PRESENT: All the Justices

BRADLEY J. CASHION

OPINION BY

v. Record No. 121797 JUSTICE WILLIAM C. MIMS

 October 31, 2013

ROBERT S. SMITH, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE

Jonathan M. Apgar, Judge

In this appeal, we consider whether an endorsement of an 

order withdrew or waived issues for appeal under Code § 8.01-

384(A), whether allegedly defamatory statements were nonactionable expressions of opinion or rhetorical hyperbole, and 

whether such statements were protected by qualified privilege.

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

In November 2009, Dr. Robert Smith, a trauma surgeon, and 

Dr. Bradley Cashion, an anesthesiologist, provided emergency 

care to a critically injured patient. Dr. Smith is employed 

full-time by Carilion Medical Center (“Carilion”). Dr. Cashion 

was employed by Anesthesiology Consultants of Virginia, Inc., 

which provides services to Carilion. Despite the efforts of 

Dr. Smith and Dr. Cashion, the patient died during surgery.

Following the patient’s death, Dr. Smith criticized Dr. 

Cashion in the operating room. Dr. Smith, in front of several 
2

other members of the operating team, made the following remarks 

to Dr. Cashion:1

“He could have made it with better 

resuscitation.”

“This was a very poor effort.”

“You didn’t really try.”

“You gave up on him.”

“You determined from the beginning that he 

wasn’t going to make it and purposefully 

didn’t resuscitate him.”

Immediately thereafter, Dr. Smith addressed Dr. Cashion in

the hallway outside the operating room, stating: “You just 

euthanized my patient.” Nurse Sherri Zwart, who also had been

in the operating room, and Dr. James Crawford, Chief of 

Anesthesia at Carilion, were present in the hallway at the 

time. In a subsequent meeting that evening between Drs. Smith, 

Cashion, and Crawford, Dr. Smith repeatedly stated that Dr. 

Cashion “euthanized” the patient.

Dr. Cashion filed an amended complaint alleging defamation

and defamation per se against Dr. Smith and Carilion, which Dr. 

Cashion alleged to be liable under a theory of respondeat 

superior. Dr. Smith and Carilion filed demurrers and pleas in 

bar asserting, among other things, that Dr. Smith’s statements

were non-actionable expressions of opinion or rhetorical 

 1 We refer to these statements collectively as “the noneuthanasia statements.”
3

hyperbole. They also asserted that qualified privilege applied 

to the statements yet the amended complaint failed to allege 

facts establishing common law malice to overcome the privilege.

After a hearing, the circuit court entered an order (“the 

Demurrer Order”) sustaining the demurrers and granting the 

pleas in bar as to the non-euthanasia statements on the ground 

that they were non-actionable expressions of opinion. 

Concomitantly, the court overruled the demurrers and denied the 

pleas in bar as to the euthanasia statements. Dr. Smith and 

Carilion annotated the Demurrer Order with their objections on 

the grounds asserted in their pleadings and at the hearing. 

Dr. Cashion endorsed it “WE ASK FOR THIS.”

Following discovery, Dr. Smith and Carilion moved for 

summary judgment, again asserting their rhetorical hyperbole 

and qualified privilege arguments. Dr. Cashion responded by 

arguing, among other things, that qualified privilege did not 

apply because Dr. Smith did not make the euthanasia statements 

in good faith and was not discussing the care of the patient 

when he made them.

After a hearing, the circuit court ruled that the 

euthanasia statements were not rhetorical hyperbole. However, 

it ruled that qualified privilege applied to Dr. Smith’s 

statements and there was no evidence of common law malice on 

the part of Dr. Smith necessary to overcome the privilege. 
4

Accordingly, it awarded Dr. Smith and Carilion summary judgment 

and dismissed the amended complaint. We awarded Dr. Cashion

this appeal.

II. ANALYSIS

A. OPINION OR STATEMENTS OF FACT

Dr. Cashion asserts the circuit court erred by sustaining 

the demurrers and pleas in bar as to the non-euthanasia 

statements and ruling that they were non-actionable expressions 

of opinion. As an initial matter, Dr. Smith and Carilion argue 

that he has withdrawn or waived this argument for appeal under 

Code § 8.01-384(A) because he endorsed the Demurrer Order “WE 

ASK FOR THIS.” They assert that endorsement stated his express

written agreement with the rulings it contained. We disagree.

Code § 8.01-384(A) provides in relevant part that

No party shall be deemed to have agreed to, 

or acquiesced in, any written order of a 

trial court so as to forfeit his right to 

contest such order on appeal except by 

express written agreement in his 

endorsement of the order. Arguments made 

at trial via written pleading, memorandum, 

recital of objections in a final order, 

oral argument reduced to transcript, or 

agreed written statements of facts shall, 

unless expressly withdrawn or waived, be 

deemed preserved therein for assertion on 

appeal.

We have on several occasions interpreted this statute to 

clarify the ambiguity of what constitutes a waiver by “express 

written agreement in [an] endorsement of [an] order.” We have 
5

repeatedly held that “once a litigant informs the circuit court 

of his or her legal argument, in order for a waiver to occur 

within the meaning of Code § 8.01-384(A), the record must 

affirmatively show that the party who has asserted an objection 

has abandoned the objection or has demonstrated by his conduct 

the intent to abandon that objection.” Kellermann v. 

