Section 18 “Incremental Harm” Doctrine

• Library: Damages 2012

The incremental harm doctrine is related to both the libel-proof plaintiff doctrine and the substantial truth doctrine. Unlike the traditional libel-proof plaintiff doctrine, however, the incremental harm doctrine looks to truthful or unchallenged portions of the article at issue, rather than the plaintiff’s reputation before the publication in issue. Dismissal is warranted if the unchallenged portion of the publication so damages the plaintiff’s reputation that the challenged portion causes only nominal additional harm. Herbert v. Lando, 781 F.2d 298, 310–11 (2^nd Cir. 1986). For a cogent analysis of the incremental harm doctrine and its relationship with these other doctrines, see 1 Robert D. Sack, Sack on Defamation—Libel, Slander, and Related Problems § 2:4.18 (4^th ed. 2010).

For example, in Simmons Ford, Inc. v. Consumers Union of United States, Inc., 516 F. Supp. 742 (S.D.N.Y. 1981), the defendant magazine published a critical evaluation of the plaintiff’s new electric car and rated it “Not Acceptable.” Id. at 750. The article set forth several reasons for the low rating, including:

poor acceleration; low top speed; poor braking; poor handling; poor ride; poor comfort; and generally negative performance.

Id. at 744.

The only portion of the article challenged by the plaintiff was a paragraph asserting that the car did not meet federal safety regulations. Id. at 750. This statement was inaccurate because the federal safety standards...