Marcus v. Swanson, 122,400

CourtCourt of Appeals of Kansas
Writing for the CourtATCHESON, J.
PartiesElysia A. Marcus, Appellee, v. Eric Swanson, M.D., Appellant, v. Elysia A. Marcus, Appellee.
Docket Number122,400
Decision Date19 August 2022

Elysia A. Marcus, Appellee,

Eric Swanson, M.D., Appellant,

Elysia A. Marcus, Appellee.

No. 122,400

Court of Appeals of Kansas

August 19, 2022


Appeal from Johnson District Court; DAVID W. HAUBER, judge.

Frankie J. Forbes, of Forbes Law Group, LLC, of Overland Park, Quentin M. Templeton, of the same firm, Russell J. Keller, of the same firm, and William J. Skepnek, of The Skepnek Law Firm, PA, of Lawrence, for appellant.

Matthew V. Bartle, of Bartle &Marcus LLC, of Kansas City, Missouri, for appellee.




In this case, we must apply defamation law crafted 40 years ago to a decidedly 21st century set of facts. A plastic surgeon asserted that a "review" a disgruntled former patient posted on an internet site falsely impugned his professional reputation. A jury sitting in Johnson County District Court agreed and entered a $15,000


verdict for the physician. The district court set aside the verdict because the physician, who continued to maintain a full schedule of patients, did not prove any actual harm to his reputation as a result of the post-a necessary component for a successful defamation claim under Kansas law. The physician has appealed the ruling. We agree with the district court's assessment of the law, the evidence, and the required outcome and, therefore, affirm the ruling and the final judgment entered for the ex-patient on the defamation claim.

The jury also found the ex-patient violated a settlement agreement with the physician by posting the negative review and returned a verdict awarding him $2,500 for breach of contract. In her cross-appeal, the ex-patient contends the verdict lacks a basis in the trial evidence. We disagree and affirm that verdict and final judgment for the physician.


Dr. Eric Swanson, M.D., has a practice in Johnson County principally devoted to cosmetic surgery, including laser treatments of the face to reduce or eliminate wrinkles and other blemishes. Dr. Swanson performed a laser "resurfacing" of Elysia A. Marcus' face in December 2016 with what Marcus considered poor results. David Marcus, Elysia's husband, is a lawyer and contacted another lawyer who handles medical negligence claims. That lawyer made a settlement demand on Dr. Swanson. For purposes of this appeal, we may condense that aspect of the historical facts. In exchange for Dr. Swanson refunding the $2,500 fee for the laser treatment, the Marcuses gave up any legal claims they might have had against him and his clinic related to the laser treatment. The release the Marcuses signed in July 2017 also provided they "will not discuss this case or settlement in the media." The Marcuses never filed a medical malpractice action against Dr. Swanson.


Dr. Swanson and his clinic appear on various internet sites, including Yelp, and he and his staff periodically look at posts on those sites. In March 2018, Dr. Swanson discovered an exceptionally negative Yelp review from a "Lisa M." posted in November 2017. We may again boil down the historical facts for this appeal. Elysia Marcus wrote and posted the review. No purpose would be served in setting out the lengthy review. Rather, we can and do assume the content includes false statements that disparage Dr. Swanson in his profession and portray him as an incompetent who "ruins lives." The post urges potential patients to look into Dr. Swanson's past and to consider going elsewhere for cosmetic surgery. In 1999, Dr. Swanson stipulated in a proceeding before the Kansas Board of Healing Arts that he negligently treated three patients; he was publicly censured, and the Board required his practice be limited and monitored for about two-and-a-half years.

In May 2018, Dr. Swanson had a lawyer send a letter to the Marcuses demanding they take steps to remove the Yelp post, provide a written apology, pay $25,000 in damages, and sign a new release. The letter stated Dr. Swanson would sue the Marcuses if a settlement could not be reached. David Marcus promptly responded with an email threatening to file counterclaims in any civil action that would be damaging to Dr. Swanson's reputation and touting his own success as a litigator in the Kansas City metropolitan area. Four days later, David Marcus filed this action on behalf of Elysia for a declaratory judgment that the Yelp post did not violate the release they signed. Dr. Swanson duly answered, counterclaimed against Elysia Marcus for defamation and breach of contract-the claims eventually submitted for the jury's consideration-and named David Marcus as a third-party defendant in those claims.

