Opinion
DOCKET NO. A-1542-14T2
09-22-2016
FRANK SCACCIA, M.D., Plaintiff-Respondent, v. J.M., Defendant-Appellant, and doctordecision.com and ripoffreport.com, Defendants.
J.M., appellant pro se. Brach Eichler, LLC, attorney for respondent (Anthony M. Juliano, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Nugent and Haas. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-828-10. J.M., appellant pro se. Brach Eichler, LLC, attorney for respondent (Anthony M. Juliano, of counsel and on the brief). PER CURIAM
In this defamation action, defendant J.M. appeals from the Law Division's October 10, 2014 order denying his motion for reconsideration of a judgment the court entered in favor of plaintiff Frank Scaccia, M.D. on May 1, 2014. We affirm in part, reverse in part, and remand for further proceedings.
We derive the following facts from the proof hearing the trial court conducted on May 1, 2014. Plaintiff is a licensed physician practicing in New Jersey. He is board certified in otolaryngology, facial plastics, and reconstructive surgery. Defendant was one of plaintiff's patients and, on March 7, 2007, plaintiff performed a rhinoplasty procedure on defendant's nose, as well as a chin augmentation. Plaintiff testified that the procedures went well and "everything looked great" after the recovery period.
Defendant returned to plaintiff's office on May 24, 2007, and stated he had injured "one of the bones in his nose" and had tried "to manipulate it to correct it" by sticking chopsticks and hairpins inside his nose. Plaintiff examined defendant and found that "the nose looked perfect. Luckily, it looked like [defendant] didn't do any damage to it." A few months later, defendant returned to plaintiff's office and asked for his patient chart. Defendant never returned to plaintiff's office.
In 2009, plaintiff noticed that an individual was posting derogatory comments about him on two different internet websites, www.doctordecision.com and www.ripoffreport.com. On March 11, 2009, the individual referred to plaintiff on the www.doctordecision.com website as a "quack." In an April 11, 2009 entry, the individual wrote, "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." A post entered on August 11, 2009 stated:
If I could write a book about dealing with this character, it would be titled "The man I wish I never met". I cannot give a positive comment about [plaintiff's] work or ethic. No morales [sic], No respect, No dignity, No honor, No skill (except for selling more procedures by degrading or pointing out possible patients imaginary "flaws"). No bedside manner, No idea what he[']s talking about and last BUT NOT LEAST . . . . . . NO BUSINESS PERFORMING SURGERIES!!!
On November 3, 2009, the following post appeared concerning plaintiff on the www.ripoffreport.com website:
WENT TO [PLAINTIFF] FOR A DEVIATED SEPTUM. HE PERSUADED ME TO HAVE A COMPLETE NOSE SURGERY AND SAID HE NEEDED TO DO OSTEOTOMIES (FRACTURE THE FACIAL BONES). HE PUT ME UNDER FOR 11 HRS. PLEASE KEEP IN MIND THAT A HEART TRANSPLANT TAKES 10-11. WHEN I WOKE UP I THREW UP BUCKETS OF BLOOD AND WAS IN A
MAJOR AMOUNT OF PAIN. THE PAIN AND SWELLING LASTED 1YR. AFTER ALL THAT HE SENT ME HOME AT 10PM THE SAME NIGHT! I WAS GIVIN [SIC] NO PAIN PILLS WHATSOEVER AT ANY POINT. HE OVERCHARCHES [SIC] BY 5 GRAND FOR THIS SURGERY AND HE BRAGGED ABOUT HOW HE DOES "THE BEST LOOKING NOSES". I WAITED 1YR BEFORE I JUDGED THE WORK UNDERSTANDING SWELLING PLAYS A ROLE. NOSTRILS ARE ASYMETRIC [SIC], PINCHED TIP, STILL HAVE A DEVIATED SEPTUM, HAVE HAD A MAJOR SINUS INFECTION WHICH IS EATING THROUGH THE ORBITAL BONE BELOW MY EYE, AND MAXILLA FUNGUS INFECTION DO [SIC] TO HIM COLLAPSING THE BONES AND BLOCKING AIR FLOW, ALSO CAUSING BLURRY/DOUBLE VISION FOR THE PAST 3YRS, RETRACTED COLUMELLA AND UNHEALED FACIAL FRACTURES (BONES MOVE ALL THE TIME). I WRITE ONLY TO SAVE OTHERS FROM THIS QUACK.
