Plaintiffs, Timothy M. Brown, M.D. (Brown), and Timothy M. Brown, M.D., P.C. (collectively, Brown plaintiffs), filed a defamation action against the following defendants: (1) Daniel J. Gatti (Gatti), who is a lawyer; (2) Gatti, Gatti, Maier, Krueger & Associates; Gatti, Gatti, Maier, Krueger, Sayer & Associates; and Gatti & Gatti, P.C. (we refer to Gatti and his firms collectively as Gatti defendants);
1
and (3) Marie Nolan.
2
The trial court granted summary judgment for Gatti defendants. On appeal, the Court of Appeals reversed.
Brown v. Gatti,
The parties do not contest the following facts. Nolan sued Brown for medical malpractice respecting the manner in which Brown had performed a liposuction operation on her. Nolan asserted claims for negligence, fraud, and unlawful trade practices, specifically alleging (among other things) that Brown had misled Nolan about his qualifications to perform such surgery. Gatti represented Nolan in that malpractice case.
At trial, Nolan agreed to dismiss her claims for fraud and unlawful trade practices, in exchange for which Brown paid her $10,000 and conceded negligence. On the
After that trial, Gatti spoke with a reporter from The Oregonian. The Oregonian then published an article related to the Nolan litigation, headlined “Botched Liposuction Yields $180,000-plus in Damages.” Afterward, Gatti appeared in a news story broadcast on KATU, a Portland television station. The KATU broadcast dealt with what its reporter described as “a first of its kind lawsuit against USWestDex” based on an alleged connection between Brown’s advertisements in the US West Direct “Yellow Pages” and Nolan’s injuries. 3
Brown plaintiffs then brought the present action for defamation, among other things. (Brown plaintiffs did not name either The Oregonian or KATU as defendants.) In their complaint, Brown plaintiffs alleged that The Oregonian article contained three statements that were defamatory. Only one of those statements purported to quote Gatti directly:
“ ‘It [the Nolan verdict] sends notice to doctors who aren’t board-certified to notify the public about their true qualifications,’ said attorney Daniel Gatti.”
Brown plaintiffs’ complaint alleged that that statement was defamatory by implication, because it implied “that Dr. Brown is not a board certified physician.” Although he is not board certified in plastic surgery, Brown is board certified in dermatology, clinical pathology, and anatomic pathology.
Brown plaintiffs separately alleged in their complaint that four statements in the KATU broadcast were defamatory by implication. Only two of those statements involved Gatti speaking on camera. (The other two statements were made by the KATU reporter.) In the two statements that he made on camera, Gatti said:
“You can’t put a value on the psychological trauma that these women are going through when they are already embarrassed by even having to be in front of a jury and they’ve made a mistake and then they’ve been betrayed.
«¡1: * * *
“USWEST Direct is negligent in not at least requiring doctors to somehow certify that they are indeed certified in the area in which they are wanting to advertise [or] to do some sort of minuscule investigation as to whether or not the doctor is qualified.”
Brown plaintiffs’ complaint alleged that both statements were defamatory by implication. Brown plaintiffs contended that the first statement implied that “Dr. Brown had ‘betrayed’ Nolan’s trust by misrepresenting himself as [a] plastic surgeon,” while the second statement implied that “Dr. Brown misrepresented himself as a plastic surgeon in his advertisement in the US West Direct Yellow Pages.”
After certain pretrial proceedings that are not relevant to this case as it comes to us, Gatti defendants moved for summary judgment against Brown plaintiffs. In their motion, Gatti defendants contended (among other things) that Gatti never made some of the statements attributed to him, that some of Gatti’s statements were not defamatory, and that some of Gatti’s statements were constitutionally protected expressions of opinion. As noted, the trial court granted Gatti defendants’ motion for summary judgment on the defamation claim, and it entered a judgment in their favor on the defamation claim pursuant to ORCP 67 B.
On Brown plaintiffs’ appeal, the Court of Appeals affirmed in part and reversed in part. First, the court agreed with the trial court that summary judgment was appropriate against Brown plaintiffs as to two statements in the KATU broadcast that had been made by the KATU reporter, rather than Gatti.
This case thus boils down to the question whether the remaining three statements — all involving direct quotes of Gatti — could be found by a jury to be defamatory. The Court of Appeals agreed with Brown plaintiffs that the statements could be defamatory and therefore reversed summary judgment for Gatti defendants. As to all three statements, the Court of Appeals concluded that the statements could be defamatory by implication and that they were not constitutionally protected opinion. Id. at 705-08 (KATU statements); id. at 714-15 (The Oregonian statement). We allowed Gatti defendants’ petition for review to address that question.
