ROBERT HARRIS v. WARNER LAW OFFICE AND CLARKSBURG PUBLISHING CO. D/B/A WESTON DEMOCRAT AND THE RECORD DELTA
No. 24-ICA-264
Intermediate Court of Appeals of West Virginia
May 28, 2025
Cir. Ct. Lewis Cnty. Case No. CC-21-2023-C-71
Petitioner Robert Harris (“Dr. Harris“) argues that Respondents Warner Law Office (“Warner“) and Clarksburg Publishing Co. (“CPC“) defamed him in multiple advertisements published on the internet and in print. In early 2023, Warner published advertisements soliciting potential clients on Facebook and in the Weston Democrat, a paper owned by CPC. Specifically, the advertisements asked readers if they had been sexually assaulted or sexually abused by a local gynecologist and directed them to contact Warner about any such claims. Although these advertisements did not mention any specific gynecologist, Dr. Harris, a gynecologist then working in Weston, West Virginia, interpreted the advertisements to be targeted at his patients. Dr. Harris filed the underlying lawsuit, alleging defamation and intentional infliction of emotional distress (“IIED“) claims, against Warner and CPC based on these advertisements. In an order entered June 18, 2024, the Circuit Court of Lewis County granted Respondents’ motions to dismiss, finding that the advertisements were not defamatory or outrageous. It is from that order that Dr. Harris now appeals. On appeal, Warner and CPC each filed a brief in support of the circuit court‘s order. Dr. Harris did not file a reply.1
This Court has jurisdiction over this appeal pursuant to
Were you sexually abused by a gynecologist in the Weston, West Virginia area? Warner Law Offices is representing women in the area now. You have a right to seek justice and compensation for the harm you‘ve suffered. If you have experienced sexual abuse from a gynecologist, contact us for a free and confidential case evaluation. We are here to help you.
Each version of the advertisement included a stock image of a woman—in some versions, wearing medical attire and sitting in what appears to be a medical examination room—overlaid with the text “Have you been sexually assaulted by a local gynecologist?,” “Seek Justice,” and “Free Confidential Case Review.” Each version of the advertisement included a link to a webpage operated by Warner.
In late April and early May of 2023, Warner published a similar advertisement in the Weston Democrat, a newspaper owned and operated by CPC. This advertisement was headed by the text “Have you been sexually assaulted by a local gynecologist in the local area?” The advertisement included a stock image of a woman with her face in her hands, sitting in what appears to be a medical examination room. The image was overlaid with the text “Call now for a free, confidential case review” and a local phone number. Below the image, the advertisement included the additional text “Warner Law Offices, PLLC is representing women in the area now.” This newspaper advertisement was also published in the Record Delta, a CPC paper serving Buckhannon, West Virginia, on April 29, 2023.
In early 2023, Dr. Harris was working as a licensed gynecologist at Stonewall Jackson Memorial Hospital Co. (“Stonewall“) in Weston, West Virginia. In early May of 2023, Dr. Harris notified Stonewall of these advertisements. On or around May 5, 2023, Stonewall addressed Dr. Harris about ending his employment there, and Dr. Harris ultimately resigned.2 At that time, Dr. Harris was scheduled to begin employment at a medical practice in Martinsburg, West Virginia. In or around August of 2023, the hiring physician contacted Dr. Harris to revoke that employment offer.
Dr. Harris filed the underlying complaint against Warner on September 4, 2023, asserting claims of defamation, defamation per se, and IIED based on Warner‘s advertisements. Dr. Harris did not attach copies of the advertisements to the complaint or directly quote their language. Instead, he alleged that “[Warner] advertised non-privileged defamatory statements to more than one thousand third parties, which falsely alleged sexual assault was or has been committed by Dr. Harris.” On September 21, 2023, Warner filed a
On January 5, 2024, Dr. Harris filed a motion for leave to file an amended complaint, seeking to add CPC as a named defendant. On January 30, 2024, the circuit court entered an order granting this motion. On February 5, 2024, the circuit court held a hearing on Warner‘s motion to dismiss and took the motion under advisement. On February 8, 2024, Dr. Harris filed his amended complaint, raising the same claims with substantially similar allegations, but naming CPC as an additional defendant. On March 8, 2024, CPC filed a motion to dismiss the amended complaint for failure to state a claim, arguing that each of Dr. Harris‘s claims failed as a matter of law. Warner filed a supplemental brief joining in this motion. On June 6, 2024, the circuit court held a hearing on the motions to dismiss.
