Creekside Endodontics v. Kathryn Sullivan
2022COA145 (2022)
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Rule of Law:
To defeat a special motion to dismiss under Colorado's anti-SLAPP statute, a plaintiff bringing a defamation claim on a matter of public concern must establish a reasonable likelihood of prevailing by showing a probability that they can produce clear and convincing evidence of actual malice at trial.
Facts:
- Kathryn Sullivan sought treatment from Dr. Andrew Stubbs at Creekside Endodontics for severe pain in four teeth and underwent root canal therapy.
- Dr. Stubbs informed Sullivan that two teeth were fractured, but she chose to proceed with the procedures on all four teeth.
- Following the therapy, Sullivan experienced persistent pain and began independent research, suspecting that "overfilling" of the canals was the cause.
- Sullivan consulted another endodontist, Dr. Pineda, who reviewed her x-rays and opined that overfilling could be causing her pain.
- During a follow-up, Dr. Stubbs performed a CT scan and discovered that two teeth were overfilled, another had material extending beyond its tip, and he had missed a canal on a fourth tooth.
- Dr. Stubbs persistently denied that the overfilling was the cause of Sullivan's pain, suggested she see a neurologist, and ultimately terminated their doctor-patient relationship.
- Sullivan then saw two other dentists, Dr. Litano and Dr. Rodeghero, who confirmed the overfilling and presence of infection, leading to the extraction of one tooth.
- Sullivan subsequently posted three one-star reviews on Yelp and Google stating that Dr. Stubbs' work was "sub par," that he overfilled three canals causing her pain, and that he refused accountability and tried to "gaslight" her.
Procedural Posture:
- Creekside Endodontics, LLC, and Andrew Stubbs sued Kathryn Sullivan in Saguache County District Court (trial court) for libel per se and trade disparagement.
- Sullivan filed a special motion to dismiss the complaint pursuant to Colorado's anti-SLAPP statute.
- The district court denied Sullivan's special motion to dismiss.
- Sullivan, as defendant-appellant, appealed the district court's denial to the Colorado Court of Appeals (intermediate appellate court).
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Issue:
Have plaintiffs established a reasonable likelihood of prevailing on their defamation claim, as required to overcome an anti-SLAPP motion to dismiss, when their evidence does not show a probability that they can prove by clear and convincing evidence that the defendant published her negative online reviews with actual malice?
Opinions:
Majority - Judge Fox
No. The plaintiffs did not establish a reasonable likelihood of prevailing because their evidence fails to show a probability that they can prove by clear and convincing evidence that Sullivan acted with actual malice. Under the heightened standard required to overcome an anti-SLAPP motion involving a matter of public concern, a plaintiff must demonstrate that the defendant published a statement with knowledge of its falsity or with reckless disregard for its truth. Sullivan did not act with reckless disregard; she conducted a multi-month investigation and relied on the professional opinions of three separate dentists who concluded that overfilling was the cause of her pain. Relying on these professional opinions, even if they were disputed by Dr. Stubbs or commentators on a social media group, negates a finding of reckless disregard. Furthermore, Sullivan's statements about being "gaslighted" or having her pain ignored are nonactionable statements of pure opinion because she disclosed the factual bases for those opinions within the text of her reviews.
Concurring - Judge Yun
Concurs in judgment only. While the majority reached the correct result based on the parties' concession that this was a matter of public concern, this characterization is questionable. A private dispute between a patient and her dentist over the quality of a medical procedure should not typically rise to a 'matter of public concern' that triggers the formidable 'actual malice' standard. Applying this high constitutional bar to ordinary consumer reviews on platforms like Yelp and Google risks constitutionalizing purely private defamation claims, which was not the original intent of First Amendment jurisprudence. However, under the party presentation principle, the court is bound by the parties' agreement on this issue, and therefore the majority's application of the actual malice standard is legally correct in this specific context.
Analysis:
This decision solidifies a high evidentiary bar for defamation plaintiffs seeking to overcome Colorado's anti-SLAPP statute, requiring a preliminary showing of probable clear and convincing evidence of actual malice. It provides significant protection for individuals posting negative online reviews, establishing that reliance on disputed professional opinions can defeat a claim of reckless disregard. The ruling makes it more difficult for professionals and businesses to pursue defamation claims based on consumer complaints if the subject is deemed a matter of public interest. The concurrence highlights the unresolved and critical question of what constitutes a 'public issue' in the digital age, suggesting future litigation will need to define the boundary between protected public commentary and private business disputes.
