Oregon Live Today: Doctor Sues Patient Over Negative Yelp Review

Doctor Sues Patient Over Negative Yelp Review

November 6, 2015

Oregon Live Today

BELLEVUE, Wash. — A Bellevue doctor has filed a defamation lawsuit over a negative review one of his patients left him online.

KIRO-TV reports that Dr. Alan Brown filed a lawsuit against Wendy Wester after she left a Yelp review claiming Brown’s misdiagnosis of her injury caused her to suffer a life-threatening blood clot.

Brown, who has a law degree in addition his medical degree specializing in orthopedic surgery, filed the suit last week saying Wester made false and malicious statements and damaged his business and reputation.

Wester’s attorney called the lawsuit crazy, saying his client was expressing her opinion about her doctor. He says the Yelp comments were protected by the First Amendment as free speech.

Source

Cross Reference

Other Doctor Defamation Lawsuits

The Reporters Committee For Freedom Of The Press Cites Mckee V. Laurion In Its Supreme Court Of Oregon Amicus Brief About Carol C. Neumann And Dancing Deer Mountain V. Christopher Liles

SEPTEMBER 24, 2014

IN THE SUPREME COURT OF THE STATE OF OREGON

CAROL C. NEUMANN and DANCING DEER MOUNTAIN, LLC, an Oregon Domestic Limited Liability Company, Plaintiffs-Appellants, Cross-Respondents, Respondents on Review

v.

CHRISTOPHER LILES, Defendant-Respondent, Cross-Appellant, Petitioner on Review

Lane County Circuit Court

Court of Appeals A149982

Supreme Court S062575

BRIEF OF AMICUS CURIAE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS IN SUPPORT OF PETITION FOR REVIEW. AMICUS CURIAE INTENDS TO FILE A BRIEF ON THE MERITS OF THE CASE ON REVIEW

Court of Appeals opinion dated: March 12, 2014

I. REVIEW OF THE DECISION IS IMPORTANT TO CLARIFY THE PROPER ANALYSIS OF OPINION IN DEFAMATION ACTIONS

The Reporters Committee for Freedom of the Press (“Reporters Committee”) urges this Court to take review of the Court of Appeals’ decision (the “Decision”) in order to resolve a conflict between state and federal courts in Oregon on an issue of fundamental importance to free speech: the proper analysis of opinion in a defamation action. The Decision’s narrow application of that doctrine is at odds with recent federal case law originating from Oregon, creating uncertainty that makes it not only difficult for journalists to report news to the public without increased fear of civil liability, but also harms the public’s ability to engage in public discourse online. The confusion the Decision creates concerning what may be stated in an online review, and what will expose a commenter to liability, could effectively limit free speech and thus have serious consequences for public debate.

The news media has a substantial interest in advocating for robust protections for statements of opinion, and in ensuring that the hyperbole commonly employed in the context of online speech is fully considered when analyzing whether challenged speech constitutes protected opinion. The right to express one’s opinion is a cornerstone of the promotion of public discourse and the free flow of ideas. The internet provides a wealth of opportunities for consumers to offer reviews of products and services, and for other consumers to make more informed decisions based on others’ opinions. Because the internet is a forum that thrives on immediate give-and-take, discourse naturally tends to be more hyperbolic, and it is vital for courts to take that context into account when determining whether online speech is actionable. It is crucial that Oregon courts not adopt an analysis that will limit the free flow of ideas and opinions in online forums.

II. REVIEW OF THE DECISION IS IMPORTANT TO CLARIFY THE PROPER ANALYSIS OF OPINION IN DEFAMATION

The Decision’s analysis places state and federal courts in Oregon at odds over the proper interpretation of the opinion doctrine under the First Amendment. This case thus presents an important opportunity for this Court to address the non-uniform application of the opinion doctrine in Oregon courtrooms.

The Court of Appeals rejected defendant Christopher Liles’s argument that numerous statements that he made in his review of Dancing Deer Mountain on the website Google.com were not actionable as opinion and/or hyperbolic statements, and therefore not defamatory. In particular, the Decision concludes that, in the context of an online review of a consumer’s business experience, the words “rude” and “crooked” to describe the plaintiff were defamatory.

See Neumann v. Liles, 261 Or App 567, 578-79 (2014). That analysis is difficult to reconcile with the Ninth Circuit’s recent opinion in Obsidian Finance Group, LLC v. Cox, 740 F3d 1284 (9th Cir 2014), which held (in an appeal from the District of Oregon) that the defendant’s use of such terms as “immoral,” “thugs,” and “evil doers” to describe the plaintiff on her website was not defamatory. Obsidian Finance, 740 F3d at 1294. The Ninth Circuit based its decision on the context of the statements, including the general tenor of the posts and the fact that they were made on an online blog in which the defendant used “extreme language,” indicating to the court that much of what the defendant wrote was hyperbole. See id. In short, the Ninth Circuit’s analysis factored in the realities of the online medium of communication in evaluating the context of the statements.

The Decision here, in contrast, rejects the argument that defendant’s challenged statements were hyperbole. Neumann v. Liles, 261 Or App at 579. The Decision reached that conclusion despite the fact that defendant titled his online review “Disaster!!!!! Find a different wedding venue” and included the statement “The worst wedding experience of my life!” Both statements signify that the defendant was using hyperbole of the type common in online forums. Yet the Decision concludes that the “bulk of the post is not rhetorical and factual,” apparently including the challenged statements “rude” and “crooked.” Neumann v. Liles, 261 Or App at 578-79. As discussed below, that analysis is flawed in that it fails to properly consider the context of the statements.

But in any event, just as significant for purposes of this Court’s review is the Decision’s suggestion that such an analysis may be of only limited relevance to Oregon courts, because it is based on “extra-jurisdictional authority” from the Ninth Circuit’s “First Amendment jurisprudence.” See 261 Or App at 579 (“To the extent that extra-jurisdictional authority informs our analysis, we disagree that defendant’s statements, as a whole, are hyperbolic”).1 The protection afforded to speech should not depend on whether a defendant is in a state or federal court in Oregon. The Decision’s analysis, however, suggests that reality.

It is not simply an issue of an inconsistency with Ninth Circuit authority. If this Court grants review, the Reporters Committee intends to file a brief addressing why binding United States Supreme Court precedent supports a more robust evaluation of context in determining whether a challenged statement is actionable, focusing on two broad principles reaffirmed by the United States Supreme Court in Milkovich v. Lorain Journal Co., 497 US 1 (1990): First, “a statement on matters of public concern must be provable as false before there can be liability.” Id. at 19-20 (citations omitted). And second, a statement is not defamatory if it “cannot ‘reasonably [be] interpreted as stating actual facts’ about an individual,” a requirement that the Court described as “provid[ing] assurance that public debate will not suffer for lack of ‘imaginative expression’ or the ‘rhetorical hyperbole’ which has traditionally added much to the discourse of our Nation.” Id. at 20 (citations omitted). The Reporters Committee intends to argue how these principles, and the case law on which they are based, support a fuller analysis – and a different result – than that in the Decision.

