IN THE SUPREME COURT OF IOWA 

No. 57 / 04-0434 

Filed September 15, 2006 

ARTHUR YATES, BEVERLY YATES, and YATES KENNEL, INC., 

Appellees, 

vs. 

IOWA WEST RACING ASSOCIATION d/b/a BLUFFS RUN CASINO, and 

HARVEY’S BLUFFS RUN MANAGEMENT COMPANY, INC., 

Appellants. 

On review from the Iowa Court of Appeals. 

Appeal from the Iowa District Court for Pottawattamie County, 

Jeffrey L. Larson and Timothy O’Grady, Judges. 

 Defendants appeal from adverse jury verdict on claims of defamation 

and negligence; Plaintiffs cross appeal from district court’s refusal to submit 

punitive damages on their negligence claim. COURT OF APPEALS 

DECISION AFFIRMED; DISTRICT COURT JUDGMENT REVERSED AND 

CASE REMANDED WITH DIRECTIONS.

Donald J. Pavelka, Jr., and Thomas M. Locher of Locher Pavelka 

Dostal Braddy & Hammes, LLC, Omaha, Nebraska, for appellants. 

Jerry Crawford and Jim Quilty of Crawford Law Firm, Des Moines, for 

appellees. 
 2 

LAVORATO, Chief Justice. 

This action arises out of the defendants’ alleged slanderous 

statements about a greyhound kennel and the defendants’ alleged 

negligence in maintaining its track that allegedly resulted in injuries to the 

kennel’s racing dogs. The defendants appealed from an adverse jury verdict 

on both claims. The kennel cross appealed, contending that the district 

court erred in not submitting punitive damages on its negligence claim. 

We transferred the case to the court of appeals, which reversed on the 

appeal, concluding that the district court erred in overruling the defendants’ 

motion for directed verdict on both the slander and negligence claims. 

Because of its decision on the negligence claim, the court of appeals did not 

address the cross-appeal. 

The kennel filed an application for further review, which we granted. 

We affirm the court of appeals decision, reverse the district court judgment, 

and remand the case with directions. 

 I. Background Facts. 

Arthur and Beverly Yates are the owners of Yates Kennel, Inc., an 

Iowa corporation. Yates Kennel is a greyhound racing dog kennel that 

operated at Bluffs Run Casino (BRC) in Council Bluffs, Iowa. Iowa West 

Racing Association (IWRA) is a non-profit corporation and an Iowa statutory 

dog track licensee. IWRA is the owner of the license to operate Bluffs Run 

Casino. Harveys BR Management Company, Inc. (Harveys), a Nevada 

corporation, manages Bluffs Run pursuant to a management agreement 

with IWRA. 

 In 1998, 1999, and 2000, Yates Kennel obtained booking contracts 

with Harveys to have its greyhound dogs participate in greyhound racing 

meets at Bluffs Run. In 1999 and 2000, there was an increase in the 

number of injuries and deaths of greyhounds while racing at Bluffs Run. A 
 3 

number of those casualties were to Yates Kennel dogs. Kennel owners, 

including the Yates, thought the injuries and deaths resulted from the track 

being too hard in some spots and too soft in other spots. 

 In 2000 the Yates heard rumors that its kennel would not receive a 

booking contract for 2001. On November 16, 2000, the Iowa Racing and 

Gaming Commission (Commission), a state agency that regulates racing in 

Iowa, held a meeting. Jerry Crawford, an attorney for the Iowa Greyhound 

Association (IGA), an organization of kennel owners and operators, spoke at 

that meeting. At the time, Beverly Yates was a director of IGA. In relevant 

part regarding injuries to the racing greyhounds, the minutes of that 

meeting reflect the following: 

Chair Hansen called on the Iowa Greyhound Association (IGA). 

Jerry Crawford, legal counsel for the IGA, advised they 

requested the opportunity to appear before the Commission to 

discuss the contractual ramifications of the track condition at 

Bluffs Run Casino (BRC), and more specifically, the contracts 

between BRC and the kennel owners/operators. He stated that 

some individuals would consider this to be a private matter 

between the track as a business and third parties, but feels 

that thought process ignores the Commission’s responsibility 

as BRC is a regulated business entity. He pointed out that the 

Commission determines the amount of money BRC is required 

to pay in purses to the third party kennel operators. 

