TOPEKA, Kan. (Legal Newsline) - A plastic surgeon who won a jury verdict against a former patient who submitted bad Yelp reviews under a fake name failed to prove his reputation took a hit, the Kansas Supreme Court ruled, affirming the reversal of a finding of defamation.
Kansas long ago abolished the doctrine of defamation per se under which damages are presumed, the high court ruled, and plaintiffs must provide solid evidence their reputation was injured by a false report. The mere fact the doctor’s numerical rating on Yelp declined isn’t enough, the court said, since Yelp ratings are opinion, not fact, and beyond the reach of defamation claims.
Dr. Eric Swanson performed a cosmetic procedure on Elysia Marcus for $2,500 in April 2015 but “Marcus was not satisfied with the results,” the court said. Two years later Marcus’s husband, a lawyer, contacted another attorney who sent a demand letter to Dr. Swanson. After negotiations the doctor refunded his fee and Marcus released any legal claims against the doctor, also agreeing not to discuss the issue in the media.
Several months later, however, Marcus posted Yelp reviews on the doctor’s personal and business pages under a false name, giving him a one-star rating and making what both sides agreed were “false and defamatory statements.” The doctor sent her a demand letter for $25,000 and an apology.
Marcus responded by filing for a declaratory judgment in Johnson County Court and Dr. Swanson answered with claims of breach of contract, libel per se and tortious interference. At trial, Dr. Swanson testified he didn’t lose any business because of the Yelp reviews and one of his patients testified that while she was worried the bad reviews might cost the doctor business, she continued to recommend him to her friends.
A jury found Marcus had breached the release and defamed Dr. Swanson, ordering $17,500 in damages. The trial judge set aside the verdict, ruling the doctor hadn’t presented any evidence the reviews hurt his reputation.
The Kansas Court of Appeals affirmed in a split decision in 2022, ruling any suggestion of harm was “purely speculative.” One judge partially dissented, saying the evidence “danced on the razor’s edge of speculation” but was sufficient because it reduced the doctor’s Yelp rating from 5 to 3.5 stars.
Dr. Swanson appealed but the Kansas Supreme Court affirmed in a Dec. 8 decision. The doctor argued the lower courts erred by finding there was insufficient evidence of harm, and that he didn’t need to establish it anyway since the jury found Marcus acted with malice and committed libel per se. Under the common law a finding of defamation per se means damages are presumed, he argued.
In Kansas, libel per se historically included statements suggesting someone committed a crime, had a sexually transmitted disease, was unfit to practice a profession or, in the case of a woman, was “unchaste.” The U.S. Supreme Court trimmed the availability of damages with its landmark Times v. Sullivan decision in 1964, however, requiring knowledge of falsity in reports about government officials and a later decision prohibiting punitive damages without proof of damage to reputation.
In Dr. Swanson’s case, the Kansas Supreme Court said, the mere lowering of his Yelp score wasn’t enough since “it was not a statement that may be true or false. It was an opinion.”