Dr. Mary Talley Bowden v. the Methodist Hospital

Affirmed and Memorandum Opinion filed May 30, 2024

In The

Fourteenth Court of Appeals

NO. 14-23-00130-CV

DR. MARY TALLEY BOWDEN, Appellant
V.
THE METHODIST HOSPITAL, ET AL, Appellees

On Appeal from the 151st District Court
Harris County, Texas
Trial Court Cause No. 2022-44525

MEMORANDUM OPINION

Appellant, Dr. Mary Talley Bowden (Dr. Bowden), sued appellees, The
Methodist Hospital d/b/a Houston Methodist Hospital and Marc L. Boom
(collectively “Houston Methodist”), for defamation and defamation by implication.
Houston Methodist moved to dismiss Dr. Bowden’s claims under the Texas Citizens
Participation ACT (TCPA). See Tex. Civ. Prac. & Rem. Code §§ 27.001–.011. The
trial court granted Houston Methodist’s motion to dismiss and signed a final
judgment. In two issues, Dr. Bowden asserts that the trial court erred in granting
Houston Methodist’s motion to strike her unsworn declaration and motion to dismiss
under the TCPA. Id. § 27.008(b). We affirm.

Background

Dr. Bowden is a licensed ENT physician who practices in Houston, Texas.
She is board-certified in both otolaryngology and sleep medicine. She is the founder
of BreatheMD and specializes in sinus, sleep, and allergy disorders and treats both
children and adults. She became a member of the Provisional Medical Staff at
Houston Methodist in 2019.

When the COVID-19 pandemic began in March 2020, Dr. Bowden’s practice
shifted from treating patients with sinus, sleep, and allergy issues to treating COVID-
19 patients. The Food and Drug Administration (FDA), the Centers for Disease
Control and Prevention (CDC), and the Texas Department of State Health Services
(TDSHS) encouraged the use of the COVID-19 vaccines to prevent the spread of the
virus. Dr. Bowden treated her patients with Ivermectin, an off-label prescription. As
time progressed, Dr. Bowden became an opponent of vaccine mandates and
eventually the vaccines. According to Dr. Bowden, the vaccines posed significant
risks, and “[s]he felt the government wasn’t being candid about those risks.” She
began publicly sharing her opinions about the vaccine mandates and vaccines on
Twitter:

November 5, 2021: “I’ve had it. Going forward, I will not accept any
patients who have been vaccinated. I will continue to see established
patients how [sic] have had the vaccine, but all new patients have to be
unvaccinated.”
November 8, 2021: “Given the current climate and the writing on the
wall, I am shifting my practice focus to treating the unvaccinated.”
November 8, 2021: “Vaccine mandates are wrong.”

During this time, Dr. Bowden published an updated vaccination policy on

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BreatheMD’s website. In this update addressed to the BreatheMD community, Dr.
Bowden asserted that a urologist employed by Houston Methodist told a patient that
Houston Methodist was “discussing denying care for unvaccinated people.”
Contrary to recommendations and guidance by the FDA, CDC, and TDSHS, Dr.
Bowden promoted the use of Ivermectin on Twitter and republished a tweet claiming
that “Ivermectin is effective for COVID-19.”

In an attempt to counteract Dr. Bowden’s opinions about the COVID-19
vaccine and treatments, Houston Methodist issued a statement on its Twitter
account:

Dr. Mary Bowden, who recently joined the medical staff at Houston
Methodist Hospital, is using her social media accounts to express her
personal and political opinions about the COVID-19 vaccine and
treatments. These opinions, which are harmful to the community, do
not reflect reliable medical evidence or the values of Houston
Methodist, where we have treated more than 24,000 COVID-19
inpatients, and where all our employees and physicians are vaccinated
to protect our patients. Despite what she has posted, Houston Methodist
does not and will never deny care to a patient based on vaccination
status. Dr. Bowden, who has never admitted a patient at Houston
Methodist Hospital, is spreading dangerous misinformation which is
not based in science. Furthermore, Dr. Bowden has told Houston that
she is vaccinated, as required of all physicians who practice at Houston
Methodist.

