Present: All the Justices 

WJLA-TV, ET AL. 

 OPINION BY 

v. Record No. 012050 JUSTICE LAWRENCE L. KOONTZ, JR. 

June 7, 2002 

STEPHEN M. LEVIN, M.D. 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Jonathan C. Thacher, Judge 

In this appeal, we consider various issues arising out of a 

judgment in favor of the plaintiff in an action alleging common 

law defamation and the unauthorized use of the plaintiff’s image 

for advertising purposes in violation of Code § 8.01-40(A). 

Much of the evidence adduced at trial was in conflict. However, 

applying settled appellate principles, we review the evidence 

and all reasonable inferences flowing therefrom in a light most 

favorable to the plaintiff-appellee, who prevailed in the trial 

court. RF&P Railroad v. Metro. Wash. Airports Auth., 251 Va. 

201, 208, 468 S.E.2d 90, 94 (1996). Additionally, we will 

recite the voluminous evidence in summary fashion, stating only 

the facts and proceedings relevant to appellants’ five 

assignments of error, which we will address seriatim.1 Majorana 

 

1

 The trial court record includes more than 3100 pages of 

pleadings and court documents, thirteen volumes of trial 

transcripts, several more volumes of deposition transcripts, and 

hundreds of pages of exhibits. 
v. Crown Central Petroleum Corp., 260 Va. 521, 523, 539 S.E.2d 

426, 427 (2000). 

BACKGROUND 

In early 1997, Stephen M. Levin, M.D., an orthopedist whose 

professional office is located in Vienna, Virginia, was the 

subject of a hearing held by the Virginia Board of Medicine 

concerning complaints filed by a number of his female patients 

who asserted that certain treatment by him had been medically 

inappropriate. The specific medical condition involved was 

“piriformis syndrome,” which may be defined generally as a 

condition in which the piriformis muscle in the buttock 

irritates the sciatic nerve causing pain in the buttock, lower 

back, and leg. Dr. Levin’s treatment for piriformis syndrome 

involves intravaginal manipulation of the piriformis muscle. 

The Board of Medicine dismissed those complaints. One of 

the complaining patients publicly criticized the Board’s 

decision and brought her complaints to the attention of the 

media defendants in the present case. The media defendants’ 

actions in investigating Dr. Levin’s treatment for piriformis 

syndrome and in broadcasting reports concerning that 

investigation spawned the present litigation. 

On May 28, 1999, Dr. Levin filed a motion for judgment in 

the Circuit Court of Fairfax County against WJLA-TV, Allbritton 

Communications Company, Allbritton Groups, Inc., Perpetual 

2
Corporation, and against Candace Mays and Archie Kelly, two of 

WJLA-TV’s newsroom employees, individually (collectively, WJLA). 

WJLA-TV broadcasts on Channel 7 in the Washington, D.C. 

metropolitan area, including Vienna, Virginia. Relevant to this 

appeal, Dr. Levin alleged in count one of his motion for 

judgment, and again in a second amended motion for judgment, 

that WJLA defamed Dr. Levin in a news story aired as part of 

WJLA-TV’s 11:00 p.m. broadcast on November 18, 1997, and in 

advance advertisements and promotional announcements relating to 

that news story, by accusing him of sexually assaulting female 

patients and performing inappropriate medical procedures. 

The broadcast of the news story, which identified Dr. Levin 

by name and used his image, recounted the allegations of several 

of Dr. Levin’s female patients that they had been subjected to 

“inappropriate pelvic exams” during treatment by Dr. Levin for 

piriformis syndrome. The broadcast recounted that despite the 

testimony of other female patients with similar complaints about 

his treatment of them, the Board of Medicine had closed the case 

against Dr. Levin for insufficient evidence. The broadcast also 

recounted that one of Dr. Levin’s patients had filed a 

$1 million law suit against him as a result of his treatment of 

her. The broadcast included the videotaped statements of Dr. 

Loren M. Fishman, who was described as having “literally 

[written] the book on piriformis syndrome,” and who was reported 

3
to have said that he had never heard of “vaginal manipulation” 

as a treatment for this syndrome. Also included were assertions 

that leading experts from George Washington University Hospital 

and the Mayo Clinic in Rochester, Minnesota had said that they 

had never heard of treating piriformis syndrome by “vaginal 

manipulation.” Finally, the broadcast concluded with a 

statement that Dr. Levin “has denied doing anything wrong,” but 

that he “declined an on camera interview.” 

In promotional announcements preceding the broadcast, WJLA 

referred to its “undercover” investigation “expos[ing] the 

intimate violation of women at the hands of their doctor,” which 

amounted to “sexual assault,” and repeatedly referred to the 

unnamed subject of the news story as “the ‘Dirty Doc’ ” and “the 

X-Rated Doctor.” Two of the televised promotional announcements 

featured Dr. Levin’s image, which Candace Mays had obtained 

without his permission by using a hidden videocamera while 

posing as a patient at his office. 

Dr. Levin alleged that he had suffered unspecified “general 

and special damages” as a result of the defamatory statements. 

He further alleged that WJLA had been negligent in making the 

defamatory statements and that they had done so with actual 

malice, either knowing that the statements were false or in 

reckless disregard of the truth or falsity of the statements. 

4
In count five of the motion for judgment, Dr. Levin alleged 

that the use of his image without his consent in two of the 

televised promotional announcements constituted a 

misappropriation of his likeness for advertising or trade 

purposes in violation of Code § 8.01-40(A). Dr. Levin alleged 

that as a result of this misappropriation he had suffered 

humiliation, mental anguish, and damage to his status and 

reputation. 

