Defamation Counterclaim Arising out Reagan National Helicopter Crash Case Can Go Forward
· Reason
[A.] From Ellis v. Wallace, decided today by Chief Magistrate Judge Scott Varholak (D. Colo.):
On January 29, 2025, a Black Hawk Helicopter and American Airlines Flight 5342 collided mid-air near Ronald Reagan Washington National Airport. Hours after the crash, several posts and articles appeared claiming Plaintiff was the helicopter pilot in the midair collision ("the rumor"), including:
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- On the morning of January 30, 2025, a "well-known podcaster and influencer Luke Ford posted a full video identifying [Plaintiff] as the pilot and discussing the crash as intentional."
- On January 30, 2025, at 4:35 p.m., X user @RealNytoMwang posted "Plaintiff's photograph with text falsely identifying her as the transgender Black Hawk pilot who crashed the helicopter."
- On January 30, 2025, at 9:22 p.m., X user @FakeGayPolitics published a post "identifying Plaintiff as the pilot, including her photographs and video clips."
- On January 30, 2025, at 11:34 p.m., the Santa Monica Observer published an online article titled, "A Transgender Pilot Named Jo Ellis Flew Blackhawk Helicopter Into the American Airlines Jet at Reagan National."
Defendant made his first X post addressing the rumor on January 31, 2025, at 1:00 a.m. Eastern Time. And Plaintiff filed the Complaint in this matter on April 9, 2025, alleging that Defendant's posts were defamatory. Plaintiff then proceeded to appear as a guest on several podcasts. On July 18, 2025, she was interviewed on the Kill Tony podcast. During the interview, the hosts asked Plaintiff about the collision rumor and her pending litigation. Plaintiff explained that Defendant was the "[f]irst one to tie my likeness to the rumor. We don't know if he started the rumor, but he had millions of followers. He did the most what we can determine as damage."
Ten days later, Defendant filed the Special Motion to Dismiss Plaintiff's Complaint, attaching copies of X posts and articles linking Plaintiff to the crash hours before Defendant commented on the rumor. Plaintiff then appeared on a second podcast, the RVA Magazine podcast, on September 30, 2025. Plaintiff was again asked about the rumor and her pending litigation. In response, she stated:
[W]ithin 24 hours of the crash, I was finding out that I was being named as as the pilot as, like, the unnamed female pilot that was the supposed DEI hire that Trump, President Trump had alluded to at a press conference that "we know it's DEI because we just know." And so that kind of sent the online world into a frenzy of like, let's figure out who this pilot is. And, from what we can tell, [Defendant] picked up on that and used a picture of me and the [Michael] Smerconish article and, um, kind of put it all together. And with his following, he had, I think, two and half million followers or something like that, we believe he did the most damage. Like it would not have had the legs it had if he hadn't posted about it.
Finally, on January 12, 2026, Kim Congdon interviewed Plaintiff on The Kim Congdon Takeover podcast. Congdon asked Plaintiff if she was suing the individual that started the rumor. Plaintiff responded:
I don't, yeah, I don't know if he started it, but he definitely, like, he pushed it. He's the first one to tie my likeness to it. Yeah. His name's Matt Wallace and, uh, he, uh, millions of followers on Twitter, and he pushed it pretty hard and we believe he did the most damage and so I'm suing him in federal court."
On April 6, 2026, Defendant filed the Counterclaim alleging that these podcast statements were defamatory.
Defendant alleges that Plaintiff made repeated defamatory statements that: (1) Defendant "was the first one to post [Plaintiff's] likeness in connection with the helicopter crash," and (2) that Plaintiff believes Defendant's "statements caused the most damage." {Plaintiff alleges that there is a material difference between claiming that Defendant was the first to name Plaintiff in relation to the tragedy, and that Defendant was the first one to post Plaintiff's likeness in connection with the collision. The distinction is unclear to the Court. Accordingly, the Court assesses Plaintiff's "likeness" statements as conveying Defendant was the first to connect Plaintiff to the collision.}
[B.] The court rejected Plaintiff's arguments that Plaintiff's statements were protected by the "litigation privilege." That privilege bars defamation lawsuits based on statements in court filings and in-court statements, but doesn't apply to statements about the lawsuit made outside the litigation.
(Recall that, though in a typical case it would be a defendant who's arguing the statements were privileged, opinion, true, etc., and plaintiff would be responding, here the roles are flipped because the defendant is counterclaiming against plaintiff based on plaintiff's statements.)
