Brown v. Gatti

• Decision Date: 13 October 2004
• Citation: 195 Or. App. 695,99 P.3d 299
• Parties: Timothy M. BROWN, M.D., and Timothy M. Brown, M.D., P.C., an Oregon professional corporation, Appellants, v. Daniel J. GATTI; Gatti, Gatti, Maier, Krueger & Associates, an Oregon partnership; Gatti, Gatti, Maier, Krueger, Sayer & Associates, an Oregon partnership; Gatti & Gatti, P.C., an Oregon professional corporation, Respondents, and Marie Nolan and Jane Does 1-5, Defendants, and Oregon Publishing Company and David R. Anderson, Intervenors-respondents.
• Court: Oregon Court of Appeals

99 P.3d 299

195 Or. App. 695

Timothy M. BROWN, M.D., and Timothy M. Brown, M.D., P.C., an Oregon professional corporation, Appellants, v. Daniel J. GATTI; Gatti, Gatti, Maier, Krueger & Associates, an Oregon partnership; Gatti, Gatti, Maier, Krueger, Sayer & Associates, an Oregon partnership; Gatti & Gatti, P.C., an Oregon professional corporation, Respondents, and Marie Nolan and Jane Does 1-5, Defendants, and Oregon Publishing Company and David R. Anderson, Intervenors-respondents.

0002 01586; A115927.

Court of Appeals of Oregon.

Argued and Submitted May 7, 2004.

Decided October 13, 2004.

Montgomery W. Cobb argued the cause for appellants and filed the briefs. With him on the briefs was Cobb & Bosse, LLP.

J. Marie Bischman argued the cause and filed the brief for respondents. With her on the brief were J. Philip Parks and Parks, Bauer, Sime & Winkler, LLP, Salem.

Charles Hinkle, Portland, argued the cause and filed the brief for intervenors. With him on the brief was Stoel Rives, LLP.

Before EDMONDS, Presiding Judge, and BREWER and SCHUMAN, Judges.

SCHUMAN, J.

Defendant, an attorney, represented a client in a medical malpractice action against plaintiff.¹ Shortly after the trial, defendant was interviewed by a newspaper reporter and a television newscaster. Defendant's statements were subsequently published in the reporter's newspaper and broadcast on television. Plaintiff then brought this action alleging that defendant's statements were false and defamatory. As part of the discovery process, plaintiff tried to subpoena the newspaper reporter's notes and the reporter himself for a deposition. The reporter's employer, The Oregonian, intervened and submitted a motion to quash the subpoena. The court granted the motion, concluding that the reporter and his notes were protected by Oregon's "media shield" law, ORS 44.510 to 44.540. Subsequently, the court granted defendant's motion for summary judgment.²

Plaintiff appeals, assigning error to the order quashing his subpoena. He also assigns error to the grant of summary judgment, arguing that the trial court erred in concluding that, for a variety of reasons, the allegedly defamatory statements were not actionable under Oregon defamation law. We agree with plaintiff that the court should not have quashed the subpoena; the reporter and his notes fall within an exception to the media shield law. We also conclude that each of the claims for which the trial court granted summary judgment³ contains at least one specification for which that grant was erroneous. We therefore reverse and remand on all those claims.

In a case tried to a jury in Multnomah County Circuit Court, Nolan v. Brown, A9711-09412, defendant's client, Marie Nolan, sued Brown for medical malpractice, fraud, and unlawful trade practices, alleging, among other things, that Brown misrepresented his qualifications to perform liposuction and that he performed the procedure on her in a negligent manner. During trial, Brown conceded negligence, and, in exchange for $10,000, Nolan agreed to dismiss the fraud and unlawful trade practices claims. The malpractice claim was then submitted to the jury solely on the issue of damages. The jury awarded the plaintiff approximately $183,000.

After the jury returned its verdict, Gatti spoke with Anderson, a reporter from The Oregonian. The next day, the newspaper published an article on the Nolan litigation containing three statements that Brown argues are false and defamatory:

"`[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 portrayed himself as a plastic and reconstructive surgeon in telephone book ads and literature he gave to potential patients.

"But [Brown] 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."

About one week later, television station KATU broadcast a story concerning the Nolan litigation. The story included an interview with Gatti. Four statements from that broadcast are at issue in this case. Two of the statements were made by a KATU 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 plastic surgery.

"Brown still advertises for cosmetic surgery. He has attended four or five two-day workshops on liposuction * * *."