In a general ad damnum clause at the conclusion of the 

amended motion for judgment, Dr. Levin sought $30 million in 

compensatory damages. He also sought $350,000 in punitive 

damages. 

WJLA filed an answer generally denying the allegations of 

Dr. Levin’s amended motion for judgment. WJLA also raised 

various affirmative defenses, including assertions that the 

alleged defamatory statements were newsworthy and fair comment 

on a matter of public concern. Additionally, WJLA asserted that 

their use of Dr. Levin’s image was not in violation of Code 

§ 8.01-40 because it was used to promote a newsworthy story and 

not for advertising. 

A jury trial was held in the trial court and extended over 

a period of three weeks. The respective positions of the 

parties that developed from the evidence during the trial, and 

5
which they have continued to maintain in this appeal, can be 

summarized fairly as follows. 

Dr. Levin presented evidence that he had practiced 

orthopedic medicine for more than thirty years. He established 

that diagnosing piriformis syndrome through intravaginal 

manipulation of the piriformis muscle is a recognized medical 

procedure. He also established that he was regarded by some as 

an expert in the field of the diagnosis and treatment of 

piriformis syndrome, having diagnosed and treated thousands of 

patients for this condition, having written articles and given 

lectures on his treatment modality of this syndrome, and having 

received referrals from other doctors for his treatment of this 

syndrome. Dr. Levin also presented evidence that his treatment 

modality is widely accepted in the medical community. 

Dr. Levin presented evidence that the complaints to the 

Board of Medicine were made by a small number of his patients 

who were included among those interviewed by WJLA for the news 

story. He contended that the Board of Medicine had conducted a 

thorough investigation and had dismissed their complaints, fully 

exonerating him of any wrongdoing. 

Dr. Levin further established that approximately five 

months after the Board of Medicine had concluded its 

investigation, Candace Mays, a television news producer, was 

contacted by Jean Jessup, one of the patients whose complaint 

6
had been reviewed by the Board of Medicine. Based on this 

contact, and despite having been informed by the Board of 

Medicine that Dr. Levin had been exonerated of any wrongdoing, 

Mays and Archie Kelly, a television news reporter, ultimately 

determined to make Dr. Levin the subject of an undercover 

investigation to be broadcast during the television ratings 

“sweeps” period in November 1997. 

At the conclusion of Dr. Levin’s case-in-chief, WJLA moved 

to strike his evidence regarding counts one and five of the 

motion for judgment and filed briefs in support of those 

motions. The trial court denied both motions. WJLA also filed 

a motion and supporting brief to bar any claim by Dr. Levin for 

damages to his incorporated medical practice. The arguments 

made on these motions form the basis for much of the argument of 

the issues raised in this appeal and, accordingly, we will 

address them in more detail within our subsequent discussion of 

the individual assignments of error. 

WJLA presented, among other things, testimony from nine of 

Dr. Levin’s patients and a medical expert. Each patient 

testified to her subjective belief that Dr. Levin’s treatment 

had been abusive and humiliating. Some of the patients also 

testified that Dr. Levin had fondled their breasts on what they 

considered to be a pretext of performing exams for breast 

cancer. 

7
Dr. William C. Lauermann, an orthopedic surgeon, testified 

on behalf of WJLA that piriformis syndrome is a controversial 

diagnosis. Dr. Lauermann further testified that in his opinion 

intravaginal manipulation of the piriformis muscle would not be 

a proper treatment modality for piriformis syndrome, which is 

generally treated with rest, physical therapy, and antiinflammatory drugs. Dr. Lauermann also testified that 

performing breast exams was “completely out of the realm of 

orthopedics.” 

The jury returned its verdict in favor of Dr. Levin on 

counts one and five of the motion for judgment, awarding him 

$2 million damages for defamation and $575,000 for the 

unauthorized use of his image.2 WJLA filed a post-verdict 

“motions to strike Count Five . . . and for a new trial on Count 

One and Count Five.” In a final judgment order dated June 22, 

2001, the trial court denied the post-verdict motions and 

entered judgment for Dr. Levin on the jury’s verdict. In an 

order dated December 20, 2001, we awarded WJLA this appeal. 

 

2

 Prior to submitting the case to the jury, Dr. Levin 

withdrew his claim for punitive damages and no punitive damages 

were awarded to him. 

8
DISCUSSION 

Assignments of Error

WJLA assigns five errors to the judgment of the trial 

court: 

1. The Trial Court erred by declining to hold that 

each of the six separate publications at issue 

are not actionable as a matter of law. 

2. The Trial Court erred by submitting to the jury a 

verdict form that permitted it to base its 

verdict on six separately allegedly defamatory 

publications collectively. 

3. The Trial Court erred by failing to strike Count 

5 or to set aside the verdict because the record 

does not support a cause of action for violation 

of Va. Code § 8.01-40(A). 

4. The Trial Court erred by failing to set aside or 

reduce the jury’s $2,000,000 defamation award of 

undifferentiated actual and presumed damages. 

5. The Trial Court erred by declining to instruct 

the jury that it could not award damages based on 

the decline in value of Dr. Levin’s incorporated 

medical practice. 

Whether the Publications were Defamatory

In count one of his motion for judgment, Dr. Levin cited 

collectively the following statements made or published by WJLA 

as having defamed him: 

An advertisement in the Washington, D.C. metropolitan area 

television supplement of the Washington Post that read: 

Q: When does a physical examination become a sexual 

assault? A: When you go to the ‘Dirty Doc’. 

