United States Court of Appeals

for the Fifth Circuit

____________

No. 23-40281

____________

Jane Roe, 

Plaintiff—Appellant,

versus

Leighton Paige Patterson; Southwestern Baptist 

Theological Seminary, 

Defendants—Appellees.

______________________________

Appeal from the United States District Court 

for the Eastern District of Texas

USDC No. 4:19-CV-179

______________________________

Before King, Ho, and Engelhardt, Circuit Judges.

Per Curiam:

*

Jane Roe, a former student at Southwestern Baptist Theological 

Seminary, alleges that she was sexually assaulted by a fellow student in 2015. 

See, e.g., ROA.1482–85; 7057; 9731–35. She sued the Seminary and its 

president, Leighton Paige Patterson, for failing to protect her from the 

assaults and for allegedly defaming her after. She appeals the district court’s 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

May 3, 2024

Lyle W. Cayce

Clerk

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No. 23-40281

2

grant of summary judgment for Patterson and the Seminary on all claims. We 

now affirm in part and certify in part.

The district court, applying Texas law, produced two comprehensive 

and well-reasoned opinions. ROA.2410–26; 2489–93. We primarily agree 

with the district court’s analysis and do not feel the need to address most of 

Roe’s challenges, many of which are not responsive to the district court’s 

decisions.

We only discuss two statements Roe alleges to be defamatory. The 

first statement comes from a press release by Patterson’s lawyer. The press 

release stated that Roe “had given . . . many contradictory statements.”

ROA.9441. We agree with the district court that this statement could be 

defamatory by suggesting that Roe was untruthful. See Innovative Block of S. 

Tex., Ltd. v. Valley Builders Supply, Inc., 603 S.W.3d 409, 417 (Tex. 2020) 

(“A defamatory statement is one that tends to harm the reputation of another 

as to lower him in the estimation of the community or to deter third persons 

from associating or dealing with him.”) (cleaned up)). 

But Roe fails to prove damages resulting from this statement. See D 

Mag. Partners, L.P. v. Rosenthal, 529 S.W.3d 429, 434 (Tex. 2017) (noting 

damages as an essential element of a defamation claim). She recounts how 

reading various statements, including the press release, caused her mental 

pain and made her think about friendships she had lost due to the incidents. 

See Appellant’s Br. 68–69. This evidence does not “directly demonstrate the 

nature, duration, and severity of the mental anguish, which caused a 

substantial disruption in the claimant’s daily routine.” Exxon Mobil Corp. v. 

Hines, 252 S.W.3d 496, 505 (Tex. App.—Houston [14th Dist.] 2008, pet. 

denied) (citing EMC Mortg. Corp. v. Jones, 252 S.W.3d 857, 871 (Tex. App.—

Dallas 2007, no pet.)). And allegations that Roe lost friendships generally do 

not show that she lost friendships from the particular statement at issue. 

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Because Roe failed to prove the elements of her claim surrounding the press 

release, the district court was correct to grant summary judgment for 

Patterson and the Seminary.

The second statement comes from a letter submitted by Seminary 

donors to the Seminary’s Board of Trustees. The letter discussed several 

claims concerning Patterson’s reputation and tenure at the Seminary, 

including his handling of Roe’s allegations in 2015. It states that Roe’s 

“allegations of rape were false,” that she “had engaged in consensual sexual 

activities on more than one occasion . . . in public buildings at the Seminary,” 

“that campus security were shown the nude pictures that she texted to the 

male student [who allegedly raped her],” and that Patterson “desire[d] to 

meet with her . . . and attempt to help her recant her false allegations of rape 

before she continued with such false statements to the police.” ROA.8145. 

Roe alleges that these statements are defamatory. 

For the reasons explained below, Patterson’s potential liability for this 

statement depends on two questions: First, whether a person can be held 

liable for supplying defamatory material to a publisher. Second, if the answer 

to the first question is yes, whether Roe properly alleged such a claim. We 

lack clear authority on these two questions, and so we certify them to the 

Supreme Court of Texas.

Certification from the United States Court of 

Appeals for the Fifth Circuit to the Supreme Court 

of Texas, Pursuant to Art. V, § 3-C of the Texas 

Constitution and Rule 58 of the Texas Rules of 

Appellate Procedure.

To the Supreme Court of Texas and the Honorable

Justices Thereof:

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I. Style of the Case

The style of the case in which this certification is made is Roe v. 

Patterson, No. 23-40281, in the United States Court of Appeals for the Fifth 

Circuit. The case is on appeal from the United States District Court for the 

Eastern District of Texas. Federal jurisdiction is based on diversity of 

citizenship. Texas law applies to the substantive issues.

II. Background

For a detailed account of the facts, we respectfully refer to the district 

court’s two opinions granting summary judgment. See Roe v. Patterson, No. 

4:19-CV-179, 2023 WL 2632803 (E.D. Tex. Mar. 25, 2023); Roe v. Patterson, 

668 F.Supp.3d 582 (E.D. Tex. 2023). 

III. Legal Issues

Roe contends that Patterson is responsible for the allegedly 

defamatory statements in the donor letter described above. Even though 

Patterson did not sign the letter, Roe argues that he is vicariously responsible 

for its contents because his Chief of Staff, Scott Colter, was allegedly 

involved in its dissemination and preparation. 

The summary judgment record contained evidence of Colter’s 

involvement. See, e.g., ROA.8226–27; 8255; 8264; 8274–82; 9525–32; 9533–

34; 9540–48. Colter was well aware of the donors’ intent to submit a letter 

to the Board. He provided contact information for additional donors who 

might agree to sign the letter and weighed in on the timing and method of 

distribution. He was copied on email threads discussing letter drafts. And, 

according to a letter drafter, he provided “additional information about the 

2015 event.” ROA.9540–48. 

The summary judgment record also contained evidence that Colter 

undertook this involvement as an agent of Patterson. He helped route the 

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letter to Patterson’s lawyer for approval prior to its distribution, ROA.8255; 

8274–82, and communicated Patterson’s appreciation of the letter after. 

ROA.8306. Patterson and his wife also directly expressed these sentiments 

to the letter drafters themselves. ROA.8158; 9487.

We are persuaded that the summary judgment evidence creates a 

genuine issue over whether Colter was indeed acting as Patterson’s agent and 

“for the accomplishment of the objective of the agency,” In re Lipsky, 411 

S.W. 530, 547 (Tex. App.—Fort Worth 2013, pet. denied) (citing Minyard 

Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 576, 578–79 (Tex. 2002) and 

Louis v. Mobil Chem. Co., 254 S.W.3d 602, 610 (Tex. App.—Beaumont 2008, 

pet. denied)), during his involvement with the letter. We would therefore 

decline to affirm the district court’s judgment on those grounds. 

It’s less clear whether, assuming agency, Patterson can be liable for 

the allegedly defamatory statements in the letter.

First, assuming Patterson, though Colter, either directly drafted the 

language for the statements about Roe’s allegations or gave those statements 

to the letter drafters for inclusion, is he liable for them? There is not direct 

authority from the Texas Supreme Court on whether a person who supplies 

defamatory information to a third party is liable for any resulting publication. 

Texas appeals courts have suggested that this theory may be legitimate. See 

Wheeler v. Methodist Hosp., 95 S.W.3d 628, 639–40 (Tex. App.—Houston 

[1st Dist.] 2002) (“Although a party is generally not liable for a republication 

of a defamatory statement by another, ‘[i]f a reasonable person would 

recognize that an act creates an unreasonable risk that the defamatory matter 

will be communicated to a third party, the conduct becomes a negligent 

communication, which amounts to a publication just as effectively as an 

intentional communication.’” (quoting Marshall Field Stores, Inc. v. 

Gardiner, 859 S.W.2d 391, 396 (Tex. App.—Houston [1st Dist.] 1993)).

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Second, even if such liability is possible, did Roe properly allege it? In 

Roe’s briefing on appeal, she argues that Patterson, through Colter, is 

responsible for the defamatory statements in the letter. But she does not 

argue that Colter actually made those statements, either by writing them 

directly in the letter or by giving them to the drafters. The Texas appeals 

courts seem agreed that “[t]o recover on [a defamation] claim, the plaintiff 

must identify the alleged defamatory statement and the speaker.” Ameen v. 

Merck & Co., 226 F. App’x 363, 370 (5th Cir. 2007) (citing Abbott v. Pollock, 

946 S.W.2d 513, 520 (Tex. App.—Austin 1997, pet. denied)). See also Davis 

v. Prosperity Bank, 383 S.W.3d 795, 804 (Tex. App.—Houston [14th Dist.] 

2012, no pet.) (affirming grant of summary judgment in favor of defendant 

where plaintiffs failed to identify “any specific statements they claim[ed] to 

be defamatory”) (citing Bell v. Bennett, No. 02-10-00481-CV, 2012 WL 

858603, at *9, 11 (Tex. App.—Fort Worth Mar. 15, 2012, no pet.)); Rogers v. 

Soleil Chartered Bank, No. 02-19-00124-CV, 2019 WL 4686303, at *8–9 

(Tex. App.—Fort Worth Sept. 26, 2019, no pet.) (“When a party predicates 

a defamation claim on a writing, traditional Texas pleading rules require the 

party to be specific about what statement was false.”) (citing Kahn v. Beicker 

Eng’g, Inc., No. 04-94-00823-CV, 1995 WL 612402, at *2 (Tex. App.—San 

Antonio Oct. 18, 1995, pet. denied)).

Here, Roe identifies an allegedly defamatory statement—the letter’s 

references to her rape allegations—and also identifies an alleged speaker—

Patterson, through Colter—but she does not identify the speaker as having 

made the statement. Nor does her evidence identify any statements made by 

Colter or show that he provided language for the letter, even if it does suggest 

involvement with the letter generally and the provision of background 

information about the operative events. Instead, what she seems to argue is

that, because Colter helped with the letter, he is responsible for defamatory 

statements contained therein.

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We are uncertain whether this is enough to assert and maintain a 

defamation claim under Texas law. We therefore conclude that certification 

is warranted.

IV. Questions Certified

We hereby certify the following questions of law to the Supreme Court 

of Texas:

1. Can a person who supplies defamatory material to another for 

publication be liable for defamation?

2. If so, can a defamation plaintiff survive summary judgment by 

presenting evidence that a defendant was involved in preparing 

a defamatory publication, without identifying any specific 

statements made by the defendant?

We disclaim any intent that the Texas Supreme Court confine its reply 

to the precise form or scope of the legal questions we certify. We transfer to 

the Texas Supreme Court the record and appellate briefs in this case with our 

certification. We retain this appeal pending the Texas Supreme Court’s 

response.

For the foregoing reasons, we affirm the decision of the district court 

in part and certify the questions stated above to the Supreme Court of Texas.

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