On June 18, 2024, the circuit court entered its order granting Respondents’ motions to dismiss. The circuit court considered the advertisements at issue and found that Dr. Harris‘s defamation claims failed because the advertisements at issue did not contain defamatory statements. Instead, the circuit court found that the advertisements contained questions rather than statements. In addition to finding that the advertisements were not capable of a defamatory meaning, the circuit court made several other findings related to the defamation claims. In determining whether the advertisements indirectly referenced Dr. Harris, the circuit court considered the meaning of the word “area” in the advertisements and took judicial notice of the fact that local citizens will travel to Morgantown, Clarksburg, Bridgeport, and Buckhannon for medical services. The circuit court also concluded that Dr. Harris‘s IIED claim failed as a matter of law because the advertisements were not so extreme or outrageous as to exceed the bounds of decency.3 It is from this order that Dr. Harris now appeals.
Our review of an order granting a motion to dismiss is de novo. Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995) (“Appellate review of a circuit court‘s order granting a motion to dismiss . . . is de novo.“). “The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove
Dr. Harris raises four assignments of error on appeal. First, he argues that the circuit court erred in finding that his defamation claims failed as a matter of law. Next, Dr. Harris suggests that the circuit court erroneously viewed extrinsic evidence and made evidentiary determinations at the motion to dismiss stage. Third, he alleges that the court erred in finding that his IIED claim failed as a matter of law. Finally, Dr. Harris argues that the court erred by adding a party to the style of the case. We address each argument in turn.
The SCAWV has consistently held that “[t]he essential elements for a successful defamation action by a private individual4 are (1) defamatory statements; (2) a nonprivileged communication to a third party; (3) falsity; (4) reference to the plaintiff; (5) at least negligence on the part of the publisher; and (6) resulting injury.” Syl. Pt. 1, Crump v. Beckley Newspapers, Inc., 173 W. Va. 699, 320 S.E.2d 70 (1983). Here, although the circuit court made various findings related to the other elements of a defamation claim, it ultimately found that Dr. Harris‘s defamation claims failed as a matter of law because the challenged advertisements did not contain defamatory statements.
In his first assignment of error, Dr. Harris contends that the circuit court erred in finding that his defamation claims failed as a matter of law. Specifically, he argues that the circuit court should have relied on the allegations set forth in his amended complaint, which clearly state that the advertisements contained defamatory statements. Dr. Harris further argues that the circuit court erred by making factual determinations about the advertisements at the motion to dismiss stage, as the circuit court‘s determination that the advertisements contained a question rather than a statement was an issue for the jury. We disagree.
The SCAWV has held that “[a] court must decide initially whether as a matter of law the challenged statements in a defamation action are capable of a defamatory
On review of the challenged advertisements,5 we find no basis to reverse the circuit court. “A statement may be described as defamatory ‘if it 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.‘” Crump, 173 W. Va. at 706, 320 S.E.2d at 77 (quoting Restatement (Second) of Torts § 559 (1977)). The SCAWV has recognized that defamation per se means “a statement that is defamatory in and of itself and is not capable of an innocent meaning.” Pritt v. Republican Nat. Comm., 210 W. Va. 446, 450 n.4, 557 S.E.2d 853, 857 n.4 (2001) (quoting Black‘s Law Dictionary 427 (7th ed.1999)).6 “Defamation law requires that [a court] consider the alleged defamatory words in the context in which they were made.” Hupp v. Sasser, 200 W. Va. 791, 798, 490 S.E.2d 880, 887 (1997) (per curiam) (citing Goldberg v. Coldwell Banker, Inc., 553 N.Y.S.2d 432, 433 (N.Y. App. Div. 1990) and Long, 176 W. Va. at 637, 346 S.E.2d at 787).