9
FIND OUT WHAT THIS ‘DOCTOR’ HAS DONE AND YOU’LL BE 

APPALLED. FIND OUT HOW MANY WOMEN HE HAS DONE IT TO 

AND YOU’LL BE ASTONISHED. THE DETAILS ON THE ‘DIRTY 

DOC’ IN A NEWS 7 SPECIAL REPORT 

TONIGHT 11:00 

An advertisement played on various radio stations in the 

Washington, D.C. metropolitan area that stated: 

A story so outrageous it almost defies description. 

There is a local doctor here who has a very, very 

peculiar method for treating his patients. He calls 

it a cure. The women who have received his treatment 

call it sexual assault. What exactly does he do? 

When you find out, you’ll be outraged. When you find 

out how many women he has done it to, you’ll be 

amazed. Reminder: The X-rated doctor, tonight on News 

7 at 11:00. 

A promotional segment on WJLA featuring Dr. Levin’s image 

with an audio announcement that stated: 

“When does a doctor’s treatment become a sexual 

assault? The story Tuesday at eleven.” 

Another similar segment featuring Dr. Levin’s image with an 

audio announcement that stated: 

“News 7 goes under cover to expose the intimate 

violation of women at the hands of their doctor. 

Don’t miss this special report Tuesday on News 7 at 

eleven.” 

Dr. Levin also asserted that various statements made during 

the broadcast of the news story on November 18, 1997, were 

defamatory. Those statements included references to “vaginal 

manipulation,” “highly unusual pelvic examinations,” and 

“inappropriate pelvic exams.” Dr. Levin asserted that these 

10
terms were intended to convey that his treatment modality for 

piriformis syndrome was not a medically recognized procedure and 

were intended to convey that he had sexually assaulted his 

patients. 

Dr. Levin also asserted that he was defamed by statements 

made to Dr. Fishman by Mays and Kelly that they were 

investigating an unnamed doctor who was “sexually approaching 

his female patients,” “digitally stimulating [his patients] in 

the vagina and causing pain to them,” and similar statements. 

It was subsequently established at trial that Dr. Levin 

contacted Dr. Fishman, after Dr. Fishman had spoken with Mays 

and Kelly, and provided him with details of his professional 

background and the procedure he performed on his patients with 

piriformis syndrome. After receiving this information, Dr. 

Fishman contacted WJLA and retracted statements that he had made 

during the taped interview that he considered the unnamed 

doctor’s actions to be inappropriate. Nonetheless, WJLA cited 

Dr. Fishman in its news story as confirming that the procedure 

was not medically appropriate. 

“Whether statements complained of in a defamation action 

fall within the type of speech which will support a state 

defamation action is a matter for the trial judge to determine 

as a matter of law” before the matter may be properly submitted 

11
to the jury. Yeagle v. Collegiate Times, 255 Va. 293, 296, 497 

S.E.2d 136, 138 (1998). 

[A defamation] plaintiff must show that the alleged 

[defamation] was published “of or concerning” him. He 

need not show that he was mentioned by name in the 

publication. Instead, the plaintiff satisfies the ‘of 

or concerning’ test if he shows that the publication 

was intended to refer to him and would be so 

understood by persons reading [or hearing] it who knew 

him . . . . But if the publication on its face does 

not show that it applies to the plaintiff, the 

publication is not actionable, unless the allegations 

and supporting contemporaneous facts connect the 

[defamatory] words to the plaintiff. 

The Gazette, Inc. v. Harris, 229 Va. 1, 37, 325 S.E.2d 713, 738 

(1985) (internal citations omitted). 

WJLA asserts in its first assignment of error that none of 

the publications in question are actionable in defamation as a 

matter of law and, accordingly, that the trial court erred by 

failing to strike count one of Dr. Levin’s motion for judgment 

at the conclusion of his case-in-chief. Our consideration of 

this issue, however, is limited by the procedural posture in 

which it necessarily comes to us in this particular case. At 

trial, without objection by WJLA, the trial court granted Dr. 

Levin’s requested instruction 27 which told the jury that it 

could return a verdict for Dr. Levin if he proved by the greater 

weight of the evidence that WJLA made “any one” of the 

statements in question. Accordingly, WJLA has waived the issue 

whether all the publications are actionable and has limited our 

12
independent review of the record regarding this assignment of 

error to whether any one publication was actionable as a matter 

of law. 

As we have noted above, in the trial court the various 

alleged defamatory publications were collectively asserted and 

presented as one count of defamation. While it is true, as WJLA 

points out, that each publication of a defamatory statement is a 

separate tort and, indeed, generally subsequent republications 

of such a statement are separate torts, Weaver v. Beneficial 

Finance Co., 199 Va. 196, 199, 98 S.E.2d 687, 690 (1957), a 

plaintiff is not required to bring a defamation action in that 

fashion. Of course, a plaintiff is not entitled to recover 

damages for publications that are not actionable as a matter of 

law or that are not proven to be “of or concerning” him. 