This is a defamation case. A defamatory communication is one that “ ‘tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.’ ”
King v. Menolascino,
In the professional context, a statement is defamatory if it is false and “ ‘ascribes to another conduct, characteristics or a condition incompatible with the proper conduct of his lawful business, trade, [or] profession.’ ”
Fowler v. Stradley,
Here, Brown plaintiffs allege that Gatti’s three statements, while admittedly not directly defamatory, are defamatory “by implication.”
“Defamation by implication is the label commonly given to a claim that requires drawing a defamatory inference from a facially nondefamatory communication. When defamation by implication is alleged, this court has held that the link between the communication and the defamatory inference must not be ‘too tenuous.’ In other words, when a claim for defamation requires the drawing of a defamatory inference, the inference that the plaintiff seeks to draw from the facially nondefamatory communication must be reasonable.”
Reesman,
In defamation cases, the court and the jury perform a shared task.
“The court determines whether a communication is capable of a defamatory meaning. If the court determines that it is, the matter is then submitted to the jury for a determination of whether a defamatory meaning was understood by the recipients.”
Beecher v. Montgomery Ward &
Co.,
The meaning of an allegedly defamatory statement or publication focuses on how a recipient would understand it. The meaning is determined by
“looking] to the general purport and intent of the article published and not to isolated sentences. Words are to be construedin their ordinary acceptance and meaning. The test is: What sense will be given to them by a reader of ordinary intelligence? Will the natural and proximate consequence be to injure the person about whom they have been published? Will such words tend to bring a person into public hatred, contempt or ridicule?”
Peck v. Coos Bay Times Pub. Co. et
al.,
In determining whether a statement is capable of a defamatory meaning, moreover, courts must be careful not to tread on the jury’s role as the finder of fact:
“ ‘In many cases imputations are so clearly innocent that the court is justified in determining the question without submission to the jury. On the other hand, if in the opinion of the court, the question is one as to which reasonable men might differ, it is for the jury to determine which of the two permissible views they will take.’ ”
Hinkle v. Alexander,
Here, we must decide whether the trial court correctly granted summary judgment for Gatti defendants. Under ORCP 47, we examine the pleadings, depositions, affidavits, and admissions on file, and construe all facts in the light most favorable to Brown plaintiffs, the parties opposing summary judgment. See ORCP 47 C (2000) (so stating). 4 If “no objectively reasonable juror could return a verdict for” Brown plaintiffs, and if Gatti defendants were “entitled to a judgment as a matter of law,” then summary judgment was appropriate. Id.
As noted, Gatti defendants challenge only the Court of Appeals’ ruling on three statements. As to those statements, Gatti defendants contend two things: either (1) any defamatory inference to be drawn from the statement is too tenuous; or (2) the statement, even if defamatory, was a statement of opinion and therefore not actionable. We consider the three statements in order.
As noted, Brown plaintiffs alleged that Brown was defamed by implication by the following sentence in The Oregonian article:
“ ‘It [the Nolan verdict] sends notice to doctors who aren’t board-certified to notify the public about their true qualifications,’ said attorney Daniel Gatti.”
Brown plaintiffs assert that Gatti’s statements imply an assertion about Brown,
viz.,
“that Dr. Brown is not a board certified physician.” To evaluate that assertion, we consider Gatti’s quote in its context,
i.e.,
the “general purport and intent of the article.”
Peck,
Having identified the implied assertion, however, we disagree that the assertion was or could be defamatory. We first note just how narrow the defamatory inference that
It is true that Gatti’s quote, taken by itself, refers broadly to “doctors who aren’t board certified,” without in any direct way limiting the scope of the words “board certified.” Again, however, we do not consider “isolated sentences” but the “general purport and intent of the article.”
Peck,
“The award disappointed the woman’s lawyer, who was seeking more than $2 million, but he said it still should send a message to doctors who portray themselves as plastic surgeons when they’re not.
“ ‘It sends notice to doctors who aren’t board-certified to notify the public about their true qualifications,’ said attorney Daniel Gatti.”
(Emphasis added.) In summary, we hold that no reasonable juror could read Gatti’s statement, when read in context, to refer to anything beyond the fact that Brown is not board certified as a plastic surgeon.