Additionally, the Commission is responsible for monitoring the 

safety of the track conditions at the facility. Mr. Crawford 

stated that the track condition has been better on some 

occasions than others, but that it is not necessary to go back 

any further than the Commission meeting in Clinton when 

Verne Welch, BRC’s general manager, stated that two track 

records had been set in a one-week period. He indicated the 

Commission should be concerned as that means the track 

surface is like asphalt, making it very dangerous for the 

greyhounds. If the track surface is endangering the safety of 

the greyhounds, it is creating enormous financial and practical 

problems for the kennel owners and operators. Mr. Crawford 

stated that greyhounds are very expensive, and it is difficult for 

the owners/operators to maintain an active list when they are 

injuring dogs at a record rate. They are also faced with the 

economic hardship of replacing those dogs. 
 4 

 As the minutes reflect, Crawford then got into the question of kennel 

contracts for the year 2001: 

At this point, all IGA knows is that some BRC kennel operators 

have not received a contract for the coming year. Mr. Crawford 

informed the Commission that the Arthur and Beverly Yates 

Kennel is one of the operators that has not received a contract 

offer for 2001. He noted that the Yates kennel has experienced 

20 broken legs so far in 2000, and has had between 10-15 

additional greyhounds removed from racing due to other raceending injuries. In terms of dollars won, they are second from 

the bottom. This year money won in stakes’ races were not 

included in kennel standings, which is a variation from 

previous years. Mr. Crawford stated that the Yates Kennel did 

very well in stake races, noting that they had two dogs in the 

final Iowa Breeders Championship Race. He noted that one of 

the owners is an officer of the IGA, and BRC has indicated they 

are critical of them on the topic of the track condition. 

Crawford then requested the Commission to 

establish a timetable in order to review this matter to 

determine fairness due to the various issues faced by the 

kennel operators at BRC. He stressed to the Commissioners 

that it is the members of IGA, the kennel owners/operators, 

breeders and trainers, who have suffered the entire financial 

consequence of what has happened at BRC this year. He 

questioned whether the Commission should allow these small 

Iowa-based businesses to suffer the additional financial 

consequence of being put out of business at BRC. 

 Crawford asked the Commission to stop the execution of contracts so 

that “a fair and equitable dismissal clause” that ensures competent 

performance could be worked out. He also asked that the Commission “not 

allow BRC to do whatever it chooses to do with regard to kennel contracts.” 

 The Commission then allowed individuals with an opposing view an 

opportunity to speak. Lyle Ditmars, legal counsel for BRC, responded to the 

various issues Crawford raised. On one of those issues, timing of the 

kennel contracts, the minutes reflect that Ditmars stated the following: 

Mr. Ditmars stated the timing is the same as last year. BRC 

established a committee that reviewed several criteria in 

determining who would be offered contracts: ranking of the 

kennel by number of wins; win percentage; compliance with 
 5 

contract requirements regarding the active list; compliance 

with contract requirements regarding the number of active 

greyhounds classified as A and B; residency of the owner; and 

contracts with the state of Iowa. He noted there have been 

instances where the kennel operators resided in Iowa, but did 

not have any Iowa-bred greyhounds in the kennel. Other 

factors are the willingness of the operator to use Iowa-bred 

greyhounds; quality of greyhounds maintained throughout the 

year; participation by the kennel operator in activities and 

programs designed to promote, enhance and improve 

greyhound racing at BRC; whether the kennel operator 

participated in activities that are potentially harmful to the 

operation of racing at BRC or other kennel operators; and the 

kennel operator’s compliance with other contract requirements. 

 Ditmars then made the following comments about the Yates Kennel: 

Mr. Ditmars stated that BRC does not discuss who will or will 

not get a kennel contract with other kennel operators. Mr. 

Ditmars confirmed that the Yates Kennel was not offered a 

contract for 2001, and will not be offered one. In 1999 the 

kennel was in the bottom two or three kennels in terms of 

performance. They were given a six-month contract. At the 

end of that contract, even though they remained in the bottom 

five, they were given an additional six-month contract to give 

them an opportunity to correct the situation. At this time, the 

Yates Kennel is second from last in terms of wins and third 

from the bottom in terms of win percentage for the year. Mr. 

Ditmars stated that the decision was not arbitrarily made. He 

noted that Ms. Yates was on the board of directors of the IGA 

when they were offered their first kennel contract; Jason Hines 

was the president of IGA when he was offered a contract; and 

Bob Rider, who has had two six-month contracts and 

addressed the Commission regarding issues at BRC last year, 

was offered a new contract for 2001. 

Additionally, in response to a commissioner’s question, Ditmars 

reportedly stated that he denied that any of the criteria established to 

determine which kennels would be offered contracts for next year were 

based on retribution for voicing criticism regarding BRC. According to the 

minutes, Crawford made a number of comments in rebuttal to Mr. Ditmars 

comments. One such comment included the following: “Mr. Crawford 

questioned the reasons given for terminating the Yates Kennel when 

kennels ranked lower than them received contracts for 2001, and over half 
 6 

of the kennels consistently have less than the required number of 

greyhounds on the active list.” 

In response to this last comment, the minutes show that Ditmars 

stated the following: “Mr. Ditmars reiterated that the Yates Kennel is second 

from last in the kennel standings. The kennel in last place did not receive a 

six-month contract in the previous year, as did the Yates Kennel due to 

poor performance in 1999.” 