However, we are of opinion that statements or publications by 

the same defendant regarding one specific subject or event and 

made over a relatively short period of time, some of which 

clearly identify the plaintiff and others which do not, may be 

considered together for the purpose of establishing that the 

plaintiff was the person “of or concerning” whom the alleged 

defamatory statements were made. This is so even where the 

publication identifying the plaintiff is made subsequent to 

those that do not identify him. See M.C. Dransfield, 

Annotation, What evidence is admissible to identify plaintiff as 

13
person defamed, 95 A.L.R.2d 227 § 4 (1964); see also Gelencser 

v. Orange County Publications, 498 N.Y.S.2d 13, 14 (N.Y. App. 

Div. 1986) (no error to permit plaintiff to include allegations 

that references from which he could be identified that appeared 

in subsequent news story concerning allegations of child abuse 

provided the context whereby he could be identified as the 

subject of two prior articles which used fictitious names). 

This principle is manifestly applicable to the undisputed 

facts of the present case. The thrust of Dr. Levin’s claim of 

defamation was that WJLA’s publications collectively accused him 

of sexually assaulting some of his female patients under the 

guise of treating them for piriformis syndrome. It is 

undisputed that all of WJLA’s publications concerned Dr. Levin’s 

treatment modality and were made within a relatively short 

period of time. WJLA concedes that its televised promotional 

publications, which included Dr. Levin’s images, were “of or 

concerning” Dr. Levin. That being the case, it cannot be said 

that the other publications, including the statements to Dr. 

Fishman, considered collectively were not as a matter of law “of 

or concerning” Dr. Levin. 

In The Gazette, we held, as a matter of state law, that 

[I]n an action brought by a private individual to 

recover actual, compensatory damages for a defamatory 

publication, the plaintiff may recover upon proof by a 

preponderance of the evidence that the publication was 

false, and that the defendant either knew it to be 

14
false, or believing it to be true, lacked reasonable 

grounds for such belief, or acted negligently in 

failing to ascertain the facts on which the 

publication was based . . . . In addition, . . . such 

liability may be based upon negligence, whether or not 

the publication in question relates to a matter of 

public or general concern. 

229 Va. at 15, 325 S.E.2d at 724-25. 

We went on to say that “this negligence standard is 

expressly limited, however, to circumstances where the 

defamatory statement makes substantial danger to reputation 

apparent.” Id., 325 S.E.2d at 725. Whether a defamatory 

statement “makes substantial danger to reputation apparent” is a 

question of law to be resolved by the trial court. Id.

As to each of the alleged defamatory publications, it is 

self-evident that when these statements are understood to apply 

to Dr. Levin, it is manifestly apparent that they posed a 

substantial danger to his reputation as a physician. Moreover, 

in its brief in support of the motion to strike count one of the 

motion for judgment at the conclusion of Dr. Levin’s case-inchief, WJLA conceded that “[l]ooked at most favorably to [Dr. 

Levin] . . . there may be negligence.”3 For these reasons, the 

 

3

 During the trial, WJLA at times contended that Dr. Levin 

was a public figure and, thus, could prevail only upon a showing 

of actual malice. WJLA has not expressly raised this contention 

on appeal. Moreover, it is apparent on the record that Dr. 

Levin “did not occupy a position of ‘such persuasive power and 

influence’ [in society] that he could be deemed a public figure” 

for all purposes, Fleming v. Moore, 221 Va. 884, 891-92, 275 

15
trial court did not err in concluding that there was sufficient 

evidence to submit to the jury the issue whether WJLA was 

negligent in making any of the six publications and, if so, for 

a determination of the actual damages Dr. Levin suffered as a 

result. 

WJLA asserts, however, that because Dr. Levin sought 

presumed as well as actual damages, the trial court was required 

to make the further determination whether there was evidence of 

actual malice before submitting the case to the jury. See Gertz 

v. Robert Welch, Inc., 418 U.S. 323, 349 (1974); Shenandoah 

Publishing House v. Gunter, 245 Va. 320, 324, 427 S.E.2d 370, 

372 (1993). WJLA contends that there was insufficient evidence 

of actual malice and, thus, the trial court erred in submitting 

each of the six instances of publication to the jury with 

instructions that presumed damages could be awarded. 

In the context of a claim of defamation, “actual malice,” 

often called New York Times malice in reference to the United 

Stated Supreme Court’s decision in New York Times v. Sullivan, 

376 U.S. 254 (1964), requires that “the plaintiff show[] that 

 

S.E.2d 632, 637 (1981), nor would the fact that he was a subject 

of complaints to the Board of Medicine place him so 

significantly in the public eye as to make him a “public figure” 

except for the limited purpose of reporting on the specifics of 

the Board’s public proceedings. Accordingly, in this case Dr. 

Levin is to be considered a private individual for purposes of 

his claims against WJLA. 

16
the defendant knew the publication to be false or evidenced 

reckless disregard for the truth.” Great Coastal Express, Inc. 

v. Ellington, 230 Va. 142, 149, 334 S.E.2d 846, 851 (1985). We 

agree with WJLA that where a private individual alleges 

defamation by a news-media defendant involving a matter of 

public concern, presumed damages cannot be awarded in the 

absence of actual malice. Id.

In instructing the jury, the trial court directed that the 

jury should answer the following special interrogatory after 

reaching its verdict on the claim for defamation: 

 If you found for Dr. Levin on the Defamation 

count against [WJLA], do you further find by clear and 

convincing evidence that [WJLA] knew the defamatory 

statements were false or made them so recklessly as to 

amount to a willful disregard for the truth, that is 

with a high degree of awareness that the statements 

probably were false? 

