Morris & Stone Wins $3.9 Million Defamation Judgment

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?”


“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.

Here is how the burden shifts in a defamation action.

In any civil action, the burden of proof is on the plaintiff. The plaintiff has the burden to satisfy all the elements of his or her civil claims. The standard is a “preponderance of the evidence.” On the scales of justice, if the evidence tilts in favor of plaintiff, then he prevails. This remains true with a defamation action, but with a slight twist.

In a defamation action, truth is an absolute defense to any defamation claim. A statement cannot be defamatory if it is true. But since truth is a defense, the burden is on the defendant to prove the truth of the statements made by defendant.

So let’s take our hypothetical of Doctor Jones.

Defendant went to Dr. Jones for a nose job, and concluded that the doctor made her nose far too narrow. She feels like a freak show, and expresses her frustration with a scathing Yelp review, claiming that she was disfigured, along with many others.

And let’s add another common review technique that I see over and over. The reviewer wants to add some sting to the review, so she creates a criminal investigation. She files a report with the police and/or the government agency that regulates the profession in question. If it’s doctor, she calls the Medical Board. If it’s a contractor, she calls the Contractor’s Licensing Board. If it’s a body shop, she calls the Bureau of Automotive Repair. You get the idea.

Having done so (or at least with the intention of doing so), the reviewer adds language such as:

Doctor Jones is under investigation by the California Medical Board and will likely lose his license. There is also an open police investigation.

Wow. The reviewer has created the impression that Dr. Jones has disfigured multiple patients, that he is so bad that he is being investigated by the Medical Board and is going to lose his license, and that his skills were so bad as to cross the line into criminal conduct. One would have to be a fool to go to Dr. Jones.

Now let’s take that to court.

Dr. Jones sues for defamation. The burden is on him to prove that the Yelp review was defamatory. This is easily done. He takes the stand and testifies that the statements in the Yelp review were false. He has never disfigured a patient, and he is not under investigation by the Medical Board or any police agency.

At that point, he has proven his case. There is no evidence to refute what he has said. The burden then shifts to defendant to prove the truth of what she wrote.

We already discussed the problems with proving that multiple patients have been disfigured. Even assuming she can find multiple patients who are willing to testify to “disfigurement,” each such patient will be a case within a case. Defendant will have to prove by some objective standard that the work performed amounted to disfigurement.

And filing a complaint with the Medical Board does not mean that Dr. Jones is being investigated, and it certainly does not mean that he is likely to lose his license.

I’ve had callers who made a single phone call to the FBI, just so they could add to their review that the person in question “is being investigated by the FBI.” It sounds very dramatic, but a phone call does not an investigation make. The FBI will have its own definition of what constitutes an investigation, and is very close to the vest about what it is investigating. How will the defendant prove that an investigation was occurring? Good luck getting an FBI Agent to come to court and testify that your phone call initiated an investigation.

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.

Although he swore everything he said was true, the defendant did not prove the truth of a single statement. 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.

[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.

[UPDATE — December 14, 2022:]

At the initiation of the action, counsel for defendant said we would never prevail. After the judgment, she said she’d get it undone by way of motion. Then she said she’d get the judgment reversed on appeal. The Court of Appeal upheld the judgment, and the Supreme Court refused to review the matter.

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Aaron Morris
Morris & Stone, LLP
Orchard Technology Park
11 Orchard Road, Suite 106
Lake Forest, CA 92630
(714) 954-0700

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