McDonough, 278 Va. 478, 491, 684 S.E.2d 786, 792 (2009) 

(quoting Helms v. Manspile, 277 Va. 1, 6, 671 S.E.2d 127, 129 

(2009)) (internal alterations and quotation marks omitted).

We discussed waiver by endorsement at length in Chawla v. 

BurgerBusters, Inc., 255 Va. 616, 499 S.E.2d 829 (1998). In 

that case, the appellants assigned error to the circuit court’s 

ruling that they bore the burden of proof on the question of 

the reasonableness of a claim for attorneys’ fees. They noted 

objections to the interlocutory order effectuating that ruling 

but when the court restated it in a subsequent interlocutory 

order, they endorsed the second order as “SEEN AND AGREED.” 

They again noted their objection to the ruling on the final 

order. Id. at 621-22, 499 S.E.2d at 832.

On appeal, the appellee argued the “SEEN AND AGREED” 

endorsement waived the issue. We disagreed, holding:

Waiver is the voluntary and intentional 

abandonment of a known legal right, 

advantage, or privilege. Weidman v. 

Babcock, 241 Va. 40, 45, 400 S.E.2d 164, 

167 (1991); Fox v. Deese, 234 Va. 412, 425, 
6

362 S.E.2d 699, 707 (1987). The essential 

elements of waiver are knowledge of the 

facts basic to the exercise of the right 

and intent to relinquish that right. 

Weidman, 241 Va. at 45, 400 S.E.2d at 167; 

Fox, 234 Va. at 425, 362 S.E.2d at 707. 

Waiver of a legal right will be implied 

only upon clear and unmistakable proof of 

the intention to waive such right for the 

essence of waiver is voluntary choice. 

Weidman, 241 Va. at 45, 400 S.E.2d at 167; 

May v. Martin, 205 Va. 397, 404, 137 S.E.2d 

860, 865 (1964).

In the present case, the [appellants] 

made clear to the trial court [their] 

objection to the ruling respecting the 

burden of proof issue and never abandoned 

or evidenced an intent to abandon the 

objection. Thus, [they] preserved the issue 

for appeal.

Id. at 622-23, 499 S.E.2d at 833 (emphasis added). In short, 

the endorsement itself did not constitute a waiver.

We reached the same result in Helms, even though the 

appellant never noted an objection on any order. In that case, 

the appellants assigned error to the circuit court’s ruling 

that they had failed to prove adverse possession by clear and 

convincing evidence. They endorsed as “Seen” the court’s final 

order effectuating that ruling. 277 Va. at 5-6, 671 S.E.2d at 

129. Noting that the appellants had argued adverse possession 

in a written memorandum, we held that the court was thereby 

informed of their position, which they had not subsequently 

expressly withdrawn or waived. Id. at 7, 671 S.E.2d at 129-30. 

Again, the endorsement itself did not constitute a waiver.
7

We considered the endorsement “Seen and consented to” in 

Johnson v. Hart, 279 Va. 617, 692 S.E.2d 239 (2010). In that 

case, the appellee assigned cross-error in an appeal from the 

circuit court’s award of summary judgment in favor of the 

appellee. Considering whether the appellee’s endorsement 

waived the issue argued in the assignment of cross-error, we 

noted that the order contained elements favorable to both 

parties. We concluded that the appellee’s endorsement “Seen 

and consented to” indicated his consent only to the elements 

favorable to him, just as the appellant’s endorsement “Seen and 

objected to” objected only to the elements adverse to her. Id.

at 624, 692 S.E.2d 243 (alterations omitted). We also again 

observed that the appellee’s legal argument had been presented 

to the court in written memoranda and acquiescence to the entry 

of an order partly in his favor did not affirmatively waive or 

abandon it.

The most recent case in which we considered the effect of 

a “WE ASK FOR THIS” endorsement was Lamar Corp. v. City of 

Richmond, 241 Va. 346, 402 S.E.2d 31 (1991).2 However, our 

 2 In Lamar Corp., the City of Richmond condemned a parcel of 

real property. Portions of the parcel had been leased to two 

billboard advertising companies. The lessees were not parties 

to the condemnation proceeding. To the contrary, they entered 

a special appearance to assert that the city was required to 

institute a separate condemnation proceeding against them to 

acquire their interests in the parcels. Id. at 348-49, 402 

S.E.2d at 32.
8

analysis did not address Code § 8.01-384(A). The statute did 

not then include the provision, “[n]o party shall be deemed to 

have agreed to, or acquiesced in, any written order of a trial 

court so as to forfeit his right to contest such order on 

appeal except by express written agreement in his endorsement 

of the order.” The General Assembly amended Code § 8.01-384(A) 

 

The city and the landowners ultimately reached an 

agreement as to the value of just compensation. The circuit 

court entered a consent order awarding the landowners $360,000 

for “all right, title and interest in the property and property 

rights acquired” in the condemnation proceeding. The order 

noted that the lessees appeared by special appearance, “without 

intending to subject either [of them] to the jurisdiction of 

th[e c]ourt in this action,” and further directed that “the 

compromise and settlement between the City and [the landowners] 

shall have no effect upon further proceedings by the City 

against [the lessees] and neither the City nor [the lessees] 

shall be prejudiced in any way by such settlement in subsequent 

proceedings between the City and” the lessees. Although the 

landowners and lessees endorsed the order “WE ASK FOR THIS,” 

the lessees included “(special appearance)” in their 

endorsement.

