In this installment of Odenwald on Appeal, Judge Kurt Odenwald examines a significant Missouri Supreme Court decision correcting years of confusion about how plaintiffs may prove reputational damage in defamation cases.
The Court’s opinion in Apperson v. Kaminsky, SC 101020, sends a clear message: trial courts must not elevate stray dicta into binding rules—and a defamation plaintiff is not required to present evidence of reputational harm from sources independent of his or her own testimony.
The Underlying Dispute
The plaintiff sued multiple defendants for defamation after they accused him—both in person and on social media—of rape and sexual abuse. According to the plaintiff’s trial testimony, the statements caused severe personal and professional fallout:
- He was confronted at home by supporters of the defendants and forced to leave his residence for seven months.
- A local coffee shop asked him not to return.
- He disassociated from two organizations he had founded.
- He lost a speaking engagement.
- He was removed from shared office space after a defendant contacted management and demanded action.
Plaintiff presented no other witnesses or documents to prove his alleged reputational injury.
At the close of the plaintiff’s case, the defendants moved for a directed verdict under Rule 72.01, arguing the plaintiff failed to make a submissible case for defamation because the only evidence of damage came from his own testimony. The circuit court agreed and entered judgment for the defendants.
The Supreme Court Reverses
The Missouri Supreme Court unanimously reversed.
While reaffirming that proof of actual reputational harm is essential in a defamation case, the Court rejected the notion that such proof must come from an independent source.
The circuit court had relied on language in the Missouri Supreme Court opinion in Kenney v. Wal-Mart Stores, Inc., which stated that “[a]wards based on a plaintiff’s testimony alone or on ‘inferred’ damages are unacceptable.” The Supreme Court explained that this line—frequently quoted in later cases by appellate courts—was dicta that had been misunderstood and misapplied.
In reviewing the full context of the quote, the Court reaffirmed that Kenney addressed only the nature of the evidence required to prove damages, not the source of the evidence. If a plaintiff competently testifies to concrete reputational harm, that testimony is sufficient to allow the submission of the defamation claim—just as testimony from third parties or documents might.
The Court emphasized that there is “neither any legal authority nor any justification” for a rule requiring independent corroboration.
How Dicta Created Confusion
In its opinion, the Court expounded on the source of the misinterpretation, noting that the quotation from Kenney was “at best, poorly vetted.”
The problematic language in Kenney originated in New Jersey appellate decisions. That language later was quoted in Missouri appellate opinions. These courts—notably Fireworks Restoration Co. v. Hosto, upon which the trial court relied, read the Kenney language as imposing a heightened evidentiary burden on plaintiff’s proof of damages.
The Supreme Court expressly disapproved of the reading the Missouri Court of Appeals took in Fireworks Restoration Co. and other cases, explaining that those cases misjudged the language for doctrine. The Court emphasized that New Jersey Supreme Court’s opinion affirming the New Jersey appellate decision that was the source of the problematic language required nothing more than what Kenney held: that a plaintiff must “offer some concrete proof that his reputation has been injured. Neither the New Jersey Supreme Court nor the Missouri Supreme Court in Kenny limited the source of proof of reputational damage.
In a firm directive, the Court concluded that while Fireworks Restoration was not the first decision to follow this mistaken path, “it will be the last.”
What Actually Matters in Defamation Damages
The Supreme Court restated the governing rule:
A plaintiff makes a submissible case on damages by offering evidence—or a basis for reasonable inference—of actual injury to reputation, regardless of whether that evidence comes from:
- the plaintiff’s own testimony,
- testimony of others,
- admissions,
- documents,
- or any other source.
The focus for submissibility is on the substance of the evidence, not the source.
Applying that standard, the Court held the plaintiff’s testimony here was neither speculative nor purely subjective. The testimony described concrete consequences flowing from the defendants’ statements and was more than sufficient to survive a directed-verdict motion.
Practice Pointers
This decision offers several important takeaways for Missouri litigators:
- Do not treat dicta as binding law. The Court made clear that misread quotations can distort doctrine for years.
- Directed-verdict motions in defamation cases must focus on the quality of the proof—not who offered it.
- Plaintiffs must introduce evidence of actual reputational injury, but corroborating witnesses are not mandatory.
- Defense counsel should expect courts to scrutinize arguments demanding independent proof more carefully going forward.
Apperson v. Kaminsky brings clarity where confusion lingered—and firmly reorients Missouri defamation law around what truly matters: whether the evidence shows real harm, not where that evidence comes from.
