Marcus v. Swanson ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 122,400
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
ELYSIA A. MARCUS,
Appellee,
v.
ERIC SWANSON, M.D.,
Appellant,
v.
ELYSIA A. MARCUS,
Appellee.
MEMORANDUM OPINION
Appeal from Johnson District Court; DAVID W. HAUBER, judge. Opinion filed August 19, 2022.
Affirmed.
Frankie J. Forbes, of Forbes Law Group, LLC, of Overland Park, Quentin M. Templeton, of the
same firm, Russell J. Keller, of the same firm, and William J. Skepnek, of The Skepnek Law Firm, PA, of
Lawrence, for appellant.
Matthew V. Bartle, of Bartle & Marcus LLC, of Kansas City, Missouri, for appellee.
Before HILL, P.J., ATCHESON and WARNER, JJ.
ATCHESON, J.: In this case, we must apply defamation law crafted 40 years ago to
a decidedly 21st century set of facts. A plastic surgeon asserted that a "review" a
disgruntled former patient posted on an internet site falsely impugned his professional
reputation. A jury sitting in Johnson County District Court agreed and entered a $15,000
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verdict for the physician. The district court set aside the verdict because the physician,
who continued to maintain a full schedule of patients, did not prove any actual harm to
his reputation as a result of the post—a necessary component for a successful defamation
claim under Kansas law. The physician has appealed the ruling. We agree with the
district court's assessment of the law, the evidence, and the required outcome and,
therefore, affirm the ruling and the final judgment entered for the ex-patient on the
defamation claim.
The jury also found the ex-patient violated a settlement agreement with the
physician by posting the negative review and returned a verdict awarding him $2,500 for
breach of contract. In her cross-appeal, the ex-patient contends the verdict lacks a basis in
the trial evidence. We disagree and affirm that verdict and final judgment for the
physician.
FACTUAL AND PROCEDURAL HISTORY
Dr. Eric Swanson, M.D., has a practice in Johnson County principally devoted to
cosmetic surgery, including laser treatments of the face to reduce or eliminate wrinkles
and other blemishes. Dr. Swanson performed a laser "resurfacing" of Elysia A. Marcus'
face in December 2016 with what Marcus considered poor results. David Marcus,
Elysia's husband, is a lawyer and contacted another lawyer who handles medical
negligence claims. That lawyer made a settlement demand on Dr. Swanson. For purposes
of this appeal, we may condense that aspect of the historical facts. In exchange for Dr.
Swanson refunding the $2,500 fee for the laser treatment, the Marcuses gave up any legal
claims they might have had against him and his clinic related to the laser treatment. The
release the Marcuses signed in July 2017 also provided they "will not discuss this case or
settlement in the media." The Marcuses never filed a medical malpractice action against
Dr. Swanson.
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Dr. Swanson and his clinic appear on various internet sites, including Yelp, and he
and his staff periodically look at posts on those sites. In March 2018, Dr. Swanson
discovered an exceptionally negative Yelp review from a "Lisa M." posted in November
2017. We may again boil down the historical facts for this appeal. Elysia Marcus wrote
and posted the review. No purpose would be served in setting out the lengthy review.
Rather, we can and do assume the content includes false statements that disparage Dr.
Swanson in his profession and portray him as an incompetent who "ruins lives." The post
urges potential patients to look into Dr. Swanson's past and to consider going elsewhere
for cosmetic surgery. In 1999, Dr. Swanson stipulated in a proceeding before the Kansas
Board of Healing Arts that he negligently treated three patients; he was publicly
censured, and the Board required his practice be limited and monitored for about two-
and-a-half years.
In May 2018, Dr. Swanson had a lawyer send a letter to the Marcuses demanding
they take steps to remove the Yelp post, provide a written apology, pay $25,000 in
damages, and sign a new release. The letter stated Dr. Swanson would sue the Marcuses
if a settlement could not be reached. David Marcus promptly responded with an email
threatening to file counterclaims in any civil action that would be damaging to Dr.
Swanson's reputation and touting his own success as a litigator in the Kansas City
metropolitan area. Four days later, David Marcus filed this action on behalf of Elysia for
a declaratory judgment that the Yelp post did not violate the release they signed. Dr.
Swanson duly answered, counterclaimed against Elysia Marcus for defamation and
breach of contract—the claims eventually submitted for the jury's consideration—and
named David Marcus as a third-party defendant in those claims.
The parties undertook discovery and filed various pretrial motions. The district
court dismissed David Marcus as a party before trial. The jury heard the case over three
days in August 2019. David Marcus' law partner represented Elysia Marcus during and
after the trial. As we have said, the jury found Elysia Marcus breached the release and
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awarded Dr. Swanson $2,500 in damages on that claim. The jury found the post to be
defamatory and injurious to Dr. Swanson's reputation and awarded him $15,000 in
damages. The jury also found Elysia Marcus acted willfully or maliciously—defined in
the district court's instructions as acting "intentionally or purposefully" to do "wrong or
caus[e] injury" or "do[ing] harm without any reasonable justification or excuse"—thereby
exposing her to an award of punitive damages to be set by the district court. See K.S.A.
60-3702.
After the district court received the jury's verdicts, Elysia Marcus renewed the
motions for judgment as of a matter of law she had made during the trial on the grounds
Dr. Swanson had not proved any actual damage to his reputation from the Yelp post. The
district court granted the renewed motion, set aside the jury verdict on Dr. Swanson's
defamation claim, and entered judgment for Elysia Marcus. Elysia Marcus neither
specifically disputed the verdict on the breach of contract claim nor augmented the
grounds she had raised for judgment in her favor during the trial. The district court
understood she was not contesting the breach of contract verdict and entered judgment
for Dr. Swanson.
Dr. Swanson appealed the district court's decision on the defamation claim. Elysia
Marcus then cross-appealed the judgment against her on the breach of contract claim. We
first take up Dr. Swanson's appeal and then address Elysia Marcus' cross-appeal. We
supplement our introductory account of the factual foundation for this litigation and its
procedural progression as necessary.
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LEGAL ANALYSIS
I. DR. SWANSON'S APPEAL
A. Standard of Review
In considering a motion for a judgment as a matter of law, the district court must
view the trial evidence in the best light for the party opposing the motion and give that
party the benefit of any reasonable inferences drawn from the evidence. If the evidence
taken that way would properly support a jury verdict for the nonmoving party, the district
court should deny the motion. Russell v. May, 306 Kan. 1058, Syl. ¶ 2, 400 P.3d 647(2017); Siruta v. Siruta, 301 Kan. 757, 766, 348 P.3d 549 (2015). The motion presents a
question of law, and the ruling entails no weighing of disputed evidence. Accordingly, on
appeal, we apply the same standard and owe no deference to the district court's decision.
Russell, 306 Kan. 1058, Syl. ¶ 2.
B. Legal Principles Governing Defamation
Defamation is a species of tort based on one person or entity's publication of false
statements that diminish the reputation of another person. Gobin v. Globe Publishing Co.,
232 Kan. 1, 5-6, 649 P.2d 1239 (1982). The utterance of an oral defamation is slander,
and the dissemination of a written defamation is libel. Here, we are concerned with libel.
