Monthly Archives: March 2014

Sports Defamation: Miller v. Mile High City? (Nah.)

sports defamation lawsuit speculation
Will a former Denver Nugget file a sports defamation lawsuit?

Is another sports defamation lawsuit on the way?

Nah, probably not. Nevertheless, former Mile High City point guard Andre Miller recently hit headlines for publicly waxing poetic about his former team and coach Brian Shaw.

Now, to be crystal clear, the words “sports defamation” or “lawsuit” – so far as we know – have never crossed Miller’s lips, but a few media outlets have made the connection — and it got us thinking: would Miller have a solid sports defamation suit in this instance?

Let’s take a look at the facts and engage in some sports defamation speculation, shall we?

What Has Reporters Wondering If A Sports Defamation Suit Is On The Way?

Our tale of possible sports defamation woe began on January 1, 2014. People around the world were tending to headaches or cracking on their resolutions. Denver Nuggets point guard Andre Miller, however, was ostensibly nursing pent-up frustrations and dealing with the end of his 239-game-on-court streak.

According to reports, the “coaches’ decision” to bench Miller erupted in a heated exchange between Miller and NBA veteran/gumshoe head coach, Shaw. A locker room blow-up punctuated the incident. Apparently, disparagement and frustrations were shared by all – loudly.

Later, when asked about the incident by Yahoo! Sports, Miller chided, “I was made out to be the bad guy, the villain, because I was the one complaining about minutes. That wasn’t the issue at all.”
He continued:

“I came out and represented the organization, played games, practiced and did it the right way. Don’t bash me. It’s not true saying I was disgruntled about minutes and complaining. In reality, I was just speaking up for guys on the team and being a veteran leader. I was just doing my job.”

Who Would Probably Win In Our Hypothetical Miller v. Nuggets Sports Defamation Lawsuit?

What would be the likely outcome of a hypothetical Miller v. Denver Nuggets sports defamation lawsuit? Bluntly speaking, he’d probably lose. No, let me re-phrase that, he’d most definitely lose (unless public reports are missing key information).

Why is it unlikely that Miller would emerge victorious in our hypothetical sports defamation lawsuit?

In order to win a sports slander or libel lawsuit in the U.S., plaintiffs must prove that:

  1. The defendant made a public false statement of fact (Internet postings count);
  2. The false statement of fact caused damage to the plaintiff’s reputation or bank account; and
  3. The defendant acted either negligently or with actual malice.

Since Miller is a “public figure,” he would have to meet actual malice standards to win a sports defamation lawsuit. You can read more about actual malice here. To give you a quick (incomplete) definition, actual malice occurs when a person knowingly lies, with the intent of causing another person or entity harm. In this case, it sounds like nobody lied, but simply expressed their negative opinions about the other parties.

Miller and the Nuggets’ coaching staff begrudgingly shook hands and parted ways after the 1/1/14 incident. At the trade deadline, management traded Miller to the Washington Wizards where he is now averaging 3.9 points and 3.2 assists per game.

Contact A Sports Defamation Law Firm

Kelly / Warner handles all types of sports defamation lawsuits. Our batting average is great – and we get the job done quickly. Get in touch today to learn more about your sports defamation legal options.

Defamation Plaintiff Gets Appeal After 13 Years

defamation plaintiff
A defamation plaintiff gets another shot after 13 years.

An appeals panel in Pennsylvania resuscitated a 13-year-old defamation lawsuit. In 2001, Thomas A. Josephs and his two sons brought a libel action against The Citizens’ Voice – a Scranton-area newspaper. In a series of 10 articles, the paper reported on an alleged federal money laundering investigation involving the Josephs taxi and limousine businesses. The Citizen tied the Josephs to allegations of firearm and drug transport.

The rub: when the grand jury eventually returned with an indictment, it didn’t mention the Josephs or their business, Acumark, Inc.

At First, A Jury Awarded The Defamation Plaintiff $3.5M; But An Appeal’s Court Overturned

When the case first went to trial, the jury came back in favor of the Josephs to the tune of $3.5 million. The state supreme court, however, vacated the verdict on appeal, reasoning that the Josephs couldn’t prove harm.