According to the minutes, the Commission took no action on 

Crawford’s request. One commissioner “noted that the agenda stated it was 

to be a discussion of the contractual and financial ramifications of track 

conditions at BRC.” Another commissioner stated that “BRC is a private 

commercial company contracting with other private commercial companies” 

and she “could not foresee the Commission getting involved unless 

something unsavory was taking place.” Newspaper reporters present during 

the meeting wrote newspaper accounts containing some of Ditmars’ 

statements about Yates Kennel. 

II. Proceedings.

Six months later, the Yates and Yates Kennel (hereinafter collectively 

referred to as plaintiffs) sued IWRA and BRC (hereinafter collectively 

referred to as defendants), alleging a number of theories for recovery, only 

two of which are relevant to this appeal: slander per se and negligence. As 

to both theories, the plaintiffs sought compensatory and punitive damages. 

The plaintiffs alleged that Ditmars’ statements before the Commission were 

slanderous per se. The plaintiffs also alleged that the defendants’ 

negligence in maintaining the dog track caused injuries to its dogs for which 

it suffered damages. 

The parties tried the case to a jury, and the district court submitted 

for the jury’s consideration the slander and negligence claims as well as 
 7 

punitive damages on the slander claim. The court refused to submit 

punitive damages on the negligence claim. On the slander claim, the jury 

awarded no compensatory damages but did award punitive damages. 

On the negligence claim, the jury found the plaintiffs thirty-three 

percent at fault and the defendants sixty-seven percent at fault. The jury 

awarded damages for loss of income, lost value of injured greyhounds, and 

veterinary expenses. 

The defendants appealed both the slander and negligence verdicts. 

The plaintiffs cross-appealed, contending the district court erred in not 

submitting punitive damages on their negligence claim. We transferred the 

case to the court of appeals. The court of appeals reversed on the appeal. 

Because the court of appeals reversed on the appeal, it did not address the 

cross-appeal. 

We granted the plaintiffs’ application for further review. 

III. Issues. 

Although a number of issues were raised on appeal, we determine 

that only the following issues require discussion: whether the district court 

erred in denying the defendants’ motion for directed verdict in which the 

defendants asserted that (1) the alleged slanderous statements in question 

were true as a matter of law and (2) there was insufficient evidence that the 

track conditions proximately caused injuries to the plaintiffs’ dogs. 

IV. Scope of Review. 

We review the district court’s rulings on motions for directed verdict 

for correction of errors at law. Estate of Pearson ex rel. Latta v. Interstate 

Power & Light Co., 700 N.W.2d 333, 340 (Iowa 2005). In reviewing such 

rulings, we view the evidence in the light most favorable to the nonmoving 

party to determine whether the evidence generated a fact question. 

Dettmann v. Kruckenberg, 613 N.W.2d 238, 250-51 (Iowa 2000). To 
 8 

overcome a motion for directed verdict, substantial evidence must exist to 

support each element of the claim or defense. Id. at 251. Substantial 

evidence exists if reasonable minds could accept the evidence to reach the 

same findings. Id. 

V. The Defamation Claim: Truth as a Defense. 

The first issue we address is whether the district court erred in 

overruling the defendants’ motion for directed verdict on the ground that 

the alleged slanderous statements were true as a matter of law. 

1. Applicable law. The law of defamation includes the twin torts of 

libel and slander. Schlegel v. The Ottumwa Courier, 585 N.W.2d 217, 221 

(Iowa 1998). “Libel is generally a written publication of defamatory matter, 

and slander is generally an oral publication of such matter.” Id. (citation 

omitted). As we noted in Schlegel, 

“[t]he law of defamation embodies the public policy that 

individuals should be free to enjoy their reputation unimpaired 

by false and defamatory attacks. An action for defamation or 

slander is based upon a violation of this right. 

 The gravamen or gist of an action for defamation is 

damage to the plaintiff’s reputation. It is reputation which is 

defamed, reputation which is injured, and reputation which is 

protected by the law of defamation. 

 Defamation is an impairment of a relational interest; it 

denigrates the opinion which others in the community have of 

the plaintiff and invades the plaintiff’s interest in the 

[plaintiff’s] reputation and good name.” 

Id. (quoting 50 Am. Jur. 2d Libel and Slander § 2, at 338-39 (1995)). 

 In Hovey v. Iowa State Daily Publication Board, Inc., we adopted “the 

view espoused in Restatement (Second) of Torts, section 581A comment f 

that if an allegedly defamatory statement is substantially true, it provides 

an absolute defense to an action for defamation.” 372 N.W.2d 253, 256 

(Iowa 1985). Comment f provides that 
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many charges are made in terms that are accepted by their 

recipients in a popular rather than a technical sense. . . . 

It is not necessary to establish the literal truth of the precise 

statement made. Slight inaccuracies of expression are 

immaterial provided the defamatory charge is true in 

substance. 

Restatement (Second) of Torts § 581A cmt. f (1977). 