When the city subsequently obtained permission from the 

court to remove the lessees’ billboards from the parcel, the 

lessees appealed. We held that a lessee is entitled by virtue 

of his lease to a portion of a landowner’s award of 

compensation following a condemnation proceeding. Id. at 350, 

402 S.E.2d at 33. We also held that a lessee who improves a 

parcel by constructing a fixture annexed to it (such as the 

billboards) is entitled to a portion of the landowner’s award 

of compensation if the parcel is subsequently taken by 

condemnation. Id. at 352, 402 S.E.2d at 34. Nevertheless, we 

concluded that the lessees had waived any claim on the $360,000 

awarded to the landowners because they had “asked for and 

consented to” the consent order, even though they had only 

entered a special appearance to argue that the city was 

required to commence a separate condemnation proceeding to 

acquire their interests. Id.
9

to add this language in its session following our Lamar Corp.

decision. 1992 Acts ch. 564.

Like the order in Johnson, the Demurrer Order contains 

elements favorable and unfavorable to Dr. Cashion. Although it 

sustains demurrers by Dr. Smith and Carilion to the noneuthanasia statements, it overrules their demurrers to the 

accusations of euthanasia. We have noted that “[i]t is 

entirely proper for a party to request that a court memorialize 

in an order a ruling made from the bench, even when that ruling 

is contrary to the party's interest.” Levisa Coal Co. v. 

Consolidation Coal Co., 276 Va. 44, 56 n.4, 662 S.E.2d 44, 50 

n.4 (2008). Dr. Cashion’s “WE ASK FOR THIS” endorsement on the

Demurrer Order therefore reflects only his request that the 

court enter an order memorializing its ruling, not his 

agreement to the portion of the Demurrer Order adverse to him. 

It therefore does not constitute an “express written agreement” 

to waive this argument on appeal.

The question of whether the non-euthanasia statements were 

expressions of opinion is a question of law. Hyland v. 

Raytheon Tech. Servs. Co., 277 Va. 40, 47, 670 S.E.2d 746, 750 

(2009). We therefore review the circuit court’s ruling de 

novo. Board of Supervisors v. Davenport & Co. LLC, 285 Va. 

580, 585, 742 S.E.2d 59, 61 (2013).
10

“When a statement is relative in nature and depends 

largely on a speaker's viewpoint, that statement is an 

expression of opinion.” Hyland, 277 Va. at 47, 670 S.E.2d at 

750. However, statements may be actionable if they have a 

“‘provably false factual connotation’” and thus “are capable of 

being proven true or false.” Fuste v. Riverside Healthcare 

Ass'n, 265 Va. 127, 575 S.E.2d 858, 861-62 (2003) (quoting 

WJLA-TV v. Levin, 264 Va. 140, 156, 564 S.E.2d 383, 392 

(2002)).

The statements “[t]his was a very poor effort,” “[y]ou 

didn’t really try,” and “[y]ou gave up on him,” fall into the 

former class because they are subjective and wholly depend on 

Dr. Smith’s viewpoint. However, the statements that the 

patient “could have made it with better resuscitation” and 

“[y]ou determined from the beginning that he wasn’t going to 

make it and purposefully didn’t resuscitate him” do not.

The statement that the patient “could have made it with 

better resuscitation” directly attributes the patient’s death 

to Dr. Cashion, insinuating that he either failed to perform 

some action necessary to the patient’s recovery or acted 

affirmatively to prevent it. Insinuations may constitute 

defamatory statements. Hyland, 277 Va. at 47, 670 S.E.2d at 

751. The statement asserts that the patient was capable of 

surviving, but for the quality of Dr. Cashion’s treatment. 
11

Whether the quality of Dr. Cashion’s treatment caused or even 

contributed to the patient’s death is an allegation of fact 

capable of being proven true or false, such as through expert 

opinion testimony. The second statement goes further, not only 

attributing the patient’s death to Dr. Cashion’s action or 

inaction but accusing him of purposefully causing the death by 

withholding treatment. Such a statement is indistinguishable 

from the alleged accusations of euthanasia.

Accordingly, the circuit court erred by ruling that these 

two statements were non-actionable expressions of opinion. We 

therefore will reverse this portion of its judgment and remand 

for further proceedings.

B. QUALIFIED PRIVILEGE

Dr. Cashion also asserts that the circuit court erred by

ruling that Dr. Smith’s euthanasia statements are protected by 

a qualified privilege and that Dr. Smith did not lose or abuse 

that privilege. A qualified privilege attaches to 

“[c]ommunications between persons on a subject in which the 

persons have an interest or duty.” Larimore v. Blaylock, 259 

Va. 568, 572, 528 S.E.2d 119, 121 (2000). Whether a 

communication is privileged is a question of law. Fuste, 265 

Va. at 135, 575 S.E.2d at 863.

Dr. Smith’s statements were communications on the subject 

of Dr. Cashion’s care of the patient. Dr. Smith, Dr. Cashion, 
12

and the medical professionals in the operating room during the 

patient’s treatment all had a continuing interest in the level 

of care that had been provided and the cause of death. Dr. 

Crawford, as the Chief of Anesthesiology, is charged with 

managing and supervising the anesthesiologists; thus, he too 

shared an interest in Dr. Cashion’s performance in the 

operating room. The circuit court therefore correctly 

determined that Dr. Smith’s euthanasia statements were 

privileged as a matter of law.

Dr. Cashion argues that qualified privilege did not apply 

because Dr. Smith’s statements were not made in good faith. 

This Court has on occasion previously included good faith as a 

factor in the determination of whether a qualified privilege 

exists. Great Coastal Express, Inc. v. Ellington, 230 Va. 142, 

153, 334 S.E.2d 846, 853 (1985) (citing Taylor v. Grace, 166 

Va. 138, 144, 184 S.E. 211, 213 (1936)). However, we recognize 

today that the inclusion of good faith in this context is 

unwarranted, and hereby overrule the inclusion of that

language.

Indeed, historically, this Court has repeatedly recognized 

that the question of whether a statement was made in good faith 

is a question of fact for the jury to decide when determining 

whether a qualified privilege has been lost or abused, and is 

not a question of law for the court to answer in deciding 
13

whether a privilege has attached. Aylor v. Gibbs, 143 Va. 644, 

654, 129 S.E. 696, 699 (1925); Farley v. Thalhimer, 103 Va. 

504, 507-08, 49 S.E. 644, 646 (1905); Tyree v. Harrison, 100 

Va. 540, 542, 42 S.E. 295, 295 (1902); Strode v. Clement, 90 

Va. 553, 556-57, 19 S.E. 177, 178 (1894). We reaffirm that 

approach.

Once a qualified privilege has attached to a 

communication, the plaintiff has the burden to prove that the 

privilege has been lost or abused, Preston v. Land, 220 Va. 

118, 121, 255 S.E.2d 509, 511 (1979), which must be shown by 

clear and convincing proof. See Government Micro Res., Inc. v. 

Jackson, 271 Va. 29, 43, 624 S.E.2d 63, 71 (2006). In this 

case, the circuit court determined that a qualified privilege 

may be lost only by clear and convincing evidence of personal 

spite or ill will, independent of the occasion on which the 

communication was made. Dr. Cashion argues this ruling was 

erroneous because the issue of whether there was malice is a 

question of fact for the jury, and a showing of pre-existing 

personal spite or ill will is only one of several ways in which 

a privilege can be lost. We agree.

In Great Coastal Express, Inc. v. Ellington, 230 Va. 142, 

154, 334 S.E.2d 846, 854 (1985), we approved a jury instruction 

on the elements of common law malice that will serve to defeat 

a qualified privilege that “incorporate[d] language used in a 
14

number of our earlier cases which discuss elements of common 

law malice and abuse of privilege.” A non-exhaustive list of 

such elements included a showing that: (1) the statements were 

made with knowledge that they were false or with reckless 

disregard for their truth, Raytheon Technical Servs. Co. v. 

Hyland, 273 Va. 292, 301, 641 S.E.2d 84, 89-90 (2007); (2) the 

“statements [we]re communicated to third parties who have no 

duty or interest in the subject matter,” Larimore, 259 Va. at 

575, 528 S.E.2d at 122; (3) the statements were motivated by 

personal spite or ill will, Preston, 220 Va. at 120-21, 255 

S.E.2d at 511; (4) the statements included “strong or violent 

language disproportionate to the occasion,” Story v. NorfolkPortsmouth Newspapers, Inc., 202 Va. 588, 591, 118 S.E.2d 668, 

670 (1961); or (5) the statements were not made in good faith, 

Chalkley v. Atlantic Coast Line R.R. Co., 150 Va. 301, 325, 143 

S.E. 631, 637-38 (1928). We held that “[a]ny one of the 

elements if proved” by clear and convincing evidence, defeats 

the privilege. Great Coastal Express, 230 Va. at 154, 334 

S.E.2d at 854.

Today we reiterate the rule of Great Coastal Express. 

Personal spite or ill will, independent of the occasion on 

which it was made, is certainly one of the elements that will 

establish common law malice. However, it is not the only 
15

element, and any one of the elements, if pled and proved, will 

suffice. Id. at 154, 334 S.E.2d at 854.

The question of whether a defendant has lost or abused the 

privilege is a question of fact for the jury. Fuste, 265 Va. 

at 135, 575 S.E.2d at 863 (collecting cases). Because the 

circuit court limited the elements capable of defeating a 

qualified privilege to the showing of personal spite or ill 

will, independent of the occasion on which it was made, it 

erred by deciding as a matter of law that Dr. Smith did not 

lose or abuse the privilege. We therefore will reverse this 

portion of the circuit court’s judgment and remand for further 

proceedings.

C. RHETORICAL HYPERBOLE

Dr. Smith and Carilion assert in assignments of crosserror that Dr. Smith’s statements accusing Dr. Cashion of 

committing euthanasia constitute nothing more than rhetorical 

hyperbole and therefore are not actionable. We disagree.

Under Virginia law, rhetorical hyperbole is not 

defamatory. Yeagle v. Collegiate Times, 255 Va. 293, 295-96, 

497 S.E.2d 136, 137 (1998). Statements characterized as 

rhetorical hyperbole are those from which “no reasonable 

inference could be drawn that the individual identified in the 

statements, as a matter of fact, engaged in the conduct 

described.” Id. at 296, 497 S.E.2d at 137. Whether a 
16

statement constitutes rhetorical hyperbole is a question of law 

for the court to determine. Id. at 296, 497 S.E.2d at 138.

In this case, as noted above, some of Dr. Smith’s 

statements can reasonably be interpreted as allegations of fact

capable of being proven true or false. Considering the context 

in which the statements were made, a listener could believe 

that Dr. Cashion engaged in the conduct Dr. Smith attributed to 

him, i.e., euthanizing the patient or causing or contributing 

to the patient’s death by providing deficient care. Dr. 

Smith’s position as a surgeon, having just left the operating 

room where the patient died, and his relationship to Dr. 

Cashion, an anesthesiologist whose participation in the surgery 

afforded him the opportunity to cause or contribute to the 

patient’s death, support the inference that Dr. Smith was 

conveying what he believed to be factual information about Dr. 

Cashion. Thus, we agree with the circuit court’s determination 

that the statements were not rhetorical hyperbole. We 

therefore will affirm this portion of the circuit court’s 

judgment.

III. CONCLUSION

For the foregoing reasons, we will affirm the circuit 

court’s rulings that Dr. Smith’s statements are not rhetorical 

hyperbole and that the statements enjoy a qualified privilege. 

However, we conclude that the circuit court erred by ruling 
17

that Dr. Smith’s statements that the patient “could have made 

it with better resuscitation” and that Dr. Cashion “determined 

from the beginning that he wasn’t going to make it and

purposefully didn’t resuscitate him” were non-actionable 

expressions of opinion. We also conclude that the circuit 

court erred by ruling that qualified privilege can be lost or 

abused only upon a showing of personal spite or ill will. We 

therefore will reverse those portions of the circuit court’s 

judgment and remand for further proceedings consistent with 

this opinion.

Affirmed in part,

reversed in part,

and remanded.

JUSTICE McCLANAHAN, dissenting.

I agree with Justice Powell that Dr. Cashion waived any 

objection to challenge the non-euthanasia statements for the 

reasons stated in her analysis of that issue. Therefore, I 

also would not reach the merits of Dr. Cashion’s argument that 

the circuit court erred in determining that the non-euthanasia 

statements were expressions of opinion. As to the euthanasia 

statements, however, I would hold they are protected by the 

First Amendment to the United States Constitution and Article 

I, Section 12 of the Constitution of Virginia as rhetorical 

hyperbole and, therefore, not actionable.
18

Both the United States Supreme Court and this Court have 

recognized that putatively defamatory statements that are not 

literal assertions of “actual fact” but, instead, “rhetorical 

hyperbole,” are constitutionally protected free speech. See, 

e.g., Milkovich v. Lorain Journal Co., 497 U.S. 1, 16-17 

(1990); Letter Carriers v. Austin, 418 U.S. 264, 284-86 (1974); 

Greenbelt Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6, 13-14 

(1970); Yeagle v. Collegiate Times, 255 Va. 293, 295-96, 497 

S.E.2d 136, 137-38 (1998); Crawford v. United Steel Workers, 

AFL-CIO, 230 Va. 217, 234-35, 335 S.E.2d 828, 838-39 (1985). 

“The First Amendment’s shielding of figurative language 

reflects the reality that exaggeration and non-literal 

commentary have become an integral part of social discourse.” 

Levinsky’s, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 128 

(1st Cir. 1997). Such protected speech specifically includes 

words that are “sure to be understood as merely a label for the 

labeler’s underlying assertions,” Dilworth v. Dudley, 75 F.3d 

307, 309 (7th Cir. 1996), and exaggerated rhetoric intended to 

convey outrage or condemnation. Greenbelt, 398 U.S. at 14; 

CACI Premier Technology, Inc. v. Rhodes, 536 F.3d 280, 301-03 

(4th Cir. 2008); Horsley v. Rivera, 292 F.3d 695, 701-02 (11th 

Cir. 2002). In other words, rhetorical hyperbole is not 

actionable because the speaker is not asserting a statement of 
19

fact, but is using exaggerated or figurative language to drive 

home an underlying factual assertion or point of view.

In assessing Dr. Cashion’s claim of defamation based on 

the euthanasia statements, we must consider those statements in 

the context of the entirety of the statements made by Dr. Smith 

and the circumstances in which the statements were made. 

Yeagle, 255 Va. at 297-98, 497 S.E.2d at 138; Lewis v. Kei, 281 

Va. 715, 725-26, 708 S.E.2d 884, 891-92 (2011). Dr. Cashion 

alleges in his amended complaint that, outside of the operating 

room, Dr. Smith accused him of euthanizing the patient when 

Nurse Zwart and Dr. Crawford, Chief of Anesthesia at the 

Carilion Clinic, were both present, and, again, during a 

conversation between Dr. Cashion, Dr. Crawford, and Dr. Smith 

shortly thereafter. Dr. Cashion’s allegations in his amended 

complaint and his responses to requests for admission make 

clear that Dr. Smith made the euthanasia statements immediately 

following a high-stress trauma situation, in the context of 

criticizing Dr. Cashion’s efforts to resuscitate a “critically 

injured patient” whose “demise seemed imminent.”