But, The Defamation Plaintiffs Kept At It…And Their Persistence Worked

Years passed, but the Josephs didn’t give up. And this past week, the Pennsylvania Superior Court overruled the state Supreme Court. The 3-judge panel reasoned that the paper did make statements of fact in the articles, and therefore the josephs have the right to prove in a court of law that those statements were untrue.

Attorneys for the Josephs are thrilled with the recent ruling, but admonished “the judicial system has not covered itself with glory in the handling of this case.”

It just goes to show, if you stick to something – even a protracted defamation lawsuit – you may just end up on top at the final bell.

Are you in need of a Pennsylvania defamation attorney? If yes, contact Kelly / Warner Law today.

A Loaf of Poppy Seed Bread Leads To Medical Defamation Lawsuit

medical defamation poppy seed lawsuit
A woman in PA is persuing a medical defamation lawsuit after eating poppy seed bread and testing positive for opiates.

The milk of the poppy has caused some problems for a new mom in Pennsylvania! All thanks to a few loaves of organic bread from a farmer’s market.

Nurses Single-Out Mother In Labor As Potential Drug Addict

IT programmer Rachel Devore recently had a baby. Like most expectant parents, Devore hoped for a beautiful, drama-free birth. Instead, hospital employees, for all intent and purpose, labeled her a drug addict.

Why did the hospital think Devore may have been indulging in illicit drugs? Apparently, at the hospital where she gave birth, all women must provide urine for a drug test conducted during delivery. Presumably, it’s to screen for unfit parents. In any event, Devore’s test allegedly came back positive for opiates, but she adamantly denied – and continues to deny — any wrongdoing.

Foiled By Poppy Seed Bread

After returning home from the hospital, Devore realized that the bread she had been munching on for several weeks was laden with poppy seeds.

Now, those of you thinking, “Yeah right. She’d have to eat a store’s worth of poppy bread to trigger a false positive,” may want to slow your role, because Devore’s test didn’t come back as a “slam dunk positive,” but instead an “unconfirmed positive.” Moreover, technicians tested the newly born baby for evidence of drug use, and the results came back 100% negative.

“It’s Defamatory To Tell Social Services I Was A Potential Drug Addict!”

Devore and her husband contend that the hospital staff violated doctor-patient confidentiality by handing the results of her drug test over to child protective services, then further defamed them by heavily implying that Devore flunked the drug test and needed to be watched. Moreover, the lawsuit points out that the drug test disclaimer instructed that results “are to be used only for medical purposes. Unconfirmed screening results must not be used for non-medical purposes (e.g. employment testing, legal testing).”

Not only was Devore’s child’s birth marred by the accusations, but the couple was also saddled with a social worker for months after the baby’s birth. New parents being regularly checked up on by welfare services? The stress must have been unbearable. And the rotten cherry on top is that a Devore file now exists with Child Welfare Services.

Contact A Medical Defamation Lawyer

Our legal practice has successful handled many medical defamation cases. Traditionally, we assist doctors, nurses and other medical professionals with slander and libel claims – but we also handle doctor defamation defense in certain circumstances.

If you are interested in exploring legal options for a medical defamation situation, get in touch with Kelly / Warner Law today.

Realtor Defamation: Real Estate Agent Sues Over Vandalism Video

realtor defamation lawsuit
A realtor defamation lawsuit is underway in PA.

What do you get when a house sitter, an ad salesperson, a real estate agent and a TV station collide in the maze of ambition? Why, a realtor defamation lawsuit, of course!

Real Estate Agent Disparaged On Local TV

The plaintiff in this intriguing real estate defamation story is Andrea Straub – super realtor to the well-healed of Philadelphia. For years, Straub had built a credible professional reputation; publicly, she was known as an effective house jockey on the Main Line, earning, on average, $500,000 a year.

In June 2013, however, a wave of vicissitude crashed into Straub after a local CBS affiliate aired an “exclusive” that allegedly showed her, under the cover of night, defacing a neighbor’s for sale sign. The story also accused the realtor of scattering dead animals on her neighbor’s lawn to turn off potential buyers.

