Seventh Circuit Recognizes “Substantial Truthfulness” Defense to Tortious Interference Claims

As the old legal saying goes, “Truth is an absolute defense to defamation.” While there may be an exception or two to every legalism, including the one about truth, having the truth on one’s side is always important. For example, it can be a defense to an opposing claim of tortious interference with a contract.

How Absolute is “Truth?”

And yet, does truth, like beauty, reside primarily in the eye of the beholder? Is truth an absolute concept or one that is relative to the situation? A recent decision by the Seventh Circuit Court of Appeals, Wesbrook v. Ulrich, 2016 U.S. App. LEXIS 18872 (7th Cir., Oct. 20, 2016), allows that at least when it comes to tortious interference claims, “substantial truthfulness” may be all that is required to defeat the claim.

An Argument Among Physicians

In the case, a Wisconsin doctor filed suit against two of his colleagues for tortious interference with his employment contract, claiming, among other things, that statements the two made to the medical clinic’s Board of Directors led to the plaintiff doctor’s firing. The district court granted both defendants summary judgment on the grounds that the statements were either true or, at the very least, “substantially true.”

The Seventh Circuit affirmed, noting that Wisconsin courts had long recognized that “transmission of truthful information is privileged.” The tortious interference claim could not stand if the statements were true. The Seventh Circuit noted that Wisconsin state courts had not had the occasion to pass upon the question of whether the privilege for truthful statements extended to statements that were only “substantially true.” The Seventh Circuit said that in such a vacuum, it was federal circuit court’s job to predict how the Supreme Court of Wisconsin would answer the question. The Court observed that in the case of defamation, Wisconsin courts had drawn no distinction between statements that were “true” and those that were “substantially true.”

“Substantially True” Equals “True” in Matters of Tortious Interference with Contract

The Seventh Circuit indicated that it could see no reason to reach a different result for tortious interference claims. Here, for example, one of the defendant doctors had said the plaintiff doctor “coerced and intimidated” his co-workers, yet the defendant could prove only that the other doctor intimidated others – he could not show coercion. The Seventh Circuit reasoned that the statement was substantially true. Similarly, when one of the defendants told the board that co-workers had filed complaints against the plaintiff doctor, but in fact, they had orally complained, the statement was close enough to the truth to stand as a defense.

Wisconsin State Court Would Likely Agree with Seventh Circuit

The Seventh Circuit decision is not, of course, binding upon Wisconsin state courts. They could decide the issue differently, but the Circuit’s opinion is well reasoned and there seems little reason to think the issue would be decided differently in Madison or Milwaukee.

Milwaukee Business, Employment, and Commercial Litigation Attorneys

The Wesbrook case shows the type of disputes that can arise even among professionals in a small business environment. Where livelihoods are at stake, tempers can flare. Friction among co-workers can make for an unpleasant and unproductive business environment. While the parties would do well to avoid litigation, sometimes that just isn’t possible. It helps to have a strong, experienced, skillful legal team to “have your back.” The Milwaukee business litigation firm of Kerkman Wagner & Dunn has more than 50 years of combined legal experience representing business owners and professionals in Wisconsin in complex situations, even those that involve litigation. Our firm has big firm talent and provides small firm attention. Call us at 414-278-7000 or complete our online contact form.

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