The redressable harm entails the diminution of the subject's positive standing or esteem
within a community, be it a professional network, an extended social circle, or some
segment of the public at large. Moran v. State, 267 Kan. 583, 589-90, 985 P.2d 127(1999); Gobin, 232 Kan. at 6. Conversely, the subject's own emotional distress or upset
caused by the publication will not alone support a claim for defamation, although
damages for those noneconomic injuries may be recovered as an adjunct to a proved loss
of reputation. 232 Kan. at 7.
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Historically, defamation law recognized certain kinds of false statements were so
noxious that damages were presumed to flow from their publication. The subject did not
have to independently demonstrate a loss of community standing. Pertinent here, this
kind of defamation—known as libel per se or slander per se—included false statements
disparaging a person's abilities in his or her occupation. See Gomez v. Hug, 7 Kan. App.
2d 603, 611-12, 645 P.2d 916 (1982) (libel per se includes "'imputation of a person's
unfitness for his trade or profession'") (quoting Kraisinger v. Liggett, 3 Kan. App. 2d
235, 237, 592 P.2d 477 [1979]). But the Kansas Supreme Court abolished libel per se and
slander per se in Gobin, 232 Kan. at 5, and has since reiterated that position in Moran,
267 Kan. at 599. We return to that development in the law shortly, since it bears on Dr.
Swanson's claim, given the content of the Yelp post.
As with many torts, the legal principles governing defamation are largely the
product of the common law—judicial rules established through case precedent—rather
than of statutes or legislative prescription. So the reach of the tort and what an ostensibly
defamed plaintiff had to prove to prevail expanded and contracted as appellate courts
crafted the law through their opinions. As a result, defamation law historically was the
province of state courts and tended to be shaped and fine-tuned in each jurisdiction. But
the insular character of defamation law changed dramatically in the middle of the 20th
century when the United States Supreme Court recognized a constitutional overlay to that
law grounded in protections for robust debate of matters of public concern undergirding
the free speech and free press clauses of the First Amendment to the United States
Constitution as applied to the states through the Fourteenth Amendment. The Court's
decision in New York Times Co. v. Sullivan, 376 U.S. 254, 269-71, 279-80, 84 S. Ct. 710,
11 L. Ed. 2d 686 (1964), was the fountainhead for that legal reordering.
Central to New York Times, the Court recognized that the First Amendment
requires "public official[s]" bringing libel actions to prove a publisher of a "defamatory
falsehood" about their "official conduct" did so with "'actual malice'—that is, with
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knowledge that it was false or with reckless disregard of whether it was false or not." 376
U.S. at 279-80. The Court, however, did not attempt to mark the outer reaches of its
casting of the First Amendment—a doctrinal shift often described as revolutionizing
defamation law. See Kohler, Forty Years After New York Times v. Sullivan: The Good,
The Bad, and The Ugly, 83 Or. L. Rev. 1203, 1203-04 (2004); Stone, Justice Brennan
and the Freedom of Speech: A First Amendment Odyssey, 139 U. Pa. L. Rev. 1333,
1343-44 (1991); Abrams, A Worthy Tradition: The Scholar and The First Amendment,
103 Harv. L. Rev. 1162, 1166 (1990). In a series of decisions, the Court further crafted
and refined the constitutional shields available to defendants in defamation actions. For
example, a Court majority extended the New York Times requirement of proof of actual
malice to defamation actions brought by "public figures," a somewhat ill-defined class of
persons commanding public interest or attention because of their prominent positions or
their noteworthy conduct. Curtis Pub. Co. v. Butts, 388 U.S. 130, 163-65, 87 S. Ct. 1975,
18 L. Ed. 2d 1094 (1967) (Warren, C.J., concurring, joined in pertinent part by Black,
Douglas, Brennan, and White, JJ.). A plaintiff likewise must prove New York Times
actual malice by clear and convincing evidence. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 257, 106 S. Ct. 2505, 91 L. Ed. 202 (1986); Nunes v. Lizza, 12 F.4th 890, 895
(8th Cir. 2021); Berisha v. Lawson, 973 F.3d 1304, 1312 (11th Cir. 2020).
Among those decisions, Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997,
41 L. Ed. 2d 789 (1974), significantly changed Kansas defamation law and continues to
fix its boundaries. See Moran, 267 Kan. at 599; Gobin, 232 Kan. at 4-5; Rockhill Pain
Specialists v. Hancock, 55 Kan. App. 161, 185-86, 412 P.3d 1008 (2017). Gertz, a
lawyer, sued a magazine for libel for publishing an article in 1969 branding him a
communist or a communist sympathizer. The Court considered Gertz to be a private
person rather than a public figure and held such plaintiffs could not recover presumed
damages or punitive damages unless they proved actual malice as defined in New York
Times—consistent with the constitutional protections of the First Amendment. But a state
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could permit private-party plaintiffs to recover damages for actual harm to their
reputations if a defendant publisher were merely negligent. Gertz, 418 U.S. at 347-50.
As we have indicated, the Kansas Supreme Court has fashioned a rule in light of
Gertz that requires any plaintiff to prove actual damages flowing from the defendant's
defamatory statements. The Gobin court enunciated two key principles drawn from
Gertz: (1) "Damages recoverable for defamation may no longer be presumed; they must
be established by proof, no matter what the character of the libel." and (2) "Unless injury
to reputation is shown, plaintiff has not established a valid claim for defamation, by either
libel or slander, under our law." 232 Kan. at 5-6. They remain cornerstones of Kansas
defamation law.
The United States Supreme Court again looked at balancing constitutional free
speech protections and the common-law right of private parties to recover for damage to
their reputations in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749,
105 S. Ct. 2939, 86 L. Ed. 2d 593 (1985). In that case, Greenmoss Builders sued Dun &
Bradstreet for disseminating a credit report to five subscribers that falsely stated the
company had filed for bankruptcy and misrepresented its assets and liabilities. Five
justices agreed Greenmoss was not constitutionally required to prove actual malice to
recover presumed damages or punitive damages in its defamation action. Three justices
distinguished Gertz because the defamatory publication in that case involved an issue of
"public concern" and Greenmoss' claim rested on a purely private matter. 472 U.S. at
763. Chief Justice Burger concurred in the judgment and noted his dissent in Gertz and
his continuing view that Gertz was wrongly decided. 472 U.S. at 763-64 (Burger, C.J.,
concurring). In a more extended concurring opinion, Justice White also joined in the
judgment, reiterated his dissenting views in Gertz, and questioned generally the wisdom
of the Court's expansion of the rule in New York Times. 472 U.S. at 771-72, 774 (White,
J., concurring). In Dun & Bradstreet, then, five justices recognized that the First
Amendment neither precludes recovery of presumed damages or punitive damages nor
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requires proof of actual malice when a private person sues for defamation arising from
the dissemination of a statement unrelated to a matter of public concern.