The parties undertook discovery and filed various pretrial motions. The district court dismissed David Marcus as a party before trial. The jury heard the case over three days in August 2019. David Marcus' law partner represented Elysia Marcus during and after the trial. As we have said, the jury found Elysia Marcus breached the release and


awarded Dr. Swanson $2,500 in damages on that claim. The jury found the post to be defamatory and injurious to Dr. Swanson's reputation and awarded him $15,000 in damages. The jury also found Elysia Marcus acted willfully or maliciously-defined in the district court's instructions as acting "intentionally or purposefully" to do "wrong or caus[e] injury" or "do[ing] harm without any reasonable justification or excuse"-thereby exposing her to an award of punitive damages to be set by the district court. See K.S.A. 60-3702.

After the district court received the jury's verdicts, Elysia Marcus renewed the motions for judgment as of a matter of law she had made during the trial on the grounds Dr. Swanson had not proved any actual damage to his reputation from the Yelp post. The district court granted the renewed motion, set aside the jury verdict on Dr. Swanson's defamation claim, and entered judgment for Elysia Marcus. Elysia Marcus neither specifically disputed the verdict on the breach of contract claim nor augmented the grounds she had raised for judgment in her favor during the trial. The district court understood she was not contesting the breach of contract verdict and entered judgment for Dr. Swanson.

Dr. Swanson appealed the district court's decision on the defamation claim. Elysia Marcus then cross-appealed the judgment against her on the breach of contract claim. We first take up Dr. Swanson's appeal and then address Elysia Marcus' cross-appeal. We supplement our introductory account of the factual foundation for this litigation and its procedural progression as necessary.




A. Standard of Review

In considering a motion for a judgment as a matter of law, the district court must view the trial evidence in the best light for the party opposing the motion and give that party the benefit of any reasonable inferences drawn from the evidence. If the evidence taken that way would properly support a jury verdict for the nonmoving party, the district court should deny the motion. Russell v. May, 306 Kan. 1058, Syl. ¶ 2, 400 P.3d 647 (2017); Siruta v. Siruta, 301 Kan. 757, 766, 348 P.3d 549 (2015). The motion presents a question of law, and the ruling entails no weighing of disputed evidence. Accordingly, on appeal, we apply the same standard and owe no deference to the district court's decision. Russell, 306 Kan. 1058, Syl. ¶ 2.

B. Legal Principles Governing Defamation

Defamation is a species of tort based on one person or entity's publication of false statements that diminish the reputation of another person. Gobin v. Globe Publishing Co., 232 Kan. 1, 5-6, 649 P.2d 1239 (1982). The utterance of an oral defamation is slander, and the dissemination of a written defamation is libel. Here, we are concerned with libel. The redressable harm entails the diminution of the subject's positive standing or esteem within a community, be it a professional network, an extended social circle, or some segment of the public at large. Moran v. State, 267 Kan. 583, 589-90, 985 P.2d 127 (1999); Gobin, 232 Kan. at 6. Conversely, the subject's own emotional distress or upset caused by the publication will not alone support a claim for defamation, although damages for those noneconomic injuries may be recovered as an adjunct to a proved loss of reputation. 232 Kan. at 7.


Historically, defamation law recognized certain kinds of false statements were so noxious that damages were presumed to flow from their publication. The subject did not have to independently demonstrate a loss of community standing. Pertinent here, this kind of defamation-known as libel per se or slander per se-included false statements disparaging a person's abilities in his or her occupation. See Gomez v. Hug, 7 Kan.App.2d 603, 611-12, 645 P.2d 916 (1982) (libel per se includes "'imputation of a person's unfitness for his trade or profession'") (quoting Kraisinger v. Liggett, 3 Kan.App.2d 235, 237, 592 P.2d 477 [1979]). But the Kansas Supreme Court abolished libel per se and slander per se in Gobin, 232 Kan. at 5, and has since reiterated that position in Moran, 267 Kan. at 599. We return to that development in the law shortly, since it bears on Dr. Swanson's claim, given the content of the Yelp post.

As with many torts, the legal principles governing defamation are largely the product of the common law-judicial rules established through case precedent-rather than of statutes or legislative prescription. So the reach of the tort and what an ostensibly defamed plaintiff had to prove to prevail expanded and contracted as appellate courts crafted the law through their opinions. As a result, defamation law historically was the province of state courts and tended to be shaped and fine-tuned in each jurisdiction. But the insular character of defamation law changed dramatically in the middle of the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT