Abstract

This Note considers cases in which plaintiffs seek reputational damages without pleading defamation. Some courts allow reputational damages under a negligence theory if those damages are parasitic, that is, if the plaintiff has physical damages as well. However, this Note focuses on instances of "standalone" reputational injury, where plaintiffs suffer no physical injury to their person or property. Plaintiffs in such cases have included an employee who was fired for "failing" a carelessly conducted drug test, a dentist who blamed his substandard restoration work on defective supplies, and a doctor whose patient was injured by the side effects of a manufacturer's drug.

These claims do not demonstrate publication in the traditional sense; nonetheless, many courts hold that they implicate defamation law. These courts reason that when a claim "sounds" in defamation, ordinary negligence is not an alternative theory of recovery. This Note uncovers various rationales for this "priority of defamation"—rationales that are generally under-articulated by the courts themselves. The Note also examines applications of the economic loss rule to claims for negligent injury to reputation and suggests that courts sometimes implicitly endorse the economic loss rule in these cases by rejecting claims with a broad version of defamation priority.

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