The upshot seems to be that the categorical abandonment of libel per se outlined in
Gobin and since repeated in Moran is not constitutionally mandated under the First
Amendment or Gertz. See W.J.A. v. D.A., 210 N.J. 229, 246, 43 A.2d 1148 (2012)
(recognizing Gobin "abolished" presumed damages and required "proof of actual injury
to reputation in all cases"). But doing so is presumably constitutionally permissible in
that a state may afford greater protections—but not lesser protections—than the federal
Constitution commands. See Gertz, 418 U.S. at 347 (consistent with constitutional
requirements, "the States may define for themselves the appropriate standard of liability"
in defamation actions); see also State v. Carapezza, 293 Kan. 1071, 1077, 272 P.3d 10(2012) (State may provide greater rights or protections than federal Constitution
guarantees). So a state, by common-law rule or statutory directive, may afford defendants
greater protections in defamation actions than the First Amendment requires. See
Bierman v. Weier, 826 N.W.2d 436, 449 (Iowa 2013) ("Iowa can make its defamation
law more protective of defendants than the First Amendment requires."); Turner v. KTRK
Television, Inc., 38 S.W.3d 103, 117 (Tex. 2000) ("While we have occasionally extended
protections to defamation defendants greater than those offered by the United States
Constitution, we have based these protections on the common law, not the Texas
Constitution."). A state constitution may also establish rights beyond those found in the
United States Constitution. See Hodes & Nauser, MDs v. Schmidt, 309 Kan. 610, Syl.
¶ 3, 440 P.3d 461 (2019). Here, the parties have not mentioned, let alone engaged, the
free speech protections in the Kansas Constitution Bill of Rights section 11.
With that brief overview of defamation law, we turn to Dr. Swanson's argument
that the district court improperly entered a judgment as a matter of law in favor of Elysia
Marcus, voiding the jury verdict for him.
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C. The Parties Frame the Issue on Appeal
The parties have treated this case as one alleging purely private defamation—
portraying a private person claiming to have been besmirched by statements unconnected
to any matter of public concern. It is less than clear whether the issue has been framed
that way deliberately or inadvertently. The premises are at least debatable.
Courts have held that persons heavily advertising on the internet and otherwise
injecting their business interests into the public eye or professional circles may be limited
purpose public figures required to prove actual malice in suing for defamation related to
those endeavors. See Gilbert v. Sykes, 147 Cal. App. 4th 13, 24-25, 53 Cal. Rptr. 3d 752(2007); Hibdon v. Grabowski, 195 S.W.3d 48, 59-60 (Tenn. App. 2005) (business owner
touting on the internet and elsewhere his innovative modifications enhancing
performance of jet skis deemed limited purpose public figure). In Gilbert, an often-cited
case, the court held a plastic surgeon specializing in cosmetic procedures to be a limited
purpose public figure in his defamation action against a dissatisfied patient who used a
website to express her dissatisfaction. The court relied on the surgeon's advertising,
appearances in the media, and authorship of articles promoting the benefits of such
surgery. 147 Cal. App. 4th at 24-25.
Courts have also held that public comments about a medical doctor's competence
may sufficiently touch on matters of public concern to require proof of actual malice in a
defamation action based on those comments. See Alost v. Lawler, 326 So. 3d 1255, 1264
(La. App. 2021) (guest article written by son of patient attacking quality of care physician
provided his parent addressed matter of public concern); Teachers Federal Credit Union
v. Esquivel, 621 S.W.3d 786, 797-98 (Tex. App. 2021) (discussing Texas cases
recognizing quality of healthcare provider's services to patient matter of public concern
under defamation law); cf. Gilbert, 147 Cal. App. 4th at 23-24 (widespread discussion of
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risks and benefits of elective cosmetic surgery rendered the topic a matter of public
interest and concern).
Dr. Swanson and Elysia Marcus have effectively avoided those issues through
their joint silence on them. And the district court quite properly didn't venture into those
aspects of defamation law uninvited. The parties' briefing to us is similarly circumspect.
We, too, have no occasion to consider what has not been presented to us in this civil
action. See Central Kansas Medical Center v. Hatesohl, 308 Kan. 992, 1006-07, 425 P.3d
1253 (2018) (appellate court typically will not consider issue parties have not raised). The
issue for our review is the propriety of the district court's posttrial ruling setting aside the
jury verdict for Dr. Swanson on his defamation claim. We take the issue in the frame the
parties have given us—as one involving private parties and a matter of no public concern.
D. Did Dr. Swanson Present Sufficient Evidence of Damage to His Reputation?
Dr. Swanson contends he submitted evidence of actual damage to his reputation
flowing from Elysia Marcus' post on Yelp. Although damages need not be proved with
exactitude or certainty, they must be more than merely speculative. Ryan v. Kansas
Power & Light Co., 249 Kan. 1, 9, 815 P.2d 528 (1991); Ohlmeier v. Jones, 51 Kan. App.
2d 1014, 1021, 360 P.3d 447 (2015). In establishing reputational harm in a defamation
action, a plaintiff need not prove a direct economic loss. But the evidence must provide a
tangible basis for inferring a real (rather than merely a presumed) diminution in
reputation.
For example, in Moran, a physician, who had specialized in heart transplant
surgery, submitted an affidavit aimed at proving reputational harm in opposition to
defendants' motion for summary judgment in his defamation action. In the affidavit, the
physician represented that following the publication of negative statements from several
colleagues in a newspaper article, he no longer received inquiries about his interest in
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heading or starting up transplant programs at other hospitals and was no longer invited to
write scholarly articles or to peer-review such articles for medical journals and other
professional publications. The physician had left the transplant team and worked as a
pediatric heart surgeon at a hospital in another state. Although characterizing that
evidence as "weak," the court found it was legally sufficient to allow a jury to find the
sort of actual reputational harm necessary to support a defamation claim. The court
reversed the district court's summary judgment for the defendants. Moran, 267 Kan. at
593.
Here, Dr. Swanson personally testified it stood to reason that some potential
patients read Elysia Marcus' post and looked elsewhere for a plastic surgeon. But he
offered no evidence supporting his surmise. No deterred would-be patients testified. And
no one claiming expertise in measuring the impact of the internet on consumer choice or
the marketing and selection of physicians or other professionals testified. We suppose
evidence from people who went to another plastic surgeon might have been difficult to
assemble. We venture no comment on the universe of expert witnesses. Dr. Swanson
identified an ostensible expert who purported to calculate a number representing deterred
patients and a concomitant loss of revenue. The district court granted Elysia Marcus'
pretrial motion to exclude the testimony as too speculative—a ruling Dr. Swanson has not
appealed. See K.S.A. 2021 Supp. 60-456(b) (requirement for admissible expert
testimony). But Dr. Swanson also testified that he was working at capacity both before
and after the post, so he had as many patients as he could handle and suffered no loss of
business.
Consistent with Moran, we infer a physician or other professional could go
forward with a libel claim by showing a measurable drop in new patients or business
following the prominent publication of defamatory statements. That would be
circumstantial evidence tending to suggest reputational harm, and it would establish a
quantifiable economic loss bearing on damages, especially in the absence of some other
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obvious explanation. But see Kuxhausen v. Tillman Partners, 291 Kan. 314, 320-21, 241
P.3d 75 (2010) (post hoc ergo propter hoc reasoning alone indicative of speculation and
does not forge causal link between purported wrongful conduct and claimed harm). We
need not travel further down this path, since Dr. Swanson did not assert a decline in
actual patients or in revenue.
Dr. Swanson testified that he continued to be an in-demand speaker at professional
programs and did not suggest he otherwise lost professional engagements or
opportunities because of the Yelp post. Again, consistent with Moran, that evidence at
the very least cuts against some reputational harm. Dr. Swanson testified Elysia Marcus'
statements in the post bothered him personally. But, as we have outlined, plaintiffs
asserting defamation claims cannot rely on their own emotional upset or distress to
establish the required reputational harm. Finally, Dr. Swanson testified he and his staff
spent "hundreds of hours" to "deal with this," meaning the Yelp post and the ensuing
litigation. He described his efforts to get the post taken down. And he briefly alluded to
the attorney fees and other legal expenses he had paid. But those considerations do not
translate into an actionable harm to Dr. Swanson's reputation. Likewise, the attorney fees
would not be a recoverable damage even if Dr. Swanson otherwise proved his defamation
claim. See Robinson v. City of Wichita Employees' Retirement Bd. of Trustees, 291 Kan.
266, 279, 241 P.3d 15 (2010) ("The 'American Rule' is well established in Kansas so that,
in the absence of statutory or contractual authorization, each party to the litigation is
responsible for his or her own attorney fees."); Karrigan v. Valentine, 184 Kan. 783, 788,
339 P.2d 52 (1959) (noting "in passing" attorney fees are not recoverable in action for
libel).
Dr. Swanson also called a former patient of his as a witness at trial to testify she
was concerned when she saw Elysia Marcus' Yelp post because it was in her view grossly
inaccurate. She posted her own positive review of Dr. Swanson and later referred at least
one person to him. The testimony, however, does not support damage to Dr. Swanson's
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reputation. The evidence really is more or less to the contrary; the patient remained a
supporter of Dr. Swanson and his work notwithstanding the post.
We share the district court's view that this array of evidence failed to show Dr.
Swanson's reputation was actually diminished in some way as a result of Elysia Marcus'
post on Yelp. Or, more precisely, that the evidence would permit reasonable jurors to
conclude his reputation had been harmed. Dr. Swanson speculated the post—given its
vituperation and inaccuracies—must have scared off potential patients. But that was no
more than a guess, and guesses are not evidence. The other points Dr. Swanson testified
to are neither direct nor circumstantial evidence of reputational harm. For purposes of this
appeal, we do not question the legitimacy of his assertion he found the attack on his
professional capability both unwarranted and distressing. But those circumstances do not
legally support a defamation claim. Nor did the testimony of the former patient.
In closing argument to the jury, Dr. Swanson's lawyer did not identify specific
reputational injuries flowing from Marcus' post and explicitly did not suggest a dollar
amount the jurors should consider as compensatory damages. The lawyer explained to the
jurors he struggled to come up with an amount and told them to "figure out a number that
you think is fair compensation." The district court mentioned the closing argument in
explaining its decision to set aside the jury verdict. On appeal, Dr. Swanson contends the
district court improperly treated the argument as something like a binding admission the
evidence showed no reputational harm. We don't read the district court's ruling that way.
Rather, the argument is illustrative of the lack of evidence of actual reputational harm
required to meet the standard set in Gobin. So the argument tends to confirm the
evidentiary gap but does not in any legal way establish it.
The jurors' communications with the district court after they had begun
deliberations suggest they felt the constraint of the law in weighing the evidence as they
worked toward a verdict. The jurors asked if they could require Elysia Marcus to take
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down her post as a remedy—effectively granting Dr. Swanson a mandatory injunction.
They were correctly told they could not; juries may award money damages in a civil
action, not equitable relief. See Texas Const. Co. v. Hoisting and Portable Engineers'
Local Union No. 101, 180 Kan. 393, 395, 304 P.2d 498 (1956) (injunction action
considered "purely equitable," so plaintiff not entitled to jury trial); Jensen International,
Inc. v. Kelley, 29 Kan. App. 2d 836, 843-44, 32 P.3d 1205 (2001) (no right to jury trial in
declaratory judgment action raising essentially equitable claims or issues). The jurors
then asked if they could award litigation costs to Dr. Swanson and again were told they
could not. After twice being rebuffed, the jurors returned a verdict awarding Dr. Swanson
$15,000 in damages on the defamation claim—an amount that has no anchor in the
evidence.
We hesitate to read too much into questions from deliberating juries; a given
inquiry may be posed simply to satisfy a single vacillating or reluctant juror. The
sequential inquiries here more readily depict jurors searching for an alternative path to
the one laid out in the district court's instructions to give Dr. Swanson relief of some
kind. The remedies the jurors wanted to award—requiring Elysia Marcus to remove the
post or to pay Dr. Swanson's litigation expenses—were aimed at her morally
blameworthy conduct in publishing a false statement rather than any actual loss of
reputation to Dr. Swanson resulting from that conduct. Thwarted in those forays, they
awarded what can fairly be characterized as a modest, if seemingly arbitrary, amount in
compensatory damages, taking the only option available to them to redress what they
considered Elysia Marcus' wrong.
The fundamental problem for Dr. Swanson rests in the requirement he offer
evidence of some actual damage to his reputation to establish a legally submissible claim
for defamation. Since Gobin, Kansas law no longer presumes reputational harm from a
false statement denigrating a person's professional skill or competence. The absence of
demonstrable harm, then, legally dooms a claim, even when the challenged statement is
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indisputably scurrilous and its author has acted quite deliberately in publishing it. The
essential flaw lay in Dr. Swanson's failure to establish facts showing an actual injury,
rendering any compensatory amount insupportable. The jurors seem to have struggled
with that reality. The district court, however, was obligated to give legal effect to it by
granting Elysia Marcus' renewed motion for judgment as a matter of law following the
verdict. See K.S.A. 2021 Supp. 60-250(b)(3).
On appeal, Dr. Swanson raises a pair of procedural arguments we quickly
dispatch. First, he contends the district court engaged in a legally impermissible
about-face by denying Elysia Marcus' motion for summary judgment and then granting
her renewed motion to set aside the jury verdict. Dr. Swanson submits the evidence of
reputational harm he offered in opposition to summary judgment was functionally the
same as what he presented during the trial. Dr. Swanson cites no authority for the premise
that a district court's denial of summary judgment imposes a legal constraint on or bar to
granting a judgment as a matter of law during or following a jury trial. We are reasonably
confident there isn't a developed body of the law to that effect.
Dr. Swanson's argument does not track with accepted civil procedure precepts.
The statute governing motions for judgment as a matter of law does not contain a
directive that a district court may not grant such a motion if it had denied a motion for
summary judgment on the same grounds. See K.S.A. 2021 Supp. 60-250(a), (b). And the
denial of summary judgment, as an interlocutory ruling, does not itself have any
preclusive effect. See Budd v. Walker, 60 Kan. App. 2d 189, 197, 491 P.3d 1273 (2021).
As a broad proposition, district courts should act "with caution" in granting summary
judgment. See Manley v. Hallbauer, 308 Kan. 723, 726, 423 P.3d 480 (2018). Here, of
course, it may be that the district court was too deferential to Dr. Swanson in considering
summary judgment and, thus, too cautious in declining to rule against him then. We have
not perused the summary judgment submissions and offer no studied opinion on the
ruling. But a district court's circumspection in considering (and denying) summary
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judgment does not impose a genuine legal obstacle to its ruling on a properly lodged
motion for judgment as a matter of law.
Second, Dr. Swanson contends the district court's decision violated the protection
for jury trials in the Kansas Constitution Bill of Rights section 5. The provision
guarantees the right to jury trial "shall be inviolate" and has been construed to require
jury trials in those cases in which they were permitted at common law when the Kansas
Constitution was adopted. Kan. Const. Bill of Rights, § 5; see Hilburn v. Enerpipe Ltd.,
309 Kan. 1127, 442 P.3d 509 (2019). But Dr. Swanson frames the ostensible
constitutional defect as arising from the district court's failure to apply the proper
standard for assessing the evidence in ruling on Marcus' renewed motion for judgment as
a matter of law. The argument, then, merely puts a constitutional veneer on the assertion
the district court improperly weighed the evidence in granting the motion and setting
aside the verdict. The argument rises or falls on that assertion and not on an independent
ground under section 5. We have already explained why the district court properly
granted the motion for a judgment as a matter of law, and that disposes of Dr. Swanson's
ostensible constitutional claim.
E. Does the Jury's Finding of Traditional Malice Make a Difference?
Dr. Swanson contends the jury's factual finding that Elysia Marcus acted with
traditional malice—that is, with an intention or design to do him harm—legally supports
his defamation claim and, in turn, the verdict in his favor. But Gobin and the later
iterations of defamation law in Kansas do not back up that theory. As we have explained,
they require proof of actual reputational damage to make a submissible claim. And they
do not (contrary to Dr. Swanson's suggestion) offer a substitute for that proof based on
the publisher's malicious intent.
17
Basically, Dr. Swanson attempts to craft a rule that would permit a plaintiff to
prevail on a defamation claim in some circumstances without showing actual harm.
Under his approach, a plaintiff would have a judicial forum to prove the falsity of the
challenged statements when the publisher acted with an evil purpose and could recover
nominal actual damages and, perhaps, punitive damages. Such a formulation of
defamation law would benefit Dr. Swanson in this case. More broadly, the rule would
offer a path for name-clearing vindication in some cases and, in that way, would be
similar to libel per se. Rather than relying on the message communicated, as does libel
per se, Dr. Swanson's rule would turn on the publisher's pernicious intent in choosing to
communicate a defamation whatever its content. Despite Dr. Swanson's characterization
otherwise, he has asked us to change Kansas defamation law, albeit in an intriguing way.
Because common-law doctrine defines the scope of permissible defamation claims, we
cannot simply cast aside what the Kansas Supreme Court has declared the law to be. See
Majors v. Hillebrand, 51 Kan. App. 2d 625, 629-30, 349 P.3d 1283 (2015).
Dr. Swanson's point on appeal also implicitly suggests libel per se may serve a
significant remedial purpose in defamation law, especially in the age of the internet.
Anyone with a computer and access to the internet can reach an extraordinarily large
audience with stunning immediacy and a degree of permanency that outstrips other
means of publication. Those tools offer a soapbox and megaphone that reach millions—
not just passersby on the town square or recipients of leaflets handed out in front of the
state capitol or even readers of a full-page advertisement in the print edition of The New
York Times such as the one that prompted the Sullivan case. That ability to communicate
carries with it an extraordinary power to promote what may be frivolous or profound or
good or malevolent.
In laboratory conditions, the marketplace of ideas is supposed to be self-regulating
in the sense the intrinsically sound will drive out the unsound. But the marketplace
doesn't necessarily function that way in the real world. Defamation law, in turn, provides
18
a tailored remedy to persons besmirched in public forums, especially when simply
putting out a counter-narrative may be an ineffective antidote for particularly corrosive
falsehoods. That is, the marketplace sometimes works too slowly or not at all, and some
statements about some people are so obviously wrongful, such as false representations
demeaning them in their chosen occupations, that their very publication arguably should
permit vindication in a judicial forum. But the law should not be so onerous as to stifle
vigorous and even controversial debate on matters of public concern. Balancing those
competing and undeniably valuable objectives typically falls to the courts in fashioning
defamation law.
As this case illustrates, the internet has radically altered how the forces that drive
the marketplace of ideas operate. Given the epochal change, some courts have closely
examined whether and how libel per se may provide a needed check on those forces in
certain circumstances. They have chosen to retain libel per se, at least in cases involving
private parties and private matters. See, e.g., Bierman, 826 N.W.2d at 454; W.J.A. v.
D.A., 210 N.J. 229, 233, 43 A.3d 1148 (2012). For interested readers, the W.J.A. case
offers an illustrative example of the power of the internet to catapult defamatory
commentary far beyond earlier means of publication.
Conversely, in an internet era case, the New Mexico Supreme Court abolished
libel per se, finding the doctrine to be incompatible with "the very essence of the tort of
defamation" in remedying "actual injury to reputation." Smith v. Durden, 276 P.3d 943,
943, 948-49 (N.M. 2012). The statements at issue in Smith were not published on the
internet, and the court did not discuss any implications such publication might have for
defamation law generally or the doctrine of presumed damages particularly. The court did
cite Gobin as supporting authority. 276 P.3d at 950. Similarly, the Missouri Supreme
Court did away with libel per se in Nazeri v. Missouri Valley College, 860 S.W.2d 303,
313 (Mo. 1993), and apparently has not again considered the issue in the last 30 years.
19
The communications revolution in this century invites a reexamination of the
common-law principles governing defamation law shaped before the prevalence of social
media and interactive websites that can reach around the globe. See Herington v. City of
Wichita, 314 Kan. 447, 456-57, 500 P.3d 1168 (2021) (stare decisis is not inexorable
command and may yield when changed circumstances render a rule demonstrably
unsound). Reexamination, however, does not necessarily mean change. The ramifications
are both multifaceted and interlocking, given the permutations of defamation law turning
on the public or private status of the publisher and the publisher's target combined with
the subject matter of the publication. We do not mean to offer some veiled suggestion
Kansas defamation law should be revised and simply repeat our observations that things
are quite different now than they were when Gobin was decided.
Regardless of those observations, we are bound to apply the common law as the
Kansas Supreme Court has presently defined it. On that basis, we reject Dr. Swanson's
argument that the jury's finding that Marcus acted maliciously in the traditional tort sense
salvages the verdict in his favor without proof of any actual damage to his reputation.
F. A Rejoinder to the Dissent
Judge Warner dissents on this issue and submits Dr. Swanson offered evidence of
harm to his reputation. But her discussion does no more than elaborate on Dr. Swanson's
argument that it "stands to reason" Elysia Marcus' Yelp post must have diminished his
professional reputation. The argument trades on speculation and assumption—not facts.
The trial record and the dissent are bereft of colorable direct or circumstantial evidence
supporting a diminution of reputation. The dissent, however, does backhandedly make a
case for why presumed damages might reflect good policy in cases similar to this,
allowing individuals falsely demeaned in their trade or profession to clear their names in
district court proceedings without having to prove actual reputational harm. The dissent
really rests on a call for restoring libel per se in at least some circumstances.
20
The dissent first underscores that Elysia Marcus acted with the intent to harm Dr.
