Vassiliades v. Garfinckel's, Brooks Bros., 83-1255.

Citation492 A.2d 580
Decision Date13 May 1985
Docket NumberNo. 83-1255.,83-1255.
CourtCourt of Appeals of Columbia District
PartiesMary VASSILIADES, Appellant, v. GARFINCKEL'S, BROOKS BROTHERS, Miller & Rhoades, Inc., and Csaba Magassy, M.D., Appellees.

Charles S. Vizzini, Washington, D.C., for appellant.

James W. Greene, Washington, D.C., for appellee Garfinckel's.

Keith M. Bonner, Washington, D.C., for appellee Magassy.

Before PRYOR, Chief Judge, and NEWMAN and ROGERS, Associate Judges.

ROGERS, Associate Judge:

Appellant, Mrs. Mary Vassiliades, sued her plastic surgeon, Csaba Magassy, M.D., and Garfinckel's, Brooks Brothers, Miller & Rhoades, Inc. (Garfinckel's), for invasion of privacy on several theories because the doctor used "before" and "after" photographs of her cosmetic surgery at a Garfinckel's department store presentation and on a television program promoting the presentation. Dr. Magassy denied any liability on the grounds Mrs. Vassiliades consented to disclosure of her photographs and the publication was privileged as a matter of legitimate public interest. Garfinckel's asserted the First Amendment privilege and claimed the disclosure of Mrs. Vassiliades' photographs was made in good faith and without notice of lack of consent.

At the close of the plaintiff's case, the trial court granted defendants' motion for directed verdicts on the punitive damages claim and Dr. Magassy's motion for directed verdicts on the claims for breach of fiduciary duty and portrayal of Mrs. Vassiliades in a false light. At the close of all the evidence the defendants moved for directed verdicts on the remaining issues. The court reserved ruling on these motions and sent the case to the jury. The jury returned a verdict of $100,000 against Dr. Magassy for the television presentation and a verdict of $250,000 against Dr. Magassy and Garfinckel's jointly for the department store presentation. After a hearing, the trial court granted defendants' motions for judgment notwithstanding the verdicts and alternatively for a new trial, Super.Ct.Civ.R. 50(c), on the grounds that the verdict was against the weight of the evidence, contrary to the evidence, and excessive.

Upon review of the evidence, we hold Mrs. Vassiliades presented sufficient evidence for a jury reasonably to find her privacy was invaded by Dr. Magassy because of publicity of private facts and breach of fiduciary duty by a physician, but failed to present sufficient evidence of an invasion of privacy based on publicity placing her in a false light or appellees' appropriation of her likeness for commercial gain. We further hold that Garfinckel's cannot be held liable because it had obtained assurance from Dr. Magassy of Mrs. Vassiliades' consent to use her photograph. Therefore, we reverse the judgment notwithstanding the verdict as to Dr. Magassy for invasion of privacy based on publicity of private facts and the directed verdict for breach of fiduciary duty by a physician. In other respects we affirm the judgment below.


The evidence established that, in contemplation of undergoing plastic surgery, Mrs. Vassiliades, a secretary, housewife and mother, resigned from her secretarial position at the U.S. Department of Health and Human Services in 1977 at the age of 54, and thereafter assisted her husband in conducting his business. In April 1978, she contacted Dr. Magassy to discuss the possibility of having him perform the surgery; he performed the surgery successfully the next month. Before and after the surgical procedure, Dr. Magassy took photographs of Mrs. Vassiliades' face. Mrs. Vassiliades understood the photographs were being taken as part of the doctor's regular routine for use with other patients. Dr. Magassy testified he also took photographs as a protective measure in the event a patient later claimed there had been no improvement in appearance.

Several months after Mrs. Vassiliades' last postoperative visit, Dr. Magassy was invited by the director of public relations for Garfinckel's to participate in a store promotion during the month of March 1979. He agreed to participate without compensation in a program entitled, "Creams versus Plastic Surgery," a topic chosen by Garfinckel's partly as a result of recent publicity about the plastic surgery operations of the wives of Presidents Ford and Carter. In connection with its promotion and prior to the presentation at Garfinckel's, Garfinckel's arranged to have Dr. Magassy and other participants appear on the "Panorama" television program on WTTG, Channel 5, in Washington, D.C.