 Prior to Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S. Ct. 2695, 

111 L. Ed. 2d 1 (1990), as a matter of constitutional law, a statement of 

opinion was thought not to be defamatory. As the United States Supreme 

Court stated in Gertz v. Robert Welch, Inc., 

[u]nder the First Amendment there is no such thing as a false 

idea. However pernicious an opinion may seem, we depend for 

its correction not on the conscience of judges and juries but on 

the competition of other ideas. But there is no constitutional 

value in false statements of fact. Neither the intentional lie nor 

the careless error materially advances society’s interest in 

“uninhibited, robust, and wide-open debate” on the public 

issues. They belong to that category of utterances which “are 

no essential part of any exposition of ideas, and are of such 

slight social value as a step to truth that any benefit that may 

be derived from them is clearly outweighed by the social 

interest in order and morality.” 

418 U.S. 323, 339-40, 94 S. Ct. 2997, 3007, 41 L. Ed. 2d 789, 805 (1974) 

(citations omitted); accord Jones v. Palmer Commc’ns, Inc., 440 N.W.2d 884, 

891 (Iowa 1989) (“Opinion is absolutely protected under the first 

amendment.”), overruled on other grounds by Schlegel, 585 N.W.2d at 224. 

 This statement in Gertz was dictum; however, a majority of the federal 

courts of appeals interpreted this dictum to mean that statements of fact 

can be actionable defamation but statements of opinion cannot. Guilford 

Transp. Indus., Inc. v. Wilmer, 760 A. 2d 580, 596 (D.C. 2000). As one court 

observed, 

[b]y this statement, Gertz elevated to constitutional principle 

the distinction between fact and opinion, which at common law 

had formed the basis of the doctrine of fair comment. Gertz’s

implicit command thus imposes upon state and federal courts 

the duty as a matter of constitutional adjudication to 
 10 

distinguish facts from opinions in order to provide opinions 

with the requisite, absolute First Amendment protection. 

Ollman v. Evans, 750 F.2d 970, 975 (D.C. Cir. 1984) (footnotes omitted). 

The framework of analysis was therefore to determine whether the alleged 

defamatory statement was fact or opinion. 

 Because the degree to which alleged defamatory statements have real 

factual content can vary greatly, the court in Ollman noted “that courts 

should analyze the totality of the circumstances in which [such] statements 

are made to decide whether they merit the absolute First Amendment 

protection enjoyed by opinion.” Id. at 979. In evaluating the totality of the 

circumstances, the court considered four factors in assessing whether the 

average reader or listener, in contrast to the most skeptical or most 

credulous reader or listener, would view the statement as fact or opinion. 

Id. at 979 & n.16. These factors, the court was convinced, would lead to “a 

proper accommodation between the competing interests in free expression 

of opinion and in an individual’s reputation.” Id. at 978. 

Following the lead of many other federal circuit courts of appeals, the 

eighth circuit adopted this four-factor test in Janklow v. Newsweek, Inc., 

788 F.2d 1300, 1302 (8th Cir.), cert. denied, 479 U.S. 883, 107 S. Ct. 272, 

93 L. Ed. 2d 249 (1986). Relying on Janklow, we adopted the four-factor 

test in Palmer Communications, Inc., 440 N.W.2d at 891-92. 

 The first relevant factor is whether the alleged defamatory statement 

“has a precise core of meaning for which a consensus of understanding 

exists or, conversely, whether the statement is indefinite and ambiguous.” 

Ollman, 750 F.2d at 979; see also Palmer Commc’ns, Inc., 440 N.W.2d at 

891. We characterized this factor as “the precision and specificity of the 

disputed statement.” Palmer Commc’ns, Inc., 440 N.W.2d at 892 (citation 

omitted). 
 11 

 The second relevant factor is “the degree to which the [alleged 

defamatory] statements are . . . objectively capable of proof or disproof [].” 

Ollman, 750 F.2d at 981. We related this factor to the first factor and noted 

that “if a statement is precise and easy to verify, it is likely the statement is 

fact.” Palmer Commc’ns, Inc., 440 N.W.2d at 891. In this connection, one 

writer has defined a factual statement as one that relates to an event or 

state of affairs that existed in the past or exists at present and is capable of 

being known. See Ollman, 750 F.2d at 981 n.22 (citation omitted). This 

verification factor “is, in actuality, merely one of many rules in tort that 

prevent the jury from rendering a verdict based on speculation.” Id. at 981. 

 The third relevant factor is the context in which the alleged 

defamatory statement occurs. Id. “[T]he context to be considered is both 

narrowly linguistic and broadly social.” Id. We characterized this factor as 

“the ‘literary context’ in which the disputed statement [is] made.” Palmer 

Commc’ns, Inc., 440 N.W.2d at 891. The degree to which a statement is 

laden with factual content or can be read to imply facts depends upon the 

article or column, see id., or in this case the whole discussion. 

 The last relevant factor is “the broader social context into which [the 

alleged defamatory] statement fits.” Ollman, 750 F.2d at 983. Important 

here are the types of writing or speech in which the statement appears. Id.

We likewise characterized this factor as “the social context,” and noted that 

this factor “focuses on the category of publication, its style of writing and 

intended audience.” Palmer Commc’ns, Inc., 440 N.W.2d at 891-92 (citation 

omitted). We also noted that we consider the “‘public context’ or political 

arena in which the statements were made.” Id. at 892 (citations omitted). 

 In 1990 the Court in Milkovich rejected this per se approach providing 

blanket First Amendment protection of all statements of opinion: 
 12 

[W]e do not think this passage from Gertz [quoted above] was 

intended to create a wholesale defamation exemption for 

anything that might be labeled “opinion” . . . . Not only would 

such an interpretation be contrary to the tenor and context of 

the passage, but it would also ignore the fact that expressions 

of “opinion” may often imply an assertion of fact. 

497 U.S. at 18, 110 S. Ct. at 2705, 111 L. Ed. 2d at 17. 

Noting that the Gertz dictum “ignored the fact that expressions of 

‘opinion’ may often imply an assertion of fact,” the Court gave the following 

example to support this statement: 

If a speaker says, “In my opinion John Jones is a liar,” he 

implies a knowledge of facts which lead to the conclusion that 

Jones told an untruth. Even if the speaker states the facts 

upon which he bases his opinion, if those facts are either 

incorrect or incomplete, or if his assessment of them is 

erroneous, the statement may still imply a false assertion of 

fact. Simply couching such statements in terms of opinion 

does not dispel these implications; and the statement, “In my 

opinion Jones is a liar,” can cause as much damage to 

reputation as the statement, “Jones is a liar.” 

Id. at 18-19, 110 S. Ct. at 2705-06, 111 L. Ed. 2d at 17-18. 

Citing existing law, the Court clarified that only statements regarding 

matters of public concern that are not sufficiently factual to be capable of 

being proven true or false and statements that cannot reasonably be 

interpreted as stating actual facts are absolutely protected under the 

Constitution. In making this clarification, the Court rejected “the creation 

of an artificial dichotomy between ‘opinion’ and fact.” Id. at 19-20, 110 S. 

Ct. at 2705-06, 111 L. Ed. 2d at 18. In rejecting this dichotomy, the Court 

did not, however, abolish the constitutional protection for opinions. It 

merely narrowed that protection. Hunt v. Univ. of Minn., 465 N.W.2d 88, 94 

(Minn. Ct. App. 1991). Thus, the framework of analysis is no longer 

whether the alleged defamatory statement is fact or opinion. Rather the 

framework of analysis now is whether the alleged defamatory statement can 

reasonably be interpreted as stating actual facts and whether those facts 
 13 

are capable of being proven true or false. Under this analysis, “statements 

of opinion can be actionable if they imply a provable false fact, or rely upon 

stated facts that are provably false.” Moldea v. New York Times Co., 22 F.3d 

310, 313 (D.C. Cir. 1994). The statement that the plaintiff must prove false 

is not the literal wording of the statement but what a reasonable reader or 

listener would have understood the author to have said. Milkovich, 497 U.S. 

at 16-17, 110 S. Ct. at 2704-05, 111 L. Ed. 2d at 16. 

Although the Court in Milkovich rejected the dichotomy between fact 

and opinion as the framework of analysis, we agree with the following: 

The test used in Milkovich to identify protected opinions is very 

similar to the four-factor inquiry used by the circuit courts to 

distinguish fact from opinion. Specificity and variability are 

closely related to whether the statement is capable of being 

proven false. Whether a remark can be reasonably interpreted 

as stating actual facts must be inferred from the political, 

literary, and social context in which the statement was made. 

Given the similarity between the Supreme Court’s definition of 

protected opinion and the circuit courts’ fact/opinion analysis, 

decisions applying the Janklow test are still helpful under 

Milkovich. 

Hunt, 465 N.W.2d at 94; see also Milkovich, 497 U.S. at 24-25, 110 S. Ct. at 

2709, 111 L. Ed. 2d at 21-22 (Brennan, J., dissenting) (agreeing with the 

majority’s statement of the law but disagreeing with the majority’s 

application of the law to the facts; also noting that among the 

circumstances a court is to consider in determining whether a statement 

purports to state or imply actual facts about an individual are the same four 

factors used to distinguish between statements of fact and statements of 

opinion first stated in Ollman and adopted in Janklow). We will therefore 

employ the four-factor test we adopted in Palmer Communications, Inc. to 

identify protected opinion under the Milkovich framework of analysis. 

 A trial court’s initial task in a defamation action is to decide whether 

the challenged statement is “capable of bearing a particular meaning, and 
 14 

whether that meaning is defamatory.” Restatement (Second) of Torts § 

614(1) (1977); see also Levy v. Am. Mut. Ins. Co., 196 A.2d 475, 476 (D.C. 

1964) (“It is only when the court can say that the publication is not 

reasonably capable of any defamatory meaning and cannot be reasonably 

understood in any defamatory sense that it can rule, as a matter of law, 

that it was not libelous.”). In carrying out this task, a court should not, 

however, 

indulge far-fetched interpretations of the challenged 

publication. The statements at issue “should . . . be construed 

as the average or common mind would naturally understand 

[them].” If the court determines that a statement is indeed 

capable of bearing a defamatory meaning, then whether that 

statement is in fact “defamatory and false [is a question] of fact 

to be resolved by the jury.” 

Guilford Transp. Indus., 760 A.2d at 594 (citations omitted). 

2. The merits. As mentioned, minutes of the Commission meeting 

on November 16, 2000 reflect that attorney Crawford questioned the 

reasons given for terminating the Yates Kennel when kennels ranked lower 

than it received contracts for 2001, and over half of the kennels consistently 

had less than the required number of greyhounds on the active list. The 

minutes further reflect that in responding to this comment, attorney 

Ditmars stated the following: “Yates Kennel is second from last in the 

kennel standings. The kennel in last place did not receive a six-month 

contract in the previous year, as did the Yates Kennel due to poor 

performance in 1999.” 

 Beverly Yates testified Ditmars’ statement that “Yates Kennel is 

second from last in kennel standings” was true. She further testified over 

hearsay objections that she read newspaper accounts of the Commission 

meeting stating that Yates Kennel had a poor, noncompetive kennel. 
 15 

 David Ungs testified that he was president of the IGA at the times 

material to this action. Ungs further testified that in his capacity as 

president he met with Vern Welch, a representative of Bluffs Run 

management, some time before the commission meeting on November 16, 

1999. In his conversation with Welch, Ungs stated he and Welch discussed 

the possibility of kennels losing their booking contracts. According to Ungs, 

Welch stated that Bluffs Run was one of the leading tracks in the country 

as far as payouts were concerned and that the kennels would need to be 

more competitive or they would be eliminated. Later at the Commission 

hearing on November 16, which Ungs attended, Ungs learned that the Yates 

Kennel’s booking contract would not be renewed. He recalled that at the 

November 16 meeting Ditmars said that Yates Kennel did not receive a 

booking contract because they were a “substandard or lower kennel.” 

 The plaintiffs contend that the references to Yates Kennel as 

“substandard and poor performers” as testified to by Beverly Yates and 

David Ungs were defamatory. For reasons that follow, we disagree. 

 The issue boils down to whether the Ditmars statement “substandard 

and poor performers,” which is an opinion, implies a provably false fact, or 

relies upon stated facts that are provably false. Viewing this statement in 

context, we first note that Ditmars’ statement was in response to Crawford’s 

questioning of the reasons given for terminating the kennel’s booking 

contract. Ditmars set out facts (the kennel’s ranking compared to other 

kennels), which signaled to a reasonable listener that his statement “poor 

and substandard performers” represented a characterization of those facts. 

 Moreover, “substandard and poor performers” do not have a precise 

and verifiable meaning and are therefore less likely to give rise to clear 

factual implications. But even if the words “substandard” and “poor 

performers” are verifiable, that assessment is supported by stated facts that 
 16 

are true. Cf. Moldea, 22 F.3d at 317 (Assuming statement, contained in 

review of book reporting on alleged gang connections with professional 

football, that author had engaged in “too much sloppy journalism,” was 

capable of verification, statement was not defamatory because book review 

author had supported statement with illustrations from book itself). 

Ditmars’ disclosure of the facts underlying his statement of “substandard 

and poor performers,” facts that Beverly Yates conceded were true, makes 

this case different from Milkovich. A reasonable reader could conclude that 

Ditmars was giving his personal conclusion or opinion about those 

undisputed facts. The reader could further conclude that Ditmars’ 

statement did not imply any provable false fact. See Phantom Touring, Inc. 

v. Affliliated Publ’ns, 953 F.2d 724, 731 & n.13 (1st Cir. 1992) (Newspaper 

articles that allegedly falsely accused touring company of deliberate effort to 

pass off its musical-comedy version as widely acclaimed Broadway show of 

same name did not constitute actionable defamation because assertion of 

deceit reasonably could have been understood not as a statement of fact but 

only as reporter’s personal conclusion about information that was presented 

which was not challenged as false.). 

A good example of a statement with a well-defined meaning is an 

accusation of a crime. See, e.g., Cianci v. New York Times Publ’g Co., 639 

F.2d 54, 63 (2d Cir. 1980) (holding that an article that implied a mayor had 

committed rape and that charged him with paying the alleged victim not to 

bring charges was not protected opinion). Clearly, an accusation of a crime 

is laden with factual content and the facts are easily verifiable. Such was 

the case in Milkovich. In that case a high school wrestling coach argued 

that an Ohio newspaper libeled him by printing a column that alleged he 

had perjured himself in his testimony to a state court concerning his role in 

an altercation between his team and an opposing team at a wrestling 
 17 

match. The column stated that “Anyone who attended the meet . . . knows 

in his heart that Milkovich . . . lied at the hearing . . . .” Milkovich, 497 U.S. 

