NEWS MEDIA UPDATE · CALIFORNIA · Libel · Jan. 5, 2006
Foot doctor’s defamation claim dismissed as SLAPP suit
Jan. 5, 2006 · A San Francisco Chronicle story about a doctor who exaggerated the work he had done on professional athletes to promote his practice is not defamatory, a California appellate court ruled Dec. 29.
The California Court of Appeal in San Francisco upheld a 2004 lower court ruling dismissing the defamation suit under the state’s anti-SLAPP law, which is designed to prevent frivolous SLAPP cases — strategic lawsuits against public participation.
The Dec. 30, 2002, article, headlined “The Sport of Doctoring,” portrayed Dr. Andrew Carver, a podiatrist, as an example of a doctor who overstates his experience treating professional athletes to help business. Carver sued the Chronicle and two athletes, former San Francisco 49er Roger Craig and San Francisco Giant Barry Bonds, who were quoted in the article.
In upholding a lower court’s dismissal of the case, a three-judge appellate panel unanimously ruled that the article was a matter of public concern and that Carver had not shown the court a probability for prevailing in the case.
“To put it in Barry Bonds’ terms, it’s not a home run, but it’s a solid single to center,” said attorney Karl Olson, who represented the Chronicle. “In my opinion, it doesn’t break any new ground, but it’s always good to have another case there to cite — particularly in a case like this.”
The appellate court conducted a two-part test to determine whether the anti-SLAPP statute should apply, deciding that the defendants engaged in a protected activity and that the plaintiff did not show a probability he would prevail.
“The article warned readers not to rely on doctors’ ostensible experience treating professional athletes, and told what it described as ‘a cautionary tale’ of plaintiff exaggerating that experience to market his practice,” wrote Judge John E. Munter. “Since the statements at issue served as a warning against plaintiff’s method of self-promotion, and were provided along with other information to assist patients in choosing doctors, the statements involved a matter of public concern.”
The court also found Bonds’ statements — “I don’t like that man. I don’t like that man. He’s a liar.” — may have been potentially defamatory. But since “it appears from the evidence that there was substantial truth to Bonds’s charge that plaintiff lied in his dealing with him, plaintiff has not established a probability of prevailing on his defamation charge against Bonds,” Munter wrote.
The newspaper quoted Craig as saying he said he never remembered working with Carver, and the court found that Carver would be unable to prove that Craig did remember working with him. Therefore, even though a “republisher is deemed to have adopted statements that are defamatory,” Carver’s lawsuit could not be continued because “plaintiff has no probability of prevailing against Bonds or Craig [and] the Newspaper cannot be held liable for republishing their statements,” Munter wrote.
The court disagreed with a few of the newspaper’s arguments, including whether Carver is a public figure. In defamation suits, public figures must show actual malice — knowledge of and reckless disregard for the truth of the article — while non-public figures generally only need to show negligence by the media.
“We felt the entire article was a fair and true report of the state’s investigation [of Carver],” Olson said. “Also, we felt that he was a public figure in this area. Obviously, the court did not agree.”
An article is privileged — protected from liability — if it is a fair and true report of a public record. The court found the majority of the story to be unprivileged and that only the story’s references to the number of complaints filed against the Carver with the Medical Board could be privileged. That was because, although the number may have been wrong, the “essential point” remained and “the lower figure would not, in context, have had a different effect on the reader than the higher one,” Munter wrote.
(Carver v. Bonds; Media Counsel: Karl Olson, Levy, Ram & Olson; San Francisco, Calif.) — CM