The jury responded in the affirmative. Thus, although we 

conduct an “independent examination of the whole record” to 

determine whether the evidence was sufficient to support a 

finding of actual malice, The Gazette, 229 Va. at 19, 325 S.E.2d 

at 727, we view the record in a light favorable to Dr. Levin, 

including the jury’s finding as demonstrated by its response to 

the special interrogatory, and we will affirm the trial court’s 

decision to submit that issue to the jury, unless it is plainly 

wrong or without support in the record. See id.; Code § 8.01-

680. 

17
We need not recount all the evidence that would support the 

trial court’s decision to submit the question of actual malice 

to the jury and the jury’s affirmative finding. Rather, we 

simply note that the jury could have based its finding of actual 

malice, for example, on WJLA’s use of Dr. Fishman’s statement 

that Dr. Levin’s treatment modality for piriformis syndrome was 

improper despite its knowledge that Dr. Fishman had retracted 

that statement. The jury could also have found that in its 

promotional publications WJLA, directly or by implication, 

accused Dr. Levin of committing criminal sexual assaults while 

knowing that no criminal charges had been brought against him 

and having reason to know, based on the results of the Board of 

Medicine’s investigation, that such charges probably could not 

be sustained. 

In short, the question whether WJLA acted with actual 

malice was sufficiently at issue to warrant having the jury 

decide the matter. The jury having found by special 

interrogatory that WJLA acted with actual malice, Dr. Levin was 

entitled to receive presumed as well as actual damages. 

Accordingly, we hold that the trial court did not err in 

submitting the issues of actual malice and presumed damages to 

the jury. 

Finally, WJLA asserts that the November 18, 1997 news story 

was not defamatory as a matter of law because the statements 

18
made therein were either not proven to be false or were 

statements of opinion not actionable as defamation. WJLA 

contends that when the broadcast is viewed as a whole, it “does 

not accuse Levin of anything; rather, it raises legitimate 

questions about his conduct arising from charges made against 

him by his former patients.” We disagree. 

Speech that does not contain a provably false factual 

connotation is sometimes referred to as “pure expressions of 

opinion,” and cannot normally form the basis of an action for 

defamation. See, e.g., Williams v. Garraghty, 249 Va. 224, 233, 

455 S.E.2d 209, 215 (1995); Chaves v. Johnson, 230 Va. 112, 119, 

335 S.E.2d 97, 101 (1985). However, the United States Supreme 

Court has specifically declined to hold that statements of 

opinion are categorically excluded as the basis for a common law 

defamation cause of action. Milkovich v. Lorain Journal Co., 

497 U.S. 1, 18-21 (1990). Moreover, factual statements made to 

support or justify an opinion can form the basis of an action 

for defamation. Williams, 249 Va. at 233, 455 S.E.2d at 215; 

see also Swengler v. ITT Corp., 993 F.2d 1063, 1071 (4th Cir. 

1993). Whether an alleged defamatory statement is one of fact 

or of opinion is a question of law to be resolved by the trial 

court. Chaves, 230 Va. at 119, 335 S.E.2d at 102. 

As we have already noted in discussing whether the evidence 

was sufficient to support the jury’s finding of actual malice, 

19
statements made during the broadcast accused Dr. Levin of having 

committed criminal sexual assault. Moreover, WJLA did not 

object to Dr. Levin’s jury instruction 34 providing, inter alia, 

that the statements attributed to WJLA were “understood to mean 

that Dr. Levin has committed the crime of sexually assaulting 

his patients and that Dr. Levin had intimately violated his 

patients.” The news story also stated that Dr. Levin’s 

treatment modality for piriformis syndrome was not medically 

appropriate, and WJLA used statements by Dr. Fishman to support 

that assertion while knowing that Dr. Fishman had retracted 

those statements. 

In this context, the statements made by Dr. Levin’s former 

patients were arguably expressions of their own subjective 

opinions about the treatment they had received. However, WJLA 

reported the allegations contained in these statements as fact. 

Indeed, it did so after having told its viewers to watch this 

broadcast to find out what the “Dirty Doc” had done to his 

patients and that his treatments were sexual assaults on his 

patients. WJLA simply ignored or minimized competent data and 

opinions that contradicted the image of Dr. Levin that it 

conveyed to its viewing audience. Therefore, this particular 

news story contained factual statements, which were verifiably 

false and can form the basis of a defamation action. Thus, we 

hold that the trial court did not err in rejecting WJLA’s 

20
argument that the statements made in the news story were 

constitutionally protected opinion. 

For these reasons, we hold that the trial court did not err 

in failing to strike the evidence on count one of the motion for 

judgment. 

The Verdict Form

Over WJLA’s objection, the case was submitted to the jury 

with a verdict form that did not require the jury to make a 

specific finding that each of the six publications was 

defamatory. Rather, the verdict form permitted the jury to make 

a single general finding for Dr. Levin “on the Defamation count 

against [WJLA] and assess compensatory damages in the amount of 

$ _______.” WJLA contends that this was error because the jury 

could have awarded damages for publications that it did not find 

to be defamatory. 

Under different circumstances, we well might agree with 

WJLA’s position on this issue. This case, however, does not 

involve separate and distinct defamation claims based on 

separate and distinct publications or statements. As we have 

explained above, the case was filed and tried on one count of 

defamation based collectively on publications and statements by 

the same defendant, its agents, and its employees and all 

regarding Dr. Levin’s treatment modality of piriformis syndrome. 