It was error for the Court of Appeals not to fully consider the context of the purportedly defamatory statements. The Reporters Committee urges this Court to grant review in this case to establish the framework for Oregon courts to consider that context in the future. That framework should provide that any evaluation of opinion or hyperbole in an online setting must include consideration of both the importance of contributing to a robust public discourse on issues of public concern as well as the more informal and hyperbolic context of online reviews.

Failure of the courts to take such context into account could result not only in the imposition of excessive liability on members of the public who choose to share their opinions online, but the chilling of this type of speech.

Online sites such as Yelp, TripAdvisor, and Google Plus provide public forums for consumers to post their opinions of service providers for other members of the public to read and use to make their own consumer choices. Such sites are invaluable resources for today’s average consumer, who can now look to innumerable reviews available online to decide where to eat, which doctor to visit, or how to choose a provider of virtually any service imaginable. Sharing information and views on these services is unquestionably a matter of public interest and concern. It is critical that consumers be able to post reviews without fear that their negative opinions and frequent hyperbole will result in a lawsuit, and a potentially staggering amount of financial penalties.

This emphasis on the statement’s context is particularly applicable in cases involving online consumer reviews. Such reviews must be evaluated in a way that recognizes their informality of expression and tendency toward hyperbole. Like online message boards, review websites encourage a “looser, more relaxed communication style,” allowing users to “engage freely in informal debate and criticism.” Krinsky v. Doe, 159 Cal App 4th 1154, 1162-63 (Cal Ct App 2008). In this setting, “[h]yperbole and exaggeration are common, and ‘venting’ is at least as common as careful and considered argumentation.” Larissa Barnett Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 Duke LJ 855, 863 (2000). Online forums for consumer reviews—which are in many ways designed for “venting”—encourage posters to use a different tone, and that is the context in which writers and readers understand the reviews.

The question of how to evaluate online review opinions in defamation actions is one that many courts around the country are facing.  As these suits For example, the United States Court of Appeals for the Sixth Circuit recently held that a TripAdvisor ranking of the “Dirtiest Hotels” on their website was protected, non-actionable opinion because the tone of the list made clear that actual facts were not being stated. See Seaton v. TripAdvisor LLC, 728 F3d 592 (6th Cir 2013); see also, e.g., McKee v. Laurion, 825 NW2d 725 (Minn 2013) (dismissing doctor’s defamation claims against patient’s son who wrote negative reviews on rate-your-doctor websites about the care his father received)  The Reporters Committee urges this Court to take review and establish that framework for Oregon courts.

III. CONCLUSION

For the foregoing reasons, the Reporters Committee urges this Court to accept review of the Decision. If such review is granted, the Reporters Committee expects to file a brief on the merits.

DATED this 24th day of September, 2014.

SOURCE

Newman V. Liles History

McKee V. Laurion History

John Washam: Oregon Dentist Sues Patient For $300,000 For Bad Online Review

SEPTEMBER 2, 2012

“Oregon Dentist Sues Patient For $300,000 For Bad Online Review”

John Washam, Talk To The Manager

Dr. Mo Saleh, dentist, is suing a patient for $300,000, stating that the review his patient, Spencer Bailey, posted on Yelp is costing his business $100,000 a week.

Bailey now has a lawyer and an expensive court battle ahead of him after his fallout with Dr. Saleh who works at Optima Dental in Lake Oswego.

Bailey suspected he was getting questionable care. “I had never had a cavity before I set foot in his office,” he said. “He told me the day that I saw him that I had 10 or so cavities, which threw me for a loop – I was nervous that I had some other health problem.”

Bailey said three weeks after he posted his review, Dr. Saleh demanded Bailey take down the posting or be sued. Bailey said he removed it immediately. “In hindsight it didn’t matter, because even though I took down the opinion online, I’m still right here,” he said.

This type of lawsuit is not new, and we expect to see more in the future. Such lawsuits expose the legal struggle between free speech and responsible speech, meaning that these reviews can damage business’ reputations.

Source

Dentist Mo Saleh

Dentist Lawsuits

Doctor Lawsuits

KATU News: Dentist Loses Suit After Former Patient Criticizes Him Online

SEPTEMBER 27, 2012

“Dentist Loses Suit After Former Patient Criticizes Him Online”

Lincoln Graves, KATU News

A judge decided the critical comments made on review site YELP.com and other sites were free speech.

“I’m disgusted. I’m actually really disgusted,” said dentist Mo Saleh, who tried to sue his former client, Spencer Bailey, for defamation after finding negative reviews on the Internet. “The reason I’m risking opportunity and risking this negative exposure is because I feel that this is wrong.”

But a judge threw out the suit before it got very far.

“When we walked into this courtroom, we didn’t walk on equal footing because of the Anti-SLAPP law,” Saleh said. The “SLAPP” in the Anti-SLAPP law stands for Strategic Lawsuit Against Public Participation.

Businesses can sometimes file those suits to quiet criticism. But the Anti-SLAPP law can be a friend to those who are taken to court, giving them free speech protection when they make comments in a public forum and concern a public interest, which a site like YELP seeks to serve.

“It’s not easy to be sued and dragged into court,” said Jeremiah Ross, the attorney who represented Bailey. “Just as we anticipated, they couldn’t prove their case because it wasn’t a defamatory statement.”

Still, Saleh may appeal, believing the online criticism was meant to harm him and not simply to inform the public. “I teach my kids to stand up when you’ve been wronged, and I think that’s absolutely disgusting what happened today,” he said.

One of the comments Bailey was accused of making was, “If Saleh finds a cavity, get a second opinion and get it filled by someone else.”

Saleh was seeking $300,000 in damages.

Source, KATU

Source, KOMO News

Source, KVAL

Dentist Mo Saleh

Dentist Lawsuits

Doctor Lawsuits

Years Of Great Dental Marketing Erased When Dentist Sues Patient

October 12, 2012

“Years Of Great Dental Marketing Erased When Dentist Sues Patient”

Jim Du Molin, Dental Practice Marketing And Management Blog

No matter how many times The Wealthy Dentist points out that suing for a negative online review is just bad dental marketing, another case makes headlines.

Three weeks ago we reported on dentist, Mo Saleh, who was suing a former dental patient for $300,000 for damage to his reputation and loss of revenue stemming from what he felt was an inflammatory negative online review.

And just this week the judge in the case decided to throw the lawsuit out, stating that online comments made by the dental patient were free speech.

To prove that the dental patient was guilty of libel, the dentist would have to establish that the statements made in the online review were false, that they caused the dentist harm, and were posted without proper research into the validity of the comments.

But if the online review is considered a statement of opinion about the dentist, as opposed to actual facts, then the dentist won’t get very far in a lawsuit for defamation, and here in California, as well as in Oregon, the law takes it one step further with Anti-SLAPP legislation.