Two Hours Before Airing, Agent Alerted Of Segment; Immediately Calls For Help

Two hours before the piece aired, Straub got a courtesy call from the station. A producer informed her that the story was in the proverbial can, and asked for a reaction.

Straub immediately contacted a friend who worked at the station, quickly explained the situation and that she couldn’t be the person in the video, and then asked her friend for help. According to reports, Straub’s friend alerted superiors of the situation – and explained Straub’s objections.

Ever concerned with ratings, however, the brass at CBS3 decided to show the video. Supposedly, they wanted to gain the “upper hand” over other newsrooms that were already running with the story, but didn’t have “the video.” So, to the air it went.

Within days of the segment’s debut, angry viewers assaulted Straub’s voicemail and inbox with death threats and other “pleasantries.” In short order, the once-flush agent found herself less $16M in listings and essentially “run out of town.”

So, Where Did The Vandalism Video Come From?

He calls himself “Gore God” (he’s a special effects artist), Straub calls him a “deranged house sitter” and the feds know him as Eric Welsch. Welsch is important to our tale of realtor defamation woe because reports imply that he was the person who gave the tape to the TV station.

Who was Welsch’s contact at CBS3? Kim Papay, from the CBS3 ad-sales department. According to Straub’s lawsuit, Papay is “known as ‘crazy blond chic’ by CBS3 personnel,”

Straub claims “an interaction” that she and Papay had in April 2013 over the sale of a house ultimately led to the video. A bogus complaint to the police, edited footage and subsequent hand-off to CBS3, are what Straub describes in her lawsuit at the “trifecta of false claims” orchestrated and executed by Papay and Welsch.

Why does Straub suspect Papay’s involvement? Well, apparently, Straub was told that Paypay was overheard at the CBS station admonishing someone over the phone, “you sent us the wrong video” and “you promised me that video so I could get us an exclusive!”

Relator Defamation Lawsuit Filed

Not surprisingly, Straub filed a realtor slander lawsuit – with alacrity. She’s charging defamation, false light and intentional infliction of emotional distress; plus, she wants an immediate injunction preventing parties from destroying documents or emails that may be relevant to the case.

The station has yet to issue a correction or apology, and at the time of this writing, their defense strategy is unclear. Will they plead “truth”? Reporter privilege? We’ll have to wait to see.

Will The Real Estate Agent Win This Realtor Defamation Lawsuit?

Unless vital information is missing from public reports, and Straub really is NOT the person in the video, this is pretty much as slam-dunk as it gets with regards to defamation lawsuits.

Without Disclosure, Station Probably In Deep Water

Even if, let’s just say, for $#!Ts and Giggles, that “Gore God” DID see Straub pulling a rock-star-in-a-hotel-room on the lawn, but he didn’t have a camera handy at the time of the incident. So, he decided to re-enact the event as a means to help his friend at the TV station. Again, this is just a hypothetical, “what if.” Even under those circumstances, the defendant cannot win. If CBS3 showed a video of someone re-enacting the vandalism, and did not disclose that fact, the station is liable for slander.

Reporter’s Privilege

CBS3 could also argue reporter’s privilege, but that possibility may be moot since Papays phone call calls into question the ethics of the station, how they got it. Moreover, Straub’s friend took doubts to higher-ups before it aired. Straub can easily argue that the CBS team had reason to believe the story was not true.

If it is Straub in the video, she may be out of luck.

Contact A Realtor Defamation Lawyer

If you are a real estate agent caught in a defamation debacle, who is considering suing for defamation, get in touch with us. Our firm – Kelly / Warner – has handled countless defamation cases, including real estate defamation suits. Oftentimes, slander and libel suits are remedied quickly and never end up going to trial. Get in touch today to learn more about your realtor defamation legal options.

Anonymous Defamation: Startup Execs v. John Does

anonymous defamation case
Will two marketing executives be granted a court order for their anonymous defamation lawsuit?

