Opinion
No. 82189-COA
05-18-2022
Frank STILE, M.D., an Individual; and Frank Stile M.D., P.C., a Nevada Professional Corporation, Appellants, v. Eva KORB, an Individual, Respondent.
Claggett & Sykes Law Firm Connell Law
Claggett & Sykes Law Firm
Connell Law
ORDER OF AFFIRMANCE
In October 2010, Dr. Stile performed a breast implant exchange and augmentation on Eva Korb. After three routine post-operation appointments, Dr. Stile instructed Korb to engage only in "[a]ctivity as tolerated" and to return for a fourth follow-up appointment if needed. Korb then embarked on a trip to Asia.
We recount the facts only as necessary for our disposition.
In November 2010, Korb left Dr. Stile a voicemail indicating that she was in Thailand, that she had developed a swollen, painful right breast hematoma, and that a doctor in Thailand recommended drainage surgery. Korb and Dr. Stile corresponded for several days about her options. During their conversations, Dr. Stile cautioned Korb about her increased risk for capsular contracture, stretched skin, and asymmetry. He recommended that she get the hematoma addressed immediately or return to the United States.
Korb had the drainage and implant replacement surgery in Thailand and returned to the United States. But in February 2011, Korb had Dr. Stile perform a corrective procedure because the implant she received in Thailand was the wrong size and shape. Post-operation, Korb told Dr. Stile that her right implant was relatively firmer, which Dr. Stile attributed to capsular contracture. Dr. Stile's notes indicated that the contracture was most likely caused by Korb's "failure to return and have this treated expeditiously and with the appropriate setting with the appropriate implant."
Sometime thereafter, Korb retained personal injury counsel, served Dr. Stile with a demand for arbitration, and filed a complaint against Dr. Stile with the Nevada State Board of Medical Examiners (the Board). Korb ultimately never filed a lawsuit and, according to Dr. Stile's sworn declaration, the Board rejected her complaint because it determined Dr. Stile acted appropriately under the circumstances.
Then in 2019, Korb placed a review on Dr. Stile's Yelp page strongly criticizing him and his medical practice. Dr. Stile responded, wherein he apparently revealed photographs of Korb's breasts, part of her social security number, date of birth, full name, and medical records. Korb had Yelp take down Dr. Stile's post, which he reposted three times and Yelp removed each time. Before his last repost was removed, Dr. Stile and his professional corporation (collectively, Dr. Stile) filed a defamation action against Korb.
Korb filed an anti-SLAPP special motion to dismiss Dr. Stile's defamation claim, arguing that Nevada's anti-SLAPP statute protected her Yelp review as a consumer complaint-based opinion. The court granted Korb's motion finding that her review constituted a consumer complaint in a public forum and that Korb's statements were her opinions, which could not form the basis of Dr. Stile's defamation claim. The district court also awarded Korb attorney fees and costs as the prevailing party as provided by the anti-SLAPP statute, pursuant to a stipulation by the parties. Dr. Stile appealed.
We review a district court's decision to grant an anti-SLAPP special motion to dismiss de novo. Coker v. Sassone , 135 Nev. 8, 10, 432 P.3d 746, 748-49 (2019). "Under Nevada's anti-SLAPP statutes, a moving party may file a special motion to dismiss if an action is filed in retaliation to the exercise of free speech. A district court considering a special motion to dismiss must undertake a two-prong analysis." Id. at 11-12, 432 P.3d at 749 ; see NRS 41.660(1)(a). First, the court shall "[d]etermine whether the moving party has established, by a preponderance of the evidence, that the claim is based upon a good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern." NRS 41.660(3)(a). Second, "[i]f the court determines that the moving party has met [her] burden[.] ... [the court shall] determine whether the plaintiff has demonstrated with prima facie evidence a probability of prevailing on the claim." NRS 41.660(3)(b).
The current version of Nevada's anti-SLAPP statutes were in effect when Korb posted her Yelp review and filed her anti-SLAPP motion.
Korb's review taken as a whole was her opinion which cannot be false
On appeal, Dr. Stile argues that the district court erred by finding Korb met her burden under prong one of Nevada's anti-SLAPP statute because Korb did not make her Yelp review in good faith.
A good-faith communication in furtherance of the right to free speech regarding a matter of public concern includes any communication that is (1) "made in direct connection with an issue of public interest," (2) "in a place open to the public or in a public forum," and (3) "which is truthful or is made without knowledge of its falsehood."
Abrams v. Sanson , 136 Nev. 83, 86, 458 P.3d 1062, 1066 (2020) (quoting NRS 41.637(4) ).
As an initial matter, we do not consider the first two sub-issues under prong one—whether Korb's review was connected to an issue of public interest and whether she made it in a public place or forum—because Dr. Stile failed to address them on appeal. See Powell v. Liberty Mut. Fire Ins. Co. , 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011) (providing that issues not raised on appeal are waived); see also Greenlaw v. United States , 554 U.S. 237, 243 (2008) (noting that courts "follow the principle of party presentation" on appeal, which requires the litigants to frame the issues).
As to the remaining sub-issue, we conclude that Korb's review was truthful or made without knowledge of its falsehood. "Because there is no such thing as a false idea, statements of opinion are statements made without knowledge of their falsehood under Nevada's anti-SLAPP statutes." Abrams , 136 Nev. at 89, 458 P.3d at 1068 (citation and internal quotations omitted). In assessing whether statements are opinion or factual assertions in this context, "the court must consider the gist or sting of the communications as a whole," rather than "single out individual words in [the speaker's] statements." Id. at 90, 458 P.3d at 1068-69 (internal quotations omitted). So, when "a reasonable person would be likely to understand" most of the statements as the speaker's "personal views" or "criticisms," then the statements together constitute a good-faith communication under prong one of Nevada's anti-SLAPP statute. Lubin v. Kunin , 11.7 Nev. 107, 112, 17 P.3d 422, 426 (2001) (internal quotations omitted); Abrams , 136 Nev. at 90, 458 P.3d at 1068 ;.
A reasonable person would be likely to understand most of Korb's statements as her personal views and criticisms of her surgical results and Dr. Stile's medical care. For example, Korb stated that Dr. Stile was "a butcher," "arrogant," "a terrible surgeon or more likely just extremely lazy [due] to his overly confident pompous ego," "acts like the victim," a "class act sociopath," "has no idea what he's doing," "ruined so many women's bodies," "has horrific bedside manner," and "should have his medical license revoked." Korb also commented that Dr. Stile "botched a simple breast implant swap," that her procedure was "simple," and that her experience was a "nightmare." These "hyperbolic and factually unprovable" statements in their essence signal to the reader that Korb was expressing her opinion rather than asserting fact. See Spirtos v. Yemenidjian , 137 Nev., Adv. Op. 73, 499 P.3d 611, 619 (2021).
We only consider whether "the gist of the story, or the portion of the story that carries the sting of the statement, is true, and not on the literal truth of each word or detail used in a statement." Abrams , 136 Nev. at 90, 458 P.3d at 1069 (alteration and internal quotations omitted). Based on Korb's review as a whole, we conclude that the "gist" of her statements is that she stated her view that Dr. Stile is a terrible doctor and surgeon. This is her opinion, which as an opinion, cannot be false. Therefore, Korb met her burden of showing a protected good-faith communication under prong one of the anti-SLAPP statute.
Dr. Stile did not prove with prima facie evidence a probability of prevailing on his defamation claim
Dr. Stile argues that, even if we conclude Korb made her review in good faith thereby shifting the burden to him, he met his burden by demonstrating a probability of prevailing on his claim with prima facie evidence. "To prevail on a defamation claim, the plaintiff must show: (1) a false and defamatory statement by [a] defendant concerning the plaintiff; (2) an unprivileged publication to a third person; (3) fault, amounting to at least negligence; and (4) actual or presumed damages." Rosen v. Tarkanian , 135 Nev. 436, 442, 453 P.3d 1220, 1225 (2019) (alteration in original) (internal quotations omitted).
On the first element of defamation, Dr. Stile argues that Korb's review is a mixture of fact and opinion, which makes at least some of her statements actionable. Korb answers that the supporting authority for Dr. Stile's argument is not controlling because it predates Nevada's anti-SLAPP statute. Indeed, current authority requires that the court consider the "gist" of a statement, rather than evaluate individual statements out of context. Id. (applying the "gist" test to determine whether a nonmovant met his burden under prong two of the anti-SLAPP statute). And, as stated above, Korb's review as a whole constitutes her nonactionable opinion. See Miller v. Jones , 114 Nev. 1291, 1296, 970 P.2d 571, 575 (1998) ("In order to prevail on his defamation claim, [plaintiff] must prove, inter alia, that the statement ... was a false statement of fact, as opposed to a statement of opinion."). Therefore, Dr. Stile did not show a probability of proving Korb made a false and defamatory statement about him. See Rosen , 135 Nev. at 443, 453 P.3d at 1225.
The district court found that Korb's review was a nonactionable "evaluative opinion," which Dr. Stile disputes on appeal. But because we find Korb's review to be an opinion, which cannot form the basis for a defamation action, we need not consider whether it specifically was evaluative. See Miller v. Burk , 124 Nev. 579, 588-89 & n.26, 188 P.3d 1112, 1118-19 & n.26 (2008) (explaining that this court need not address issues that are unnecessary to resolve the case at bar).
We need not analyze Dr. Stile's probability of proving the remaining elements of defamation because they are conjunctive—his inability to show a probability of proving the first element renders him unable to meet his burden under prong two of the anti-SLAPP statute. See Abrams , 136 Nev. at 91, 458 P.3d at 1069 (concluding that a nonmovant failed to meet his burden under prong two, without analyzing privilege, fault, or damages, because the allegedly defamatory statement was an opinion). We conclude that the district court therefore properly granted Korb's special motion to dismiss. Accordingly, we
Dr. Stile seeks reversal of the attorney fees and costs award only on the basis that they are not warranted should the special motion to dismiss be reversed. Because we affirm the district court's decision to grant Korb's special motion to dismiss, we necessarily also affirm its decision to award Korb the stipulated attorney fees and costs. See NRS 41.670 (requiring a district court to award the party who prevails on an anti-SLAPP special motion to dismiss reasonable costs and attorney fees; permitting a district court to further award the prevailing party up to $10,000 in damages).
ORDER the judgment of the district court AFFIRMED.
As far as the parties raise arguments that are not specifically addressed in this order, we have considered the same and conclude that they either do not present a basis for relief or need not be reached given the disposition of this appeal.