California’s anti-SLAPP statute provides for a special motion to strike a complaint where the complaint arises from activity exercising the rights of petition and free speech. (The California Anti-SLAPP Project). The same is true on Oregon, where the dentist’s lawsuit was initiated.

According to KVAL news, Dr. Saleh may appeal the judges verdict, if he feels that the online review was meant to harm him and not simply to inform the public.

The Wealthy Dentist argues that Dr. Saleh’s money would be better spent initiating a new dental marketing campaign targeted at showcasing what his dental practice has to offer and bringing in new dental patients.

Most of the general public is beginning to look at negative online reviews with some skepticism because of many of the outlandish comments reviewers have made. Someone looking for a local dentist may see the negative review, but will also read the positive reviews, and probably ask a few people they know in the community for a recommendation. They most likely won’t make their decision based on one reviewer’s comments, and if a dental patient did decide on a dentist based on just one review, then a dentist might not want them as a dental patient.

But a dentist can do more damage to their reputation themselves and erase years of great dental marketing by engaging in litigation with a dental patient who has written a poor review of their dental practice.

Instead, spend that money on making your dental practice the best practice in town.

Jim Du Molin is a leading Internet marketing expert for dentists in North America. He has helped hundreds of doctors make more money in their practices using his proven Internet marketing techniques.

Source

Dentist Mo Saleh

Dentist Lawsuits

Doctor Lawsuits

 

Julie Anne: Dr. Mo Saleh Sues Former Patient for Negative Review

September 1, 2012

“Dr. Mo Saleh Sues Former Patient for Negative Review

Julie Anne, BGBC Survivors

Spencer Bailey did not care for the dental service provided Dr. Mo Saleh and left a negative review of his experience on Yelp.com.  Dr. Saleh didn’t care for Bailey’s negative review and sued him for $300,000.

What if I had a bad experience? Can I say something negative?

We like to hear about the good, the bad, and everything in between. Be sure to include all the relevant facts and details, and don’t embellish your story for effect. We are big believers in freedom of speech, but beware the legal consequences if you post false information.

Yelp.com says it is okay for Spencer Bailey to leave a negative review as long as the information is true.

Did this dentist not pay attention to the news in his local area?  It made quite a stir in Portland both around the middle of May, when the media found the story, and then again mid-July with the final hearing.  It was on most every local news station and newspaper as well as national level, and overseas.  Maybe this dentist did see the news and just thinks he is special.  That could be the case.  Do people who file defamation lawsuits have similar character profiles?  That’s an interesting thought.

Dear Dr. Saleh:  Let me help you out.  You will most likely not win this case.  Yelp is a site for “opinions”.  Opinions are protected speech.   Let me save you a lot of money.  You might consider the following:

  • Pull out now.  Withdraw the lawsuit immediately.  Don’t waste any more attorney fees.  You must do this immediately as now that the media has the story, your reputation could be far worse.  Go look at my former pastor’s reviews to see what happened when people heard about a pastor suing former church members.
  • Look up Streisand Effect to see what happens in cases like mine (and yours).  The Streisand Effect would not be good for your reputation.  You will be doing far worse to yourself than Bailey ever did by his one negative review, which would have been buried by positives (if you really are a good dentist as you claim).
  • Issue a press release (maximum of 2 paragraphs – do not follow the example of the press release I have shown on my blog – that is far too long and will subject you to more public criticism).  In the press release, consider expressing your heartfelt sorrow for having caused grief to Mr. Bailey.  You might need to make things right with him because he could sue you!

Personal note to Spencer Bailey:   Congratulations, Spencer – – I now see that you’ve got the best representation in Oregon!

Follow-Up to this story 9/3/12

I just read the Willamette Week news article on this case a few minutes ago and was so pleased to read that Spencer Bailey is in very good hands.  He is being represented by my attorney, Linda Williams, and Jeremiah Ross.  Woohoo!!  And of course they have filed the motion to strike using the anti-SLAPP statute.  The first hearing is scheduled for Wednesday.  You can be sure I will be watching this case.

This article also shares what Spencer said in his reviews.

The reviews cited in the complaint include statements saying Bailey implied ”improper and insufficient dental services by Dr. Saleh.” The complaint further alleges that Bailey wrote, “if Dr. Saleh tells you that you have a cavity — GET A SECOND OPINION.”

According to the complaint. Bailey said he had never had a cavity in 32 years until Saleh found several. Bailey’s lawyers have responded by stating that Bailey went to Saleh for dental work and then went to another dentist after experiencing pain. They claim that the other dentist advised Bailey that some of the fillings were unnecessary and some were poorly put in.

Bailey’s attorneys, Jeremiah Ross and Linda Williams, also claimed that Saleh contacted Bailey after he reviewed the dentist on various web sites, threatening him to remove them. They say Bailey removed the postings out of concern for his and his family’s safety. Even though Bailey removed the postings, Saleh is proceeding with his suit. (Saleh’s lawyer declined to comment.)

COMMENTS:

Anonymous: If he has 10 cavities, then no problem. If he doesn’t then there is a problem. If he violated Yelp’s policy and wrote an outright lie as fact, then he has a problem. He was specific in his allegation. People need to understand that their words have consequences and if those consequences are damaging, then they should be prepared to pay a price equal to the amount of damage that they cause. It is right for the party in the wrong in an auto accident to pay damages then the party committing libel should have to pay up as well. I doubt that this guy caused $300,000 in damages and he took his statement down quickly. However, some lawyer is going to figure it out one day and some mean and hate filled people are going to change their attitudes. The problem is that most stupid people who have time to waste writing knee jerk nonsensical reviews do not have any money and the lawyers will pass. He will likely win, but not because it is okay to write lies and hide behind freedom of speech. Speaking of free speech, is it okay to give out legal advice? What if the legal advice turns out to cost someone? Is the person that gives out legal advice responsible for their words or is that protected under freedom of speech as well?

Julie Anne: I’ve got my spray can ready, Anonymous. BTW: Where do you get this: “He was specific in his allegation.” Where is his allegation referenced? I haven’t seen the original review anywhere or a copy of it anywhere.

Anonymous: Hmmm. I thought that I gave a pretty honest assessment. Not sure how what I wrote offends you. According to the the quote in the news article that I read, he was specific about the number of cavities that the dentist said he found. That seems pretty specific. I just don’t think that it is right for people to take shots at someone because they are in business and for no other good reason. That certainly was not the founders intent when the Bill of Rights was written. I do not think that the Anti-Slapp law was written to stop something like this from being heard in court either. Both legal concepts are exploited by people with too much time on their hands. Just my opinion, but there are many that agree with me. This dentist is probably ill advised to bring such a suit and is very likely to lose. He certainly has the right to defend himself.

Julie Anne: So you are implying that this guy is taking shots at someone just because they are in business? Ok. That explains everything. We’ll see how this plays out and I think you are missing the purpose of the anti-SLAPP. Let’s say that Bailey was wrong at posting his review (I don’t have enough information to say that at all). He was asked to remove his negative comment – actually, he was threatened by legal action to remove it. So Bailey removed it and was still sued. Who is showing bully behavior here?