[C.] The court also rejected Plaintiff's arguments that the statements were nonactionable opinion: It concluded that both statements were "susceptible of being proved true or false," and were framed as factual assertions rather than using "loose or hyperbolic language that provided the impression that her statements should not be taken seriously."
[D.] The court concluded that Defendant had introduced sufficient evidence that the statements were false:
First, with respect to Plaintiff's "likeness" statements, Plaintiff repeatedly claimed that Defendant was "the first one to tie [her] likeness to the rumor." However, Defendant provided several pieces of evidence showing that other X users linked Plaintiff to the rumor before Defendant….
Second, Defendant has shown a reasonable likelihood of proving by clear and convincing evidence that Plaintiff's "most damage" statements were false. Defendant declares that "the rumor was spread primarily by much larger voices than [Defendant's,] such as Ann Coulter's, Alex Jones's, and others." He claims that these "prominent individuals and entities" had a "far greater reach than anything [he] posted" about Plaintiff. If true, this declaration could provide clear and convincing evidence that Defendant's "most damage" statements were false. At the very least, it creates a question for the jury since Plaintiff has offered competing evidence. …
[E.] The court also concluded that Defendant had introduced sufficient evidence that Plaintiff knew the "likeness"/"first one to tie" statements were probably false (which is required by Colorado law in such cases):
First, Plaintiff's statements on the RVA Magazine podcast and The Kim Congdon Takeover podcast occurred after Defendant filed his Special Motion to Dismiss and Plaintiff filed her response. In his Special Motion to Dismiss, Defendant included evidence of other X users linking Plaintiff to the rumor before Defendant's first post. And Plaintiff's podcast statements referred to the ongoing litigation. Thus, it is plausible to infer that Plaintiff had a high degree of awareness of the probable falsity of her statements.
Second, Plaintiff's statements reveal inconsistencies in her account of the underlying events. During her interview on the Kill Tony podcast and The Kim Congdon Takeover podcast, Plaintiff repeatedly stated that she did not know whether Defendant started the rumor despite claiming he was "the first one to tie [her] likeness to it." Plaintiff repeated these conflicting statements in her declaration. was the first to blame [her] for this horrific crash because [she] clearly knew that information was incorrect.")] Consequently, such inconsistencies weigh in favor of finding that Defendant has shown a reasonable likelihood of proving actual malice by clear and convincing evidence….
But the court concluded there wasn't enough evidence of knowing or reckless falsehood as to the "most damage" statement:
Defendant declares that at the time Plaintiff made her public statements, she knew "prominent individuals and entities" had discussed her connection with the crash and that those individuals had a "far greater reach than anything [Defendant] posted." However, such evidence does not support an inference that Plaintiff entertained serious doubts as to the truth of the statements or was highly aware of their probable falsity. Further, Defendant provides no other evidence to support his actual malice claim here.
{A simple example demonstrates both this point and the distinction between Plaintiff's "likeness" statements. Assume five bloggers, each with five followers, each post about a famous actor having an affair. The affair did not occur. Subsequently, a podcaster with millions of followers posts that the actor was having an affair. Based upon this podcaster's broad following and reputation in the community, the New York Times—with significantly more subscribers than the podcaster—runs a story about the actor having an affair. If the actor states that the podcaster was the first to run the story, knowing five other bloggers ran the story, the actor spoke knowing her statement was false and thus acted with actual malice.
On the other hand, the mere fact that the actor stated that the podcaster did the most harm—even knowing the New York Times had a broader audience—does not necessarily equate to actual malice; the actor could easily believe (even if wrongfully) that the podcaster caused the most harm because the podcaster gave credibility to the false rumor and thus led others to run with the story. Here, Defendant has only presented evidence that those with broader audiences likewise posted the false story. But, as the hypothetical shows, this does not necessarily mean that Plaintiff's statement that Defendant caused the most damage was made with actual malice.}
[F.] Finally, the court concludes that Defendant had sufficiently alleged damages, as required by Colorado law:
Specifically, he alleged that Plaintiff's statements have caused: (1) "significant stress and strain in [his] family relations," and (2) stress from his alleged tarnished reputation. Although Plaintiff claims that that Defendant asserted these damages "in conclusory fashion," the Court finds the presented evidence sufficient to satisfy Defendant's burden at this stage.
The court thus denies Plaintiff's motion to dismiss as to the "likeness"/"first one to tie" statements, which means Defendant's counterclaim can go forward (though of course it doesn't mean the Defendant's counterclaim will ultimately prevail).
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