The second statement at issue here comes from the KATU broadcast. As noted, Gatti stated in that broadcast:
“You can’t put a value on the psychological trauma that these women are going through when they are already embarrassed by even having to be in front of a jury and they’ve made a mistake and then they’ve been betrayed.”
Brown plaintiffs alleged that that statement falsely implies that Brown “had “betrayed’ Nolan’s trust by misrepresenting himself as a plastic surgeon.”
Gatti defendants argue that the statement refers to Nolan being betrayed by USWEST Direct, not by Brown. We disagree. Again, we consider the statement in context. 7
The KATU broadcast began by noting Nolan’s claim that the Yellow Pages had some legal responsibility for Nolan’s injuries. The broadcast then outlined the circumstances leading to Nolan’s injury. That part of the broadcast focused on Brown’s culpability, and it ended with Gatti making the disputed statement:
“[Reporter]: When Marie Nolan recovered from a three [-] year illness [,] she thought plastic surgery on her neck and arms might help renew her self-image. She turned to the yellow pages to find a plastic surgeon who specialized in liposuction. Under the heading ‘plastic and reconstructive surgery,’ she found the name ‘Dr. Timothy Brown.’
“[Nolan]: No matter what the procedure is that you are looking for * * *, you know you are trusting that information is true and that’s not necessarily true.
“ [Reporter]: But Brown was no plastic surgeon and he wasn’t certified in plastic surgery. He was a dermatologist practicing liposuction and other types of cosmetic surgery.
“[Nolan]: I basically put my life in his hands and [in] hindsight if I had done that to my child, um you know, I’d be responsible.
“ [Reporter]: And in the hands of Dr. Brown Marie suffered irreparable harm. Here is a picture of her arms before.Here, after. And look at the damage the liposuction did to her neck.
“[Nolan]: * * * It was very apparent that it was um I felt a negligent procedure.
“[Reporter]: Attorney Dan Gatti knew of Dr. Brown’s work. He has now sued him six times for medical negligence in liposuction procedures.
“[Gatti]: You can’t put a value on the psychological trauma that these women are going through when they are already embarrassed by even having to be in front of a jury and they’ve made a mistake and then they’ve been betrayed.”
Only then does the broadcast return to USWEST Direct’s alleged role and explain why it, too, allegedly was liable for the harm:
“[Reporter]: Gatti won Marie’s case against Dr. Brown and is now going after the pages where Brown advertised.
“[Gatti]: USWEST Direct is negligent in not at least requiring doctors to somehow certify that they are indeed certified in the area in which they are wanting to advertise [or] to do some sort of minuscule investigation as to whether or not the doctor is qualified.”
In context, we cannot agree with Gatti defendants’ claim that a reasonable viewer would conclude that “these women” had been “betrayed” by USWEST Direct, not by Brown. Although the broadcast had asserted earlier that USWEST Direct allegedly had some culpability for Nolan’s injury, that reference was so distant that “betrayed” cannot reasonably be understood to refer to it.
That said, however, we cannot see how a reasonable juror could find Gatti’s specific statement to be defamatory, even when it is read in context. Gatti’s characterization of Brown’s actions as a “betrayal” of Nolan arose from Brown’s failure to perform competently the liposuction that he had been trusted to do. (If the result had been satisfatory, then Brown’s lack of certification would have been irrelevant.) Thus, when read in context, the statement referred to the reasons why Nolan and others had sued Brown, viz., his professional negligence. The contrary series of inferences that Brown plaintiffs wish to have a jury draw are not supportable. The trial court thus correctly granted summary judgment to Gatti defendants as to the “betrayal” statement, and the Court of Appeals erred in overturning that ruling.
In his second statement from the KATU broadcast at issue here, Gatti said:
“USWEST Direct is negligent in not at least requiring doctors to somehow certify that they are indeed certified in the area in which they are wanting to advertise [or] to do some sort of minuscule investigation as to whether or not the doctor is qualified.”
Given that the broadcast had identified the USWEST Direct Yellow Pages as “the pages where Brown advertised,” Brown plaintiffs argue that that statement falsely implies that Brown “misrepresented himself as a plastic surgeon in his advertisement in the US West Direct Yellow Pages.”
