Ogle v. Hocker

Filing 120

ORDER granting in part and denying in part 112 Motion in Limine; denying 113 Motion for Summary Judgment. Signed by District Judge Julian Abele Cook. (KDoa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TROY D. OGLE,
Plaintiff,
v.
Case No. 02-73200
Honorable Julian Abele Cook, Jr.

RICK HOCKER,
Defendant.

ORDER
The Plaintiff, Troy D. Ogle, filed this civil action against the Defendant, Rick Hocker,
alleging claims of defamation and intentional infliction of emotional distress. Although the Court
granted a summary judgment in Hocker’s favor, the Sixth Circuit Court of Appeals reinstated both
of Ogle’s claims.
Currently pending before the Court is Hocker’s renewed motion for the entry of a summary
judgment regarding the economic damages on the basis of Ogle’s wage loss claim. Hocker also
seeks the entry of two orders in limine which, if granted, would prevent the introduction of, or
reference to, evidence (1) that his comments caused Ogle to suffer any loss of wages or loss of
employment opportunities outside the Church of God (“COG”), other than a position as chaplain for
the City of Dearborn Heights Fire Department, and (2) of the amount of income that Ogle received

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from the COG at any time or otherwise quantifying his change in income after the events here at
issue.1
I.
Ogle and Hocker initially became friendly in 1999 as religious leaders who were affiliated
with the COG. After both parties traveled to Europe to attend a ministry conference in 2001, Hocker
reported alleged homosexual advances by Ogle to his presiding COG bishop, preached about the
incident (without naming Ogle) at his Virginia Beach church, and repeated these allegations to a
number of other individuals outside the COG. After an investigation initiated by Hocker’s
statements, Ogle’s COG license was suspended. In addition, Ogle stopped receiving invitations to
minister or speak at other churches.
This lawsuit followed. On May 11, 2005, this Court granted a summary judgment in favor
of Hocker with respect to his defamation claim.2 On August 25, 2006, the Court also granted a
summary judgment to Hocker as it applied to Ogle’s defamation-dependent intentional infliction of
emotional distress claim. On May 29, 2008, the Sixth Circuit reinstated both of Ogle’s claims and
remanded the case to this Court for further proceedings. Ogle v. Hocker, 279 F. App’x 391 (2008)
[hereinafter Ogle I].
On October 22, 2009, the Court granted Hocker’s renewed motion for summary judgment
as it applied to both of his claims, finding that Ogle had not established a special harm necessary for

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Ogle initially filed a lawsuit against the COG and its leaders in the federal district court
for the Eastern District of Tennessee. However, this case was dismissed on jurisdictional
grounds.
2
On June 1, 2006, the Court denied Ogle’s motion for reconsideration. He then appealed
this order to the Sixth Circuit. However, because this Court had not yet ruled on the intentional
infliction of emotional distress claim, the Sixth Circuit dismissed his appeal for lack of
jurisdiction.
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a prima facie defamation claim.3 On May 27, 2011, the Sixth Circuit reversed and remanded the case
once again, holding that “Ogle [had] presented sufficient lack-of-chastity evidence for his per se
claim to survive summary judgment.” Ogle v. Hocker, 430 F. App’x 373, 374 (6th Cir. 2011)
[hereinafter Ogle II]. The Sixth Circuit also found that Ogle had offered a sufficient amount of
evidence which reflected an economic damage independent of his license suspension.
Hocker has since sought discovery regarding the limited and qualified wage loss claim
permitted by the Sixth Circuit. In his responses, Ogle identified a list of potential employment
sources - unassociated with the COG - to which he had applied or for which he had worked.
However, he did not proffer any information regarding his compensation for any of the entities
where he had been employed. However, Ogle did present information regarding his ultimately
unsuccessful application to serve as the Chaplain for the City of Dearborn Heights Fire Department.
According to Ogle, this potential employer had initially expressed serious interest in his candidacy.
However, he had acknowledged during his interview that he was a plaintiff in this civil lawsuit. He
maintains that his application was rejected after Fire Department officials discovered the nature of
the allegations that gave rise to the instant lawsuit.
II.
The summary judgment rule primarily aims to “isolate and dispose of factually unsupportable
claims or defenses.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Entry of summary
judgment is proper only where the moving party shows “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A

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Specifically, this Court found that (1) Hocker’s actions did not qualify as defamation per
se, and (2) Ogle did not present sufficient evidence regarding economic damages to establish
defamation per quod.
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genuine dispute of material fact will exist if the fact in question “might affect the outcome of the suit
under the governing law.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). The debated facts
must be supported by more than a mere scintilla of evidence in order to create a genuine dispute. Id.
at 252.
In determining whether there is a genuine issue of a material fact, the record is viewed in the
light most favorable to the nonmoving party. Id. at 255. Considering the substantive law, summary
judgment must be entered if the non-moving party fails to present evidence that is “sufficient to
establish the existence of an essential element to its case, and on which it will bear the burden of
proof at trial.” Vereecke v. Huron Valley Sch. Dist., 609 F.3d 392, 399 (6th Cir. 2010) (quoting
Celotex, 477 U.S. at 322). If the moving party makes its required showing, then the non-moving
party must then act affirmatively in order to avoid the entry of a summary judgment. Fed. R. Civ.
P. 56(e).
III.
In support of his motion for summary judgment, Hocker contends that Ogle has failed to
present a sufficiency of evidence of economic harm. Michigan law distinguishes between
defamation per se wherein a defamatory statement is actionable irrespective of any special harm,
and defamation per quod, which requires a showing of a special harm that had been caused by the
defamatory statement. Yono v. Carlson, 770 N.W.2d 400, 402 (Mich. Ct. App. 2009) (citing
Frohriep v. Flanagan, 754 N.W.2d 912, 923 (Mich. Ct. App. 2008)). In his motion, Hocker claims
that Ogle has not met the required burden of showing a particularized economic harm.4