Additionally, WJLA agreed to instructions 26 and 27 which 

21
permitted the jury to return a verdict for Dr. Levin if “any” of 

the publications were made by WJLA and were defamatory. Because 

the case was submitted to the jury in that fashion and our 

independent review of the record does not reveal that the use of 

a special verdict form would have altered the jury’s award of 

damages or the amount of those damages, we are of opinion that 

the use of the general verdict form was not reversible error in 

this particular case.4

Failure to Strike or Set Aside Verdict on Count Five

WJLA contends that the trial court erred in failing to 

strike count five of the motion for judgment because Code 

§ 8.01-40 is not applicable to promotional announcements for 

news reports on matters of public concern. Dr. Levin responds 

that WJLA has waived this issue because it submitted an 

instruction which stated that this “newsworthiness exception” 

would not apply to a use which was “willful, wanton, and 

reckless.” We disagree with Dr. Levin. 

Initially, we reject Dr. Levin’s assertion of a waiver on 

this issue. WJLA’s motion to strike count five, asserted at the 

 

4

 We also reject WJLA’s contention that because each 

publication could be considered a separate tort, the trial court 

was required to use a special verdict form. WJLA again relies 

on Weaver, supra, to support this proposition, and, as we have 

already explained, Weaver is inapposite in this case because of 

the fashion in which the present case was submitted to the jury. 

22
close of Dr. Levin’s case-in-chief and reasserted at the close 

of all the evidence, was premised, in part, on the contention 

that there should be a “newsworthiness exception” to Code 

§ 8.01-40. Responding to the motion to strike, Dr. Levin 

contended that such an exception would not apply in this case 

because the “promotional and so-called ‘news’ broadcasts were 

infected with substantial and material falsification.” The 

trial court apparently concurred in this contention and denied 

WJLA’s motion to strike count five. 

Both parties proffered instructions on the application of 

Code § 8.01-40. Dr. Levin’s proposed instruction did not 

address the “newsworthiness exception” and his proposed 

limitation, but merely stated the elements of misappropriation 

as defined by the statute. WJLA objected to this instruction, 

and, while continuing to contest the applicability of Code 

§ 8.01-40 to the facts of this case, proffered an alternative 

instruction consistent with the position Dr. Levin had asserted 

in arguing against the motion to strike. 

Upon WJLA’s objection, the trial court initially took Dr. 

Levin’s proposed instruction under advisement. When WJLA’s 

competing instruction was proffered, Dr. Levin at first 

objected, then agreed to its being given, but further stated 

that the trial court should also give his instruction. The 

trial court indicated that both instructions would be given. 

23
Dr. Levin’s counsel then inquired whether the trial court 

had “rule[d] on the motion to strike” count five. The trial 

court indicated that the motion to strike had been denied. WJLA 

then objected to the granting of Dr. Levin’s instruction because 

it did not include the “newsworthiness exception,” which had 

been the basis of Dr. Levin’s argument against the motion to 

strike count five. Despite having concurred in WJLA’s 

instruction, Dr. Levin insisted that the “[newsworthiness 

exception] is not the law.” WJLA indicated to the trial court 

that its instruction included the elements of the statute given 

in Dr. Levin’s instruction. The trial court agreed and reversed 

its decision to give Dr. Levin’s instruction. 

Normally, when a party proffers or agrees to an instruction 

which is contrary to a position previously argued during trial, 

the agreed instruction becomes the law of the case, and the 

party is deemed to have waived its previous objection. See, 

e.g., T.L. Garden & Associates v. First Savings Bank of 

Virginia, 262 Va. 28, 31, 546 S.E.2d 705, 706 (2001). However, 

when the record is clear that the party is not waiving its 

objection to the prior ruling, but merely proffering or agreeing 

to an instruction consistent with the trial court’s prior 

ruling, the previous objection will not be waived. See, e.g., 

Wright v. Norfolk & Western Ry. Co., 245 Va. 160, 169-70, 427 

S.E.2d 724, 729 (1993); see also Code § 8.01-384. 

24
In the present case, Dr. Levin’s proffered instruction, to 

which WJLA objected, did not comport with his prior argument or 

the ruling of the trial court. By contrast, WJLA’s instruction 

merely stated the law that the trial court had adopted in 

overruling WJLA’s motion to strike. Moreover, it is clear from 

the post-verdict record that WJLA continued to assert in its 

motion to set aside the jury’s verdict that Code § 8.01-40 was 

not applicable on the facts of this case. Accordingly, we hold 

that WJLA did not waive its objection to the trial court’s 

ruling denying the motion to strike count five. The record 

establishes that WJLA was not inviting error by proffering the 

instruction, but was merely seeking to have the trial court’s 

position on the law, to which WJLA had previously objected, 

clearly stated to the jury. Wright, 245 Va. at 170, 427 S.E.2d 

at 129. 

We now turn to the question whether the nonconsensual use 

of a person’s name or image by the news media to promote a news 

story about that person is a tortious unauthorized use under 

Code § 8.01-40. Code § 8.01-40 is a statutory codification of 

one of the four common law torts of invasion of privacy.5 We 

 

5

 The common law torts of invasion of privacy are (1) 

unreasonable intrusion upon the plaintiff’s seclusion, or 

solitude, or into his private affairs; (2) public disclosure of 

true, embarrassing private facts about the plaintiff; (3) 

publicity which places the plaintiff in a false light in the 

25
discussed the application of Code § 8.01-40 in some detail in 

Town & Country Properties, Inc. v. Riggins. There we stated 

that: 

 Code § 8.01-40(A) provides that if a person’s 

“name, portrait, or picture” is used for “advertising 

purposes or for the purposes of trade” without written 

consent, the person may maintain a suit in equity to 

prevent the use, and may sue and recover damages for 

any injuries resulting from such use. 

