Morris & Stone Wins $3.9 Million Defamation Judgment

defamation
First rule of defamation defense: Don’t say anything you can’t prove.

I would think this concept would be so obvious and self-explanatory that it would never arise in my practice, but it comes up over and over.

I see it often in the case of plastic surgeons. Plastic surgeons have a tough go of it in the reputation area, given the nature of their practice. The person coming to them is unhappy with their breasts, eyes, nose, or whatever, and they are disappointed when the cosmetic change fails to change their life. They feel that the surgeon must have done something wrong. It’s not surprising that we get so many calls from plastic surgeons.

But we also get the calls from the patients, being sued by the plastic surgeons for defamation. When I explain that the analysis is simple – so long as they can prove the truth of everything they said in their review of the surgeon, they will be fine – they respond that absolutely they can. But then when I read the review, I find the statement they will likely never be able to prove:

“I’m not the only patient Dr. Jones has disfigured, there are many others.”

When I question them about that statement, the conversation goes something like this:

“Do you know anyone else who has had work done by Dr. Jones?”

“No.”

“Then how can you prove that there ‘many others’ he has ‘disfigured’?”

“I read his Yelp reviews.”

“Do you have personal knowledge of the results those patients received from Dr. Jones?”

“Well, no, not personal knowledge, but I read their reviews on Yelp.”

“How do you know what you read is true? How can you be sure it’s not another doctor, trying to drive business away from the competition?”

“Does that happen?”

“Yes, that happens.”

The person is thus left with a review they will likely never be able to prove was true. If they had limited themselves to their own truthful telling of their experience with Dr. Jones, they would have been able to defeat any defamation action. But like the kid on the school yard who adds “and everyone thinks you’re stupid” to an insult to give it more sting, they felt that adding a reference to other unhappy patients would make the review more damaging. They are now faced with the challenge of somehow proving the truth of their claims, or face the consequences. Unless they can round up some quantity of patients and prove, in each case, that the patient was objectively “disfigured” by Doctor Jones, that statement will be false and defamatory.

And so it was this week’s defamation action.

The defendant thought he had uncovered some juicy information about our client, and posted it online as though he had firsthand, personal knowledge. But all the statements were false, as five minutes of research would have revealed. Apparently unaware that the statement is offered as a meme, the defendant could only say that the statements must be true because he had read them on the internet. When it came time to prove the truth of the statements he had made, he could offer nothing.

Today the Orange County Superior Court awarded our client $3.9 million in damages for what the defendant had posted online.

You must be able to prove what you say. Publishing a statement by another makes you as liable as the person who originally posted it.

[UPDATE — February 1, 2021:]  As I have been explaining for years, most defamation disputes do not need to be resolved with damages. Most of the time the defamation victim just wants the defamatory post taken down. So it was here. Before we were ever involved, the client had advised the defendant that he would not pursue legal action if the defendant would just remove the false information. As is often the case, the defendant not only refused to remove the defamatory comments, he doubled down and taunted the victim.

As a part of the judgment we obtained, the court ordered defendant to remove the defamatory posts. Today the defendant did so. Thus, in the end, the defendant complied with our client’s demand. But whereas he could have done so without cost before we ever became involved, now he did so pursuant to a multi-million dollar judgment.

Know when to walk away. The defendant unquestionably acted with malice when he posted the comments, turning a blind eye to the improbability of what he was claiming. But even if he had believed what he was saying, when it was shown that the statements were untrue, it was folly to refuse to take them down.

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Aaron Morris
Morris & Stone, LLP
11 Orchard Road, Suite 106
Lake Forest, CA 92630

(714) 954-0700

Email Aaron Morris

View Aaron Morris, Trial Attorney and Partner at Morris & Stone, with emphasis on Free Speech and Defamation Law.

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