In This Article:

  • Tech marketing executives launch anonymous defamation suit
  • Accused of “pump and dump” shenanigans
  • Asking court to grant court order to hand over ISP addresses of anonymous posters
  • Similar anonymous defamation case launched last year by PETA was foiled by hacker collective “Anonymous”
  • Anonymous defamation attorney contact information

Paul Arena and Nathaniel Bradley — two mobile marketing executives who recently left Augme Technologies (a.k.a., Hipcricket) – are in hot pursuit of 30 anonymous online posters. Why? According to the pair, the 30 cloak-and-dagger posters committed egregious acts of Internet defamation.

Arena and Bradley have already filed a John Doe defamation claim. Now they’re passing out subpoenas to several ISPs. Their goal is to get identifying information about the anonymous detractors so they can be properly added to the lawsuit as named defendants.

“The Bangbros of Pump Stock”

What accusations are causing Arena and Bradley consternation?

  1. Artificial inflation of company’s stock price right before resigning;
  2. Theft of investor funds; and
  3. General ethical shade.

To give you an idea, one anonymous poster dubbed the pair “the bangbros of pump stock.” Ouch.

Plaintiffs Ask Court To Force ISPs To Reveal Anonymous Online Posters

As is becoming increasingly common in business defamation cases, the plaintiffs requested a court order compelling Internet Service Providers (ISPs) to hand over identifying information about the anonymous commenters.

But Wait! Multiple People Can Have The Same ISP Address!

Though getting a court order is possible in many anonymous defamation suits, a potential problem does arise when trying to link an ISP address to a single individual. Why? Because many people can share a single ISP address — roommates, families, apartment dwellers who share WiFi. Moreover, comments traced to coffee shops, libraries and other public hotspots often prove useless.

Now, the potentiality of mutli-person ISP addresses doesn’t negate the possibility of getting a court for identifying information,  just means that all Is must be dotted and Ts crossed when crafting the request motion.

Last Year, PETA Tried A Similar Tactic In A Potential Anonymous Defamation Case. But ‘Anonymous’ Said, “Nah-Ah.”

Animal-rights advocates, PETA (People for the Ethical Treatment of Animals), tried to lobby a similar anonymous defamation lawsuit last year, but free speech advocates and a hacker collectives thwarted the non-profit’s efforts at every turn. In fact, Anonymous – of Tom Cruise Scientology Video Fame – caught wind of PETA’s legal maneuvers. Unimpressed with what they felt was PETA’s attempt to stifle legitimate criticism by using legal threats to silence ordinary citizens, the collective threatened action. Apparently, PETA was not looking for a street fight with Anonymous and eventually dropped their anonymous defamation suit.

Are You In Search Of A Defamation Attorney That Has Successfully Handled Anonymous Defamation Cases?

Entrepreneurs, startups and marketing companies often find themselves on the wrong end of a defamation firing squad — pegged by malicious word-bullets. Hey, it a competitive market out there – and some people cross the acceptable competition line in an (usually ill-fated) attempt to gain an edge.

If you are dealing with an unwanted entrepreneur, startup or marketing defamation situation, get in touch with Kelly / Warner Law. Libel and slander law is our forte – but more than that, not only are we lawyers, but we’re tech entrepreneurs, too — just like you.

BizOp Crack Down Alert

bizopp alert
Do you run a work-at-home bizopp? If yes, be sure to read this article.

Listen-UP work-from-home bizopp operators: the Federal Trade Commission is on the hunt for people who offer bogus business opportunities, or “biz-opps.” If you’re running a deceitful work-at-home marketing scheme, it may be time to go legit or shut ‘er down.

The Latest FTC BizOp Crack Down

Last week, the FTC announced the seizure of several work-at-home operations that promised prospective participants the world – and then delivered bupkis. The now-neutered scheme worked thusly:

  1. Phase One: The bizop offered work-at-home starter kits ranging from $37 to $99. Presumably, these kits instructed buyers on how to establish and run their own online marketing companies.
  2. Phase Two: Once an individual purchased the kit, the bizop marketer added him or her to a mailing list and proceed to bombard their inbox with add-on offers costing between $3,000 and $12,000, like coaching and website development programs, in addition to tax filing and drop shipping services. Buyers were encouraged to put the costs of these add-ons on credit cards. According to the FTC, none of the programs offered were of any value.
  3. Phase Three: In the third phase of the bizop scheme, marketers pretended to offer coaching services to participants, but instead used the coaching time to pitch more add-ons.