During his television presentation, Dr. Magassy used slide photographs of several of his patients, including two "before" and two "after" of Mrs. Vassiliades. Although Mrs. Vassiliades' face appeared on the television screen for less than one minute and her name was not mentioned, a former coworker, Beatrice Brooks, recognized her. Mrs. Brooks testified she had not previously known about Mrs. Vassiliades' surgery and after seeing Mrs. Vassiliades' photographs during the television program, she immediately called a friend at work to share this information. The coworker whom Mrs. Brooks called told another employee, Elliott Woo, a neighbor of Mrs. Vassiliades, but he already knew. Three days later Dr. Magassy made a similar presentation at Garfinckel's department store; seventy-nine people were in the audience but no evidence was presented that anyone there recognized Mrs. Vassiliades' photographs.

Mrs. Vassiliades learned about the presentations on April 1, 1979. She testified that when she learned of the disclosure she was "devastated," "absolutely shocked" and "felt terrible" that everyone at her former office knew about her face-lift. She "went into a terrible depression," and did not want to go out in public anymore. She claimed she virtually went into hiding and refused to accompany her husband to many places because she knew everyone talked about her cosmetic surgery.

The key issue at trial was whether Mrs. Vassiliades had consented to the use of her photographs by Dr. Magassy. She categorically denied that she had. Dr. Magassy contended that he had obtained her verbal consent: on two occasions she had expressed her willingness to help him in any way she could with other patients who might be contemplating plastic surgery, and on her last visit she had told him that he could use her photographs in his lectures or in any other way to help other patients. Dr. Magassy's former assistant office manager corroborated his testimony about Mrs. Vassiliades' verbal consent.


Mrs. Vassiliades alleged that her right to privacy was violated because unreasonable publicity was given to her private life, her photographs were used for commercial gain by the defendants, and she was portrayed in a false light. Her additional claim for breach of a fiduciary duty was also a part of her invasion of privacy claim. RESTATEMENT (SECOND) OF TORTS § 652A, at 377-78 (1977) (although plaintiff may maintain invasion of privacy cause of action on several theories, she is entitled to only one recovery of damages). Accordingly, if the trial court erred in ruling against Mrs. Vassiliades on any of the grounds she alleges as a basis for invasion of privacy, the entry of judgment notwithstanding the verdicts or directed verdicts on the invasion of privacy cause of action must be reversed.

A directed verdict and a judgment notwithstanding the verdict are appropriate to "remove from jury consideration those cases in which the facts, viewed most favorably to the nonmoving party, permit but one reasonable conclusion as to the proper judgment." District of Columbia v. Cassidy, 465 A.2d 395, 397 (D.C.1983); Papanicolas v. Group Hospitalization, Inc., 434 A.2d 403, 404 (D.C.1981); Faniel v. Chesapeake & Potomac Telephone Co., 404 A.2d 147, 150 (D.C.1979). On appeal, this court must apply the same standard as the trial court in considering whether a jury could reasonably reach a verdict in favor of the opponent of the motion. District of Columbia v. Cassidy, supra, 465 A.2d at 397; Faniel v. Chesapeake & Potomac Telephone Co., supra, 404 A.2d at 150 (citing Baker v. D.C. Transit System, Inc., 248 A.2d 829, 831 (D.C.1969)).

In its Memorandum Opinion and Judgment the trial court held that the right of privacy is not absolute and that, in balancing the individual's right to be let alone and the public's right to know, there are occasions on which the public right must prevail. We agree. We also agree that the precise boundaries of the public interest may be exceedingly difficult to define, that the subject matter of plastic surgery, as the trial court noted, "at a time when many well-known and highly visible men and women were the objects of news articles about face-lifts and other plastic surgery" was of general public interest, and that a professional presentation with photographs would enhance the public interest in the subject. We disagree, however, with the trial court's conclusions that "reasonable minds could not differ in finding the publication [of Mrs. Vassiliades' photographs] to be of legitimate public interest," and that "certainly, the subject of face-lifts and plastic surgery was no longer a subject calculated to generate offense to persons of ordinary sensibilities." We hold Mrs. Vassiliades was entitled to expect photographs of her surgery would not be publicized without her consent.

The concept of a cause of action for invasion of privacy is generally considered as having originated with a law review article written in 1890 by Samuel D. Warren and Louis D. Brandeis. See generally, Warren & Brandeis, The Right to Privacy, 4 HARV.L.REV. 193 (1890). In their article, the authors described the cause of action as the right "to be let alone." Since then, the tort of invasion of privacy has been expanded considerably, but as Professor Prosser noted, much debate has always...

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