. . . . 

 Use for “advertising purposes” and use “for the 

purposes of trade” are separate and distinct statutory 

concepts. Claims based, as here, on the use of a name 

“for advertising purposes” have received a more 

liberal treatment by the courts than those based on 

use “for purposes of trade.” The unauthorized use of 

a person’s name as an integral part of advertising 

matter “has almost uniformly been held actionable.” 

And, a name is used “for advertising purposes” when 

“it appears in a publication which, taken in its 

entirety, was distributed for use in, or as part of, 

an advertisement or solicitation for patronage of a 

particular product or service.” 

 

public eye; and (4) misappropriation of plaintiff’s name or 

likeness for commercial purposes. William L. Prosser, The Law 

of Torts § 117 (4th ed. 1971). By codifying only the last of 

these torts, the General Assembly has implicitly excluded the 

remaining three as actionable torts in Virginia. See Falwell v. 

Penthouse, 521 F. Supp. 1204, 1206 (W.D. Va. 1981). 

Accordingly, we agree with WJLA and the amici curiae that, to 

the extent that count five asserts a claim for false light 

publicity, it fails to state a proper cause of action. Rather, 

in Virginia where, as here, a plaintiff alleges that the 

defendant made an unauthorized use of the plaintiff’s name or 

image in a context that is false and would be highly offensive 

to a reasonable person, his remedy is to prove that the context 

was defamatory, and not that the use was a misappropriation. 

Cf. Rodney A. Smolla, 2 Law of Defamation, § 10:10 (2d ed. 

2000) (contrasting the elements of privacy torts and 

defamation). 

26
249 Va. 387, 394-95, 457 S.E.2d 356, 362 (1995) (citations 

omitted). 

We recognized in Town & Country Properties that Virginia is 

among the few states, including New York, that have limited the 

application of the common law privacy torts by statute. We 

further recognized that under certain circumstances we may “look 

to New York courts for guidance” by considering the construction 

given by that state’s courts to the similar statutory right of 

privacy enacted by its legislature. Id. at 394, 457 S.E.2d at 

362. 

In Messenger v. Gruner+Jahr Printing and Publishing, 727 

N.E.2d 549 (N.Y. 2000), the New York Court of Appeals reiterated 

its long-standing position that the right of privacy does not 

extend “to reports of newsworthy events or matters of public 

interest.” Id. at 552. So long as there is a “real 

relationship between” the use of a person’s name or image and 

the report, and the report is not merely “an advertisement in 

disguise,” there is no misappropriation. Id. at 554. Applying 

this principle to the facts in Messenger, the New York Court of 

Appeals concluded that this was so even where a “false 

implication . . . might be reasonably drawn” from the use of the 

plaintiff’s name or image. Id.

27
Dr. Levin asserts that the promotional announcements were 

intended, in part, to entice the public to view the WJLA news 

broadcast in order to increase the station’s ratings during a 

critical “sweeps” period and, thus, potentially increase future 

advertising revenue. While this may be so, it cannot reasonably 

be disputed that the principal purpose of WJLA’s announcements 

was to promote a report “of [a] newsworthy event[] or matter[] 

of public interest.” It is a newsworthy event and a matter of 

public interest when a physician is accused by his patients of 

sexually assaulting them. Accordingly, we hold that the use of 

Dr. Levin’s image in WJLA’s promotional announcements was not an 

unauthorized use prohibited under Code § 8.01-40, and the trial 

court erred in failing to strike count five. For these reasons, 

we will reverse the judgment in favor of Dr. Levin and the award 

of $575,000 on count five and enter final judgment on that count 

for WJLA.6

Failure to Set Aside or Reduce Damages for Defamation

We have already determined that the evidence was sufficient 

to support an award in favor of Dr. Levin for both actual and 

presumed damages resulting from WJLA’s defamatory statements. 

 

6

 Because we conclude that count five was improperly 

submitted to the jury, we do not address WJLA’s further 

contention that the damages awarded for count five were 

duplicative of the damages awarded for defamation. 

28
WJLA nonetheless contends that the amount of those damages was 

excessive, and that the trial court erred in failing to set 

aside or reduce that award. The substance of WJLA’s argument on 

appeal is that the award of $2 million, which it contends is ten 

times larger than any prior award in a defamation action 

sustained by this Court, bears no reasonable relationship to the 

actual loss suffered by Dr. Levin. Thus, it further contends 

that the trial court should have set aside the verdict and 

awarded WJLA a new trial or ordered a substantial remittitur.7 

Dr. Levin responds that he presented evidence of actual damages 

in excess of $900,000 and that the balance of the verdict 

represents adequate compensation for the injury to his 

reputation and the humiliation and mental anguish he suffered as 

a result of WJLA’s defamatory conduct.8

 

7

 In its post-trial brief, WJLA contended that an award of 

$50,000 would be appropriate. 

8

 Some courts have noted that it is the injury to reputation 

which is the essence of a claim for defamation, citing not legal 

precedent, but Shakespeare’s Iago: 

Good name in man and woman, dear my lord, 

Is the immediate jewel of their souls. 

Who steals my purse steals trash; 

'Tis something, nothing; 

'Twas mine, 'tis his, and has been slave to thousands; 

he that filches from me my good name 

Robs me of that which not enriches him, 

And makes me poor indeed. 