Two of the statements were made by 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.

"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."

Both the Oregonian and KATU subsequently issued retractions of some of the material in the reports.

Plaintiff then brought the present action for defamation. He claimed that statements directly attributable to defendant were false and defamatory and that the newspaper and television reports made false and defamatory statements based on misinformation provided by defendant. As part of the discovery process, both defendant and plaintiff issued subpoenas to Anderson, requesting his deposition and the production of notes, tapes, and any written memoranda of his interview with defendant. The court quashed both subpoenas. Although it gave no reason for quashing defendant's subpoena, it reasoned that plaintiff's was barred by ORS 44.520(1), the media shield law, which (as we discuss more fully below) provides that journalists cannot be compelled to disclose their sources or notes. Defendant subsequently moved for summary judgment on the defamation claims. The court granted the motion, ruling that none of the allegedly defamatory statements was actionable. In doing so, the court did not state a specific reason why each statement was not actionable; rather, it provided a list of potential reasons connected by "and/or," for example, "The motion for summary judgment is granted as to the alleged statement * * * regarding the verdict sending notice because the statement is (1) not false; (2) not defamatory as a matter of law; (3) privileged; and/or (4) a non-defamatory opinion."

One reason for granting summary judgment that the trial court listed as applicable to all of the statements in all of the claims was that they were privileged. Because affirming that conclusion would obviate the need for further inquiry, we deal with it first. The privilege in question immunizes an attorney for defamatory statements he or she makes "in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of a judicial proceeding in which he participates as counsel, if it has some relation thereto." Chard v. Galton, 277 Or. 109, 112, 559 P.2d 1280 (1977) (quoting Restatement (Second) of Torts § 586 (1974)). The absolute privilege "is based upon the ground that `there are certain relations of life in which it is so important that the persons engaged in them should be able to speak freely that the law takes the risk of their abusing the occasion and speaking maliciously as well as untruly, * * * in order that their duties may be carried on freely and without fear of any action being brought against them * * *.'" Ramstead v. Morgan, 219 Or. 383, 387, 347 P.2d 594 (1959) (internal citations omitted). In other words, "parties, lawyers, judges, jurors, and witnesses must be free to risk impugning the reputations of others, in order to discharge public duties and protect individual rights." DeLong v. Yu Enterprises, Inc., 334 Or. 166, 173, 47 P.3d 8 (2002). The privilege "secur[es] to attorneys * * * the utmost freedom in their efforts to secure justice for their clients." Bob Godfrey Pontiac v. Roloff, 291 Or. 318, 335, 630 P.2d 840 (1981) (quoting Restatement at § 586 comment a); accord. Wollam v. Brandt, 154 Or. App. 156, 164, 961 P.2d 219 (1998)

. It protects the attorney from liability "even though the defamatory matter is uttered maliciously, as well as falsely." Moore v. West Lawn Mem'l Park, 266 Or. 244, 249, 512 P.2d 1344 (1973). The privilege, in other words, confers a license to lie; it is strong medicine and therefore appropriate only "in very limited circumstances." DeLong, 334 Or. at 171,

47 P.3d 8.

We have identified two components that a statement must have in order to qualify for the privilege: The statement must have "some reference to the subject matter of the pending litigation," and it must be made "in connection with a judicial proceeding." Wollam, 154 Or.App. at 162 n. 5, 961 P.2d 219; accord. Chard, 277 Or. at 112,

559 P.2d 1280. Typically, Oregon courts confer the privilege when defamatory statements are made in pleadings, in the courtroom, or in correspondence between opposing parties or their attorneys. See, e.g., Moore v. Sater, 215 Or. 417, 420, 335 P.2d 843 (1959) (privilege applies to statements made in pleadings); Chard, 277 Or. at 114,

559 P.2d 1280 (privilege applied to statements in letter from attorney to insurance company regarding settlement of clients' claims). However, the privilege has been extended to certain unsworn, out-of-court statements when doing so is in the public interest. See Moore, 266 Or. at 251,

512 P.2d 1344 (privilege extended to letter written to State Board of Funeral Directors and Embalmers regarding plaintiff's qualifications for funeral director's license); Ramstead, 219 Or. at 400-01,

347 P.2d 594 (privilege extended to unsolicited letter sent by defendant to grievance committee of Oregon State Bar).

Defendant, however, asks us to extend the reach of the privilege further than we...