Brown v. Gatti

• Decision Date: 12 October 2006
• Docket Number: (CC 0002-01586; CA A115927; SC S51981).
• Citation: 341 Or. 452,145 P.3d 130
• Parties: Timothy M. BROWN, M.D., and Timothy M. Brown, M.D., P.C., An Oregon professional corporation, Respondents on Review, 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, Petitioners on Review, and Marie Nolan and Jane Does 1-5, Defendants, and Oregonian Publishing Company and David R. Anderson, Intervenors.
• Court: Oregon Supreme Court

Page 130

145 P.3d 130

341 Or. 452

Timothy M. BROWN, M.D., and Timothy M. Brown, M.D., P.C., An Oregon professional corporation, Respondents on Review, 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, Petitioners on Review, and Marie Nolan and Jane Does 1-5, Defendants, and Oregonian Publishing Company and David R. Anderson, Intervenors.

(CC 0002-01586; CA A115927; SC S51981).

Supreme Court of Oregon.

Argued and Submitted May 11, 2005.

Decided October 12, 2006.

On review from the Court of Appeals.^*

J. Philip Parks, Salem, argued the cause and filed the brief for petitioners on review. With him on the brief were Parks, Bauer, Sime, Winkler & Fernety.

Montgomery W. Cobb, Portland, argued the cause and filed the brief for respondent on review Brown. With him on the brief were Cobb & Bossé, LLP.

Before CARSON, Chief Justice,^** and GILLETTE, DURHAM, RIGGS^***, DE MUNIZ,^† and BALMER, Justices.^††

GILLETTE, J.

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, 195 Or.App. 695, 99 P.3d 299 (2004). We allowed the Gatti defendants' petition for review and now hold that none of the allegedly defamatory statements attributed to them, when read in context, is defamatory. We therefore reverse the decision of the Court of Appeals and affirm the trial court's grant of summary judgment to Gatti defendants.

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 only remaining issue, damages, a jury awarded Nolan $183,625.

After that trial, Gatti spoke to 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 U.S. 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.

"* * * * *

"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 U.S. 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 the 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. 195 Or.App. at 705, 99 P.3d 299. The Court of Appeals further concluded that the trial court had erred in granting summary judgment as to two statements in The Oregonian that Brown plaintiffs claimed were defamatory, but that did not directly quote Gatti. Id. at 708-14, 99 P.3d 299. Neither side challenges those rulings on review.

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, 99 P.3d 299 (KATU statements); id. at 714-15, 99 P.3d 299 (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, 276 Or. 501, 503, 555 P.2d 442 (1976) (quoting Restatement (First) of Torts § 559). A defamatory communication "would subject another to `* * * hatred, contempt or ridicule * * * [or] tend to diminish the esteem, respect, goodwill or confidence in which [the other] is held or to excite adverse, derogatory or unpleasant feelings or opinions against [the other].'" Reesman v. Highfill, 327 Or. 597, 603, 965 P.2d 1030 (1998) (alterations in original; quoting King, 276 Or. at 504, 555 P.2d 442; further quotation marks and internal citations omitted).

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, 238 Or. 606, 611, 395 P.2d 867 (1964) (quoting Restatement (First) of Torts § 573). Indeed, if a defendant has defamed a plaintiff by falsely "accus[ing] him of misconduct or dishonesty in the performance of his profession or employment," then the matter "is actionable without proof of specific harm." Wheeler v. Green, 286 Or. 99, 124, 593 P.2d 777 (1979).

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, 327 Or. at 604, 965 P.2d 1030 (citations omitted).

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., 267 Or. 496, 500, 517 P.2d 667 (1973) (emphases in original; citations omitted); see also Restatement (Second) of Torts § 614 (1977) (court determines whether communication is capable of bearing particular meaning and whether that meaning is defamatory; jury determines whether recipients of communication actually understood it in defamatory way).

The meaning of an allegedly defamatory statement or publication...