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As a plaintiff who pursues a defamation per quod claim, Ogle has the burden of
demonstrating actual wage loss from prospective employment outside of the COG. See, e.g.,
Glazer v. Lamkin, 506 N.W.2d 570, 572 (Mich. Ct. App. 1993).
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Alternatively, Hocker seeks a dismissal of claims for economic damages flowing from Ogle’s wage
loss claim. However, previous Sixth Circuit rulings preclude the entry of a summary judgment in
favor of Hocker regarding both types of defamation claim.
In Michigan, per se defamation is defined as “words imputing a lack of chastity to any
female or male.” Mich. Comp. Laws. § 600.2911(1). In those cases in which a plaintiff brings an
action alleging defamation per se, “the inability to prove damages is not fatal to the claim.” Burden
v. Elias Bros. Big Boy Restaurants, 613 N.W.2d 378, 382 (Mich. Ct. App. 2000) (“Whether nominal
or substantial, where there is defamation per se, the presumption of general damages is well
settled.”). The Sixth Circuit has found that Hocker’s statements imputed a lack of chastity to Ogle
such that his defamation per se claim must survive a summary judgment challenge. Ogle II, 430 F.
App’x at 374. Accordingly, regardless of Ogle’s ability to show economic harm, Hocker’s motion
for summary judgment must be denied with respect to the defamation per se claim.
Regarding defamation per quod, the Michigan defamation statute requires a plaintiff to
identify actual damages caused by a special harm. See Mich. Comp. Laws § 600.2911(2)(a), (7). The
Sixth Circuit previously found that any damages sought by Ogle based on the COG’s suspension of
him or the loss of his reputation within the COG may be barred by the ecclesiastical abstention
doctrine, which precludes a court from hearing cases where questions of discipline, faith,
ecclesiastical rule, custom, or law have been decided by church judicatories. Ogle I, 279 F. App’x
at 395 (citing Watson v. Jones, 80 U.S. 679, 727 (1871)). Accordingly, Ogle cannot recover
economic damages based on the COG’s employment actions. See id. at 395 n.3 (consideration of
damages based on COG’s decision to suspend Ogle or loss of his reputation within COG may
require impermissible exploration of church’s motives). In order for his defamation per quod claim

