The Honorable Stephen M. Reasoner, Chief United States Di strict Judge for the 1 Eastern District of Arkansas, sitting by designation. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-3137

___________ Lazelle Michaelis, * * Appellant, * * v. * * Appeal from the United States District CBS, Inc., a New York Corporation, * Court for the District of Minnesota. * Appellee, * * WCCO Television, Inc., * * Defendant. *

___________ Submitted: March 13, 1997 Filed: July 11, 1997

___________ Before WOLLMAN and BEAM, Circuit Judges, and REASONER, District Judge. 1

___________ BEAM, Circuit Judge. In this defamation action, Dr. Lazelle Michaelis appeals the district court's orders granti ng summary judgment in favor of CBS, Inc. and its affiliate WCCO Television, Inc. (WCCO). We affirm in part and reverse in part.CBS is organized under the laws of the State of New York and has its principal 2 place of business there. WCCO is a wholly owned and operated division of CBS; it is not incorporated in any state and is not a legal entity separate from its existence as a CBS station. -2- I. BACKGROUND
Plaintiff Michaelis, a medical doctor, is board certified in anatomical pathology, clinical pathology, and immune hematology. She is board eligible, although not board certified, in forensic pathology. At the time the events relevant to this action too k place, she was the coroner of Otter Tail County, Minnesota, and was also employe d by Orandi Medical, P.A., a priv ate medical association. Through her work for Orandi Medical, Michaelis sometimes performed autopsies for the Becker County Coro ner, Dr. Wat son, on an as-needed basis. Defendants CBS and WCCO are engaged in th e 2 business of television broadcasting.
Through a referral to Orandi Medical from Dr. Watson, Michaelis performed an autopsy on Lori Jensen. Jensen, a young woman from Detroit Lakes, Minnesota, was fo und dead in her car in her garage. Although her demise was deemed a suicide b y carbo n monoxide poisoning, Jensen's family members doubted that conclusion an d
cr iticizedthe investigation of her death. Defendants CBS and WCCO broadcast a
news report, on August 28 and 29, 1993, which was critical of both the investigation and many of the officials involv ed, including Michaelis. It is this report that forms the basis for this action.

Mi chaelis sued CBS and WCCO for defamation. Her complaint alleged tha t three statements in the report were defamatory. The followi ng excerpts from the report include, in underlined text, those three statements.-3-

Statement One:
So many questions. Why would Lori, who was in good spirits, eve n planning for a new job before she died, climb into this car and commi t suicide some twenty-four hours later? Why didn't she leav e a suicide note for her husband Ron, no message for Chelsea, the two-year old sh e adored? How did Lori break her nose without breaking these glasses , found beside her in the c ar? Why was she wearing only one shoe? Why was the death certificate signed and marked "suici de" and then filed when the case was still under investigation? Why was nothing in this garag e fingerprinted, the scene not cordoned off to protect evidence?
Statement Two:
The pathologist who performed Lori Jensen's autopsy works here at the regional hospital in Fergus Falls. We checked, she is no t a board certified forensic pathologist. We tried to talk with the doctor about he r qualifications to handle a suspicious case like this one. She hung up on us. Twice.
Statement Three:
And W CCO has learned that Dr. Dorothy Michaelis was once sued i n Keokuk, I owa, after she reportedly changed the cause of death in a suspi cious case there, apparently admitting she deviated from norma l autopsy procedures. We also s poke with the Doctor's former supervisor, who told us "I fired her because we had serious reservations about he r ability. She jumped to conclusions, was very temperamental and refused to listen, to admit mistakes."

Defend ants moved for summary judgment, which the district court, sitting i n diversity , granted as to statements one and three. The district court found tha t statement one was not actionable as a matter of law as it did not state a fals e defamatory fact about the plaintiff. The district court found that statement three was subject to a qualified privilege for reporting public proceedings. The defendants then-4-

filed a second mo tion for summary judgment as to the remaining statement, statement two. The district court granted the mo tion, finding that Michaelis was a public official and tha t she had failed to prove the statement was made with malice, as required b y New York Times Company v. Sullivan , 376 U.S. 254, 279-80 (1964). Michaeli s appeals.