at 5, 110 S. Ct. at 2698, 111 L. Ed. 2d at 9. The Court rejected the 

argument that an accusation of perjury was nonactionable merely because 

it was offered as the writer’s opinion. Id. at 21, 110 S. Ct. at 2707, 111 

L. Ed. 2d at 19. The Court noted that “the connotation that the petitioner 

committed perjury is sufficiently factual to be susceptible of being proved 

true or false . . . . ‘Unlike a subjective assertion the averred defamatory 

language is an articulation of an objectively verifiable event.’ ” Id. at 21-22, 

110 S. Ct. at 2707, 111 L. Ed. 2d at 19 (citation omitted). 

For all of these reasons, we conclude as a matter of law that the 

statement “substandard and poor performers” constituted nothing more 

than Ditmars’ conclusion or opinion, which contained nothing that implied 

any provable false fact. Moreover the statement was based on facts that 

were true. As such the statement was not defamatory. 

VI. The Negligence Claim: Sufficiency of the Evidence Regarding 

Causation. 

The second issue we address is whether the district court erred in 

overruling the defendants’ motion for directed verdict because there was 

insufficient evidence that the track conditions proximately caused injuries 

to the plaintiffs’ dogs. In their motion for directed verdict, the defendants 

contended the plaintiffs did not prove that the injuries to the dogs would 

not have occurred but for the defendants’ maintenance of the track. In 

support of their contention, the defendants argued the plaintiffs did not 

produce testimony that a qualified veterinarian examined or treated any of 

the plaintiffs’ dogs at the time they were allegedly injured and diagnosed 

them with injuries attributable to track conditions. At the close of all the 
 18 

evidence, the defendants renewed their motion. The defendants raised the 

same contention and arguments on appeal. 

1. Applicable law. To sustain its negligence claim against the 

defendants, the plaintiffs had to prove that the defendants owed it a duty of 

care, they breached that duty, their breach was the actual and proximate 

cause of the injuries to its dogs, and the damages it suffered. Virden v. Betts 

& Beer Constr. Co., 656 N.W.2d 805, 807 (Iowa 2003). 

 As we explained in Berte v. Bode, 

Causation has two components: “(1) the defendant’s conduct must 

have in fact caused the plaintiff’s damages (generally a factual 

inquiry) and (2) the policy of the law must require the defendant to be 

legally responsible for the injury (generally a legal question). We 

apply a “but for” test to determine whether the defendant’s conduct 

was a cause in fact of the plaintiff’s harm. Under that test, “the 

defendant’s conduct is a cause in fact of the plaintiff’s harm, if, butfor the defendant’s conduct, that harm would not have occurred. The 

but-for test also implies a negative. If the plaintiff would have 

suffered the same harm had the defendant not acted negligently, the 

defendant’s conduct is not a cause in fact of the harm.” 

692 N.W.2d 368, 372 (Iowa 2005) (citations omitted). Proximate cause or 

legal cause, the second element of causation, determines the appropriate 

scope of a negligent defendant’s liability. In applying proximate cause rules, 

courts attempt “to discern whether, in the particular case before the court, 

the harm that resulted from the defendant’s negligence is so clearly outside 

the risks he created that it would be unjust or at least impractical to impose 

liability.” Id. (citation omitted). Here, we are dealing with cause in fact. 

 This court has long been “committed to a liberal rule [that] allows 

opinion testimony if it is of a nature which will aid the jury and is based on 

special training, experience, or knowledge [as] to the issue in question.” 

Iowa Power & Light Co. v. Stortenbecker, 334 N.W.2d 326, 330 (Iowa 1983). 

However, medical testimony regarding whether an accident caused an 

injury is not within the knowledge and experience of ordinary laypersons. 
 19 

Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 382-83, 101 N.W.2d 167, 

171 (1960) (holding that in patient’s action for personal injury allegedly 

resulting from a fall in defendant hospital, medical testimony that it was 

possible that plaintiff’s subsequent physical condition was caused by the 

fall was insufficient, standing alone, to take the issue of causation to the 

jury). Such testimony is essentially within the domain of testimony from a 

medical expert. Id. at 383, 101 N.W.2d at 171. Before such testimony can 

be considered competent, there must be sufficient data upon which the 

expert judgment can be made. The facts must be sufficient to allow the 

expert to reach a conclusion that is “more than mere conjecture or 

speculation.” Stortenbecker, 334 N.W.2d at 330-31. Without the medical 

testimony, a jury is left to resort to conjecture in determining causation. 

Chenoweth v. Flynn, 251 Iowa 11, 16, 99 N.W.2d 310, 313 (1959). The rule 

is the same with respect to injuries to animals. See Winter v. Honeggers’ & 

Co., 215 N.W.2d 316, 323 (Iowa 1974) (holding veterinarian testimony that 

the negligent design of a hog confinement facility possibly caused an illness 

to hogs coupled with testimony that the hogs were not affected with the 

illness before the use of the facility was sufficient on the question of 

causation); Miller v. Economy Hog & Cattle Powder Co., 228 Iowa 626, 636-

37, 293 N.W. 4, 9 (1940) (holding that, in suit for damages for death of 

sheep allegedly caused by feeding a product purchased from defendant, 

testimony from several veterinarians who examined the sheep on various 

occasions and who also made a number of post mortem examinations was 

sufficient on causation). 