In the days following Houston Methodist’s statement, a media blitz ensued.
On November 12, Dr. Bowden appeared on “The Conservative Review” podcast.
On November 15, she was interviewed by KTHR and discussed her response to
Houston Methodist’s Twitter statement. Two days later, Dr. Bowden appeared on
the Larry Elder Show and discussed her suspension from Houston Methodist. That
same day, she also held a press conference in front of her business. Finally, on
November 20, Dr. Bowden announced on BreatheMD’s website that she had been

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suspended by Houston Methodist.1

After a series of additional media appearances discussing her opinions on the
vaccine, treatments, and her suspension and resignation from Houston Methodist,
Dr. Bowden filed suit against Houston Methodist, alleging defamation and
defamation by implication and seeking $25 million for compensatory and punitive
damages. Houston Methodist denied the allegations and moved to dismiss under the
TCPA. In response, Dr. Bowden conceded that the TCPA applied but argued that
she met her burden of establishing by clear and specific evidence a prima facie case
for each essential element of her claim. She supported her position with her unsworn
declaration, her curriculum vitae, and an unauthenticated document entitled
“Ivermectin for COVID-19: real-time meta analysis of 95 studies.” Houston
Methodist moved to strike the declaration due to statutory and evidentiary defects.
Houston Methodist also moved to strike the Ivermectin analysis due to evidentiary
defects. The trial court signed an order striking Dr. Bowden’s declaration in its
entirety because it was defective. In its order, the trial court noted that she did not
file a response. After an oral hearing, the trial court granted Houston Methodist’s
motion to dismiss. This appeal followed.

Discussion

In two issues on appeal, Dr. Bowden argues the trial court erred by (1) striking
her “affidavit” because the facts presented were relevant, not hearsay, and supported
by first-hand knowledge; and (2) granting Houston Methodist’s motion to dismiss
because she established a prima facie case for each essential element of her claims.2

1
Reviewing the record, it is unclear when Houston Methodist suspended Dr. Bowden.
Houston Methodist nonetheless acknowledges that Dr. Bowden’s privileges were suspended, and
the hospital planned to investigate her vaccination status. Before the commencement of the
investigation, Dr. Bowden resigned.
2
We note that Dr. Bowden refers to her unsworn declaration as an “affidavit.” See Tex.
4
We will begin our analysis by addressing the trial court’s evidentiary ruling and then
turn to the TCPA’s burden-shifting mechanism to determine if dismissal was
warranted.

Evidentiary Ruling

We review a trial court’s evidentiary ruling, such as its ruling on a motion to
strike an affidavit or declaration, for an abuse of discretion. Sw. Energy Prod. Co. v.
Berry-Helfand, 491 S.W.3d 699, 727 (Tex. 2016). A trial court abuses its discretion
when it acts without regard for guiding rules or principles. U-Haul Int’l, Inc. v.
Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). Reversal is not appropriate unless the
error probably caused the rendition of an improper judgment or probably prevented
the party from properly presenting the case to this court. Tex. R. App. P. 44.1(a);
Romero v. KPH Consol., Inc., 166 S.W.3d 212, 225 (Tex. 2005).

The unique language of the TCPA directs courts to decide the statute’s
applicability based on a holistic review of the pleadings. See Adams v. Starside
Custom Builders, LLC, 547 S.W.3d 890, 897 (Tex. 2018). Section 27.006(a)
provides that when considering a TCPA motion to dismiss, the court “shall consider
. . . supporting and opposing affidavits stating the facts on which the liability or
defense is based.” See Tex. Civ. Prac. & Rem. Code § 27.006(a).

