If You Sue for Defamation, You’d Better Prove You Were Harmed

A recent New Jersey Appeals Court decision, Scaccia v. J.M., dealt with a case in which a licensed cosmetic surgeon performed services for in 2007, including rhinoplasty and chin augmentation. The doctor noted that the patient recovered well, and that the surgery was a success. The patient returned once more for his medical chart, but otherwise had no further contact with the surgeon.

In 2009, the doctor noticed that a number of derogatory remarks about him were appearing on popular (doctor review) websites. Some comments included, “This guy will rob you, roll the dice with you [sic] life and leave you looking horrible. Nothing to gain but the satisfaction of saving others. Do a background check and see he’s already been accused of lying and intentionally poisoning an entire town by the district attorney.” The surgeon later discovered the identity of the poster when he posted a photo of himself alongside yet another negative review. It was the former patient.

In 2010, the doctor filed a defamation suit against the former patient for money damages and punitive damages (extra punishment). The lower court entered 3 defaults and a final judgment, because the defendant former patient was unresponsive to the litigation. It awarded the Plaintiff $25,000 compensatory and $40,000 punitive damages.

Finally, the Defendant appealed the decision and said that he did not defame Plaintiff, that the default judgments were invalid, and the damage awards were improper. The appeals court did not overturn the finding of defamation finding by the lower court, especially since the comments involved unsupported charges of criminality (e.g. “This guy will rob you”).

But the higher court then turned to the damages and decided that actual damages were not sufficiently proven by the doctor, since he was his only witness and provided no other proof of losses sustained by his business. Merely saying your reputation was injured and you thereby likely lost potential business, absent some proof, is not enough. The case was sent back to the trial court to reconsider he amount of money damages. Evan Xavier Bakhet is a J.D. Candidate at Rutgers School of Law-Newark with a scheduled graduation date in 2017. He collaborated with me on this blog.