Georgia Soc. of Plastic Surgeons, Inc. v. Anderson, 44669

• Decision Date: 04 December 1987
• Docket Number: No. 44669,44669
• Citation: 363 S.E.2d 140,257 Ga. 710
• Parties: , 14 Media L. Rep. 2065 The GEORGIA SOCIETY OF PLASTIC SURGEONS, INC. et al. v. ANDERSON et al.
• Court: Georgia Supreme Court

Page 140

363 S.E.2d 140

257 Ga. 710, 14 Media L. Rep. 2065

The GEORGIA SOCIETY OF PLASTIC SURGEONS, INC. et al. v. ANDERSON et al.

No. 44669.

Supreme Court of Georgia.

Dec. 4, 1987.

As Amended Dec. 17, 1987.

On Motion for Reconsideration Dec. 17, 1987.

[257 Ga. 716] Sidney F. Wheeler, J.M. Hudgins IV, Stephen H. Sparwath, Long, Weinberg, Ansley & Wheeler, Atlanta, for Georgia Soc. of Plastic Surgeons, Inc., et al.

Thomas W. Rhodes, Smith, Gambrell & Russell, Atlanta, for Jack R. Anderson et al.

[257 Ga. 710] PER CURIAM.

This case involves an article published in the February 1982 edition of The Journal of the Medical Association of Georgia ("MAG Journal") which was entitled "Things Are Never What They Seem, Skim Milk Masquerades as Cream" (the "Skim Milk" article). ¹ Asserting that the article was highly critical of their qualifications, the appellees, who are Dr. Jack R. Anderson, the American Academy of Facial Plastic and Reconstruction Surgery, and the American Association of Cosmetic Surgeons, filed suit against the appellants, Dr. William E. Huger, Dr. John A. Rusca, and the Georgia Society of Plastic Surgeons, Inc. The plaintiffs alleged that the three defendants and others had conspired in the preparation and publication of the Skim Milk article, and based their complaint, as amended, on theories of libel, unfair trade practices (specifically, false disparaging statements about their services or business), and intentional infliction of emotional distress.

At the close of the evidence, the court denied the defendants' motion for a directed verdict as to the claims for libel and unfair trade practices, and granted their motion for a directed verdict regarding the claim for intentional infliction of emotional distress. The court then charged the jury on theories of libel and common-law disparagement of services. The jury, finding for the plaintiffs, awarded Dr. Anderson $500,000 in actual damages and $1 million in punitive damages on the libel count (these were the only punitive damages awarded) and $1,000 damages on the unfair trade practices claim. Each of the plaintiff medical groups was awarded $1,000 on the libel claim and $1,000 on the unfair trade practices claim. In addition, the jury awarded attorney's fees of $140,000 as damages for the unfair trade practices and also as expenses of litigation under OCGA § 13-6-11. The court subsequently granted an injunction under the authority of the Uniform Deceptive Trade Practices Act to prevent the defendants from disparaging the services or businesses of plaintiffs, OCGA §§ 10-1-372(a)(8); 10-1-373(b), and found that the $140,000 in attorney fees were independently warranted under § 10-1-373(b). The defendants appeal. We affirm in part and reverse in part.

1. The trial court found that all of the plaintiffs-appellees were "public figures" for the purposes of their claim for libel, requiring them to show actual malice on the part of the defendants-appellants before being permitted to recover. On appeal, the defendants contend that the appellees failed to prove actual malice in the preparation of the Skim Milk article. As their initial response to this contention, the appellees contend that (despite the trial court's ruling) they were not public figures for the purposes of this suit, and thus they did not have to show actual malice. In response to this argument, the appellants assert that, inasmuch as the appellees did not file a cross-appeal enumerating the trial court's ruling as error, it is too late to contest that ruling.

The general rule is that an appellee must file a cross-appeal to preserve enumerations of error concerning adverse rulings. OCGA § 5-6-38; Chester v. Ga. Mutual Insurance Co., 165 Ga.App. 783(1), 302 S.E.2d 594 (1983) (holding that a cross-appeal was necessary to appeal the trial court's grant of summary judgment to the appellants). However, a ruling that becomes material to an enumeration of error urged by an appellant may be considered by the appellate court without the necessity of a cross-appeal. See Southeast Ceramics Inc. v. Klem, 246 Ga. 294, 295(1), 271 S.E.2d 199 (1980); Haggard v. Board of Regents of the University System of Georgia, 257 Ga. 524 4(a), 360 S.E.2d 566 (1987). In this case, a determination of the status of the appellees is critical to the disposition of errors enumerated by appellants. Accordingly, we will review the trial court's ruling that appellees are public figures.

2. After reviewing the record, we conclude that the trial court erred in ruling that appellees were "public figures" for the limited purposes of appellees' claim for libel.

"The definitive test for determining whether an individual is a public figure was established in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789.... 'That designation [public figure] may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.' [Emphasis supplied.] Gertz, supra at 351, 94 S.Ct. at 3012-13." Sewell v. Eubanks, 181 Ga.App. 545(1), 352 S.E.2d 802 (1987).

Here, the appellants do not contend that appellees are public figures for all purposes, and the evidence does not support their assertion that they are "limited purpose public figures." As to the latter issue, the controversy in which appellees have become involved is primarily a private struggle within the confines of the medical profession. Moreover, the controversy is chiefly of interest to plastic surgeons and other physicians who perform plastic surgery, and would appear to have significantly less interest for other medical specialties. Furthermore, the controversy has been manifested, for the most part, in the pages of medical journals and other publications whose circulation is generally confined to doctors. We therefore hold that the dispute in question has a substantially private nature, and therefore appellees are not limited purpose public figures. See Sewell v. Eubanks, supra, 181 Ga.App. 545, 352 S.E.2d 802; Western Broadcasting of Augusta, Inc. v. Wright, 182 Ga.App. 359, 356 S.E.2d 53 (1987).

3. Having determined that the appellees were private figures, we must now determine whether the evidence was sufficient to support the verdict for libel.

The disputed article had its genesis in a long-simmering controversy between two groups of doctors. One group, typified by appellants Drs. Huger and Rusca, are plastic surgeons. Their national professional association is the American Society of Plastic and Reconstructive Surgeons (ASPRS). Their local association, the Georgia Society of Plastic Surgeons, Inc. (GSPS), is the third appellant in this case. The opposing group of doctors, which includes appellee Dr. Anderson, is composed of otolaryngologists who perform plastic surgery on the head and neck. (Dr. Anderson was a prominent pioneer among this group of otolaryngologists.) A professional association of members of this class, the American Academy of Facial Plastic and Reconstruction Surgery (AAFPRS), is an appellee. The remaining appellee, the American Association of Cosmetic Surgeons (AACS), is an association of physicians from different specialties who use AACS as a forum to exchange their views on cosmetic surgery. The evidence at trial showed that plastic surgeons have been concerned for many years about the growing number of otolaryngologists who are performing plastic surgery, and have sought ways to combat such competition.

The catalyst for the Skim Milk article was two earlier articles, both entitled "An Old Medical Specialty Puts on a New Face ... and Head ... and Neck." The first article, authored by Dr. Anderson, was published in the August 1980 Journal of the Southern Medical Association. The second article, authored by Dr. Anderson and another otolaryngologist, was printed in the October 1981 edition of the MAG Journal. The articles announced that otolaryngologists were changing the names of their organizations to reflect the broadening of their specialty to include head and neck medicine and surgery.

Subsequently, GSPS decided to publish in the MAG Journal a response to the article by Dr. Anderson. Dr. Rusca, the president of GSPS, formed a committee to write the response, with Dr. Huger as a member. The committee asked each member to submit an article, with the committee to select the article for publication from these drafts. The draft which was selected, Dr. Huger's, was published as the Skim Milk article after being approved and endorsed by Dr. Rusca. In drafting this article, Dr. Huger borrowed liberally (in many instances, word-for-word) from three earlier documents, one by Dr. Boyd Burkhardt, an Arizona plastic surgeon, and another by Dr. Sherrell Aston, a New York plastic surgeon. Dr. Burkhardt's writing had been published as a one-page article in the April 1975 issue of the "Sombrero," the journal of the Pima County (Arizona) Medical Society. This article became the basis for much of Part I of the Skim Milk article. The document authored by Dr. Aston, "Specialty Board Certification," was a historical perspective of plastic surgery which he and a ghost-writer had prepared for ASPRS. The third document used by Dr. Huger was a position paper, "Plastic Surgery and Its Practitioners," which ASPRS had prepared as a statement of its view of performance of plastic surgery by otolaryngologists. The Aston paper and the ASPRS position paper were the foundation for some of Part II of the Skim Milk article. In addition to these sources, Dr. Huger made lesser use of certain other documents, his use of which is not in issue.

Neither Dr. Huger nor the other appellants performed any independent research or investigation of the facts which the Skim...