Houston Methodist filed a motion to strike Dr. Bowden’s unsworn declaration
for failure to comply with Civil Practice and Remedies Code section 132.001(d),
specifically the unsworn declaration lacked the “statutorily required jurat for a

Civ. Prac. & Rem. Code § 132.001(c) (providing the requirements for an unsworn declaration).
However, “[a]n affidavit is a ‘statement in writing of a fact or facts signed by the party making it,
sworn to before an officer authorized to administer oaths, and officially certified by the officer
under his seal of office.’” Goggin v. Grimes, 969 S.W.2d 135, 138 (Tex. App.—Houston [14th
Dist.] 1998, no pet.) (quoting Perkins v. Crittenden, 462 S.W.2d 565, 567–68 (Tex. 1970)). There
is no evidence in the record that Dr. Bowden’s declaration was sworn to before an officer
authorized to administer oaths or officially certified by the officer under his seal of office. Id.

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declaration in lieu of an affidavit.” See Hays St. Bridge Restor. Grp. v. City of San
Antonio, 570 S.W.3d 697, 702 (Tex. 2019) (unsworn declaration lacking statutorily
required jurat provided no support for motion). According to the trial court’s order,
Dr. Bowden did not respond to the motion to strike. The record does not reflect that
Dr. Bowden objected to the trial court’s order striking the declaration or in any way
sought to submit a declaration with a compliant jurat. Dr. Bowden, therefore, failed
to preserve error challenging the trial court’s striking of the declaration.

In general, to preserve a complaint for appellate review, the record must show
that the complaining party made a timely and specific objection to make the trial
court aware of the grounds for objection (unless the ground is implied by the context
of the objection). See Tex. R. App. P. 33.1(a).

Although Dr. Bowden asserts that the trial court erred by striking her
declaration, the record before this court does not reflect that Dr. Bowden made a
timely request, objection, or motion to inform the trial court of her complaint. See
Tex. R. App. P. 33.1. Therefore, we conclude Dr. Bowden did not preserve a
complaint for appellate review as to this issue.

Accordingly, we overrule Dr. Bowden’s first issue.

Texas Citizens Participation Act

The purpose of the TCPA is to “encourage and safeguard” the constitutional
rights to speech, petition, and association while also protecting the right to file and
pursue “meritorious lawsuits for demonstrable injury.” Tex. Civ. Prac. & Rem. Code
§ 27.002. The TCPA contemplates an expedited dismissal procedure when a “legal
action” is “based on or is in response to a party’s exercise of the right of free speech,
right to petition, or right of association.” Id. § 27.003(a).

To accomplish this objective, the TCPA provides for a multi-step process for

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the dismissal of a legal action to which it applies. Montelongo v. Abrea, 622 S.W.3d
290, 295–96 (Tex. 2021). First, the movant must demonstrate that the legal action is
“based on or is in response to” the movant’s exercise of the right of free speech,
petition, or association. Id.; Tex. Civ. Prac. & Rem. Code §§ 27.003(a), .005(b). If
the movant meets this burden, the claimant may nevertheless avoid dismissal by
establishing by clear and specific evidence a prima facie case for each essential
element of the claims in question. Montelongo, 622 S.W.3d at 296; Tex. Civ. Prac.
& Rem. Code § 27.005(c). Under this standard, the claimant must provide enough
detail to show the factual basis for their claim. In re Lipsky, 460 S.W.3d 579, 590
(Tex. 2015) (orig. proceeding). Even if this showing is made, the movant can still
win dismissal if it establishes “an affirmative defense or other grounds on which the
moving party is entitled to judgment as a matter of law.” Tex. Civ. Prac. & Rem.
Code § 27.005(d).