As with the other KATU broadcast statement, Gatti defendants argue that the statement “is nothing more than an indictment of USWEST Direct.” We agree that a viewer would understand the statement to indict USWEST Direct, but it does more than that. It specifically charges that USWEST Direct failed to investigate whether doctors are “qualified” “in the area in which they [doctors] are wanting to advertise.” Gatti’s statement came after the broadcast had discussed in some detail how Brown had injured Nolan, and in particular how Brown had allegedly misrepresented his qualifications in the Yellow Pages. A reasonable viewer certainly would consider that discussion to be a specific example of the larger problem complained about by Gatti. In other words, Gatti’s complaint that USWEST Direct should require some proof of credentials when it sells advertising, considered in context, plainly implied that Brown had misrepresented his credentials in his advertising.
That does not end the matter, however. On this record, it appears that the implied fact — that Brown was not a board certified plastic surgeon — is true. And, because it is true, Gatti’s statement loses its defamatory content. It follows that the trial court correctly granted summary judgment to Gatti
In summary, we conclude that the trial court correctly granted summary judgment to Gatti defendants respecting Brown plaintiffs’ defamation claim as to the three statements at issue here. We reverse that part of the opinion of the Court of Appeals.
The decision of the Court of Appeals is affirmed in part and reversed in part. The judgment of the circuit court is affirmed in part and reversed in part, and the case is remanded to the circuit court for further proceedings.
APPENDIX 1: OREGONIAN ARTICLE
Botched liposuction yields $180,000-plus in damages
The Multnomah County jury award to a Vancouver, Wash., woman disappoints her lawyer, who was seeking $2 million
By David R. Anderson of the Oregonian Staff
A Multnomah County jury awarded more than $180,000 on Friday to a woman who was scarred by a botched liposuction procedure.
The award disappointed the woman’s lawyer, who was seeking more than $2 million, but he said it still should send a message to doctors who portray themselves as plastic surgeons when they’re not.
“It sends notice to doctors who aren’t board-certified to notify the public about their true qualifications,” said attorney Daniel Gatti.
Bertha “Marie” Nolan, 47, of Vancouver, Wash., went to Dr. Timothy M. Brown, a dermatologist, in December 1995 to fix a double chin and flabby upper arms, Gatti said.
But Brown removed too much fat in some areas and none at all in other areas, Gatti said. That caused grooving, gouging and dimpling on Nolan’s skin. In areas where Brown removed all the fat, there was no layer of lubrication left and her skin was attached to muscle and nerves. The procedure also caused neurological damage, leaving her neck and arms numb in some places and painful in others, Gatti said.
It will take at least three plastic surgeries to repair the damage, but even that won’t stop the pain or completely fix Nolan’s appearance, Gatti said.
Brown’s attorney, Mark Wagner, declined to comment after the verdict.
Brown portrayed himself as a plastic and reconstructive surgeon in telephone book ads and literature he gave to potential patients. But he had only the two days of training needed to become certified by the American Academy of Cosmetic Surgeons, which is not recognized by the American Medical Association, Gatti said.
In addition to the negligence claim, Gatti also initially included accusations of intentional fraud and unlawful trade practices against Brown. But during the trial, Gatti agreed to drop those claims and the punitive damages he was seeking against Brown in exchange for Brown admitting he was negligent.
The only questions the jury had to answer were whether Nolan suffered damages and how much she should be compensated. The jury awarded Nolan $33,625 for future medical costs and $150,000 for pain, suffering and humiliation.
Gatti said he has represented two other patients of Brown’s, both of whom settled out of court. One settlement is confidential and the other was for $300,000, Gatti said.
Gatti also criticized US West Dex, which publishes the Yellow Pages, for allowing Brown to list himself under plastic and reconstructive surgery. Gatti said he plans to sue US West Dex.
In a prepared statement, US West Dex said it offers a disclaimer at the top of each page listing doctors by type of practice that suggests readers contact state agencies for information on doctor qualifications.
“As a publisher, US West Dex has neither the knowledge nor the authority to administer law, but we must rely on each advertiser to know and comply with all regulations impacting their business,” said
APPENDIX 2: KATU BROADCAST TRANSCRIPT
CM - Cathy Marshall - KATU Reporter
JM - JohnMarler - KATU Reporter
SH - Sheila Hamilton - KATU Reporter
DG - Dan Gatti
MN - Marie Nolan
CM: Millions turn to these pages for help and guidance but a Washington woman says an ad cost her her health and she is heading to court. Good evening and thank you for joining us. I am Cathy Marshall.
JM: And I am JohnMarler.
JM: It was a botched plastic surgery. There is no dispute now about that. Still to be resolved though, does part of the blame lie with the yellow pages? Sheila Hamilton brings us an exclusive report on a first of its kind lawsuit against Uswestdex.