What Language Did The BizOp Use That Infuriated The FTC?

Here are a few examples of the marketing language used by bizop operators busted by the Federal Trade Commission for offering bogus work-at-home opportunities.

“If You Can Spare 60 Minutes A Day, We Can Offer You a Certified, Proven And Guaranteed Home Job To Make $379/Day From Home!”

“Important: Read my full report now as only 15 people are accepted into this program per city at any given time . . . because of the personal support given to each new member to ensure everyone’s quick financial success. Don’t hesitate . . . this page is taken down (literally) when the limit is reached, so read on . . .”

“This case halts a massive scam that bilked consumers out of millions for useless work-at-home kits and business coaching services,” explained Director of the Bureau of Consumer Protection, Jessica Rich. “The defendants duped consumers into thinking they could earn thousands working from home. Protecting consumers from such pernicious schemes remains a top priority,” she concluded.

If you’re not familiar with the FTC’s new bizop rules, it would be wise to cozy up with the guidelines. Violations will cost you a pretty penny – so why not take the time to ensure compliance.

(If you want one of our lawyers to audit your operation, it will run you a few hundred dollars; getting caught could cost you your business, plus a few thousand.)

Click Here To Learn More About BizOp Rules.

Speak With An FTC Attorney Today

Are you in trouble with the Federal Trade Commission? Do you need the help of a lawyer who’s successfully helped clients ward off the FTC? If yes, get in touch today. Our firm, Kelly / Warner, has been dealing with FTC-related cases for over 5 years. We know the niche well. Get in touch now to begin the conversation.

Dentist Defamation: Privilege & Case Law

dentist defamation
Privilege plays a significant role in many dentist defamation cases.

What do you think when you hear or read the word “privilege”? Do you picture a person with F.U. money? Or maybe visions of royal bodies dance in your head. Answers vary, but when it comes to law, privilege means that one party has a legal right to engage in a given action, and, as a result, cannot be held liable for said action. When it comes to dentist defamation lawsuits, privilege often dictates who wins and who loses.

First Things First, What is Dentist Defamation?

Before we delve deeper into the legal concept of privilege, let’s first define defamation. In basic terms, defamation occurs when one party publicly lies about another party. In cases where a dentist is suing for slander or libel related to their professional capacities, the dentist most prove that:

  1. The defendant published — or publicly spoke — a false statement of fact;
  2. The false statement of fact was about the dentist doing the suing;
  3. Financial harm befell the dentist as a result of the statements under review.

Opinion Is Not Defamatory!

The #1 mistake dentists make is filing defamation lawsuits in response to opinions. Under United States law, opinion is not defamatory. So, if one of your…shall we say, difficult…patients decides to go on an online rant rampage, but only says things like, “I do like this dentist at all!” or “I do think people should go to Dr. X”, you probably won’t succeed with a libel or slander claim.

If, however, someone says that you overcharged them, or did have the proper credentials, or made any other false statement of fact, there is a decent chance you have the valid dentist defamation lawsuit.

What is Legal Privilege? And What Does It Have To Do With Dentist Defamation?

Over the years, a significant percentage of dentist defamation trials have turned on the question of privilege. The majority of privilege-related defamation suits involving dental professionals deal with statements made at a medical board review. It’s also common for privilege to play a part in cases dealing with employment references.

So, what, exactly, is privilege as it relates to the tort of defamation? Basically, there are 2 types of legal privilege that usually come up in defamation lawsuits involving dentists:

  1. Reporter Privilege – Journalists (increasingly includes bloggers in many jurisdictions) are allowed to report “facts” from their sources so long as they engage in proper due diligence and convey said facts in a neutral manner, even if the information turns out to be inaccurate.
  2. Qualified Privilege – An individual may be granted qualified privilege if the defamatory statement is “made in the course of an employer’s duties.”