Othello, Act III, scene iii. 

29
With respect to claims of defamation, we have said that 

“[t]o ascertain what is a fair and reasonable compensation for 

such an injury, inflicted under the circumstances, is not easy. 

It has been repeatedly stated that there is no rule of law 

fixing the measure of damages, nor can it be reached by any 

process of computation.” News Leader Co. v. Kocen, 173 Va. 95, 

103, 3 S.E.2d 385, 388-89 (1939); see also The Gazette, 229 Va. 

at 41, 325 S.E.2d at 740. This being so, we must take special 

heed of the principle, applicable to any claim that a jury award 

is excessive, “ ‘that the verdict of the jury will not be set 

aside unless it is so grossly excessive (or inadequate) as to 

indicate that the jury in rendering it were actuated by 

prejudice, passion or corruption, or that they have been misled 

by some mistaken view of the merits of the case.’ ” News Leader 

Co., 173 Va. at 103, 3 S.E.2d at 389 (quoting Kroger Grocery Co. 

v. Rosenbaum, 171 Va. 158, 164, 198 S.E. 461, 463 (1938)). 

Moreover, in such cases we accord the trial court a large 

measure of discretion regarding whether a verdict should be 

affirmed, set aside, or reduced “because it saw and heard the 

witnesses while we are confined to the printed record.” 

Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277, 300, 362 

S.E.2d 32, 45 (1987). “Unless the amount of the award is so 

 

See, e.g., Milkovich, 497 U.S. at 12. 

30
excessive as to shock the conscience of the court . . . a 

verdict approved by the trial court will not be disturbed on 

appeal.” The Gazette, 229 Va. at 41, 325 S.E.2d at 740. 

We find no abuse of the trial court’s discretion in its 

refusal to set aside or remit a portion of the damages awarded 

for defamation in this case. Dr. Levin’s evidence of actual 

damages, though criticized by WJLA in argument to the jury, was 

not rebutted. Given that we have found the evidence supports 

the jury’s finding of actual malice, we cannot say that its 

award was the result of prejudice, passion, or some mistaken 

view of the merits of the case. To the contrary, given the 

grave nature of the unfounded allegations made against Dr. Levin 

and the inevitable damage caused to his professional reputation, 

the jury’s award was not excessive. Accordingly, we hold that 

the trial court did not err in upholding the award of $2 million 

for count one. 

Failure to Instruct Jury to Disregard Damages

 Sustained by Dr. Levin’s Incorporated Medical Practice

WJLA contends that the trial court erred in failing to 

grant a portion of its instruction H directing the jury that it 

could not award damages based upon a diminution in the value of 

Dr. Levin’s incorporated medical practice. Dr. Levin contends 

that WJLA waived its objection to the trial court’s failing to 

 

31
grant instruction H because WJLA agreed to his instruction 30, 

which permitted the jury to award damages for “any loss or 

injury to [Dr. Levin] in his medical practice.” Although the 

argument in the record concerning these two instructions is 

quite confused, we will assume that instruction H was intended 

to direct the jury not to award damages for losses specific to 

the incorporated medical practice as a business that were 

separate and apart from the damages suffered by Dr. Levin in 

regard to his personal capacity to maintain a medical practice 

generally. 

WJLA relies upon Landmark Communications, Inc. v. Macione, 

230 Va. 137, 140, 334 S.E.2d 587, 589 (1985), for the principle 

that a defamation plaintiff cannot recover for losses sustained 

by a corporation he controls. This is so because the 

corporation is a separate legal entity capable of seeking 

redress for the defamation in its own right. Id.; see also

Keepe v. Shell Oil Co., 220 Va. 587, 591, 260 S.E.2d 722, 724 

(1979). 

WJLA’s reliance on Landmark Communications is misplaced. 

In that case, the defamation plaintiff “showed no damages to 

himself, as opposed to those his corporation may have suffered” 

and did not seek presumed damages. 230 Va. at 140, 334 S.E.2d 

at 588-89. Accordingly, in the absence of evidence that he 

32
personally suffered actual damages as a result of the 

defamation, the plaintiff was entitled to recover nothing. 

By contrast, in this case Dr. Levin presented ample 

evidence of the personal damages he suffered as a result of 

WJLA’s defamatory publications. That evidence included expert 

testimony of the actual and potential future loss to Dr. Levin’s 

ability to earn a living in the practice of medicine. Even if 

Dr. Levin chose to abandon his incorporated medical practice and 

seek employment elsewhere, the damage to his reputation caused 

by WJLA’s defamation would continue to impair his ability to 

earn a living through the practice of medicine. Thus, that 

evidence did not relate to an injury that was exclusive to the 

incorporated medical practice. 

In the second amended motion for judgment, Dr. Levin 

neither alleged nor claimed damages specific to his incorporated 

medical practice. The evidence presented with respect to that 

medical practice related to losses personal to Dr. Levin, and 

the jury was properly instructed that it could award damages for 

those personal losses. The instruction requested by WJLA to 

have the jury disregard damages specific to the incorporated 

medical practice would have served only to confuse the jury. 

Accordingly, we hold that the trial court did not err in 

refusing to grant that instruction. 

33
CONCLUSION 

For these reasons, we will affirm the judgment of the trial 

court in favor of Dr. Levin on count one, reverse the judgment 

in favor of Dr. Levin on count five, and enter final judgment. 

Affirmed in part,

reversed in part,

and final judgment. 

34