SH: When Marie Nolan recovered from a three year illness she thought plastic surgery on her neck and arms might help renew her self-image. She turned to the yellow pages to find a plastic surgeon who specialized in liposuction. Under the heading “plastic and reconstructive surgery”, she found the name “Dr. Timothy Brown”.
MN: No matter what the procedure is that you are looking for whether it is you know a child with cancer and you are looking for an oncologist or whether it’s you know a serious procedure, or not, you know you are trusting that information is true and that’s not necessarily true.
SH: But Brown was no plastic surgeon and he wasn’t certified in plastic surgery. He was a dermatologist practicing liposuction and other types of cosmetic surgery.
MN: I basically put my life in his hands and hindsight if I had done that to my child, um you know, I’d be responsible.
SH: And in the hands of Dr. Brown Marie suffered irreparable harm. Here is a picture of her arms before. Here, after. And look at the damage the liposuction did to her neck.
MN: There was areas where my skin was adhering to the bone. There was gouges and grooves. It was very apparent that it was um I felt a negligent procedure.
SH: Attorney Dan Gatti knew of Dr. Brown’s work. He has now sued him six times for medical negligence in liposuction procedures.
DG: You can’t put a value on the psychological trauma that these women are going through when they are already embarrassed by even having to be in front of a jury and they’ve made a mistake and then they’ve been betrayed.
SH: Gatti won Marie’s case against Dr. Brown and is now
going after the pages where Brown advertised.
DG: USWEST Direct is negligent in not at least requiring doctors to somehow certify that they are indeed certified in the area in which they are wanting to advertise to do some sort of minuscule investigation as to whether or not the doctor is qualified.
SH: Brown still advertises for cosmetic surgery. He has attended four or five two-day workshops on liposuction but Marie Nolan’s arms and neck will never look the same and her hope for a positive life change became instead a painful life’s lesson.
SH: Now Gatti is also suing the American Academy of Cosmetic Surgery which trains doctors in brief weekend sessions to perform liposuction and other techniques. John, Cathy.
JM: Sheila, does USWest have any sort of policy about plas-
tic surgeons and advertising in the yellow pages?
SH: Actually in this trial USWest testified that all you need to advertise in this section is to be an M.D. so conceivably, a podiatrist could be performing plastic surgery.
JM: I wonder if that would change now. We’ll wait and see.
SH: I think there may be some changes.
CM: With all that in mind if you are considering plastic surgery here is some important things to keep in mind when selecting a doctor:
CM: First look for the words “board certified” as a plastic and reconstructive surgeon. They have at least six years of additional educational requirements. Cosmetic surgeons are often certified in brief weekend seminars such as those presented by the American Academy of Cosmetic Surgery.
Notes
The allegedly defamatory statements were made by defendant Gatti. It therefore is necessary to distinguish him as an actor from the various iterations of his law firm, which are codefendants.
Plaintiffs’ claim against Nolan, who was a client of the Gatti defendants, was settled. It is not involved in this appeal.
The parties and the documents on file are not consistent in the name that they use to refer to the publisher of the telephone Yellow Pages at issue. For example, the KATU broadcast transcript uses both “Uswestdex” and “USWEST Direct,” the Oregonian article uses “US West Dex,” the complaint uses “US West Direct,” and the petition for review uses “USWEST Direct.” There is no basis in the record that we have been able to identify that enables us to determine which of those titles (if any) accurately reflects the publisher’s name. We have used “USWEST Direct” in the text above, but we cannot warrant its accuracy, and we have not attempted to conform quotations to that usage.
ORCP 47 has since been amended. Those amendments do not apply to this case.
We reprint the article in full in an Appendix. For purposes of argument, we presume here that the article accurately reflects the context of Gatti’s statements to the reporter, and so it serves as appropriate context.
One may doubt the substantive truth of Gatti’s statement. Because of the partial settlement between Brown and Nolan, Brown admitted negligence, and the jury only considered damages. Brown did not admit, and the jury did not decide, that Brown had made any misrepresentations. Thus, the verdict was about negligence, not about whether doctors should “ ‘notify the public about their true qualifications.’ ” But, as we will discuss, Brown alleged that that statement defamed him only by implying that Brown was not board certified in any area of medicine.
We reprint the transcript of the full broadcast in an Appendix. We again presume that the broadcast accurately reflects the context of Gatti’s statements to the reporter.