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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Wallake Power System, LLC, Case No: 2:18-cv-423

Plaintiff, Judge Graham

v. Magistrate Judge Deavers

Engine Distributors, Inc. and Jerry Kosner,

Defendants.

Order

This matter is before the court on the request contained in defendants’ trial brief for a pretrial ruling that defendants are entitled to judgment as a matter of law concerning whether the allegedly 

defamatory statements are actionable.

Defendants are correct that it is the court’s role to determine whether allegedly defamatory 

statements are actionable. See Croce v. New York Times, 930 F.3d 787, 792 (6th Cir. 2019). A 

statement is actionable if it is a false statement of fact about a person or business which tends to harm 

or injure the reputation of the person or subject them to public hatred, contempt, ridicule, shame or 

disgrace or adversely affect them in their business, trade or profession. See American Chemical 

Society v. Leadscope, Inc., 133 Ohio St. 3d 366, 389, 978 N.E.2d 832, 852 (Ohio 2012).

The court, however, has already denied defendants’ motion for summary judgment in which 

defendants argued that the accusations at issue were not false or deceptive and argued that the 

accusations were not of the type which harmed or injured plaintiff. See Doc. 46. The court reviewed 

the evidence and found it to be sufficient to support a reasonable inference that defendants’ 

accusations were false statements of fact – evidence tending to show that plaintiff complied with EPA 

regulations. The court also found that the nature of the accusations were such that they fell into the 

category of defamation per se, for which evidence of causation of injury was not required because they 

tended on their face to injure plaintiff in its trade or business of upfitting and shipping engines to its 

customers. In addition, the court found that plaintiff had, in any event, produced evidence supporting 

a conclusion that the accusations had caused Ford Component Sales to terminate its business 

relationship with plaintiff.
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In their trial brief, defendants argue that the accusations were substantially true. They argue 

that plaintiff did in fact ship an engine without an emissions sticker or decal affixed. This argument 

misses the mark because it’s referring to an incident that was not the subject of the accusations. The 

accusations relate to engines that were prepared and shipped in 2015. With respect to these engines, 

defendants accused plaintiff of “being in direct violation” of EPA regulations and being “noncompliant.” Plaintiff has produced evidence to support its contention that it did in fact properly 

obtain EPA certifications for the engines at issue. Defendant’s argument refers to a separate incident 

in 2013 in which plaintiff shipped an engine without an emissions sticker affixed because plaintiff 

believed the engine was intended for export outside the United States and not required to have an 

emissions sticker.

Defendants next seek refuge in the innocent construction rule, whereby a statement 

“reasonably susceptible to both a defamatory and an innocent meaning must be construed, as a matter 

of law, to have an innocent meaning.” McGee v. Simon & Schuster, 154 F.Supp.2d 1308, 1313 n.4 

(S.D. Ohio 2001). However, defendants do not establish how this rule would apply here. It is alleged

that defendants accused the plaintiff of directly violating EPA regulations and illegally shipping 

engines. Defendants have not explained how such statements are reasonably susceptible to an 

innocent meaning.

Finally, defendants argue that their statements were merely opinions. It is true that statements 

about ethics and professionalism, and about suspect or concerning conduct, are largely viewed as 

expressing an opinion. See Croce v. New York Times Co., 345 F. Supp. 3d 961, 990 (S.D. Ohio 2018)

(citing cases), aff’d, 930 F.3d 787 (6th Cir. 2019). Again, however, defendants made express accusations 

of illegal conduct. The statements were not couched in qualifying language.

Accordingly, defendants’ request for a pre-trial entry of judgment as a matter of law is denied.

s/ James L. Graham

JAMES L. GRAHAM

United States District Judge

DATE: December 9, 2019