An Attorney: It is my opinion that the dentist will suffer the “Streisand effect” and that might result in him having to relocate to have a successful practice. Anonymous, if it is clearly an opinion, then the statement is protected speech under the First Amendment and under the Oregon Anti-SLAPP law. And Yelp states that the statements therein are opinion and not matters of fact. BTW, if the dentist was wrong about the cavities, he could also be liable for malpractice, as well as having to pay the defendant’s legal bills, which can run to $50,000 very quickly. There are too many people who get in a hurry to sue without counting the costs and the risks before doing so. I suspect that the dentist will suffer more loss of business from the suit than from the comment. It is called shooting oneself in the foot with the aid of an attorney!

Julie Anne: An Attorney – your comment got stuck in my spam box . So sorry! Most reasonable people who read review sites realize that there will always be a few negative comments and will disregard them if the large majority of comments are positive. This dentist, in addition to my former pastor, brought far more negative attention to themselves by suing. It’s telling the world how they deal with conflict.

Anonymous: Attorney is right and the dentist did more damage to himself than the poster. It is a little different in JA’s case and I really don’t know why Oneal did not go after the “false report” a bit stronger. I believe that I would have gotten all of that out and then launched a targeted lawsuit against whomever was responsible. If anything, that set of events related to his family getting investigated was well over the line. Stalking is never acceptable, either.

Watcher of Anonymous: There goes Anonymous again. Perhaps Anonymous should ask the source about why they didn’t use Anonymous’ wisdom and do things Anonymous’ way. And do some of Anonymous’ suggestions about this and that constitute “free legal advice”? Anonymous proves again that Anonymous is logically inconsistent.

Anonymous: Does not look like much of a thread going here. But, you read your history and case law concerning Anti-Slapp and then get back to me. I think that you will find that it is for two things: To protect Freedom of Speech, and to assure that regular people have a voice at public hearings concerning property rights and zoning. Anything other than that is just plain abuse and giving one party more rights over another. I should lose money and my right to recover so that someone can entertain themselves? It is not intended to allow someone to hide behind the First Amendment and inflict damages on another party for whatever reason. Before you say it ain’t so, you study up real good. Start with the Federalist papers and work up.

Watcher of Anonymous: Anonymous must seem to find “stirring the pot” comments and demands for others to “get back to me” to be entertaining. Ironic. Perhaps Anonymous is addicted to ensuring there’s “much of a thread going”? Julie Anne doesn’t owe Anonymous or Anonymous’ demand anything. Maybe Anonymous needs to have Anonymous’ own blog to lay out Anonymous’ own theory of the import of the Federalist papers and etc.

An Attorney: First Amendment jurisprudence allows opinion that is negative about someone and protects it as free speech from being defamation. The Anti-SLAPP law just allows those who win after being sued for expressing opinion to recover their legal fees. The law does not pay the defendant, just their legal fees and legal costs.

Kathi: Wow! This is the first I’ve heard of this. If I were a patient at that orthodontist’s office, I would most likely leave his practice and find another orthodontist. I don’t think I’d like the chance of being sued if I felt that he was not providing a good service. The only other case I’ve seen recently was about an orthodontist being sued by a man who says that the doctor intentionally left his braces on for 11 years! I think there’s more to that story.

Julie Anne: I’m curious, Kathi, do you use review sites like Google, Yelp, DexKnows? I’ve been using review sites for years – primarily when looking for hotels, restaurants, etc. Some might find this surprising, but I rarely leave a negative review. If I receive service that goes over and above the normal expected service, I like to give a shout-out by leaving a positive review. I have definitely gone to places where I could have left negative reviews, but instead, prefer to handle those in person and usually they get the situation resolved that way. I have left positive reviews after having a negative experience and then explain how management made things right. That is important, too. On this sentence: “ I don’t think I’d like the chance of being sued if I felt that he was not providing a good service.” are you saying that you wouldn’t like the risk of being sued if you left a negative review?

Kathi: I use Yelp mostly for looking at reviews of places. I have left a couple, but nothing negative. However, I have a friend who uses Yelp quite a bit. She left a negative review on a restaurant and received a good response back from the owner. You just never know how a person is going to respond to a negative review. I would hope that the business would take it seriously and learn from the person making the comment. I think that most who take it poorly, such as those who decide to sue, are under the impression that they are the best at what they do. So, who is the customer to question. If I were a patient at this particular doctor and I found out he was suing another patient I would get out because to me, that doctor has set a standard. I would not be comfortable going to see him knowing that if I didn’t like his service, and decided to say something to someone about it, I could be sued for my opinion. I guess that this comes from watching relatives who are sue happy and will say that they’ll sue someone if they are wronged in any way. By the way – that’s a great update on the post!

Julie Anne: I wonder how many share your thoughts, Kathi, that if they leave a negative review they might be sued? That kind of defeats the purpose of reviews if you can’t leave an honest review, even if it is negative. I don’t think I’ve ever left a negative review without going up the channels to get the situation resolved. Public reviews are obviously public and it’s important to give the benefit of the doubt first or to allow them an opportunity to make a situation better, if possible.

Headless Unicorn Guy: According to the complaint. Bailey said he had never had a cavity in 32 years until Saleh found several. Bailey’s lawyers have responded by stating that Bailey went to Saleh for dental work and then went to another dentist after experiencing pain. They claim that the other dentist advised Bailey that some of the fillings were unnecessary and some were poorly put in. Isn’t that called “Malpractice”? Or (for the suddenly-appearing cavities and unnecessary fillings) “Fraud”?

Spencer Bailey: I am Spencer Bailey, the defendant in the case against Dr. Saleh and Dental Dynamics. I stumbled across this page when I was researching your case (earily similar!). I wanted to personally thank you for calling attention to my case and to the issue of internet defamation in general. As you and I both know, being sued is scary and embarassing and I am so glad that you prevailed as well (We won our anti-SLAPP motion this morning!. Jeremiah Ross and Linda Williams were expert attorneys and am so grateful for their hard work in this case. I wish you the best of luck and greatly appreciate your work in advancing this cause.

Source

Dentist Mo Saleh News

Dentist Lawsuits

Doctor Lawsuits

Willamette Week: Portland Dentist Sues Patient Over Internet Posts

September 3, 2012

“Portland Dentist Sues Patient Over Internet Posts”

Sam Stites, Willamette Week

A Portland dentist is suing a former patient for what the dentist claims are defamatory reviews in online forums.

Dr. Mo Saleh, of Dental Dynamics, originally filed suit against Spencer Bailey in Multnomah Circuit Court on June 26 seeking $300,000 after Bailey wrote about Saleh’s dental skills on Yelp, DoctorOogle.com and Google. In his lawsuit, Saleh says Bailey posts caused damage to his reputation, loss of profits and emotional distress.

The reviews cited in the complaint include statements saying Bailey implied ”improper and insufficient dental services by Dr. Saleh.” The complaint further alleges that Bailey wrote, “if Dr. Saleh tells you that you have a cavity — GET A SECOND OPINION.”

According to the complaint. Bailey said he had never had a cavity in 32 years until Saleh found several. Bailey’s lawyers have responded by stating that Bailey went to Saleh for dental work and then went to another dentist after experiencing pain. They claim that the other dentist advised Bailey that some of the fillings were unnecessary and some were poorly put in.

Bailey’s attorneys, Jeremiah Ross and Linda Williams, also claimed that Saleh contacted Bailey after he reviewed the dentist on various web sites, threatening him to remove them. They say Bailey removed the postings out of concern for his and his family’s safety. Even though Bailey removed the postings, Saleh is proceeding with his suit. (Saleh’s lawyer declined to comment.)

As online commentary about all manner of topics has exploded, so too has the number of lawsuits unhappy targets have filed about such commentary. Saleh’s suit falls under what lawyers call a practice of Strategic Law Against Public Participation or SLAPP. SLAPP cases take aim at people making statements or publishing information that could be damaging to the plaintiff. Critics say these suits are sometimes little more than attempt to censor, silence and in intimidate the defendant.

Bailey’s attornies filed a motion to strike Saleh’s lawsuit under the anti-SLAPP statute, declaring that Bailey’s online reviews are free speech in a public forum. “Spencer’s review was a protected opinion and the Plaintiff cannot prove their allegations,” Ross, Bailey’s co-counsel tells Willamette Weekly via email. “Nor can they prove $300,000 in damages for a post that was up for three weeks.”

Source

Dentist Mo Saleh

Other Dentist Lawsuits

Doctor Lawsuits

KATU NEWS: Dentist Sues Patient For $300,000 For Bad Online Review

August 31, 2012

“Dentist Sues Patient For $300,000 For Bad Online Review”

Dan Tilkin, KATU News and KATU Staff

LAKE OSWEGO, Oregon – A Lake Oswego dentist is suing his former patient because the patient posted negative reviews about him on the Internet.

Dr. Mo Saleh wants $300,000, saying his patient, Spencer Bailey, harmed his reputation. But Bailey said he shouldn’t pay the price for telling the truth.

Bailey now has a lawyer and an expensive court battle ahead of him after his fallout with Dr. Saleh who works at Optima Dental in Lake Oswego.

Bailey suspected he was getting questionable care. “I had never had a cavity before I set food in his office,” he said. “He told me the day that I saw him that I had 10 or so cavities, which threw me for a loop – I was nervous that I had some other health problem.”

Bailey posted a negative review on the website Yelp. He said three weeks later Saleh demanded Bailey take down the posting or be sued. Bailey said he removed it immediately.

“In hindsight it didn’t matter because, even though I took down the opinion online, I’m still right here,” he said.

Doctor Saleh declined to speak to KATU News.

Dr. Saleh is seeking $300,000 from Bailey for lost profits, emotional distress and damage to his reputation.

“The insinuation that this negative opinion, one of many, cost him $100,000 a week in lost business, I think it is a stretch,” Bailey said.

Bailey’s lawyer said that Yelp and other websites are protected from being sued and can’t be held liable for one person’s opinion.

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Lawsuits By Doctor and Dentist Over Patients’ Reviews Dismissed

SEPTEMBER 29, 2012

“Lawsuits By Doctor and Dentist Over Patients’ Reviews Dismissed”

Eric P. Robinson, Blog Law Online

A doctor in New York and a dentist in Oregon have both found out that it may not be easy to sue for libel over online reviews of their services, after their separate lawsuits were both dismissed. And it turns out that most of the dentists and doctors who have sued over online reviews have reached similar results.

In the New York case, doctor Trilby J. Tener sued over a comment posted to the physician review website Vitals. The comment, posted April 12, 2009, stated that “Dr. Tener is a terrible doctor. She is mentally unstable and has poor skills. Stay far away!!!”

Dr. Tener discovered the comment when she did a Google search for herself on May 28, 2009. But she did not file suit until April 8, 2010, four days before the expiration of the one-year statute of limitations (running from the day when the statement was initially posted). She then attempted to amend the complaint on June 8, 2010 to change the named defendant, claiming that it took that long to determine who was responsible for the posting.

Discovery in that case lead to an appellate decision, after Dr. Tener’s efforts to obtain electronically-stored records from a hospital, in an attempt to identify the poster. The records were deleted through normal business operation. Calling it “our first opportunity” to address the issue, the appellate court noted that “[electronically stored information] is difficult to destroy permanently. Deletion usually only makes the data more difficult to access,” and held that  against non-parties must utilize a cost-benefit analysis weighing the cost of retrieving the information against the value of the sought-for information. See Tener v. Cremer, 89 A.D.3d 75, 931 N.Y.S.2d 552 (N.Y. App. Div., 1st Dept. 2011).

That ruling raised the ire of the trial court because the “trial record” before the appellate court differed from that record that had been before the trial court when it made its initial decision in the discovery dispute. The problem turned out to be a clerical error in the trial court when the case was passed from one judge to another, that Dr. Tener’s attorney did not correct.

Ruling on a defense motion to dismiss after the appellate decision, the trial court chided the plaintiff and her attorney for appealing rather than attempting to correct the record, and for not being diligent about identifying the proper defendant prior to filing suit. The court then proceeded to dismiss the suit on statute of limitations grounds, and also wrote that “even if this action was found to be timely, dismissal is warranted for failure to state a cause of action, as the alleged defamatory statements are statements of opinion, and, thus, are not actionable.”  Tener v. Cremer, 2012 NY Slip Op 32022(U) (N.Y. Sup. Ct., N.Y. County July 16, 2012).

Meanwhile, an Oregon court dismissed a lawsuit by a Lake Oswego, Oregon dentist over reviews that a former patient posted on Yelp.com, DoctorOogle.com and Google. Circuit Court Judge Judith Matarazzo dismissed the lawsuit under the state’s anti-SLAPP law on Sept. 5.

Such statutes, adopted in 28 states, the District of Columbia, and one U.S. territory (and by common law in two more states), allow for easy dismissal of libel and similar lawsuits that are primarily aimed at limiting discussion of public issues. (See the DMLP Legal Guide for more on anti-SLAPP laws.)

These cases stand as data points showing growing trend. According to this list of lawsuits (pdf) brought by doctors and dentists over online reviews of their services compiled by Eric Goldman of Santa Clara School of Law, physicians have not been very successful in such suits. Several suits have been dismissed under anti-SLAPP statutes. See Gilbert v. Sykes, 53 Cal. Rptr. 3d 752 (Cal. App. Ct. 2007); Kim v. IAC/InterActive Corp., 2008 WL 3906427 (Cal. App. Ct. 2008); Wong v. Jing, 189 Cal. App. 4th 1354 (Cal. App. Ct. 2010); Rahbar v. Batoon, No. CGC-09-492145 (Cal. Super., San Francisco filed Sept. 2, 2009), No. CGC-10-502884 (Cal. Super., San Francisco filed August 20, 2010), and No. CGC-11-515742 (Cal. Super., San Francisco filed Sept. 8, 2011). (In one case, the court declined to dismiss a doctor’s lawsuit under Maine’s anti-SLAPP law, finding that the plaintiff was likely to be able to prove that the patient fabricated the story posted on the review site. See Lynch v. Christie, 2011 WL 3920154 (D. Me. Sept. 7, 2011), appeal dismissed, No. 11-2172 (1st Cir. 2011).)

Others have been dismissed under section 230 of the Commmunications Decency Act. Other cases were withdrawn, and some settled.

None of the cases actually ended with court awards to the doctors.

SOURCE

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Oregon Appellate Court Rules Online Commenter Critical Of Business Can Be Sued For Defamation

March 12, 2014

IN COURT OF APPEALS OF THE STATE OF OREGON

Carol C. NEUMANN

and Dancing Deer Mountain, LLC,

an Oregon domestic limited liability company,

PlaintiffsAppellants CrossRespondents,

v.

Christopher LILES, Defendant-Respondent CrossAppellant.

Lane County Circuit Court 121103711; A149982

Charles D. Carlson, Judge.

Argued and submitted April 12, 2013.

Steve C. Baldwin argued the cause for appellants-cross- respondents. With him on the briefs was Watkinson Laird Rubenstein Baldwin & Burgess, P.C.

Linda K. Williams argued the cause and filed the briefs for respondent-cross-appellant.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Lagesen, Judge.*

On appeal, reversed and remanded as to defamation claim, attorney fee award vacated and remanded; otherwise affirmed. Cross-appeal dismissed as moot.

LAGESEN, J.

After attending a wedding at plaintiff Dancing Deer Mountain, LLC, a wedding venue co-owned and operated by plaintiff Carol Neumann and her husband, Timothy Benton, defendant Christopher Liles posted a negative review on google.com. In the review, defendant characterized the venue as a “disaster” and Neumann as “two faced, crooked, and * * * rude to multiple guest[s].” He stated further that Neumann and her husband “changed the rules as they saw fit” by informing guests that they needed to leave the premises earlier than they had originally been told, and that Neumann would find a way to retain any security deposit and charge even more money for use of the facility. Neumann and Dancing Deer Mountain sued defendant, with Neumann asserting claims for defamation and invasion of privacy by false light, and Dancing Deer Mountain asserting claims for intentional interference with economic relations and invasion of privacy by false light. On defendant’s motion, the trial court dismissed the case under ORS 31.150,1 Oregon’s anti-Strategic Lawsuits against Public Participation (anti-SLAPP) statute, concluding both that plaintiffs’ claims fell within the scope of ORS 31.150(2), making them subject to the anti-SLAPP procedures, and that plaintiffs failed to establish a prima facie case in sup- port of any of their claims, as required by ORS 31.150(3). We reverse, concluding that the trial court erred when it deter- mined that Neumann had not established a prima facie case in support of her defamation claim.

BACKGROUND

Defendant attended a wedding at Dancing Deer Mountain. During the event, tensions arose between Dancing Deer Mountain staff, including Neumann, and the wedding party and guests, after staff observed attendees consuming alcohol in a manner that violated Dancing Deer Mountain’s alcohol policy. Those tensions were exacerbated when, at approximately 8:30 p.m. on the night of the wedding, Neumann and her staff began asking guests to leave, in accordance with Dancing Deer Mountain’s requirement, contained in its rental agreement, that the wedding party and guests vacate the premises by 8:30 p.m.

Two days after the wedding, defendant posted a review of Dancing Deer Mountain on google.com. The review, which was entitled “Disaster!!!!! Find a different wedding venue,” stated: “There are many other great places to get married, this is not that place! The worst wedding experience of my life! The location is beautiful the problem is the owners. Carol (female owner) is two faced, crooked, and was rude to multiple guests. I was only happy with one thing: it was a beautiful wedding, when it wasn’t raining and Carol and Tim stayed away. The owners did not make the rules clear to the people helping with set up even when they saw something they didn’t like they waited until the day of the wedding to bring it up. They also changed the rules as they saw fit. We were told we had to leave at 9pm, but at 8:15 they started telling the guests that they had to leave immediately. The ‘bridal suite’ was a tool shed that was painted pretty, but a shed all the same. In my opinion She will find a why [sic] to keep your $500 deposit, and will try to make you pay even more.”

Plaintiffs sued defendant, alleging that by publishing the review, defendant committed the torts of defamation and invasion of privacy by false light against Neumann, and the torts of intentional interference with economic relations and invasion of privacy by false light against Dancing Deer Mountain. Defendant filed a special motion to strike all claims under ORS 31.150. Defendant’s theory was that his online review qualified as either a “written statement * * * presented * * * in a place open to the public or a public forum in connection with an issue of public interest,” ORS 31.150(2)(c), or, alternatively, “other conduct in furtherance of the exercise of * * * the constitutional right of free speech in connection with a public issue or an issue of public inter- est,” ORS 31.150(2)(d), thereby making the anti-SLAPP procedures applicable to plaintiffs’ claims, which arose out of defendant’s online review. In response, plaintiffs submit- ted evidence to support a prima facie case on their claims, in accordance with ORS 31.150(3). Plaintiffs also argued that the anti-SLAPP procedures should not apply to their claims because their claims did not target speech in connec- tion with government: “Anti-SLAPP statutes were created  to allow for unfettered speech in matters of governmental gatherings. They were not intended to apply to cases such as this.”

Following a hearing, the trial court granted the special motion to strike in full. The court entered a general judgment dismissing the complaint without prejudice, and awarding $8,000 in attorney fees, $337 in costs, and a $500 prevailing party fee to defendant. Plaintiffs timely appealed, and defendant timely cross-appealed. On appeal, plaintiffs assert that the trial court erred in two respects: by concluding that their action was subject to the anti-SLAPP proce- dures, and by concluding that Neumann had not established a prima facie case of defamation. On cross-appeal, defendant contends that the trial court erred by awarding him less than the full amount of attorney fees that he requested.

STANDARD OF REVIEW

A “two-step burden-shifting process” governs the resolution of a special motion to strike under Oregon’s anti- SLAPP statute, ORS 31.150. Young v. Davis, 259 Or App 497, 501, 314 P3d 350 (2013). In accordance with ORS 31.150(3), a court must first determine “whether the defendant has met its initial burden to show that the claim against which the motion is made ‘arises out of’ one or more protected activities described in [ORS 31.150(2)].” Id. Second, if the defendant meets that burden, the court must determine whether the plaintiff has “establish[ed] that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case.” Id. (inter- nal quotation marks omitted). Each step of that process presents a question of law. See Young, 259 Or App at 507-10 (whether the plaintiff has established a probability of prevailing presents a legal question); Blackburn v. Brady, 116 Cal App 4th 670, 676 (2004) (whether anti-SLAPP statute “applies to a particular complaint[ ] presents a legal question”)

ANALYSIS

As noted, plaintiffs contend that the trial court erred at both steps of the process governing the resolution of a special motion to strike. They argue that “[p]laintiffs’ complaint is not a SLAPP suit,” and that the trial court therefore erred by concluding that their complaint was sub- ject to dismissal under ORS 31.150. Plaintiffs argue further that, even if their complaint falls within the scope of Oregon’s anti-SLAPP statute, the trial court erred when it concluded that Neumann had not presented substantial evi- dence establishing a prima facie case of defamation. For the reasons explained below, we do not resolve the first alleged error identified by plaintiffs, but agree that the trial court erred when it concluded that Neumann had not established a prima facie case of defamation sufficient to withstand dis- missal under ORS 31.150. Accordingly, we reverse.

With respect to the first alleged error identified by plaintiffs—the trial court’s determination that plain- tiffs’ claims were subject to the anti-SLAPP procedures— plaintiffs do not offer a focused argument on appeal as to why defendant’s online review does not fall into one of the four categories of protected activities delineated in ORS 31.150(2). In particular, plaintiffs do not address defendant’s theory that his review was a statement “in connection with an issue of public interest” published in “a place open to the public or a public forum” under ORS 31.150(2)(c). In fact, plaintiffs do not address the terms of the statute at all, or argue that the text, context, and legislative history demon- strate that the legislature did not intend for online reviews such as the one at issue here to fall within the scope of ORS 31.150(2)(c) or, alternatively, ORS 31.150(2)(d). Instead, relying primarily on law review articles and Illinois cases interpreting the Illinois anti-SLAPP statute4—a statute that is worded differently from, and more narrowly than, ORS 31.150—plaintiffs assert that we “should rule in accor- dance with [those] authorities * * * and reverse the trial court” and that “[t]he same reasoning should apply to the interpretation of every anti-SLAPP statute.”

We recently declined to address a similar argument in Young under similar circumstances, where, as here, the plaintiff did not develop a sufficiently focused argument on appeal as to why the allegedly defamatory statements at issue did not fall within the scope of ORS 31.150(2). 259 Or App at 505 (observing that it is not “our proper function to make or develop a party’s argument when that party has not endeavored to do so itself” (citations and internal quotations marks omitted)). We take the same approach here, both to be consistent with Young and because the trial court’s deter- mination that the online business review at issue qualifies as a protected activity under ORS 31.150(2) is not clearly erroneous. Indeed, we note that the trial court’s interpretation of ORS 31.150(2) to encompass online business reviews appears to be consistent with the plain text of the statute,5 although we do not assess the ultimate correctness of that interpretation at this time.

We nevertheless conclude that the trial court erred by dismissing Neumann’s defamation claim. Contrary to the court’s conclusion, the evidence supporting the defamation claim was sufficient to meet the “low bar” established by ORS 31.150 “to weed out meritless claims meant to harass or intimidate” a defendant. Young, 259 Or App at 508; see also Staten v. Steel, 222 Or App 17, 32, 191 P3d 778 (2008), rev den, 345 Or 618 (2009) (“The purpose of the special motion to strike procedure, as amplified in the pertinent legislative history, is to expeditiously terminate unfounded claims that threaten constitutional free speech rights, not to deprive litigants of the benefit of a jury determination that a claim is meritorious.” (Emphases in original.)). That is, the evidence submitted by plaintiffs, if credited, would permit a reasonable factfinder to rule in Neumann’s favor on the defamation claim, and the evidence submitted by defendant does not defeat Neumann’s claim as a matter of law. Young, 259 Or App at 508-11.

Under Oregon law, a claim for defamation has three elements: “(1) the making of a defamatory statement; (2) publication of the defamatory material; and (3) a result- ing special harm, unless the statement is defamatory per se and therefore gives rise to presumptive special harm.” National Union Fire Ins. Co. v. Starplex Corp., 220 Or App 560, 584, 188 P3d 332, rev den, 345 Or 317 (2008). “In the professional context, a statement is defamatory if it is false and ascribes to another conduct, characteristics or a condition incompatible with the proper conduct of his lawful busi- ness, trade, [or] profession.” 6 Brown v. Gatti, 341 Or 452, 458, 145 P3d 130 (2006) (internal quotation marks and cita- tions omitted). Statements falsely alleging facts that are “likely to lead people to question [a] plaintiff’s fitness to per- form his job” are defamatory per se. L & D of Oregon, Inc. v. American States Ins. Co., 171 Or App 17, 25, 14 P3d 617 (2000) (discussing the holding in Slover v. State Board of Clinical Social Workers, 144 Or App 565, 568-69, 927 P2d 1098 (1996)); see also National Union Fire Ins. Co., 220 Or App at 584-85 (statements that would tend to harm a plain- tiff in his or her business or profession are actionable per se without proof of special harm).

Here, the evidence submitted by plaintiffs, if true, would permit a reasonable fact finder to find in Neumann’s favor on a claim of defamation concerning her profession. Specifically, if true, plaintiffs’ evidence could permit a reasonable fact finder to find that defendant published false statements attributing to Neumann conduct and characteristics “incompatible with the proper conduct of [her] lawful business” of operating a wedding venue, as well as a false statement alleging that Neumann is dishonest.

In particular, that evidence demonstrates that defendant published in an online forum7 statements alleging that Neumann was “rude to multiple guest[s],” that she “changed the rules” by directing guests to leave at 8:15 p.m. after originally telling guests that they could stay until 9:00 p.m., that Neumann “will find a [way] to keep your $500 deposit, and will try to make you pay even more,” and that Neumann is “crooked.” Neumann’s evidence also provides a basis from which a fact finder could find that defendant’s statements were false. Neumann and two others who were present at the wedding that defendant attended submitted affidavits in which they declared that defendant’s statements were not true. And a fact finder could find that defendant’s online statements impute to Neumann conduct that is incompatible with the proper conduct of the opera- tion of a wedding venue. Couples often intend weddings to be significant, once-in-a-lifetime events that (they hope) will be unblemished by breaches in etiquette and unexpected hitches. As Dancing Deer Mountain’s co-owner Benton observed in his affidavit, “no one in their own best inter- est would call a venue who[se] owners” were alleged to have engaged in the conduct that defendant ascribed to Neumann; that conduct is inconsistent with a positive wed- ding experience.

In addition, a fact finder could find that defendant’s statement that Neumann is “crooked,” apart from implying that she is not a wedding vendor who can be trusted, alleges that she is dishonest, and would be defamatory for that reason. See Mannex Corp. v. Bruns, 250 Or App 50, 52, 57-61, 279 P3d 278 (2012) (recognizing that statements that the plaintiff “was a ‘crook[],’ that [a third party] should ‘never want to do business with [the plaintiff],’ and that [the third party] should ‘remember that name’” were defamatory, although concluding that the plaintiff’s claim for defamation failed because the statements were protected by qualified privilege); Durr v. Kelleher, 54 Or App 965, 967-68, 636 P2d 1015 (1981) (affirming trial court verdict awarding damages on defamation claim where “[t]he court found that [the] defendant had maliciously slandered [the] plaintiff by calling him a ‘crook’ and a ‘dishonest’ police officer”).

Finally, because a fact finder could find that defendant’s statements attacked Neumann’s professional or business reputation, and, for that reason, would be defamatory per se, plaintiffs were not required to present evidence of special harm to establish a prima facie case of defamation. See National Union Fire Ins. Co., 220 Or App at 584-85 (statements are per se defamatory if they “tend[] to injure the plaintiff in his or her profession or business”; only when a statement is not slander per se must a plaintiff allege special harm). Plaintiffs nevertheless did present evidence that would permit a fact finder to find that Neumann was harmed by defendant’s statements. Neumann and her co-owner attested to a fairly significant drop in bookings of the venue for weddings almost immediately after the challenged post was made, as well as to expenditures made to mitigate the harm to Neumann’s reputation as a wedding-venue operator. A reasonable fact finder could find based on that evidence that Neumann suffered special harm resulting from defendant’s statements.

Defendant makes several arguments as to why plaintiffs’ evidence is insufficient to establish the prima facie case required by ORS 31.150. For the reasons set forth below, we are not persuaded by them.

First, defendant asserts that his statements were non-actionable opinion. “Opinions, as ‘statements that can- not reasonably be interpreted as stating actual facts,’ are constitutionally protected.” Hickey v. Settlemier, 141 Or App 103, 110, 917 P2d 44, rev den, 323 Or 690 (1996) (quoting Milkovich v. Lorain Journal Co., 497 US 1, 20, 110 S Ct 2695, 111 L Ed 2d 1 (1990)). “Nevertheless, when an ‘opinion’ implies the existence of undisclosed defamatory facts, it is actionable.” Id. Here, notwithstanding defendant’s use of the phrase “in my opinion” at one point in the review, defendant’s statements reasonably could be understood to state facts or imply the existence of undisclosed defamatory facts. By stating that Neumann was rude to multiple guests, defendant, at a minimum, implied that Neumann engaged in conduct that breached the rules of decorum expected at a wedding. By stating that, in his opinion, Neumann will find a way to keep a wedding party’s deposit and then charge more, defendant implied that that is, in fact, what happened at the wedding he attended. The statement that Neumann forced guests to leave earlier than agreed upon is an asser- tion of fact, as is the statement that Neumann is crooked, in the context of the review.

Second, relying on federal cases, defendant asserts that his statements are not defamatory because, in his view, the context of the statements demonstrates that they are figurative, rhetorical, or hyperbolic. See Obsidian Finance Group, LLC v. Cox, 812 F Supp 2d 1220, 1222-25 (D Or 2011), affd in part, revd in part on other grounds, 740 F3d 1284 (9th Cir 2014) (describing test used by the Ninth Circuit to determine whether a statement is opinion or fact for defamation purposes under its First Amendment jurisprudence, and noting several examples of non-actionable hyperbole, figurative language, and rhetoric). To the extent that extra- jurisdictional authority informs our analysis, we disagree that defendant’s statements, as a whole, are hyperbolic. True, some of what defendant says in the challenged post is opinion and is hyperbolic (e.g., “worst wedding experience of my life!”). However, the bulk of the post is nonrhetorical and factual (e.g., “[t]he owners did not make the rules clear”; “when they saw something they didn’t like they waited until the day of the wedding to bring it up”; “[w]e were told we had to leave at 9pm, but at 8:15 they started telling the guests that they had to leave immediately”; “[t]he ‘bridal suite’ was a tool shed that was painted pretty, but a shed all the same”). Those factual details demonstrate that defendant’s statements are not mere hyperbole and, more to the point, would not be brushed off as mere hyperbole by a reasonable reader of those statements. See Wheeler v. Green, 286 Or 99, 104-06, 593 P2d 777 (1979) (analyzing whether recipient of statements would have understood statements to defame the plaintiff in order to determine whether statements were defamatory).

Third, defendant claims that plaintiffs qualify as limited public figures who were required to present evidence that defendant acted with malice in order to establish a prima facie case of defamation. However, the evidence at this stage of the proceedings does not show that plaintiffs are public figures or limited public figures, as that phrase has been interpreted by Oregon courts, and defendant is not a “media defendant.” See Bank of Oregon v. Independent News, 298 Or 434, 441, 693 P2d 35 (1985), cert den, 474 US 826 (1985) (“Two recent cases have held that liability applies where the plaintiff is not a ‘public figure’ and the defendant is not a part of the media.” (Citing Wheeler, 286 Or 99; Harley-Davidson v. Markley, 279 Or 361, 568 P2d 1359 (1977).)); id. at 443 (“Merely opening one’s doors to the public, offering stock for public sale, advertising, etc., even if considered a thrusting of one’s self into matters of public interest, is not sufficient to establish that a corporation is a public figure.”). As a result, Neumann was not required to present evidence of malice in order to establish a prima facie case of defamation under ORS 31.150.

Finally, defendant argues that, to establish a prima facie case of defamation, Neumann was required to present evidence rebutting his affirmative defense that he had a qualified privilege to make the statements that he did, or showing that he abused that qualified privilege. But a claim of privilege is an affirmative defense to a claim for defamation on which a defendant bears the burden of proof. Walsh v. Consolidated Freightways, 278 Or 347, 355, 563 P2d 1205 (1977). On this record, we cannot conclude as a matter of law that defendant was privileged to make the allegedly defamatory statements regarding Neumann.8 See Young, 259 Or App at 507-10 (in resolving a special motion to strike, a court assesses a defendant’s evidence only to evaluate whether the defendant’s evidence defeats the plaintiff’s claim as a matter of law).

Accordingly, we conclude that the trial court erred when it struck Neumann’s defamation claim, and we reverse the judgment of dismissal for that reason. Because plaintiffs have not separately addressed the trial court’s dismissal of the other claims in their briefing on appeal, we do not reverse the court’s decision to strike those claims We note, however, that those claims were dismissed without prejudice – as was required by ORS 31.150(1) – and that the trial court retains its authority on remand under ORCP 23 to entertain proposed amendments to the pleadings, as appropriate. ORCP 23; Allen v. Premo, 251 Or App 682, 685-87, 284 P3d 1199 (2012). Finally, because we have reversed the judgment in defendant’s favor, we also vacate the attorney fee award because it was predicated on the trial court’s determination that the special motion to strike should be granted as to all of plaintiffs’ claims. ORS 20.220(3). Thus, defendant’s cross-appeal, challenging the fee award, is moot.

 CONCLUSION

For the foregoing reasons, the trial court erred by granting the special motion to strike Neumann’s defamation claim. We therefore reverse the trial court’s decision as to   the defamation claim, vacate the attorney fee award, and remand for further proceedings consistent with this opinion.

On appeal, reversed and remanded as to defamation claim, attorney fee award vacated and remanded; otherwise affirmed. Cross-appeal dismissed as moot.