The trial court’s application of this process is subject to a de novo review.
Adams, 547 S.W.3d at 894. Under this standard, we “make an independent
determination and apply the same standard used by the trial court in the first
instance.” Cox Media Grp., LLC v. Joselevitz, 524 S.W.3d 850, 859 (Tex. App.—
Houston [14th Dist.] 2017, no pet.). We consider the relevant pleadings, evidence a
court could consider under Texas Rule of Civil Procedure 166a, and any supporting
or opposing affidavits “stating the facts on which the liability or defense is based.”
Tex. Civ. Prac. & Rem. Code § 27.006(a). We review these materials in the light
most favorable to the nonmovant. See Enter. Crude GP LLC v. Sealy Partners, LLC,
614 S.W.3d 283, 293–94 (Tex. App.—Houston [14th Dist.] 2020, no pet.).

Did Houston Methodist Establish TCPA Applicability? To obtain
dismissal under the TCPA, Houston Methodist had the initial burden to demonstrate
that the TCPA applied to Dr. Bowden’s claims against it. See Tex. Civ. Prac. & Rem.

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Code § 27.005(b). As mentioned, Dr. Bowden concedes that her claims are governed
by the TCPA. Since Houston Methodist’s initial burden has been met, the burden
shifts to Dr. Bowden to establish, by clear and specific evidence, a prima facie case
for each essential element of her defamation claim. Id. § 27.005(c).

Did Dr. Bowden Establish a Prima Facie Case? Dr. Bowden asserts that
only the second step of the TCPA burden-shifting mechanism is in dispute. She
argues that she established, by clear and specific evidence, a prima facie case for
each essential element of her defamation case.3 Thus, we must decide whether the
record contains a minimum quantum of clear and specific evidence that Houston
Methodist defamed Dr. Bowden. The TCPA does not define “clear and specific
evidence.” See Tex. Civ. Prac. & Rem. Code §§ 27.001–.011. The supreme court,
however, has held that, for purposes of the TCPA, “clear” means “‘unambiguous,’
‘sure,’ or ‘free from doubt,’” and “specific” means “‘explicit’ or ‘relating to a
particular named thing.’” S & S Emergency Training Sols., Inc. v. Elliott, 564
S.W.3d 843, 847 (Tex. 2018) (quoting Lipsky, 460 S.W.3d at 590).

“Defamation is generally defined as the invasion of a person’s interest in her
reputation and good name.” Hancock v. Variyam, 400 S.W.3d 59, 63 (Tex. 2013).
Defamatory statements are those that tend to “injure a living person’s reputation and

3
In this case, Dr. Bowden sued Houston Methodist for defamation by implication.
Defamation by implication is not the same thing as textual defamation; rather, it is a subset of
textual defamation. Dall. Morning News v. Tatum, 554 S.W.3d 614, 627 (Tex. 2018). Dr. Bowden
has not provided any argument regarding her defamation by implication claim. Even though we
are required to interpret appellate briefs reasonably and liberally, parties asserting error on appeal
still must put forth some specific argument and analysis citing the record and authorities in support
of their argument. See Tex. R. App. P. 38.1(i) (requiring appellants to present a brief that includes
a clear and concise argument for each issue raised, with appropriate citations to legal authority and
the record); see also Cunningham v. Waymire, 612 S.W.3d 47, 64 (Tex. App.—Houston [14th
Dist.] 2019, no pet.). Accordingly, we decline to address Dr. Bowden’s defamation by implication
claim because she failed to adequately brief any argument in support of this issue and so has
waived the complaint. Id.; see also San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex.
App.—Houston [14th Dist.] 2005, no pet.).

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thereby expose the person to public hatred, contempt or ridicule, or financial injury”
as well as those statements that “impeach any person’s honesty, integrity, virtue, or
reputation.” Tex. Civ. Prac. & Rem. Code § 73.001. Defamation requires proof (1)
of the publication of a false statement of fact to a third party, (2) that defamed the
plaintiff, (3) with the requisite degree of fault, and (4) that proximately caused
damages. Mem’l Hermann Health Sys. v. Gomez, 649 S.W.3d 415, 423 (Tex. 2022).

