An online depiction of White Plains lawyer Gerry E. Feinberg as an “ambulance chaser” was simply name-calling, a judge has ruled in dismissing a defamation lawsuit he filed.
Feinberg had represented Adelaide and Anthony Formisano of New Rochelle in a medical malpractice lawsuit against New Rochelle rheumatologist David Lans.
His clients claimed that Lans had not advised Adelaide Formisano of the risks of a drug he prescribed for her condition. She reacted to the drug, according to the 2016 complaint filed in Westchester Supreme Court, was hospitalized and suffered permanent injuries.
The first trial ended in a hung jury.
Around that time, in May 2019, according to the defamation complaint filed this year in Westchester Supreme Court, Lans”™ wife, Devora posted this comment about Feinberg on Yelp: “If you can”™t find a lawyer to take your case, this is the lawyer for you. Ambulance chaser is too good a term for him.”
Feinberg, representing himself, claimed that the comment subjected him and his law practice to scorn and ridicule and portrayed him as unethical.
Devora Lans’ attorney, Michael Katz of Katonah, answered that the Yelp posting consisted of nonactionable opinion.
To recover damages for defamation, Justice Terry Jane Ruderman ruled on June 22, it must be shown that a reasonable reader could have concluded that the statement conveyed facts about the plaintiff.
The language must have a precise, readily understood meaning, she said, citing a 2012 appellate court decision. It must be capable of being objectively characterized as true or false. The context must be considered, including whether it signals that the statement is likely to be opinion, not fact.
Ruderman found the phrase “ambulance chaser” imprecise, subjective and nonprovable.
Internet forums contain elements of both fact and opinion, she stated, that reasonable readers understand as opinions based on business interactions.
“Yelp in particular, provides an opportunity for people to post both negative and positive reviews, stating their opinions and their perceptions of the relative merits of the reviewed service providers,” Ruderman said. “It is the virtual opposite of a fact-laden context.”
Dismissal is warranted, she said, because the content and context of the allegedly defamatory statement do not form a viable basis for a claim.
Feinberg also lost the medical malpractice case. The jury issued a verdict in favor of Lans, when the case was retried last October.
Cancel Culture Gets a Win.
I was the losing party in Judge Terry Ruderman’s decision dismissing my defamation action against the wife of a defendant in a medical malpractice action who characterized me as follows in a Yelp posting: “If you can’t get a lawyer to take your case this is the lawyer for you. Ambulance chaser is too good a term for him. As Yelp is a ubiquitous site on which millions rely for reviews of everything from restaurants to surgeons, its content can make or break a reputation.
The Judge’s finding, that the Yelp posting was opinion, not actionable fact, would seem to be a win for free speech. She distinguished the term “ambulance chaser†in an internet forum from the same term appearing in an attorney referral listing service which the United States Second Circuit Court of Appeals found to be actionable as capable of being proven false. Hence the defense, “Hey, it’s only Yelp!†But the federal court noted that the term “ambulance chaser†reasonably implies that the attorney has engaged in unethical conduct and that “a reader of the directory, seeing only the negative comment among several hundred entries, would likely turn elsewhere for assistance.†Would not a person looking for an attorney through Yelp do exactly the same thing?
Much to my chagrin, Judge Ruderman’s decision has garnered quite a bit of publicity and commentators have indeed questioned why I would not have just let sleeping dogs lie.
To understand my reasoning, you would have to be a professional who graduated from law school with honors as a law review editor, who rendered government service as an Assistant New York State Attorney General, who was a partner in a large New York City law firm, who has spent 25 years developing his private practice, in large measure upon referrals from other professionals who appreciate skill and ethical standards and has spent years sitting pro bono on several boards of not-for profits providing mental health and housing services to the disadvantaged in Westchester.
When your reputation is the currency upon which you trade, it not easy to sit back and have someone make an unfounded and derogatory statement about you in a media forum with such reach that it appears in Yelp in Singapore!
And while Yelp may deal in opinion, which is protected speech, the New York State Court of Appeals has opined that when “the statement of opinion implies it is based upon facts which justify the opinion but are unknown to those reading or hearing it, it is a mixed opinion and actionable .…[t]he actionable element is not the false opinion itself – it is the implication that the speaker knows certain facts unknown to the audience which support his opinion and are detrimental to the person about whom he is speaking.â€
Can’t it be said that the comments, considered in the context of the entire communication may be reasonably understood as implying the assertion of undisclosed facts justifying the opinion?
So does the reader of the statement here think it was posted by the disgruntled wife of a defendant in a malpractice action? Or that the action required two trials to convince a jury, only after the court denied the doctor’s motion for summary judgment because there were material factual issues in dispute over the doctor’s conduct? Or, does it suggest to the “average person†that the writer must have been a client who had a bad experience, or knows the attorney regularly solicits and pursues groundless cases, neither of which are true?
When we allow someone to make what is uniformly considered to be a defamatory statement with impunity because it is “only Yelp,†something has gone drastically wrong. I have not been the first person to suffer this indignity and unfortunately, in today’s “cancel culture,†I will not be the last.