As this court in Hildebrand & Son v. Black Hawk Oil Co. noted, 

the plaintiff is bound, as a necessary element of its case, to 

show that the injuries which its hogs suffered were the direct 

result of the feeding of this preparation to them. There is no 

expert testimony introduced in this case, there seems to have 
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been no post mortem of the dead hogs, and there is no 

testimony directed to the point that the injury to this herd of 

hogs was the result of the feeding of the preparation to them. 

It is also to be remembered in cases of this character that in 

the course of events all animals die; in other words death is 

inherent in all animal creation. Equally so all animal creation 

is subject to many ailments, ills, and diseases, resulting in 

death or injury to the animal. Therefore, in a case of this kind, 

proof that the animal died or was permanently injured does not 

establish a case for the plaintiff. In short, plaintiff alleges that 

these hogs died and injury to the balance of the herd was 

caused by the feeding of this preparation to them. Plaintiff is 

bound to prove this else it has not made out a case. The 

evidence is wholly wanting to connect the death of these hogs 

with the feeding of this preparation, and equally so as to their 

stunted growth. 

205 Iowa 946, 947-48, 219 N.W. 40, 40-41(1928) (citation omitted). 

2. Analysis. The plaintiffs produced three witnesses concerning the 

dogs’ injuries. Lori Fortune, an assistant dog trainer, testified that her 

training included identifying injuries and the cause of injuries to the dogs. 

She further testified that her training indicated to her what may have 

caused the injuries. She explained that in her experience a track that has 

inconsistent surfaces, such as Bluffs Run had, varying between hard and 

soft spots, can injure dogs. Hard spots she said could cause broken bones 

and loose spots could cause muscle and ligament damage. Over 

defendants’ objection that the witness was not qualified to testify 

concerning causation of the dogs’ alleged injuries, the witness was allowed 

to give her opinion that the majority of the injuries to the plaintiffs’ dogs 

came from poor track conditions. 

 Randy Schaben testified that he raised greyhounds. Like Fortune, 

Schaben described the Bluffs Run track in 2000 as having an inconsistent 

surface—there were hard and soft spots on the surface of the track. He 

described the inconsistency this way: “The easiest way to probably explain 

it would be like running from a grassy lawn onto a sidewalk and then back 
 21 

into grass . . . . It’s just inconsistent footing, so to speak.” He further 

testified that in 2000 his dogs suffered a lot of injuries at the track. 

 James Lovely, a dog trainer who also raced greyhounds, testified that 

for a period of sixty and ninety days there were more dog injuries at Bluffs 

Run than there should have been. Although he was not sure what was 

causing so many injuries, his personal opinion was that there was a hard 

pan directly under the surface of the track. 

 The plaintiffs also produced evidence from engineers who tested the 

soil on the track and who confirmed that the track conditions went from 

hard to soft, conditions that could be “aggressive on a dog’s paws.” 

 Beverly Yates, one of the owners of Yates Kennel, testified that the 

kennel was claiming damages for injuries to twenty-four dogs for the year 

2000. A list of the dogs and their injuries is included in an exhibit in 

evidence. However, there was no medical testimony that attributed the 

cause of those injuries to race track conditions. This failure of proof was 

fatal to Yates Kennel’s negligence claim. Fortune’s testimony attributing the 

cause of a majority of the injuries to the track conditions was conjecture 

and therefore not sufficient to overcome this flaw. 

We agree with the defendants that evidence of increased injuries to 

dogs for a period of time was anecdotal, at best. Moreover, Fortune 

admitted that many other factors can account for injuries to greyhounds. 

These factors, she admitted, include genetics, conditioning, accidents at the 

kennel or while the dogs are being transported, dogs bumping into each 

other during the races, dogs racing while already injured, and the natural 

effects of racing on the body of a dog. Fortune conceded that the exhibit 

listing the injuries had no reference to track conditions but did have 

references to dogs falling and making contact with other dogs. A 

veterinarian called by the defendants confirmed that there are numerous 
 22 

causal factors related to greyhound injuries including genetics, where and 

how the dog was reared, nutrition, physical conditioning, type of 

competition, and a dog racing without adequate rest or with injury. 

VII. Disposition. 

 In sum, we conclude as a matter of law that the plaintiffs failed to 

produce sufficient evidence of their slander and negligence claims for 

submission of those claims to the jury. Accordingly, the district court erred 

in overruling the defendants’ motion for directed verdict. We therefore 

affirm the court of appeals decision and reverse the judgment of the district 

court. We remand for entry of a judgment in favor of the defendants. 

COURT OF APPEALS DECISION AFFIRMED; DISTRICT COURT 

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS. 

All justices concur except Larson, J., who takes no part.