“In a defamation case that implicates the TCPA, pleadings and evidence that
establishes the facts of when, where, and what was said, the defamatory nature of
the statements, and how they damaged the plaintiff should be sufficient to resist a
TCPA motion to dismiss.” Lipsky, 460 S.W.3d at 591. The TCPA does not require
that Dr. Bowden produce evidence that each and every alleged statement is
defamatory to meet her burden; rather, Dr. Bowden must establish “a prima facie
case for each essential element” of her defamation claims against Houston
Methodist. Tex. Civ. Prac. & Rem. Code § 27.005(c).

As mentioned, the “threshold requirement” for defamation is “the publication
of a false statement of fact to a third party.” Dall. Morning News v. Tatum, 554
S.W.3d 614, 623 (Tex. 2018). “If a statement is not verifiable as false, it is not
defamatory.” Id. at 624. To determine if a statement is false for defamation purposes,
courts utilize the substantial truth doctrine. Neely v. Wilson, 418 S.W.3d 52, 63 (Tex.
2013). “The common law of libel takes but one approach to the question of falsity,
regardless of the form of the communication.” Masson v. New Yorker Magazine,
Inc., 501 U.S. 496, 516 (1991). “It overlooks minor inaccuracies and concentrates
upon substantial truth.” Id. “A statement need not be perfectly true; as long as it is
substantially true, it is not false.” KBMT Operating Co., LLC v. Toledo, 492 S.W.3d
710, 714 (Tex. 2016). Furthermore, courts determine a statement’s meaning “by
construing the publication [ ] as a whole in light of the surrounding circumstances

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based upon how a person of ordinary intelligence would perceive it.” Id. at 721
(internal quotations omitted). To determine if Dr. Bowden met her burden to
establish, by clear and specific evidence, a prima facie case that Houston Methodist’s
statements were false, we examine Dr. Bowden’s pleadings and the relevant
evidence. See Tex. Civ. Prac. & Rem. Code § 27.006(a).

Here, Dr. Bowden’s pleadings state that her defamation claim is based on false
statements that were published and republished by Houston Methodist. These
statements can be classified into two broad categories: (1) statements that Dr.
Bowden’s opinions about the virus and the vaccines are harmful to the community,
and (2) statements that Dr. Bowden spread misinformation that does not reflect
reliable medical evidence. Relying on her own declaration, Dr. Bowden asserts that
Houston Methodist’s statements are false because “use of [I]vermectin to treat
COVID patients is supported by medical evidence and is an accepted and safe
treatment protocol.” Apart from Dr. Bowden’s declaration, which was struck by the
trial court, the record contains no other evidence that Houston Methodist’s
statements concerning Dr. Bowden’s opinions about the virus and the vaccine
mandates were untrue. Based on the evidence in the record, the statements published
by Houston Methodist align with the then-existing scientific consensus and
government guidance about the vaccine and effective treatments. We therefore must
conclude that Dr. Bowden has failed to establish by clear and specific evidence the
first element of her defamation claim.

Because Dr. Bowden failed to satisfy her burden to establish, by clear and
specific evidence, a prima facie case as to at least one element of her defamation
claim, the trial court did not err in dismissing this claim under the TCPA. See
Montelongo, 622 S.W.3d at 296; Tex. Civ. Prac. & Rem. Code § 27.005(c).
Accordingly, we need not consider whether Dr. Bowden established the remaining

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elements of her defamation claim and overrule her second issue.

Conclusion

We conclude that Houston Methodist met its initial burden to show that Dr.
Bowden’s claims against it fall within the TCPA. The burden then shifted to Dr.
Bowden to establish by clear and specific evidence a prima facie case for each
essential element of her claims. Dr. Bowden failed to establish a prima facie case for
her defamation claims. We therefore affirm the final judgment.

/s/ Frances Bourliot
Justice

Panel consists of Justices Bourliot, Zimmerer, and Spain.

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