II. DISCUSSION

Summar y judgment is proper only when no genuine issue of material fact i s present and judgment should be awarded to the movant as a matter of law. Plough v. West Des Moines Communi ty Sch. Dist. , 70 F.3d 512, 514 (8th Cir. 1995). It should not be granted unless the moving party establishes the right to a judgment "'with such clarity as to leave no room for controversy.'" Id. (quoting Jewson v. Mayo Clinic , 691 F.2d 405, 408 (8th Cir. 1982)). We review the district court's entry of summary judg ment de novo, giving the nonmoving party the benefit of every inference draw n from the evidence. Plough , 70 F.3d at 514.
In order to prove a defamation claim under Minnesota law, Michaelis must sho w: (1) the defendants published or communicated a statement about her to a third person; (2) the sta tement was false; and (3) the statement tended to harm her reputation an d lower her in the estimation of the community. O'Brien v. A.B.P. Midwest, Inc. , 81 4 F. Supp. 766, 772 (D. Minn. 1992) (citing Stuempges v. Parke, Davis & Co. , 29 7 N. W.2d 252, 255 (Minn. 1980)). In determining whether a particular statement i s defamatory, a court must review the statement in the conte xt in which it was presented, give the words their obvious and natural meaning, and consider the innuendos which follow from the statement. Jadwin v. Mi nneapolis Star and Tribune, Co. , 390 N.W.2d 437, 442 ( Minn. Ct. App. 1986). If words are reasonably capable of carrying a defamatory meaning, the determination as to whether the communication was in fact defamatory is for the jury. Conroy v. Kilzer , 789 F. Supp. 1457, 1462 (D. Minn

. 1992).-5-

In addition to the standard elements of defamation, however, a public official plaintiff must allege facts from which a jury could find that the speaker acted with actual malice in making the defamatory statement. New York Time s , 376 U.S. at 279- 80. To show actual mal ice, a public official must show that the defamatory falsehood
was ma de with knowledge of its falsity or with reckless disregard for its truth. Gertz
v. Robert Welch, Inc. , 418 U.S. 323, 342 (1974). Applying these standards, we find that the d istrict court correctly granted summary judgment as to statements one an d three, but not as to statement two.
A. Statement One--The Signed Death Certificate
In order for a statement to be defamatory, it must assert a defamatory fac t against the plaintiff. Covey v. Detroit Lakes Printing Co. , 490 N.W.2d 138, 143 (Minn. Ct

. App. 1992). Stateme nt one, however, did not refer to Michaelis. The report did not clai m that Michaelis signed the death certificate. Indeed, the report as a whole made clear that Dr. Watson, the Becker County Coroner, was in charge of assigning th e cause of death in Jensen's case. Because, in the context of the entire rep ort, it was clear that this s tatement did not refer to Michaelis, the district court correctly grante d defendants summary judgment on this issue.

B. Statement Three--The Prior Lawsuit
Minnesota law recognizes a qualifi ed privilege for the media in reporting public proceedings. Schuster v. U.S. News & World R eport, Inc. , 459 F. Supp. 973, 978 (D. Minn . 1978). A statement about a judicial proceeding will be privileged as long as it is a "fair and accurate" report of that proceeding. Jadwin , 390 N.W.2d at 441

. Statement three, including the reference to the prior lawsuit, the altered death certificate and th e deviation from normal procedures, was substantially true. The defendant s submitted copies of Iowa newspaper articles and Michaelis's own deposition testimony from that case to prove the accuracy of the statement.-6-

Mic haelis concedes that she was sued in the Keokuk case and that she ha d previously admitted deviating from her normal procedure in signing the death certificate in that case. How ever, she claims that statement three is nevertheless inaccurate and, therefore, not privileged. She argues that: (1) not following her own normal procedure in prep aring the Keokuk death certificate is markedly different than deviating fro m
norm al autopsy procedures, as reported by the broadcast; (2) she was sued in he r off icial, not individual, capacity in the earlier suit, contrary to the implication i n statement three; and (3) defendants did not prove tha t the reporter relied on the judicial proceeding when he broadcast the statement. Thes e arguments are without merit. The statement is privileged because it constituted a "fair and accur ate" summary of the prior proce eding. Id. Even the cumulative effect of these alleged discrepancies fails t o render th e statement substantially inaccurate. Furthermore, Minnesota law does no t requ ire a showing of actual reliance on the records of the prior proceeding before the privilege attaches. Therefore, we find that the di strict court correctly granted summary judgment as to this statement.
C. Statement Two--The Phone Call Hang Ups and Qualifications
Statement two poses a more difficult question. Initially, we note that in light of
our rece nt decision in Toney v. WCCO Television , we have no difficulty stating , co ntrary to defendants' assertions, that defamation by implication is a viable cause of action in Minnesota. 85 F.3d 383, 394 (8th Cir. 1996). One form of defamation b y implicationis the omission of facts. Id. at 395. Another form is the juxtaposition of facts so as to imply a defamatory connection between them. Id. In an implie d defamationcase, a defendant does not avoid liability by simply establishing the truth of the individu al statement. Instead, the defendant must also defend the juxtaposition of the two statements or the omission of certain facts.
As the district court found, statement two is susceptible of a def amatory meaning toward Michaelis. "It is specifically directed to her professional credentials, isFur thermore, statement two tells the listener that Michaelis hung up on th e 3 reporter, clearly implying that no conversation had taken place. This is simply untrue. Inde ed, as the record clearly demonstrates, the reporter engaged in two phon e conv ersations with Michaelis, one for eight minutes and another for roughly fiv e mi nutes. During these conversations, the reporter continually pressed Michaelis fo r information

which she was uncomfortable giving out. Michaelis referred the reporter to the cou nty coroner, Dr. Watson, and let the reporter know that Dr. Watson coul d more fully comment on the case. The omission of these facts could be found by a reasonable jury to be sufficiently defamatory so as to support liability. -7- juxtap osed to a description of a lawsuit against her relating to the performance of her professional duties a

nd of problems she had in her past professional employment, and [is] pre sented in the larger context of criticizing the competency of the person s investigat ing Lori Jensen's death." Michaelis v. CBS, Inc. , Civ. No. 3-95-374, Mem. Op. at 10 (D. Minn. Aug. 8, 1995). Considering st atement two in conjunction with the context and tenor of the entire report, a jury could conclude th at Michaelis was evading the report er because she was neither qualified to handle the Jensen autopsy no r professional in her invest

igation of Jensen's death. These are defamatory implications which could injure Michaelis's professional reputation. 3
Having concluded that statement two wa s capable of a defamatory meaning, we must co nsider which constitutional standards apply to Michaelis's defamation claims. Our discu ssion begins with the district court's finding that Michaelis was a publi c offici al. Defendants bear the burden on this issue. See Wolston v. Reader's Diges t Ass'n, Inc. , 443 U.S. 157, 167-68 (1979). The court's determination of Michaelis' s public official status is a question of federal law, which we revie w de novo. Rosenblatt v. Baer , 383 U.S. 75, 84, 88 (1966).
The Supreme C ourt has not determined how far down the ranks of government employees public officials may be found, New York Times , 376 U.S. at 283 n.23, but has stated that public official status cannot exten d to all public employees. Hutchinson v. Proxmire , 443 U.S. 111, 119 n.8 (1979). At the very least, however, public officialMinnesota statutes delineate the powers and duties of county coroners, see , e.g. , 4 Minn. Stat. §§ 390.04; 390.15, and provide for the appointment of deputy coroners and medical e xaminers, with similar powers and duties. See , e.g. , Minn. Stat. §§ 390.05; 390.33. However, as Michaelis's deposition testimony showed, sh e did not occupy any -8- status applies to "those among the hierarchy of government employees who have, o r appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs." Rosenblatt , 383 U.S. at 85. On the facts of this case , defendants no t only failed to show that Michaelis was acting in her capacity as a government employee, but also that s he was a hierarchical member of that group, with substantial control over governmental affairs.
Although Michae lis was the official Otter Tail County Coroner, she did not act in that capacity in this case, which arose out of events in Becker County. The record is replete with references to Michaelis as a hospital pathologist, not as the coroner of any given county. Indeed, Michaelis held no p osition of government employment with respect to Becker County, where the Jensen death occurred. She was neither th e Becker County Coroner nor a duly appointed deputy coroner or medica l examiner. She
ser vedmerely as a private physician, to whom Dr. Watson occasionally referre d autopsies

. In this instance, she was employed by and paid by Orandi Medical, P.A

. In light of this fact, Michaelis's Otter Tail County position was o f little relevance. Even if Michael is was found to be a public employee for purposes of this case, however , defendants failed to show that she had substantial responsibility for or control ove r governmental affairs.

As the reco rd shows, Michaelis had a rather limited role in the Jensen case , serving under t

he control of Dr. Watson. Although Minnesota statutes entrust county
coroner s and duly appointed medical examiners with certain powers and duties , defendan ts failed to show that Michaelis could exercise any of those powers in he r capaci ty in this case. Indeed, the record more appropriately supports the conclusion 4of these positions in Becker County. This testimony was unr ebutted by the defendants. -9- that Dr. Watson simply en listed the services of another pathologist, Michaelis, as was his option under state law. See Minn. Stat. § 390.11 subd. 4. These private medical specialists do not have any of the powers of a county coroner. Without such powers, itis difficult to see how Michaelis could exercise responsibility or control ove r governmental affairs.

Because defendants failed to establi sh Michaelis's status as a public official, the district court incorrectly granted summary judgment as to statement two. Therefore,
we rema nd this case for further proceedings in which the appropriate constitutiona l standards are applied. Due to the district court's failure to reach the iss ue of Michaelis's possible pu blic figure status, see Curtis Publishing Company v. Butts , 388 U.S. 13 0 (1967), we express no opinion as to that issue.

III. CONCLUSION
The district court correctly granted summary judgment as to statements one and three, and we therefore affirm as to those statements. We reverse the district court's grant of summary judgment as to statement two and remand for further proceeding s consistent with this opinion.
A true copy.

ATTEST:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.