Moreover, while Dr. Harris focuses on the opening question in the Facebook advertisement, the remaining language of the advertisement also does not contain any defamatory statements. The statement, “Warner Law Offices is representing women in the area now,” even if read to imply that Warner is representing women in sexual assault or abuse cases, does not state whom those cases are against or claim that the allegations in those claims have been proven true. While the advertisement includes the statement that “[y]ou have a right to seek justice and compensation for the harm you‘ve suffered,” in its context as a follow-up to the initial question, it is clear that this language is directed at those readers who believe they have been sexually assaulted, and is in effect a conditional statement that if someone has suffered an injury, they have a right to relief. This is borne out by a reading of the remainder of the advertisement, which provides that “[i]f you have experienced sexual abuse from a gynecologist, contact us for a free and confidential case evaluation. We are here to help you.” Again, the language is conditional, and specifically contemplates that the reader might not have experienced sexual abuse by a gynecologist. Further, the advertisement only guarantees case evaluation, implying that Warner may determine that perceived cases of assault or abuse lack merit.
Similarly, the more limited advertisement in the Weston Democrat begins with the question, “Have you been sexually assaulted by a gynecologist in the local area?” but lacks most of the additional statements that were included in the Facebook advertisement. However, like the Facebook advertisement, this advertisement includes the text “[c]all now for a free, confidential case review,” again implying that Warner may find potential claims lack merit.
At most, the advertisements at issue suggest that certain readers might have been victims of sexual abuse or assault by an unnamed gynecologist. However, the SCAWV has previously determined that even a direct suggestion that a person might have committed a crime, while stopping short of an accusation, is not defamatory. In Belcher v. Wal-Mart Stores, Inc., 211 W. Va. 712, 717, 568 S.E.2d 19, 24 (2002) (per curiam), managers of the respondent Wal-Mart suggested that the petitioner, who was attempting to return a laptop to the store, had “a fake, felonious receipt.” The SCAWV found that these statements did not rise to the level of an accusation of a crime
Dr. Harris also argues that the circuit court erred in making findings on several of the other elements of defamation, including whether the advertisements indirectly reference him. However, since we affirm the circuit court on the threshold legal issue of whether the advertisements were capable of a defamatory meaning, it is unnecessary to address these arguments. See Hupp, 200 W. Va. at 799, 490 S.E.2d at 888 (finding it unnecessary to address other elements of defamation claim after determining statements at issue were not defamatory).
Dr. Harris next contends, in his second assignment of error, that the circuit court erred in viewing extrinsic evidence and making evidentiary determinations. He argues that, in interpreting the word “area” in the advertisements, the circuit court erred in taking judicial notice that local citizens will travel for medical services to Morgantown, Clarksburg, Bridgeport, and Buckhannon. Dr. Harris claims that, because he alleged that the challenged advertisements referred to him, there was no basis at the motion to dismiss stage for the circuit court to decide where citizens travel for medical services.
