Knepper v. Brown

• Decision Date: 17 July 2002
• Citation: 50 P.3d 1209,182 Or. App. 597
• Parties: M.M. KNEPPER and J.J. Knepper, Appellants, v. Timothy BROWN, M.D.; Timothy M. Brown, P.C., an Oregon professional corporation; American Academy of Cosmetic Surgery and American Society of Lipo-Suction Surgery, Inc., foreign corporations, Defendants, and U.S. West Dex, Inc., a foreign corporation, Respondent.
• Court: Oregon Court of Appeals

50 P.3d 1209

182 Or. App. 597

M.M. KNEPPER and J.J. Knepper, Appellants, v. Timothy BROWN, M.D.; Timothy M. Brown, P.C., an Oregon professional corporation; American Academy of Cosmetic Surgery and American Society of Lipo-Suction Surgery, Inc., foreign corporations, Defendants, and U.S. West Dex, Inc., a foreign corporation, Respondent.

9903-02495; A110172.

Court of Appeals of Oregon.

Argued and Submitted February 25, 2002.

Decided July 17, 2002.

Kathryn H. Clarke argued the cause for appellants. With her on the briefs was Gregory A. Smith.

Michael H. Simon argued the cause for respondent. With him on the brief were Stephen M. Feldman and Perkins Coie LLP.

Before HASELTON, Presiding Judge, and ARMSTRONG and BREWER, Judges.

HASELTON, P.J.

Plaintiff, M.M. Knepper, appeals from the trial court's entry of an ORCP 67 B judgment after the court granted defendant U.S. West Dex's motion for summary judgment against plaintiff's claims of fraud and conspiracy to commit fraud.¹ The gravamen of those claims is that defendant culpably published a Yellow Pages advertisement that misrepresented a physician's qualifications to perform liposuction procedures;² that plaintiff relied on that misrepresentation in retaining that physician; and that plaintiff was injured when the physician negligently performed liposuction on her. As described below, we conclude that summary judgment was improper on any of the three alternative grounds defendant advanced before the trial court. Consequently, we reverse and remand.

Viewed in the light most favorable to plaintiff as the nonmoving party, ORCP 47 C, the record discloses the following material facts. Defendant U.S. West Dex is the publisher of Yellow Pages telephone directories, which include listings and advertisements for professional services, including medical services. The "Practice Guide Section" lists and groups physicians according to specialities. For example, there are separate headings and groupings for dermatology and for surgery, and the surgery category is, in turn, divided into 18 subspecialities, including "Surgery, Plastic & Reconstructive." Every page of the Yellow Pages practice guide of doctors "Listed by Practice" includes the following notation:

"For your convenience, the following doctors have chosen to list by type of medical practice. For information concerning physicians and/or qualifications, call the proper state agency or your local medical or osteopathic association."

Dr. Timothy Brown was a licensed physician and was board certified in dermatology and dermatologic surgery, but not in plastic and reconstructive surgery. Brown received training through the American Academy of Cosmetic Surgery in performing liposuction.³ Before November 1996, Brown had performed liposuction procedures and had advertised in the Yellow Pages under the "dermatology" subcategory of the "Physicians & Surgeons, MD & DO" listing.

In late 1996, Brown told one of defendant's sales representatives, Mueller, that he was performing liposuction procedures. Mueller responded that, to increase his clientele, Brown should not only continue his advertisement under the "dermatology" subcategory but should also advertise under the "Surgery, Plastic & Reconstructive" subcategory. Mueller told Brown that the latter was the "best heading," because that is where potential liposuction patients would be most likely to look.

Brown's advertisement under the "Surgery, Plastic & Reconstructive" heading included the unamplified notation, "Board Certified"—that is, the ad did not expressly identify the area of certification.⁴ Brown and his assistant, Sara Newman, discussed including that notation with Mueller because they believed that it would enhance Brown's appeal. From that discussion, Mueller knew, before the ad's publication, that Brown was not board certified in plastic and reconstructive surgery. Ultimately, defendant published advertisements for Brown under the "Surgery, Plastic & Reconstructive" heading in both the 1996-97 and 1997-98 Yellow Pages.

Plaintiff's interest in liposuction began sometime in 1995, when she saw a television program describing the procedure and then started reading magazine articles on the subject. She subsequently consulted a physician whom she had seen on local television describing liposuction, but she decided not to have him perform the surgery both because she wanted to research the subject more and to consult with other physicians and also because one of her friends was unhappy with the results of liposuction performed by that physician.

In January 1997, plaintiff consulted the Yellow Pages under the heading of "Surgery, Plastic & Reconstructive" and saw Brown's advertisement. Plaintiff did not, however, contact Brown at that time. Thereafter in 1997, plaintiff consulted with three other physicians or their staff about liposuction. In November or December 1997, plaintiff attended a women's health fair where Brown had a booth and spoke with either Brown or his staff. At that time, plaintiff received materials describing Brown's experience, training, competence, and qualifications to perform liposuction.

After the health fair, plaintiff scheduled a consultation with Brown. In doing so, plaintiff relied on the contents of the Yellow Pages advertisement and materials from the health fair. Plaintiff would not have met with Brown but for her belief that he was board certified in plastic and reconstructive surgery. During the ensuing consultation, Brown made representations that confirmed plaintiff's understanding that he was board certified in plastic surgery. Brown also told plaintiff that he had performed "hundreds" of procedures similar to the one that she was considering.

Plaintiff retained Brown. He negligently performed tumescent liposuction and followup procedures, causing plaintiff serious physical and psychological injuries.

In 1999, plaintiff brought this action. Plaintiff's operative third amended complaint alleged, in pertinent part:

"Defendants [US West] and Brown conspired to mutually profit from Yellow Pages advertising by holding out defendant Brown as having education, training, experience, qualifications, and Board certification that they each knew, or defendant [US West] should have known, that defendant Brown did not have. Defendant Brown agreed to pay for, and defendant [US West] agreed to place the Yellow Page advertisement under physicians: `plastic and reconstructive surgery' stating that defendant Brown was `Board certified.' Such statement willfully and intentionally implied that defendant Brown was Board certified in plastic and reconstructive surgery. Defendant [US West], by virtue of its prior dealings with defendant Brown, knew or should have known that this representation was material, false, and misleading."

The gravamen of plaintiff's complaint against defendant is that its placement of Brown's advertisement in the "Plastic and Reconstructive" surgeons section of the Yellow Pages, along with the text in the advertisement indicating that Brown was "Board Certified," misled her to believe that Brown was board certified in plastic and reconstructive surgery. Because plaintiff was interested in undergoing liposuction only under the care of a plastic surgeon, her theory of causation was that, but for the misleading placement and text of Brown's advertisement, she never would have consulted him and, thus, would never have undergone the surgery that led to her injuries.

Defendant moved for summary judgment against plaintiff's fraud claims⁵ on three alternative grounds: (1) Because defendant had included a "disclaimer" on each page of the Yellow Pages Professional Practice Guide,⁶ plaintiff had no right to rely—at least not vis-à-vis defendant—on any representations in Brown's ad as to his professional qualifications, including board certification. (2) Plaintiff did not, in fact, rely on the Yellow Pages advertisement in concluding that Brown was a board certified plastic surgeon. In support of that argument, defendant presented deposition testimony from plaintiff that showed, in defendant's view, that plaintiff did not rely on the "Board Certified" text in the Yellow Pages advertisement. (3) There was not a sufficient causal link between the alleged misrepresentation and the alleged injury that resulted from Brown's performance of the liposuction procedures on plaintiff. In particular, defendant argued that its publication of the ad merely "facilitated" plaintiff's alleged injuries in a "but-for" sense, but that, under Buchler v. Oregon Corrections Div., 316 Or. 499, 853 P.2d 798 (1993), Brown's alleged intervening malpractice precluded any fraud-based liability for plaintiff's alleged injuries.⁷

In response, plaintiff disputed defendant's characterization of the significance and effect of the "disclaimer"—and asserted that the determination of whether she relied, or was entitled to rely, on the advertisement notwithstanding the "disclaimer" presented factual issues. In support of that contention, plaintiff proffered her own affidavit, which stated, in part: "I relied upon the yellow page ad in the Vancouver U.S. West Dex yellow pages. I believed, based upon the location and content of Dr. Brown's ad, that Dr. Brown was a board certified plastic surgeon." Plaintiff further asserted that the sufficiency of the causal link between the alleged fraud and the alleged damage presented a question of fact.

In reply, defendant asserted that plaintiff's affidavit in opposition to summary judgment could not create a genuine issue of material fact as to reliance because plaintiff's statements in that affidavit contradicted her earlier sworn statements and did so without offering any plausible justification or explanation for that contradiction. As support for that position, defendant relied on Henderson-Rubio v. The May Dept. Stores, 53 Or.App. 575, 632 P.2d 1289 (1981), and Stoeger v. Burlington Northern Railroad Co., 323 Or. 569...