Furthermore, we must accept Dr. Cashion’s theory of 

defamation that Dr. Smith accused him of “the commission of a 

criminal offense involving moral turpitude, specifically, 

deliberately causing the death of another person, for which Dr. 
20

Cashion may be indicted and punished.”1 See Horsley, 292 F.3d 

at 701 (having alleged that defendant defamed plaintiff by 

stating he is chargeable with a felony, plaintiff is bound by 

that construction of the statements). Dr. Cashion argued in 

the circuit court that the accusation of euthanasia was “a 

straightforward allegation of the purposeful killing” through 

the use of a “calculated medical term to proclaim that another 

doctor had executed [the patient].” Similarly, in this Court, 

he argues that Dr. Smith accused him of “purposefully kill[ing] 

the patient like he was an animal.”2

Examining the context surrounding the euthanasia 

statements and considering the entirety of the statements made 

by Dr. Smith in light of Dr. Cashion’s theory of defamation, I 

would conclude that no reasonable hearer would have understood 

Dr. Smith’s euthanasia statements as literally accusing Dr. 

Cashion of a crime for which he could be indicted and punished, 

 1 Virginia does not permit “mercy killing or euthanasia” or 

“any affirmative or deliberate act or omission to end life 

other than to permit the natural process of dying.” See Code § 

54.1-2990(D).

2 Dr. Cashion’s theory of defamation is advanced repeatedly 

throughout his brief wherein he argues that in making the 

euthanasia statements, Dr. Smith “accused Dr. Cashion of 

killing the patient,” made a “statement of medical fact that 

Dr. Cashion had killed a patient,” and “suggested that Dr. 

Cashion had intentionally dispatched the patient as if he were 

an animal.”
21

i.e., criminal homicide.3 Dr. Smith allegedly accused Dr. 

Cashion of “euthaniz[ing his] patient” while criticizing Dr. 

Cashion for what he viewed as poor resuscitation efforts on a 

critically injured patient whose death was imminent.4 The 

statements were made in the presence of Dr. Crawford, who was 

familiar with the medical condition of the patient and the 

nature of Dr. Smith’s criticisms of Dr. Cashion, and a nurse 

involved in the resuscitation of the patient. All of the 

statements related to the treatment Dr. Cashion rendered to an 

already dying patient in the presence of numerous medical 

 3 In concluding the euthanasia statements could be 

construed as stating facts about Dr. Cashion, the circuit court 

reasoned that “it is believable that a surgeon’s euthanasia 

comment about an anesthesiologist, directly after a patient has 

died on the operating table, meant that the anesthesiologist 

committed malpractice, and euthanized a hopeless patient.” 

Likewise, the majority states that a listener could believe Dr. 

Cashion “caus[ed] or contribut[ed] to the patient’s death by 

providing deficient care.” This reasoning wholly ignores Dr. 

Cashion’s theory of defamation regarding the euthanasia 

statements, which is that Dr. Smith accused him of a crime, not 

just malpractice or deficient care. See Horsley, 292 F.3d at

701.

4 In fact, because as Dr. Cashion asserts, the patient’s 

death from his injuries was imminent and the prohibition on 

euthanasia in Virginia does not extend to permitting the 

natural process of dying, see Code § 54.1-2990(D), the actual 

circumstances in which the statements were made would not 

permit a reasonable inference that Dr. Cashion criminally 

euthanized the patient or that Dr. Smith was stating, as a 

literal fact, that Dr. Cashion had criminally euthanized the 

patient.
22

providers.5 Thus, the reasonable hearer of the euthanasia 

statements would have understood Dr. Smith’s statements as an 

exaggerated expression of outrage at Dr. Cashion’s 

resuscitation efforts, not a literal accusation of fact – that 

Dr. Cashion committed a criminal homicide.6 See Greenbelt, 398 

U.S. at 14 (even the most careless reader would have perceived 

the word “blackmail” as a vigorous epithet used by those who 

considered a real estate developer’s negotiating position 

unreasonable and not as a charge of the commission of a 

criminal offense); Horsley, 292 F.3d at 702-03 (reasonable 

viewer would have understood defendant’s use of phrase 

“accomplice to murder” as an expression of outrage, and not an 

accusation of the commission of a crime). Accordingly, the use 

 5 Although Dr. Cashion acknowledges that if taken 

literally, Dr. Smith would have been accusing him of the 

intentional killing of a patient in the presence of other 

health care providers, he posits that because the euthanasia 

could have been performed “without attracting attention,” the 

statement could reasonably be believed. 