To the extent Dr. Harris contests the propriety of judicial notice at the motion to dismiss stage, we find that his argument is misplaced. “Rule 12(b)(6) permits courts to consider matters that are susceptible to judicial notice.” California State Teachers’ Ret. Sys. v. Blankenship, 240 W. Va. 623, 638, 814 S.E.2d 549, 564 (2018) (quoting Forshey v. Jackson, 222 W. Va. 743, 747, 671 S.E.2d 748, 752 (2008)); see
Moreover, any error in the circuit court‘s decision to take judicial notice that local citizens travel to other cities in the region for medical care and interpret the word “area” in the advertisements was harmless. “On appeal of a case involving an action covered by the Rules of Civil Procedure, this Court will disregard and regard as harmless any error, defect or irregularity in the proceedings in the trial court which does not affect the substantial rights of the parties.” Syl. Pt. 2, Boggs v. Settle, 150 W. Va. 330, 145 S.E.2d 446 (1965). We have affirmed the dismissal of Dr. Harris‘s defamation claims because the advertisements are not capable of a defamatory meaning, and we declined to address the circuit court‘s findings on any of the other elements of those claims, including whether the advertisements indirectly referenced Dr. Harris. Therefore, the circuit court‘s decision to take judicial notice and interpret the word “area” has no impact on our decision to affirm the dismissal of the defamation claims, and any error related to these issues was harmless.8
Next, in his third assignment of error, Dr. Harris argues that the circuit court erred in dismissing his IIED claim. The SCAWV has explained that an IIED plaintiff must demonstrate four elements:
(1) that the defendant‘s conduct was atrocious, intolerable, and so extreme and outrageous as to exceed the bounds of decency; (2) that the defendant acted with the intent to inflict emotional distress, or acted recklessly when it was certain or substantially certain emotional distress would result from his conduct; (3) that the actions of the defendant caused the plaintiff to suffer emotional distress; and, (4) that the emotional distress suffered by the plaintiff was so severe that no reasonable person could be expected to endure it.
Syl. Pt. 3, in part, Travis v. Alcon Lab‘ys, Inc., 202 W. Va. 369, 504 S.E.2d 419 (1998). “Whether conduct may reasonably be considered outrageous is a legal question, and whether conduct is in fact outrageous is a question for jury determination.” Travis, 202 W. Va. 369, 504 S.E.2d 419, syl. pt. 4.
Here, the circuit court found that Dr. Harris‘s IIED claim failed as a matter of law because the advertisements were not outrageous. The circuit court also found that the “clear intent” of the advertisements was to generate business for Warner. Dr. Harris takes issue with both of the court‘s conclusions. Having determined that the advertisements at issue were not defamatory, we conclude that their publication cannot be considered outrageous and affirm the circuit court‘s ruling in that regard.9 Warner and CPC published advertisements that, while referencing the uncomfortable matter of possible sexual assault or abuse, merely asked potential readers of the advertisements if they had been subjected to either, and offered legal consultations. The publication of these non-defamatory advertisements cannot reasonably be considered outrageous. Because Dr. Harris‘s IIED claim fails on this threshold legal issue, it is unnecessary for this Court to decide if the circuit court was correct in evaluating Respondents’ intent in publishing the advertisements. Therefore, we affirm the circuit court‘s dismissal of Dr. Harris‘s IIED claim.
In his final assignment of error, Dr. Harris argues that the circuit court erred in adding another party— the Record Delta—to the style of the case. As an initial matter, we disagree that the Record Delta was added as a party; rather, it was added as another “doing business as” or “d/b/a” name for Respondent CPC. In his brief, Dr. Harris claims that this alleged error was prejudicial because the circuit court relied on the fact that the Record Delta is a Buckhannon newspaper in concluding that the “area” referred to in the advertisements at issue must include Buckhannon.
While the circuit court noted in its June 18, 2024, order that the challenged newspaper advertisement was also published in the Record Delta, contrary to Dr. Harris‘s interpretation, it does not appear that the circuit court necessarily relied on this fact in finding that the word “area” in the advertisements included Buckhannon. Moreover, we find that any error in adding the Record Delta as a business pseudonym for CPC was harmless. We have affirmed the dismissal of Dr. Harris‘s defamation claims and his IIED claim on legal grounds without reference or consideration of the Record Delta or reliance on the circuit court‘s interpretation of the word “area” in the advertisements. Moreover, at oral argument before this Court, Dr. Harris‘s counsel conceded that this alteration of the
Based on the foregoing, we affirm the June 18, 2024, order of the Circuit Court of Lewis County.
Affirmed.
ISSUED: May 28, 2025
CONCURRED IN BY:
Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge Ryan White