Let’s apply the concept of privilege to real-world libel and slander scenarios a dentist may face.

A Medical Review Board Incident

John Doe, DDS has a relationship with a local hospital where he performs oral surgery. When his annual review rolls around, another dental surgeon, Dr. Jane Smith, reports Dr. Doe for improper conduct. Upon hearing of his colleague’s betrayal, John Doe files a defamation lawsuit. Who would win?

Scenario #1: If John Doe’s colleague maliciously made a false statement of fact during the board hearing and Dr. Doe can prove Smith had reason to believe her statements were inaccurate, Doe could win the case.

Scenario #2: If Doe cannot prove that Smith’s statements are false, Smith would probably emerge victorious in our hypothetical dentist v. dentist defamation lawsuit.

Scenario #3: If Smith is under an employment or quasi-legal obligation to report any suspected foul play on the part of his colleagues, even if the information turned out to be false, there is a significant chance that Doe would not be successful in his lawsuit against Smith.

Dentist Defamation Lawsuits Involving Privilege

Ferlito v. Cecola

In a 1982 Louisiana dentist defamation lawsuit, Chetta Tuminello Ferlito sued dentist Dr. Russell E. Cecola. In addition to several other charges, Ferlito claimed defamation because Cecola suggested that she seek out a psychiatrist, plus a few other comments the plaintiff found objectionable. In the end, the verdict came back in favor of the dentist because the court decided his comments about psychiatry were privileged. Additionally, in the written opinion, the court reminded: “profane language, although disgusting and uncouth, is not defamatory per se.”

Ellenberger v. Espinosa

In 1994, a Court of Appeals in California heard the case of Ellenberger v. Espinosa. Ellenberger, a dentist, filed a defamation lawsuit against one of her patients, in addition to the State of California, over statements made in a Board of Dental Examiners proceeding. Since the statements under review were spoken in the course of a quasi-legal proceeding, the court ultimately ruled they were protected by qualified privilege and, therefore, not defamatory.

Rickenbacker v. Coffey

Rickenbacker v. Coffey is one of the most cited privilege-related dentist defamation lawsuits. The melee started when the defendant dentist, Dr. Harry Rickenbacker, treated Bernard Williams – a patient who’d previously been a patient of Dr. R. Donald Coffey, Jr. Having experienced some difficulties after seeing Coffey, Williams sought a second opinion with Rickenbacker. Williams ended up suing Coffey for malpractice, and Rickebacker was asked to testify on Williams’ behalf. Coffey caught wind of Rickenbacker’s involvement. Unimpressed with his colleague’s professional assessment, Coffey sued Rickenbacker for defamation. Specifically, Coffey took umbrage with statements Rickenbacker made when being debriefed by Williams’ attorney.

In the end, the judge sided with Dr. Rickenbacker, deeming everything said in the deposition meeting privileged and, therefore, not defamatory.

McIntosh v. Patridge

McIntosh v. Patridge was a complicated employment case with a small defamation component. Basically, McIntosh sued for unlawful firing and other charges, including a slander claim because McIntosh felt her superior, Patridge, defamed her professional skills as a hygienist. Since Patridge was McIntosh’s superior, the statements being considered for defamation were deemed privileged and, therefore, not slanderous.

Skoblow v. Ameri-Manage, Inc.

In Skoblow v. Ameri-Manage, a dentist sued a bunch of his former co-workers for essentially talking trash about him before his termination. In the end, though, the suing dentist lost because the judge deemed the conversation between his colleagues to be privileged since it focused on his job performance, which, in these circumstances, was a relevant, professional topic of conversation amongst the defendants.

Contact A Dentist Defamation Attorney

Over the years, Kelly Warner Law has worked on many dentist defamation lawsuits. If you are a dentist looking to take action over a detrimental online review, or whether you’re being sued by a dentist because of a bad online review, our Internet libel team can help. Get in touch today to begin the conversation.