6 Dr. Cashion argues that because he was an 

anesthesiologist and, therefore, capable of euthanasia, the 

statement could be taken to be literally true. While out of 

context, accusing an anesthesiologist of euthanizing a patient 

because an anesthesiologist is capable of such an act could be 

taken as a literal statement of fact, we must examine the 

entirety of the statements in the context in which the 

statements were allegedly made, consider the identity of those 

who allegedly heard them, and determine what they reasonably 

would have believed under those circumstances. Yeagle, 255 Va. 

at 297-98, 497 S.E.2d at 138-39; Lewis, 281 Va. at 725-26, 708 

S.E.2d at 891-92. 
23

of the word “euthanize” in this context was, in my view, a 

figurative label for Dr. Smith’s underlying criticisms, and 

would have been understood as such by the medical personnel who 

heard the euthanasia statements.7

Further supporting the conclusion that Dr. Smith used the 

term “euthanasia” figuratively is Dr. Cashion’s own allegation 

in his amended complaint that Dr. Smith admitted he never 

believed Dr. Cashion actually committed euthanasia. Thus, the 

circuit court could not properly conclude, as it did, that 

“[i]f that is what Smith believed to have occurred, then a 

euthanasia comment would not be hyperbole.”

For these reasons, I would hold the circuit court erred in 

its determination that the euthanasia statements were not 

rhetorical hyperbole. However, because I believe the circuit 

court reached the right result, I would affirm the circuit 

court’s grant of summary judgment. See Deerfield v. City of 

Hampton, 283 Va. 759, 767, 724 S.E.2d 724, 728 (2012) (applying 

the right result for the wrong reason doctrine).

 7 Dr. Smith’s use of non-literal language to make his point 

was not limited to his euthanasia statements since, as Dr. 

Cashion alleges in his amended complaint, Dr. Smith used a 

basketball analogy when he told Dr. Cashion in the presence of 

other medical personnel: “We [the trauma surgeons] were playing 

full court press and you were playing four corners” with the 

patient’s life.
JUSTICE POWELL, with whom JUSTICE GOODWYN joins, concurring in 

part and dissenting in part, and with whom JUSTICE McCLANAHAN 

joins in part.

I concur in the Court’s judgment in all respects with 

regard to the euthanasia statements. However, I believe that 

we need not reach the merits of Dr. Cashion’s argument that the 

circuit court erred in determining that the non-euthanasia 

statements were protected statements of opinion instead of 

actionable statements of fact, as Dr. Cashion expressly waived 

any such argument regarding the non-euthanasia statements. 

Therefore, I respectfully dissent from Part II.A. of the 

majority opinion.

Although we have previously considered the endorsement, 

“WE ASK FOR THIS” as indicating that a party has “asked for and 

consented to an order,” Lamar Corp. v. City of Richmond, 241 

Va. 346, 349, 352, 402 S.E.2d 31, 32, 34 (1991), I recognize 

that we have yet to consider such an endorsement in the context 

of Code § 8.01-384(A).

Code § 8.01-384(A) provides in relevant part as follows:

No party shall be deemed to have agreed to, 

or acquiesced in, any written order of a 

trial court so as to forfeit his right to 

contest such order on appeal except by 

express written agreement in his 

endorsement of the order.

(Emphasis added.)
25

In the present case, it is undisputed that counsel for Dr. 

Cashion endorsed the Demurrer Order with the signature-block 

notation: “WE ASK FOR THIS.” The only logical interpretation 

of such an endorsement is that it is a request for the circuit 

court to enter the order as drafted, and therefore it 

constitutes an “express written agreement” with the terms of 

the order pursuant to Code § 8.01-384(A). Dr. Cashion, having 

agreed with “the action taken by the trial court [entering the 

order], should not [now] be allowed to assume an inconsistent 

position.” Clark v. Commonwealth, 220 Va. 201, 214, 257 S.E.2d 

784, 792 (1979).

Code § 8.01-384(A) goes on to state:

Arguments made at trial via written 

pleading, memorandum, recital of objections

in a final order, oral argument reduced to 

transcript, or agreed written statements of 

facts shall, unless expressly withdrawn or 

waived, be deemed preserved therein for 

assertion on appeal.

(Emphasis added.)

A review of the orders in the case also indicates that 

counsel for Dr. Cashion knew the difference between objecting 

to a ruling as opposed to expressly agreeing with one. When 

endorsing an order with which he agreed, i.e., the order 

granting leave to amend his complaint, the order granting the 

motion to correct misnomer and the order at issue here, counsel 
26

for Dr. Cashion used the language: “WE ASK FOR THIS.”1 However, 

when objecting to an order, such as the final order granting 

summary judgment, Dr. Cashion’s counsel used the endorsement 

language “Seen and objected to,” despite the fact the circuit 

court ruled partly in Dr. Cashion’s favor by denying the motion 

for summary judgment on the issues relating to treating the 

statements made in the hallway as non-actionable rhetorical 

hyperbole. Clearly, when Dr. Cashion intended to object to a 

ruling of the circuit court, he did so. Here, he did not.

Contrary to the majority opinion, there is nothing in the 

record indicating that the Demurrer Order “reflects only [Dr. 

Cashion’s] request that the court enter an order memorializing 

its ruling.” Indeed, it is clear that the circuit court 

ordered counsel for Dr. Cashion to “prepare an appropriate 

order and, after endorsements, send it to the Court for entry.” 

(JA 67). Levisa Coal Co. v. Consolidation Coal Co., 276 Va. 

