiff is entitled to prove the defendant's state of mind through circumstantial evidence."  Id.at 668, 109 S. Ct. at 2686.  "[I]t cannot be said that evidence concerning motive or care never bears any relation to the actual malice inquiry."  Id.  The district court did not err in permitting testimony of the expert's opinion that the publication of the editorial violated journalistic standards.

            Affirmed in part, reversed in part, and remanded.

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] A letter to the editor that appeared contemporaneously with the editorial, and which Serrano had read and edited prior to writing the editorial, stated "I wonder if the fact that the county had charged the garbage company [respondent] was managing with improper handling of recyclables, had anything to do with [respondent's] eagerness to replace Mr. Stolz."

[2] On January 23, 2003, the same day that the editorial was published, Workman's attorney served Serrano and his publisher with demands for retraction.  Workman specifically challenged the sued-and-lost and decision-making statements, as well as a third statement in the editorial.  In its next issue, the Villager printed a retraction, referring only to the sued-and-lost statement:

[T]he editorial "Right foot?" incorrectly stated that Tom Workman was sued by Carver County and lost.  Contrary to what the editorial stated, the county was involved in legal proceedings against AW Disposal, not Workman (the current Carver County Board chair.)  Workman was employed as AW Disposal's general manager at the time, but was not an owner of the company.  Furthermoreand also contrary to what the editorial statedneither Workman nor AW Disposal lost any court action brought by the county.

[3] It is undisputed that respondent is a public official.

[4] Appellants also argue that under the "incremental-harm doctrine," which is closely related to the "substantial-truth doctrine," "small discrepancies" that do not add to the harm that protected speech causes to a defendant's reputation cannot support a defamation claim.  Appellants cite N.Y. Times, 376 U.S. at 289, for the proposition that the ruling that small discrepancies were sufficient to injure respondent's reputation may raise constitutional problems.  But in Masson, the Supreme Court rejected "any suggestion that the incremental-harm doctrine is compelled as a matter of First Amendment protection for speech" and left it to the states to determine whether a defendant may argue that statements that do not result in any incremental harm can support a defamation claim.  501 U.S. at 523, 111 S. Ct. at 2436.  The Minnesota Supreme Court, without specifically adopting the incremental-harm doctrine, indicated that the doctrine may apply.  See Carradine v. State, 511 N.W.2d 733, 737 (Minn. 1994) (stating in connection with a remand that "if a jury properly might find that the additional statements significantly added to any injury sustained by the plaintiff over and above any injury sustained as a result of the absolutely privileged statements, then plaintiff should be allowed to proceed to trial . . .; otherwise not").  While we have concluded that the district court did not err in determining, as a matter of law, that the sued-and-lost statement should go to the jury on the issues of whether it defamed respondent and was made with actual malice, we leave it to the district court on remand to determine whether the sued-and-lost statement, read in the context of the entire editorial, created an injury that is too small to have contributed to any injury to respondent's reputation.  See, e.g., Masson, 501 U.S. at 523, 111 S. Ct. at 2436 (noting that "state tort law doctrines of injury, causation, and damages calculation might allow a defendant to press the argument that the statements did not result in any incremental harm").

[5] We have previously criticized the practice of asking a jury to first determine whether statements were defamatory, because the question encompasses the entire cause of action and appears to subsume the questions on the remaining elements of defamation.  Schlieman,637 N.W.2d at 306.

[6] Although appellants have challenged this jury instruction on appeal, there is no record that the instruction was objected to, and we decline to address the issue.  See Thiele v. Stich¸ 425 N.W.2d 580, 582 (Minn. 1988) (stating that this court will generally not consider matters not argued and considered in the district court).