Swanson professionally and sought to do so with a post containing false and disparaging
information placed on a prominent internet site. Slip op. at 27. All of that is undisputed
on appeal. And it proves the elements of falsity and publication necessary for a libel
action. Nonetheless, gross falsity and wide publication, which we may assume here, do
not substitute for or diminish the required proof of actual damage to reputation as an
independent element of a colorable libel claim under Kansas law.
Dr. Swanson offered neither direct nor circumstantial evidence of harm to his
reputation flowing from the Yelp post. As we have already said, direct evidence would
have entailed testimony from persons seeing the post and thinking less of Dr. Swanson as
a result. Such evidence would be difficult to assemble, and Dr. Swanson didn't offer any
such witnesses at trial. His patient who did testify doesn't suffice, contrary to the dissent's
suggestion. The patient read the post and was alarmed because she thought it might cause
other people to unfairly think less of Dr. Swanson as a plastic surgeon. So she wrote a
counter-post and continued to refer potential patients to him. Her testimony establishes
only that she was of the opinion Elysia Marcus' post might harm Dr. Swanson's
reputation. That's not proof of an actual injury. As we have also said, the post plainly did
not adversely affect Dr. Swanson's reputation in that patient's eyes.
For all the trial record shows, visitors to the Yelp page may have routinely
dismissed the post as a hysterical rant unworthy of credence or the work of a gallivanting
internet troll randomly lobbing fake bombshells for his or her misguided amusement.
And those skeptical visitors likewise would have discounted Dr. Swanson's aggregate
rating of 3.5 stars as unrealistically low as a result of the unfounded negative review.
Ultimately, the notion that somebody somewhere must have been adversely disposed
toward Dr. Swanson because of the post cannot pass for evidence of actual reputational
harm. If that were the law in Kansas, widespread publication of a falsehood alone would
be sufficient without evidence of any diminution of reputation.
21
Reputational harm—like pretty much anything else—may be proved with
circumstantial evidence. The dissent misconstrues our discussion of the lack of
circumstantial evidence to be a requirement for proof of economic loss attributable to a
defamatory statement. We neither suggest nor apply such a rule. A loss of business (and
the resulting economic harm) could be circumstantial proof of a reputational injury if the
downturned came on the heels of the publication of a defamatory statement, particularly
if the statement attacked the subject's professional abilities. Here, Dr. Swanson offered no
evidence of the kind and apparently maintained a full practice notwithstanding Elysia
Marcus' post.
We also pointed out that Kansas cases recognize other forms of circumstantial
evidence, such as the physician who asserted he stopped receiving inquiries from
recruiters inviting him to consider positions heading departments at major hospitals and
was no longer asked to write or peer review articles for professional journals. Those lost
career opportunities would suggest a loss of professional standing or reputation without
necessarily entailing any direct economic harm. Here, again, Dr. Swanson offered no
comparable evidence. To the contrary, he testified he remained an in-demand presenter at
professional seminars and conferences. There would be other ways of circumstantially
showing a loss of reputation, but they didn't figure in this case. For example, a physician
being removed or voted out as an officer of a professional society likely would be
indicative of diminished reputation or standing. Even a pattern of social snubs closely
following publication of a defamatory statement might be enough.
Against that backdrop and lack of evidence, we pointed out the jury's award of
$15,000 appeared to be pulled out of the air. The seemingly random amount simply
illustrated the weakness of verdict precisely because Dr. Swanson marshalled no
evidence of an actual injury to his reputation. As the dissent says, adequate compensation
for proved reputational harm may be difficult to quantify in dollars and cents, and a jury's
award should be given the utmost respect. Slip op. at 32. But an award rendered in the
22
absence of evidence on a necessary element of the asserted legal claim cannot stand. Dr.
Swanson presented only guesses that the Yelp post must have harmed his reputation
rather than direct or circumstantial evidence that it actually did so. Accordingly, we have
done no more than our required duty in affirming the district court's ruling granting
Elysia Marcus' motion for judgment as a matter of law. See K.S.A. 2021 Supp. 60-
250(b)(3).
II. ELYSIA MARCUS' CROSS-APPEAL
On appeal, Elysia Marcus contends the amount the jury awarded Dr. Swanson as
damages for his breach of contract claim has no support in the evidence and, therefore,
must be set aside. As we have outlined, the jury entered a verdict of $2,500 in damages
for breach of the settlement agreement. Elysia Marcus has not otherwise challenged the
verdict and resulting judgment on appeal, so we confine ourselves to this issue.
Elysia Marcus points out Dr. Swanson paid her $2,500 in exchange for her (and
her husband's) release of any potential claims arising from the cosmetic laser treatment he
performed and an agreement not to discuss the matter in the media. The verdict
corresponds exactly to that amount. Elysia Marcus, in turn, argues the verdict actually
represents an award of restitution—returning the consideration paid—rather than an
award compensating for damages caused by any breach. Since Dr. Swanson did not
pursue a claim for rescission and restitution, Marcus submits the verdict lacks support in
the evidence as a damage award. Although Marcus' premise that restitution legally differs
from money damages as a remedy for a breach of contract is correct, it doesn't provide
the foundation for the result she wants, as we explain.
Before turning to that explanation, we address and dispose of a procedural
counter-argument Dr. Swanson has posed. He says Elysia Marcus has raised this point for
the first time on appeal, and we should not consider it for that reason. The appellate
23
record indicates Elysia Marcus did not present this ground for setting aside the jury
verdict to the district court. We typically do not consider arguments raised for the first
time on appeal. Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516(2011). Elysia Marcus responds that Kansas appellate courts do address claims of
insufficient evidence that have not been presented in the district court. We have
repeatedly so stated in criminal cases. See State v. Farmer, 285 Kan. 541, 545, 175 P.3d
221 (2008) (recognizing rule in context of criminal appeal); State v. Lamb, 57 Kan. App.
2d 633, 637-38, 458 P.3d 266 (2020). But it is hardly self-evident that the rule transfers to
civil actions. See Wood v. Groh, 269 Kan. 420, 433-34, 7 P.3d 1163 (2000) (declining to
consider sufficiency argument). But see Alford Ranches, LLC v. TGC Industries, Inc.,
No. 112,375, 2015 WL 9591354, at *8 (Kan. App. 2015) (unpublished opinion) (citing
Farmer, panel considers sufficiency of evidence supporting verdict for plaintiff on
negligence claim for first time on appeal). We assume without deciding that Elysia
Marcus has properly presented her argument; we do so merely to advance the appeal. See
Louisburg Building & Development Co. v. Albright, 45 Kan. App. 2d 618, 628-29, 252
P.3d 597 (2011) (questioning extent to which new claim may be considered on appeal in
civil action).
If one party materially breaches a contract, the other party has a choice of
remedies including rescission or money damages. Rescission effectively attempts to place
the parties in the position they would have occupied had the contract never been made
and, thus, typically would include the return of any consideration. See Springer v.
O'Brien, 164 Kan. 461, 463, 190 P.2d 341 (1948); Erdley v. Dixon, 127 Kan. 142, 144,
272 P. 154 (1928); see also Economy Swimming Pool Co. v. Freeling, 236 Ark. 888, 891,
370 S.W.2d 438 (1963); Unger v. Ganci, 161 N.Y.S.3d 546, 549, 200 A.D.3d 1604(2021); 77A C.J.S. Sales § 228 (rescission remedies for breach of contract). Conversely,
parties may sue for money damages compensating them for what they would have
received had other parties performed their obligations under the contract rather than
breaching. See State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 789, 107 P.3d
241219 (2005); Steel v. Eagle, 207 Kan. 146, 151, 483 P.2d 1063 (1971). The two forms of
remedy are inconsistent, and a party suing for breach can recover on one theory or the
other and typically must specifically elect a theory. Lehigh, Inc. v. Stevens, 205 Kan. 103,
106-07, 468 P.2d 177 (1970); Rosen v. Hartstein, No. 108,479, 2014 WL 278717, at *8
(Kan. App. 2014) (unpublished opinion); Gamesa Energy, 655 Pa. at 372-73.
Here, from the outset, Dr. Swanson asserted a claim for damages resulting from
Elysia Marcus' breach of the settlement agreement based on her Yelp post. The jurors
were never instructed on rescission and restitution. We, therefore, have no reason to treat
the verdict as one for rescission and restitution. The question remains, however, whether
the evidence supports a verdict of $2,500 in damages.
Contract damages must be proved with some degree of specificity and may not
rest on elongated extrapolation or outright speculation. Stovall, 278 Kan. at 789; Venable
v. Import Volkswagen, Inc., 214 Kan. 43, 50, 519 P.2d 667 (1974). As we have said, Dr.
Swanson testified that he and employees of his clinic spent time trying to mitigate the
effects of Elysia Marcus' Yelp post. Obviously, those efforts would have been
unnecessary if she refrained from posting. But Dr. Swanson did not quantify the time
with any particularity and attached no dollar value or financial loss to the diverted time.
Nor could Dr. Swanson identify any diminution in business and, thus, clinic revenues
attributable to the post. None of that evidence sufficiently established recoverable breach
of contract damages.
But the evidence does show that Dr. Swanson valued Elysia Marcus' performance
of the settlement—her refraining from suing him and not publicizing the matter—at
$2,500, since that's how much he paid to buy that measure of peace. We are unwilling to
say the jury erred in concluding the amount, which was certainly well-defined and
without speculation, represented a reasonable measure of money damages that would
25
make Dr. Swanson whole. In other words, the monetary recovery represents a dollar
value that substitutes for Elysia Marcus' actual performance of her contractual duties.
We recognize the dollar amount of the damages matches the consideration Dr.
Swanson paid for the performance, but we fail to see why that renders the verdict
inherently unreasonable or outside the evidence, especially on this record. Consistent
with PIK Civ. 4th 124.16, the jury was instructed that the verdict should "fairly and justly
compensate" Dr. Swanson for the damages he "sustained as a direct result of the breach
of contract." We have no reason to suspect, let alone conclude, the jury did something
other than follow the instructions in arriving at the $2,500 figure. See State v. Crawford,
300 Kan. 740, 757, 334 P.3d 311 (2014); Koser v. Atchison, Topeka, & Santa Fe Ry. Co.,
261 Kan. 46, 58, 928 P.2d 85 (1996). The amount is neither patently too large nor too
small and comes within some fair range that would give Dr. Swanson a monetary
equivalent of his expectation interest or the benefit of the bargain had the Marcuses fully
performed the settlement agreement. See Louisburg Building & Development, 45 Kan.
App. 2d at 638 ("The basic goal in awarding contract damages is to put the nonbreaching
party in the position the party would have been in had the breach never occurred, without
allowing that party a windfall[,]" thereby protecting an expectation interest.); Vanderpool
v. Higgs, 10 Kan. App. 2d 1, 3, 690 P.2d 391 (1984) (recognizing money damages as
fulfilling aggrieved party's expectation interest in benefit of contractual bargain).
We find Elysia Marcus has failed to establish any error calling for reversal of the
jury verdict on Dr. Swanson's breach of contract claim. The arguments raised on appeal
do not require us to consider what, if any, contractual relationship continues to bind the
Marcuses and Dr. Swanson based on the settlement agreement. Accordingly, we offer no
opinion on that score.
26
We affirm the district court in all respects on the issues the parties have presented
to us. The district court properly set aside the verdict for Dr. Swanson on his defamation
claim and properly retained the verdict for him on his breach of contract claim.
Judgment affirmed.
***
WARNER, J., concurring in part and dissenting in part: I join my colleagues'
analysis of the second issue in this case concerning Elysia Marcus' cross-appeal of the
breach-of-contract verdict. And I have no qualms with the majority's thorough exposition
of Kansas law relating to defamation claims. I diverge from the majority opinion,
however, because I believe there was sufficient evidence presented at the trial to allow
the defamation claim against Marcus to go to the jury.
Marcus left a Yelp post, including a one-star rating and a lengthy narrative, on Dr.
Swanson's practitioner page and the page for his medical practice. The post stated that
Dr. Swanson was a "monster" who was unlicensed and unprincipled and who had
committed medical malpractice. The jury found Marcus' post to be defamatory—the
information in the post was false and exposed Dr. Swanson to public contempt or ridicule
or deprived him of the benefits of public confidence and social acceptance. See Gobin v.
Globe Publishing Co., 232 Kan. 1, 6, 649 P.2d 1239 (1982). The jury also found the post
to be willful and malicious—Marcus intended to injure Dr. Swanson and did so without
any reasonable justification or excuse. See Turner v. Halliburton Co., 240 Kan. 1, 8, 722
P.2d 1106 (1986). Though Marcus cross-appealed, she has not challenged these findings.
We thus accept them as true.
The only question that remains is whether there was evidence that Marcus' Yelp
post injured Dr. Swanson's reputation. After being instructed on this element of a
27
defamation claim, the jury found Dr. Swanson had proven reputational injury and
awarded him $15,000 in damages. The district court and the majority of this panel
disagree with the jurors' assessment. But viewing the evidence in the light most favorable
to Dr. Swanson, as our standard of review requires, I trust the jury's finding as one
informed by the evidence, reasonable inferences, and common experience.
Dr. Swanson presented evidence at trial showing that Yelp is a review-aggregator
platform. Yelp users leave reviews of businesses, along with a corresponding star-rating,
with five stars being the highest rating and one star the lowest. The platform then
highlights certain reviews as "recommended" commentary and deemphasizes other
reviews that the platform does not recommend. Yelp also provides each business with a
representative star-rating based on the users' submissions.
For whatever reason, Yelp highlighted Marcus' defamatory post as a
"recommended" review. Neither Dr. Swanson nor Marcus provided any evidence about
what criteria Yelp uses to determine whether a post will be recommended or not. But
regardless of Yelp's internal criteria, Marcus testified that she posted her statement on
Yelp because she wanted other people to see it. And after Yelp highlighted her review as
recommended, Marcus refused to remove the post at Dr. Swanson's—and then his
lawyer's—request. A reasonable inference from this testimony is that Marcus created her
post, and then insisted that it remain, because she wanted to influence other people's
views about Dr. Swanson and his medical practice.
Dr. Swanson testified that he was concerned enough by the post that he and his
staff went through significant—though unsuccessful—efforts to remove it. This included
"hundreds" of hours of his and his staff's time.
One of Dr. Swanson's patients testified that when she saw the Yelp post, she felt
"concerned that it might have a negative effect on his practice" and talked with the doctor
28
so "he knew it was out there." Dr. Swanson had treated this patient in 2011 (before the
post), and she again sought treatment in 2018. She explained she "felt alarmed" when she
read the post because she did not believe it matched her experiences with Dr. Swanson or
correctly portrayed his quality of work. When Dr. Swanson told the patient he was trying
to get the post removed, she responded, "Good, because that seems like it could be really
damaging to your practice."
It is true, as the majority points out, that—despite Marcus' post—this patient
sought and received treatment from Dr. Swanson a second time. But her testimony
regarding reputational harm did not focus on her decision to receive treatment; it
concerned the post's impact on Dr. Swanson's overall Yelp presence. According to the
patient, the Yelp platform included 19 posts reviewing Dr. Swanson. Eighteen of those
posts were positive, with Marcus' statement being the only negative comment. Yet 15 of
the 19 posts were "not currently recommended" by Yelp and thus initially hidden from
the main page. This meant that Marcus' post was given a degree of prominence that
others were not. To "offset [the] negativity" of Marcus' post, the patient posted a positive
review of Dr. Swanson on Yelp. For unknown reasons, Yelp did not denote this post as a
"recommended" review, so it was hidden from the main page.
Dr. Swanson also provided evidence about the effect of Marcus' post on his Yelp
star-rating. He testified that before Marcus' post, his star-rating—essentially a snapshot of
his aggregate business ranking—was 5 stars. But after Marcus' 1-star post, his star-rating
dropped to 3.5 stars. Dr. Swanson testified that without Marcus' post, he would have a 5-
star rating.
Dr. Swanson testified that Yelp is an influential business-review platform, which
is why he took steps to have the post taken down. His patient also testified about her
reliance on review-aggregator platforms like Yelp in informing her decisions. She
29
testified that, given the popularity of Yelp generally and the prominence of Marcus' post
specifically, the post was "harmful" to his reputation.
I find this evidence sufficient to demonstrate reputational injury. See Wolfe
Electric, Inc. v. Duckworth, 293 Kan. 375, 407, 266 P.3d 516 (2011) (appellate court
reviewing sufficiency of the evidence must draw all reasonable inferences in favor of
verdict). Marcus created her Yelp post intending for people to see and be influenced by it.
She refused to remove the post when it was highlighted by the Yelp platform because she
knew more people would see her post and be influenced by it. Dr. Swanson's patient
reached out to him because she was concerned about the post's negative impact. This
combination of evidence, without more, may have danced on the razor's edge of
speculation. But Marcus' post also affected Dr. Swanson's reputation in a real, measurable
sense: It reduced Dr. Swanson's Yelp star-rating from 5 to 3.5 stars. Though people
might reasonably disagree about how all this evidence should be interpreted, it is
sufficient—in my view—to support the jury's finding that the post harmed Dr. Swanson's
reputation.
My colleagues disagree with this conclusion. But instead of analyzing the
evidence relating to Marcus' Yelp post and the inferences that arise from that evidence,
the majority opinion focuses on what kind of evidence was not presented to the jury:
• The majority notes the absence of any expert testimony measuring the impact of
the Yelp post or its effect on consumers. See slip op. at 12. But Yelp is "available
to anyone with Internet access," and no one has argued that evaluating the effect of
a defamatory post is a matter so outside the realm of consumer experience to
require expert testimony. See Hassell v. Bird, 5 Cal. 5th 522, 527, 234 Cal. Rptr.
3d 867, 420 P.3d 776 (2018). Accord K.S.A. 2021 Supp. 60-456(b) (expert
testimony is only admissible when it would assist the trier of fact to understand the
evidence). Jurors do not check their common sense at the courthouse door. In
30
2022, we should trust jurors, based on the evidence presented and the instructions
given, to know what review-aggregator platforms are and to evaluate which posts
are defamatory and harmful and which posts are not.
• The majority observes that Dr. Swanson did not provide evidence of more
traditional measures of reputational injury, such as a decline in business income,
patient load, or invitations to professional events. See slip op. at 11-13. But
analysis premised on this observation is rooted in faulty logic; though courts have
found that those measures demonstrate reputational injury in some cases, these
potential losses do not exhaust the universe of harms that may enable a defamation
claim to succeed.
In either instance, Marcus could have—and did—point out the absence of such evidence
to the jury. Yet the jury still found Dr. Swanson had shown his reputation was harmed.
Finally, the majority opinion notes the absence of evidence relating to the precise
monetary impact of Marcus' post on Dr. Swanson's practice. But in doing so, the majority
conflates reputational injury and economic loss. While Kansas law requires a person to
show actual injury to prevail on a defamation claim, courts have never limited
reputational injury to monetary losses—a reality the majority recognizes. See slip op. at
11, 14-15. In fact, Kansas law contemplates the opposite—that reputational injury can
(and often does) include noneconomic harm. In Moran v. State, 267 Kan. 583, 599, 985
P.2d 127 (1999), which the majority discusses at length, the Kansas Supreme Court
closed its decision by quoting the Supreme Court of the United States in Gertz v. Robert
Welch, Inc., 418 U.S. 323, 349-50, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974):
"'We need not define "actual injury," as trial courts have wide experience in
framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is
not limited to out-of-pocket loss. Indeed, the more customary types of actual harm
31
inflicted by defamatory falsehood include impairment of reputation and standing in the
community, personal humiliation, and mental anguish and suffering. Of course, juries
must be limited by appropriate instructions, and all awards must be supported by
competent evidence concerning the injury, although there need be no evidence which
assigns an actual dollar value to the injury.'"
See also Comment to PIK Civ. 4th 127.54 (quoting Gertz and noting that "'actual injury
is not limited to out-of-pocket loss'").
There is no question that noneconomic injuries can be difficult to quantify,
regardless of the type of claim or issues raised. But courts routinely entrust juries with
this task, whether it be in assessing pain and suffering in personal-injury cases,
reputational injury in defamation suits, or other noneconomic injuries such as emotional
distress. See, e.g., PIK Civ. 4th 171.02 (instructing juries on noneconomic loss). And
Marcus does not dispute the suitability of the jury's $15,000 damage award—a factual
assessment to which appellate courts show great deference. See Jackson v. City of Kansas
City, 263 Kan. 143, 154-55, 947 P.2d 31 (1997). She argues that Dr. Swanson's
defamation claim fails as a matter of law, asserting there is no evidence to support the
jury's finding that Marcus' Yelp post injured Dr. Swanson's reputation.
As the majority notes, this case presents the somewhat daunting challenge of
applying longstanding defamation principles to a situation not envisioned when those
principles were adopted and developed. With the advent of internet-review websites and
applications like Yelp, businesses have access to a more active and interactive market
presence. At the same time, individual reviewers on those platforms can influence others
in a way that would not have been possible a little more than a decade ago.
But the law is broad and adaptable. And just because the application of the law
may lead to unconventional results under a particular set of facts doesn't mean it's not
right, or that we should not entrust the case to the jury's evaluation and experience.
32
Because there was evidence to support the jury's finding that Marcus' Yelp post
injured Dr. Swanson's reputation, I would reinstate the verdict on Dr. Swanson's
defamation claim. Thus, I respectfully dissent.
33