44, 56 n.4, 662 S.E.2d 44, 50 n.4 (2008), the case upon which 

the majority relies for this notion, is inapposite to the 

present case. The actual issue in Levisa Coal involved the 

right of a party to request that a court memorialize its ruling 

in an order. As previously noted, there is nothing in the 

 1 Tellingly, Dr. Cashion signed this order “WE ASK FOR 

THIS” despite the fact that the demurrer was filed by Dr. Smith 

and Carilion. Additionally, although Dr. Smith and Carilion 

prevailed in part, they each noted their objections to the 

circuit court’s ruling.
27

record that even remotely indicates that Dr. Cashion requested 

the circuit court memorialize its ruling. Furthermore, in 

Levisa Coal, the appellant specifically noted its objections 

and the trial court expressly reserved those objections by 

reference in its order. Id. In the present case, however, the 

Demurrer Order was drafted by counsel for Dr. Cashion, 

contained no reservation of objections and, in fact, 

affirmatively asked the trial court for dismissal of the claims 

based on the non-euthanasia statements.

In Johnson v. Hart, 279 Va. 617, 624, 692 S.E.2d 239, 243 

(2010), we held that an appellee’s endorsement of an order 

granting summary judgment in his favor with “[s]een and 

consented to” did not constitute an express waiver under Code § 

8.01-384 of the arguments he previously presented to the 

circuit court. Considering the context of the endorsement in 

that case – that it was made by the prevailing party on a final 

order that dismissed the case with prejudice in his favor – we 

concluded that “[s]een and consented to” only “indicate[d] that 

[appellee] consented to the trial court’s order granting his 

motion for summary judgment,” and did not convey his

acquiescence with every ruling the circuit court made in 

granting the motion. Id. at 624, 692 S.E.2d at 243.

Johnson differs from the present case in that there is a 

distinction between a recognition that the circuit court has 
28

ruled for a party and that party “consents” to the entry of a 

proper final order and the relief contained therein, and a 

party’s affirmative request for the entry of an order and the 

relief contained therein. The latter clearly indicates that 

the party has yielded its position. Moreover, the Demurrer 

Order was not a final order disposing of the case in Dr. 

Cashion’s favor; rather, the circuit court ruled both for and 

against Dr. Cashion, and the case proceeded.

I feel compelled to point out that the majority has made 

it virtually impossible for a party to “forfeit his right to 

contest [an] order on appeal” under Code § 8.01-384(A). 

According to the majority, an express, written statement asking 

for a specific order and the relief contained therein with no 

objections noted is insufficient to waive an objection. Thus, 

under the majority’s rubric, for Dr. Cashion to waive his 

objections, he would be required to endorse the order with the 

statement: “I am affirmatively waiving my objection to the 

demurrer on the non-euthanasia statements.”

In considering what constitutes waiver under Code § 8.01-

384(A), we have recognized that:

Once a litigant informs the circuit court 

of his or her legal argument, in order for 

a waiver to occur within the meaning of 

Code § 8.01-384(A), the record must 

affirmatively show that the party who has 

asserted an objection has abandoned the 

objection or has demonstrated by his 
29

conduct the intent to abandon that 

objection.

Helms v. Manspile, 277 Va. 1, 6, 671 S.E.2d 127, 129 (2009) 

(internal quotation marks and alteration omitted) (emphasis 

added).

In my opinion, the record clearly reveals that, in 

addition to expressly abandoning his objection in writing, Dr. 

Cashion “demonstrated by his conduct the intent to abandon 

[the] objection.” Helms, 277 Va. at 6, 671 S.E.2d at 129 

(internal quotation marks omitted). The focus of his pleadings 

and argument was on the statements relating to “euthanasia” and 

not the non-euthanasia statements. For example, in the Amended 

Complaint, Dr. Cashion alleged “[a] simple apology from Dr. 

Smith acknowledging that Dr. Cashion did not ‘euthanize’ the 

patient would have sufficed to end the matter at this early 

stage.” Notably, he makes no mention of an apology for the 

non-euthanasia comments. Further, during the course of the 

hearing, counsel for Dr. Cashion mentioned the word 

“euthanasia” or some form of it, (e.g., “purposely killed”) at 

least six times. By contrast, he referred to the noneuthanasia statements only once, and even then, only as factual 

support for the euthanasia statements.

Further, the majority fails to consider the unintended 

consequences of its holding. In my opinion, the majority fails 
30

to give appropriate consideration to Dr. Cashion’s actions. If 

the conduct of a party is no longer considered in determining 

affirmative waiver, then I believe that the majority has opened 

the floodgates to invited error. Under the majority’s 

approach, as long as a party does not endorse an order in a 

manner that specifically waives the objection, that party’s 

objection to that order would be preserved regardless of that 

party’s subsequent actions. But see Saunders v. Commonwealth, 

211 Va. 399, 401, 177 S.E.2d 637, 638 (1970)) (recognizing that 

a party that unsuccessfully objects to an action of the trial 

court waives that objection when he subsequently acts in a 

manner that runs counter to his objection).

By endorsing the order with “WE ASK FOR THIS” and failing 

to note any objections, Dr. Cashion affirmatively requested, 

and therefore yielded to, the terms of the entire Demurrer 

Order. Thus, he abandoned any objections he may have had to 

the order. Accordingly, I would hold that Dr. Cashion has 

waived his arguments on appeal regarding the actionability of 

the non-euthanasia statements.