## Facts

- Dr. Stephen M. Levin, a Virginia orthopedist, treated piriformis syndrome using an intravaginal manipulation technique.
- The Virginia Board of Medicine held a hearing on complaints by female patients and dismissed the complaints.
- After the dismissal, a complainant contacted a television station, WJLA-TV.
- WJLA aired promotional “teasers” and a news report about Levin’s treatment, identifying him by name and using his photograph.
- The promotions used sensational labels (including “Dirty Doc” and “X-rated doctor”) and previewed allegations suggesting improper pelvic examinations.
- The broadcast included commentary from physicians criticizing the intravaginal treatment as improper; one such physician later retracted that characterization, but the station did not air the retraction.
- Levin claimed the promotions and broadcast falsely implied he committed criminal sexual misconduct and that his image was used without consent to advertise the broadcast.
- Levin sued for common-law defamation and for unauthorized use of his name or picture for advertising or trade purposes under Va. Code § 8.01-40(A).
- A jury found liability on both claims, found actual malice, and awarded $2 million; Levin presented evidence of more than $900,000 in actual damages, and WJLA offered no rebuttal evidence on damages.
- The trial court entered judgment on the verdict and denied post-trial motions; WJLA appealed.

## Issues

1. Whether the promotions and broadcast, considered as a whole, were actionable as defamation by conveying a false and defamatory implication that Levin committed criminal sexual misconduct or engaged in unethical medical practice.
2. Whether the evidence supported the jury’s finding of actual malice (knowledge of falsity or reckless disregard for truth).
3. Whether WJLA’s promotional use of Levin’s name and photograph constituted an unauthorized use “for advertising purposes or for the purposes of trade” under Va. Code § 8.01-40(A), notwithstanding the newsworthiness of the underlying report.
4. Whether the $2 million verdict was excessive or unsupported as a matter of law.

## Decision

- The Supreme Court of Virginia affirmed the judgment for Levin.
- The Court held the evidence permitted the jury to find the promotions and broadcast defamatory by false implication, including an imputation of criminal sexual misconduct.
- The Court held the evidence supported a finding of actual malice, including the station’s failure to disclose known exculpatory information and its continued sensational presentation.
- The Court held the station’s promotional “teasers” using Levin’s image could be found to be advertising/trade use under Va. Code § 8.01-40(A).
- The Court held the $2 million award was not excessive given the uncontroverted evidence of actual damages and the nature of the publication.

## Legal Principles

- Defamation may be based on defamatory implication (innuendo) when the overall presentation could reasonably be understood to impute criminal conduct or other reputation-harming behavior, even if individual statements are not literally false in isolation.
- In reviewing a jury verdict, an appellate court considers the evidence and reasonable inferences in the light most favorable to the prevailing plaintiff.
- Actual malice may be shown by evidence that a publisher acted with reckless disregard for truth, including omitting known exculpatory facts and failing to correct or acknowledge material retractions while presenting accusations in a highly accusatory manner.
- Under Va. Code § 8.01-40(A), a person’s name or picture may not be used without written consent for advertising or trade purposes; promotional use to attract viewers may be treated as advertising even when tied to a news broadcast.
- A defamation damages award will not be set aside as excessive where the plaintiff presents substantial evidence of actual harm and the award is not so disproportionate as to require judicial intervention.

## Conclusion

The Supreme Court of Virginia upheld a jury verdict finding that a television station’s sensational promotions and broadcast could constitute defamation by false implication published with actual malice and that using a physician’s image in promotional teasers for a newscast could violate Virginia’s statutory prohibition on unauthorized advertising/trade use, while also affirming a substantial damages award supported by unrebutted proof of harm.


WJLA-TV, Inc. v. Levin, 564 S.E.2d 383 (Va. 2002)