Plaintiff learned defendant was the individual who had made these remarks after defendant posted similar comments concerning him on a third website, www.liposuction4you.com. Defendant uploaded his own photograph to that website, together with a comment stating,
[O]h my God, beware of [plaintiff] in Red Bank. The picture, a young man who simply got persuaded into having a little neck lipo. As you can see the whole left side of my face, jaw, and neck all the way down to my collarbone has had too much fat taken out. I'm going to lose my mind. This — I'm losing my mind. This problem, along with a horrible nose job, uneven lips, nostrils, and break around my eyes has taken away seven months of my life. Can't find a way to fix this.
On February 15, 2010, plaintiff filed a complaint, alleging that defendant defamed him, and seeking compensatory and punitive damages. After defendant failed to file an answer, a default was entered, and the trial court scheduled a proof hearing for July 11, 2011. Defendant filed a motion to vacate the default, which the court granted after he filed his answer.
Plaintiff also named www.doctordecision.com and www.ripoffreport.com as defendants. However, it does not appear that plaintiff ever served these entities and they did not appear in the proceedings before the trial court.
Thereafter, defendant failed to provide appropriate answers to plaintiff's discovery and, on June 29, 2012, the court granted plaintiff's motion to suppress defendant's answer and defenses. The court then entered a second default against defendant. Three months later, the court granted defendant's motion to vacate the default, and set specific deadlines for defendant's compliance with his discovery obligations.
After defendant once again failed to provide discovery, the court entered additional orders seeking to compel compliance. On May 24, 2013, the court granted plaintiff's motion to suppress defendant's answer and defenses, and a third default was entered against him on June 7, 2013. The court then entered a final judgment by default against defendant, and scheduled a proof hearing, which, after the recusal of the judge then assigned to the matter, was held on May 1, 2014 before a different judge.
In addition to identifying the internet postings that were the subject of his complaint, plaintiff testified that, in his area of practice, a doctor's reputation is "what it's all about" because patients "have a lot of different options out there" for what are largely elective, cosmetic procedures. According to plaintiff, many prospective plaintiffs use the internet to choose their physician "[a]nd people put a lot of trust into these online reviews." Plaintiff was concerned that when a patient entered his name in an internet search engine, the patient would see defendant's comments and choose another practitioner. Plaintiff stated he paid a company to try to alter the search results received when a patient searched for his name and practice, but websites like the ones involved in this case were popular and remained close to the top of his results list.
Plaintiff did not quantify the compensatory damages he sought. He stated that he had "one patient in particular" who made a deposit for a procedure, saw defendant's comments, and told plaintiff he was reconsidering whether to go forward with it. However, plaintiff did not assert he lost the patient to another doctor. Some "other patients" told plaintiff that their friends were having "second thoughts" about using him. But, on cross-examination, plaintiff stated he could not remember the names of any of these individuals. Plaintiff then admitted there was "[n]o way to come up with an exact number" for the amount of compensatory damages he was seeking.
On the basis of this record, the trial judge rendered an oral decision in favor of plaintiff. The judge determined that plaintiff met his burden of proving that defendant was the individual who posted the comments at issue. She found that defendant's April 11, 2009 comments, which accused plaintiff of criminal activity, were "libelous," as was his August 11, 2009 comment that plaintiff "has no skill," which the judge found was disproved by plaintiff's testimony. The judge concluded that defendant's "statements were false, that they were communicated to a third person, and that they tend to lower the subject's reputation in the estimation of the community or to deter third persons from associating . . . with him."
Turning to the issue of damages, the judge awarded plaintiff $25,000 in "actual and presumed damages." However, the judge did not explain how she arrived at that figure. The judge also granted plaintiff an additional $40,000 in punitive damages because "defendant acted in wanton and willful disregard of another's rights."
On October 10, 2014, the judge denied defendant's motion for reconsideration and this appeal followed.
On appeal, defendant argues that (1) the court erred in entering default against him based on his discovery violations; (2) the trial judge incorrectly found defendant made defamatory remarks; and (3) the judge improperly awarded compensatory and punitive damages to plaintiff. We address these contentions in the order presented.
First, we discern no basis for disturbing the trial court's decision to suppress defendant's answer and defenses after he repeatedly failed to meet his discovery obligations. "A trial court has inherent discretionary power to impose sanctions for failure to make discovery, subject only to the requirement that they be just and reasonable in the circumstances." Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 513 (1995). A decision to impose discovery sanctions is reviewed under the abuse of discretion standard. Id. at 517.
Here, the court granted defendant multiple opportunities to provide responsive answers to interrogatories and to participate in depositions. Two prior defaults were vacated and the court set reasonable timeframes for defendant's compliance. When defendant failed to meet his obligations, the court imposed lesser sanctions in the form of counsel fees. But, defendant's recalcitrance continued. Under these circumstances, the court's decision to again suppress defendant's answer and enter the third default was manifestly reasonable.
We also reject defendant's contention that the trial judge incorrectly found he defamed plaintiff. "Final determinations made by the trial court sitting in a non-jury case are subject to a limited and well-established scope of review." Seidman v. Clifton Sav. Bank, 205 N.J. 150, 169 (2011). "[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." In re State for Forfeiture of Pers. Weapons & Firearms Identification Card Belonging to F.M., 225 N.J. 487, 506 (2016) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). The court's findings of fact are "binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).
By comparison, we review the trial judge's determinations on legal issues, such as "whether a statement is susceptible of a defamatory meaning[,]" de novo. Ward v. Zelikovsky, 136 N.J. 516, 529 (1994). A trial judge's "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Twp. Comm., 140 N.J. 366, 378 (1995). Applying these well-established standards of review here, we discern no basis to disturb the trial judge's determination that defendant made defamatory statements about plaintiff on the internet.
To recover on a defamation claim, a plaintiff must prove (1) he or she suffered damages from (2) the defendant making false and defamatory factual statements about the plaintiff (3) to third parties in a non-privileged situation, (4) with either (a) knowledge that those statements were false, (b) a reckless disregard for the truth or falsity of the statements, or (c) negligence in failing to ascertain the truth or falsity of the statements, depending on the private or public nature of the plaintiff and of the subject matter. G.D. v. Kenny, 205 N.J. 275, 292-93 (2011); DeAngelis v. Hill, 180 N.J. 1, 12-13 (2004). "As a general rule, a statement is defamatory if it is false, communicated to a third person, and tends to lower the subject's reputation in the estimation of the community or to deter third persons from associating with him." Lynch v. N.J. Educ. Ass'n, 161 N.J. 152, 164-65 (1999); accord W.J.A. v. D.A., 210 N.J. 229, 238 (2012).
The judge found plaintiff met his burden that defendant made the statements in question. In view of the fact that defendant posted a picture of himself on a website in connection with one of the postings, it is difficult to imagine how the judge could have found otherwise.
The defamatory meaning of the postings, in particular, the April 11, 2009 statements that plaintiff "will rob you," and had "already been accused of lying and intentionally poisoning an entire town by the district attorney," was clear. Indeed, it is well established that "[a] prime example" of a statement that is defamatory per se "is [a] false attribution of criminality." Romaine v. Kallinger, 109 N.J. 282, 291 (1988). Defendant's false statements about plaintiff clearly fell within this category. Therefore, we conclude the trial judge properly found that defendant defamed plaintiff.
We reach a different result, however, with regard to the judge's award of $25,000 in "actual and presumed damages" to plaintiff, together with an additional $40,000 in punitive damages. Our Supreme Court has held there are three categories of damages in a defamation action: "(1) actual; (2) punitive; and (3) nominal." Nuwave Inv. Corp. v. Hyman Beck & Co., Inc., 221 N.J. 495, 499 (2015) (citing W.J.A., supra, 210 N.J. at 239). "'Actual' damages are alternatively referred to as compensatory because they are intended to compensate the plaintiff for the wrong done by the defamatory speech." Ibid. (citing W.J.A., supra, 210 N.J. at 239).
"Actual damages" fall under two separate categories, special and general. Ibid. "Special damages" may be granted to a plaintiff who proves a "specific economic or pecuniary loss." Ibid. On the other hand, "general damages" are designed to "address harm that is not capable of precise monetary calculation." Ibid. "All compensatory damages, whether considered special or general, depend on showings of actual harm, demonstrated through competent evidence, and may not include a damage award presumed by the" trier of fact. Ibid.
Applying these principles, we are unable to conclude that plaintiff demonstrated that he sustained any actual (compensatory) damages. Plaintiff was the only witness who testified. He was unable to identify any of the individuals who told him their friends might be reluctant to engage him in the future based on defendant's comments. Nothing in the record indicates that plaintiff lost any business opportunities due to the defamatory statements. While plaintiff testified he engaged a company to try to improve his internet search profile, he never provided any documentation demonstrating the costs he might have incurred in this endeavor. Because plaintiff failed to demonstrate actual harm to his reputation by competent evidence, we reverse the trial judge's award of $25,000 in actual (compensatory) damages to plaintiff.
In the absence of proof of actual damages, the Court has held that a defamation case may still proceed under the "presumed-damages doctrine." Id. at 498. As the Court explained in W.J.A., "[p]resumed damages vindicate the dignitary and peace-of-mind interest in one's reputation that may be impaired through the misuse of the [i]nternet." Supra, 210 N.J. at 249. However, if the trier of fact finds that a defendant has defamed the plaintiff, and there is no proof of actual damages, "only nominal damages can be awarded . . . Presumed damages may not be awarded in any higher amount." Nuwave, supra, 221 N.J. at 499 (citing W.J.A., supra, 210 N.J. at 249).
Thus, although we have concluded that the record does not support an award of compensatory damages to plaintiff, the judge should consider whether he is nevertheless entitled to nominal damages under the presumed-damages doctrine. Therefore, we remand this matter to the trial court for a determination of the amount of the nominal damages, if any, due plaintiff.
The $25,000 the judge awarded in this case is clearly not "nominal" as envisioned in Nuwave. Supra, 221 N.J. at 499-500.
Finally, we are also constrained to reverse the judge's award of $40,000 in punitive damages to plaintiff. Although punitive damages may be awarded in defamation cases, "all elements of the Punitive Damages Act [N.J.S.A. 2A:15-5.9 to - 5.17] must be satisfied in order to sustain a punitive damages award." W.J.A., supra, 210 N.J. at 241.
In pertinent part, N.J.S.A. 2A:15-5.13(c) states: "[p]unitive damages may be awarded only if compensatory damages have been awarded . . . An award of nominal damages cannot support an award of punitive damages." See also Longo v. Pleasure Productions, Inc., 215 N.J. 48, 58 (2013) (noting that "punitive damages may be awarded only if compensatory damages have been awarded in the first stage of the trial.") (quoting Rusak v. Ryan Auto, L.L.C., 418 N.J. Super. 107, 188 (App. Div. 2011)). Here, plaintiff did not establish his claim to compensatory damages for defendant's defamatory statements, and punitive damages would not be permitted even if plaintiff ultimately receives nominal damages on remand. Therefore, the judge mistakenly awarded plaintiff punitive damages in this case.
As for the balance of any of defendant's arguments not expressly discussed above, they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). --------
Affirmed in part; reversed in part; and remanded. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION