Ryan Boland Published in The Legal Intelligencer

As Published on The Legal Intelligencer

On July 18, the Pennsylvania Superior Court addressed whether a plastic surgeon’s promotional video for the reality TV show “Drastic Plastic,” which was filmed on the plaintiff’s premises, was actionable. As explained below, in Weirton Medical Center v. Introublezone, 2018 PA Super 209, 2018 Pa. Super LEXIS 821 (July 18, 2018), the Superior Court partially upheld and partially reversed a trial court’s decision granting preliminary objections and dismissing claims for defamation, violation of the Lanham Act and trespass. The Superior Court also analyzed whether the trial court erred in requesting that the plaintiff provide it with a video it referenced in the complaint, and erred in relying upon the content of the video as a basis of dismissing the complaint.

The plaintiff was the practice group that employed and provided medical privileges to the plastic surgeon, who was not named as a defendant in the action. The plaintiff sued the production company who recorded and disseminated a promotional video on their premises for defamation, violation of the Lanham Act and trespass, on the basis that the promotional video was filmed on its premises without its approval and that it damaged its reputation. The defendants filed preliminary objections in the nature of a demurrer, seeking dismissal of the defamation and Lanham Act claims. The defendants also sought the dismissal of the trespass claims on the basis that the physician had apparent authority to permit the filming of the video and that filming the video caused no damage to the medical facility.

As a matter of background, the complaint alleged that the video was filmed in the plaintiff’s medical office and included statements by individuals who identified themselves as the doctor’s patients. Throughout the video, countless highly offensive references were made to the doctor’s breast augmentation work and it portrayed residents of West Virginia as uneducated and willing to waste money on unnecessary plastic surgery. The video also included images that appeared to be actual patient medical files. Rather than attaching a transcript of the video to the complaint, plaintiff merely included a summary of the video as an exhibit.

With respect to the defamation claim, the trial court initially noted that the plaintiff failed to transcribe the video referenced in the complaint into a written document. As a result, the trial court requested that the plaintiff provide it with a copy of the video. Notably, the trial court stated it viewed the video three times and found “nothing defamatory. Poor taste, yes; defamation—no.” The trial court noted that nothing in the video identified the plaintiff and it was already well known and publicized that the doctor was employed by plaintiff. The trial court noted that the first step in analyzing the legal sufficiency of the defamation claim was to determine whether the communication at issue is capable of a defamatory meaning. It further stated that to have a defamatory meaning, a statement must “tend to harm the reputation of another as to lower him in the estimation of the community or deter third persons from associating with or dealing with him.”

The plaintiff made a procedural argument that the trial court improperly viewed the video, despite that it was not attached to the complaint. The plaintiff argued that in viewing evidence outside of the four corners of the complaint, the trial court improperly transformed its roll from gatekeeper to a finder of fact. The trial court’s opinion stated it could not determine whether the video was defamatory without viewing it. It further noted that, pursuant to Pa.R.Civ.P. 1019, the plaintiff should have attached the video to the complaint. Neither the trial court nor the Superior Court explained how a party would attach a video, as opposed to a writing, to the complaint. The Superior Court found the plaintiff’s argument disingenuous, explaining that it should have provided the video in the first place, and that the trial court was within its right to request and review the video in order to rule on the preliminary objections.

The Superior Court explained that, even if the trial court erred in viewing the video, the plaintiff had still failed to allege a prima facie case for defamation. It stated that the plaintiff failed to establish the third of seven elements of a cause of action for defamation—that the video had a connection with the plaintiff. The Superior Court disregarded the argument that the use of the plaintiff’s medical professionals and facilities in the video creates the reasonable likelihood that people will believe the plaintiff is associated with or endorses “Drastic Plastic.” The Superior Court noted that neither the complaint, nor the exhibits to the complaint, specifically demonstrated that the video mentioned the plaintiff.

The Superior Court stated that alternatively, even if plaintiff was identified in the video, it had still failed to establish the first element of a cause of action for defamation—the defamatory content of the video as to the plaintiff. It explained that to be defamatory, a “statement must do more than merely annoy or embarrass the purported victim,” the plaintiff “must have suffered the kind of harm which has grievously fractured her standing in the community of respectable society.” It further explained that the video may have had statements capable of a defamatory meaning to individuals featured in the video, there was nothing capable of a defamatory meaning with respect to the plaintiff. The Superior Court upheld the trial court’s dismissal of the plaintiff’s defamation claim.

The Superior Court next addressed the plaintiff’s Lanham Act claim. The Superior Court held that the trial court was incorrect in stating that a Lanham Act claim fails on the basis that the defamation claim failed. It explained that claims under the Lanham Act, 15 U.S.C. Section 1125(a), have two distinct bases—false association and false advertising. Under a false association claim, the owner of an unregistered mark has the burden of proving the existence of a protectable mark. The Superior Court noted that the plaintiff did not assert the existence of a registered or unregistered mark, just that the defendants used names of likenesses of plaintiff’s medical professionals and facility without its permission. It held the plaintiff failed to state a cause of action under the Lanham Act for false association.

The Superior Court next addressed whether the plaintiff had asserted a Lanham Act claim for false advertising. It found that there were no allegedly false statements about the medical services being offered. Thus, it affirmed the trial court’s dismissal of the plaintiff’s Lanham Act claim.

Finally, the Superior Court addressed whether plaintiff alleged a prima facie claim for trespass. It noted that plaintiff alleged in the complaint that the defendants who filmed the video at its medical facility were not authorized to enter it. Although the defendants alleged that the physician had apparent authority to authorize them to enter his place of employment, the Superior Court held that this created a factual issue that was not ripe for determination upon preliminary objections. It explained that the plaintiff’s allegation, if true, would entitle it to relief. The Superior Court held that the trial court erred in dismissing the trespass claim, despite that its damages may be limited to two peppercorns.

The primary lesson to be learned from this case is that when your client’s cause of action is based upon statements contained in a video, you should at a minimum have the video transcribed. Both the trial court and the Superior Court were not satisfied with the plaintiff’s summary of the content of the video and were even less impressed with the plaintiff arguing that it could avoid dismissal by not attaching the video containing the alleged defamatory statements.

Questions about this topic? Contact Ryan Boland at rboland@offitkurman.com

ABOUT RYAN BOLAND

rboland@offitkurman.com | 267.338.1312

Ryan Boland is a principal attorney who represents corporations, financial institutions, and individuals in the areas of complex commercial litigation, corporate litigation, and banking law. Mr. Boland also serves as outside general counsel to owner managed businesses. Mr. Boland has extensive experience in the areas of real estate litigation, employment litigation (including prosecuting and defending restrictive covenants), as well as providing general corporate and real estate advice. Mr. Boland also handles intellectual property law cases, including preparing, filing, and prosecuting federal trademark applications and arbitrating Uniform Domain-Name Dispute Resolution Policy (UDRP) disputes.

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