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to succeed, Ogle must demonstrate specific economic damages outside of the COG that were caused
by Hocker’s conduct.
The Sixth Circuit also found that Ogle’s previously filed evidence demonstrated economic
damages outside of his COG employment sufficient to overcome summary judgment.5 Since the
evidence relied upon by the Sixth Circuit remains on the record, Hocker has not shown the absence
of a genuine issue of a material fact. Although Hocker argues that the reversal by the Sixth Circuit
merely provided Ogle with an opportunity to offer additional evidence, this contention seems to be
inconsistent with the language of its opinion. The Sixth Circuit specifically relied upon the evidence
presented by Ogle that (1) Hocker told his story to people outside of the COG and (2) Ogle was
rejected from opportunities to minister at non-COG churches because of rumors. Considering this,
the Sixth Circuit found that “Ogle offered evidence from which a jury could reasonably find that he
suffered economic losses other than COG-related income.” Ogle II, 430 F. App’x at 376.
Given the Sixth Circuit’s prior holdings, the Court finds there is sufficient evidence for a
reasonable jury to identify economic losses. Consequently, the Court denies Hocker’s motion for
a summary judgment based upon of Ogle’s alleged inability to show a particularized economic
harm.
Hocker also seeks to obtain a summary judgment as it applies to Ogle’s defamationdependnent intentional infliction of emotional distress claim solely on the ground that his defamation
claim fails. In light of the foregoing conclusion, the intentional infliction of emotional distress claim
will also survive summary judgment.
IV
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The Sixth Circuit upheld the grant of summary judgment by this Court which prohibited
Ogle from obtaining exemplary and punitive damages. Ogle II, 430 F. App’x at 376.
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Hocker requests the entry of two orders in limine in order to prevent the introduction of or
references to evidence (1) that his comments resulted in any loss of wages or employment
opportunities for Ogle outside of the COG, other than with the City of Dearborn Heights Fire
Department Chaplain position,6 and (2) of Ogle’s previous salary from the COG or other means of
quantifying his change in income since the events here at issue.
Hocker initially argues that Ogle should be prohibited from producing any additional
information regarding his actual wage loss. Ogle’s claim for wage loss is limited to those wages
related to employment opportunities outside of the COG that were lost due to Hocker’s statements.
During the post-remand discovery period, Hocker submitted requests to Ogle to provide information
regarding lost employment and wage opportunities. In response, Ogle listed the positions for which
he had applied, and, of those, which applications were successful. However, in response to an
interrogatory which sought to obtain the bases for the rejection of his applications for other
positions, he provided information regarding only one position; namely, the chaplain of the City of
Dearborn Heights Fire Department.
The discovery process - as authorized by the federal rules of procedure - is designed to help
the parties clarify the issues and facts prior to the commencement of the trial. See Oppenheimer
Fund v. Sanders, 437 U.S. 340, 351 (1978); Hickman v. Taylor, 329 U.S. 495, 501 (1947). Ogle
argues that he should be given an opportunity to supplement the discovery process in the future since
the listing of employers who did not hire him gave Hocker notice of potential trial witnesses. Since
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The Court notes that, after the completion of briefing on these motions, Hocker
submitted the affidavit of the Chief of the Dearborn Heights Fire Department, who avers that (1)
the position in question would have either been unpaid or resulted in, at most, a $500 annual
salary; and (2) the individual who ultimately was offered the position has filled it on an unpaid,
volunteer basis. Although this may affect the amount of lost wages, it does not alter the analysis
herein.
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discovery has already closed and Ogle has not submitted any request for an extension, the Court
agrees that permitting Ogle to freely submit further evidence would merely amount to a delay which
flouts the goals of the discovery process. Accordingly, the Court will grant in part the motion in
limine to prevent Ogle from introducing additional, heretofore undisclosed evidence that Hocker’s
comments resulted in wage loss or loss of employment.
However, the Court agrees that the jury should be permitted to consider Ogle’s information
regarding possible losses of employment opportunities in order to determine facts relevant to the
defamation claims. This order, therefore, does not prevent Ogle from relying upon or presenting at
trial any previously disclosed evidence in order to support his claim to have lost wages or
employment opportunities as a result of Hocker’s statements. It will be the jury’s ultimate duty to
evaluate and weigh the probative value, if any, of this evidence.
In his motion in limine to exclude all actual income evidence, Hocker argues that this
evidence is irrelevant and will unduly mislead and confuse the jury in its attempt to determine
compensable damages. Within the post-remand discovery process, Ogle presented his prior COG
income and post-incident income, as well as tables which projected wage loss. These tables
calculated Ogle’s wage loss by using the following equation; namely, prior annual income minus
post-incident annual income multiplied by life expectancy. Hocker argues that this calculation is not
only misleading but also irrelevant because it depends on first establishing that the wage difference
is entirely composed of non-COG-based losses caused by Hocker’s statements.
The Federal Rules of Evidence permit parties to submit only evidence that is relevant to the
case. See Fed. R. Evid. 401 (“Evidence is relevant if: (a) It has any tendency to make a fact more
or less probable than it would be without the evidence; and (b) The fact is of consequence in

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determining the action.”); Fed. R. Evid. 402. It is true that the ecclesiastical doctrine limits any
damages that Ogle may receive to only those economic losses caused by Hocker’s statements that
occurred extrinsic to the COG. However, the Court finds that - contrary to Hocker’s arguments Ogle’s previous salary from the COG is relevant in this case.
An actual damage award is an issue of fact for the jury to decide. See, e.g., Cooper Indus.
v. Leatherman Tool Grp., 532 U.S. 424, 437 (2001). Ogle’s previous and subsequent salaries will
be relevant in calculating compensable damages if a jury finds that the wage difference was caused
by Hocker’s statements and extrinsic to COG. Since these are also questions of fact for the jury to
decide, jurors should be permitted to consider Ogle’s actual income evidence in order to determine
any appropriate damages. While the Court recognizes the importance of clarifying the causation
requirement as well as the impact of the ecclesiastical doctrine, the danger of confusion can be
effectively mitigated with an appropriate jury instruction. See Fed. R. Evid. 403 (“The court may
exclude relevant evidence if its probative value is substantially outweighed by a danger of one or
more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.”), 105 (“If the court admits evidence
that is admissible . . . for a purpose - but not . . . for another purpose - the court, on timely request,
must restrict the evidence to its proper scope and instruct the jury accordingly.”).
V.
For the reasons that have been set forth above, the Court denies Hocker’s motion for
summary judgment. (ECF 113). In addition, the Court grants in part and denies in part Hocker’s
motion in limine. (ECF 112). Specifically, the motion is (1) granted as to the request to preclude
Ogle from introducing previously-undisclosed evidence of lost wages; (2) denied as to the request

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to preclude Ogle from presenting previously-submitted evidence regarding wage loss and lost
employment opportunities; and (3) denied as to the request to bar all actual income evidence.

IT IS SO ORDERED.

Date: August 31, 2012

s/Julian Abele Cook, Jr.
JULIAN ABELE COOK, JR.
U.S. District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to their respective
email addresses or First Class U.S. mail to the non-ECF participants on August 31, 2012.
s/ Kay Doaks
Case Manager

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