## Facts

- A professional baseball player injured his hand and underwent an initial operation by one physician.
- Several months later, Dr. Sheldon Shenkman performed a second operation involving a nerve in the player’s hand.
- Shenkman billed $9,500 for the second operation; the charge was disputed publicly and remained unpaid.
- Newspaper publicity and competing statements questioned whether the second operation was necessary and whether the fee was excessive.
- Walter F. O’Malley, the club president, issued a press statement describing Shenkman’s claim as “exorbitant” and suggesting Shenkman had not fixed a definite price in advance or adequately advised the patient about the charge.
- Shenkman sued for defamation, alleging the press statement falsely harmed his professional reputation.
- O’Malley’s amended answer asserted three complete defenses (to bar liability) and two partial defenses (to mitigate damages).
- The trial court struck the first and third complete defenses (and portions of others) as legally insufficient; O’Malley appealed.

## Issues

1. Whether a combined “truth and fair comment” complete defense is sufficient when it relies mainly on third-party medical opinions rather than pleaded true and complete underlying facts.
2. Whether a defendant may plead a qualified privilege to respond to an alleged prior defamatory attack by the plaintiff in the press.
3. Whether New York recognizes a broad qualified privilege to publish defamatory matter simply to protect a business interest.
4. Whether partial defenses based on good-faith reliance on medical opinions and provocation from publicity may be pleaded to mitigate damages by negating malice.

## Decision

- The appellate court modified the order.
- The first complete defense (truth/fair comment as pleaded) was insufficient, but leave to replead was granted to allege specific true facts supporting the comment.
- The second complete defense (qualified privilege to reply) was legally sufficient and should not have been stricken.
- The third complete defense (a general business-interest privilege) was legally insufficient and was properly rejected.
- The partial defenses aimed at mitigation (including reliance on medical opinions and provocation/publicity) were legally sufficient and should not have been stricken.
- No costs were awarded.

## Legal Principles

- Fair comment on matters of public interest is privileged only when the comment is based on true, stated (or otherwise adequately pleaded) underlying facts; third-party expert opinions alone are not a sufficient factual foundation for a complete defense.
- A qualified privilege may protect a timely, pertinent, and reasonably proportionate reply to an alleged defamatory attack; whether a reply exceeded permissible bounds is generally a fact question.
- New York does not recognize a broad, free-standing privilege to publish defamatory statements merely to protect a business interest; any such privilege is limited and context-specific.
- Partial defenses may be pleaded to mitigate damages by showing good faith and lack of malice, including reliance on expert opinion and circumstances of provocation or plaintiff-initiated publicity.

## Conclusion

The court allowed a reply-privilege defense and mitigation defenses to proceed, rejected a broad business-interest privilege, and required that any truth-and-fair-comment complete defense be pleaded with specific true factual support rather than resting chiefly on expert opinions.


Shenkman v. O’Malley, 2 A.D.2d 567, 157 N.Y.S.2d 290 (App. Div. 1st Dep’t 1956)