## Facts

- James Joseph Hickey obtained a USDA license to sell animals for medical research and was later charged by the USDA with Animal Welfare Act violations based on inspections.
- After an administrative hearing at which Hickey was represented by counsel, a USDA administrative law judge suspended his license for one year, imposed a $10,000 civil penalty, and issued a cease-and-desist order; the USDA Judicial Officer largely adopted that decision.
- Merthal Settlemier, Hickey’s neighbor, was interviewed for ABC’s “20/20” in connection with a segment on “pet bandits.”
- Hickey sued Settlemier for defamation, alleging she accused him of mistreating animals and dealing in stolen pets.
- Settlemier moved for summary judgment, arguing (1) the federal administrative decision conclusively established the truth of the accusations under issue preclusion and (2) a videotape of the broadcast was inadmissible hearsay to prove publication of one alleged statement.
- The trial court granted summary judgment; the Court of Appeals reversed and remanded.

## Issues

1. Whether issue preclusion barred Hickey from contesting the truth of the allegedly defamatory statements based on the USDA administrative findings and decision.
2. Whether the “20/20” videotape, including the reporter’s on-air attribution of statements to Settlemier, was inadmissible hearsay when offered to prove publication in a defamation action.

## Decision

- The Oregon Supreme Court affirmed the Court of Appeals and remanded for further proceedings.
- The USDA administrative decision did not preclusively establish the truth of the allegedly defamatory statements because the issues were not identical for issue-preclusion purposes.
- The reporter’s on-air attribution on the videotape was admissible for the limited purpose of proving publication (that Settlemier made the statements to the reporter), and the trial court erred in excluding it as hearsay for that purpose.

## Legal Principles

- Issue preclusion applies only when the issue in the later case is identical to an issue actually litigated and determined in the earlier proceeding, the determination was essential to the earlier decision, and the party to be bound had a full and fair opportunity to litigate.
- Administrative findings concerning regulatory compliance do not automatically establish the truth of separate factual propositions embedded in later tort claims; differences in framing, purpose, and scope can defeat the “identical issue” requirement.
- A statement is not hearsay when offered to prove a fact other than the truth of the matter asserted; in defamation, out-of-court attributions may be admissible to show publication (that words were said) rather than to prove the underlying allegations were true.

## Conclusion

The court held that USDA administrative determinations of Animal Welfare Act violations did not, without identical issues, bar a defamation plaintiff from litigating truth, and that a broadcast reporter’s attribution could be admitted as non-hearsay evidence to prove publication, requiring remand for further proceedings.


Hickey v. Settlemier, 864 P.2d 372 (Or. 1993)