LUCIANO SZTULMAN M.D. and LUCIANO SZTULMAN M.D., INC. d/b/a SKINSATIONAL LASER CENTER, Plaintiffs,
ALICE DONABEDIAN, TERESA COPPA, COMPREHENSIVE OB/GYN CARE, INC. d/b/a AESTHETIC LASER TREATMENT CENTER, and A. MICHAEL COPPA, Defendants.
Providence County Superior Court
For Plaintiff: Andrew J. Tine, Esq.
For Defendant: James S. D'Ambra, Esq.
This matter is before the Court on Plaintiff Luciano Sztulman M.D.'s (Dr. Sztulman) motion seeking summary judgment as to liability for Count I (libel and slander per se) of the Third Amended Complaint (the Complaint). Defendants, Alice Donabedian (Ms. Donabedian), Teresa Coppa (Mrs. Coppa), Comprehensive OB/GYN Care, Inc. d/b/a Aesthetic Laser Treatment Center (Aesthetic Laser), and A. Michael Coppa (Dr. Coppa) (collectively, Defendants) have filed an objection to the motion as well as a cross-motion for summary judgment as to Count I and Count II (interference with business relations) of Plaintiffs' Complaint pursuant to Super. R. Civ. P. 56.
Facts and Travel
Dr. Sztulman is a board-certified physician in Rhode Island practicing in the field of obstetrics and gynecology and is the president and owner of Plaintiff Luciano Sztulman M.D., Inc. d/b/a Skinsational Laser Center (Skinsational). In his Complaint, Dr. Sztulman alleges that Ms. Donabedian, as an employee of Aesthetic Laser and specifically at the direction of Mrs. Coppa, engaged in a series of defamatory statements against Skinsational on a "Yahoo! Local" webpage. Yahoo! Local is a service offered by Yahoo!, Inc. (Yahoo!) wherein businesses sign up with Yahoo! for placement of a listing in a searchable database. See Defs.' Ex. E, at ¶ 2.1 (Yahoo! Local Basic Listing Terms of Service). The listing affords users of the webpage the opportunity to write and submit their own written reviews and/or ratings of that particular business. As of February 16, 2011, the statements appeared on the webpage for view by the general public. See Ms. Donabedian Dep., Ex. 2, Oct. 13, 2011. On two separate occasions, Ms. Donabedian, allegedly under the alias of "Alicat, " posted alleged defamatory comments on the Yahoo! Local webpage of Skinsational.
On July 29, 2009, Ms. Donabedian gave Skinsational a "user rating" of "1 out of 5 stars" and wrote the following corresponding review:
"I was totally not impressed! I've heard on the radio a million times how they're 'voted the best laser center in town!' I don't know who voted but that's a lie! It was the worst experiance [sic] going in there and I DO NOT recommended [sic] it! They were so pushy and I didn't get that medical feel at all! I even searched the Dr. to see if it was a legitimate place and I found some interesting, disturbing things! I can't go somewhere and drop a lot of money when I know the Dr. running it isn't even credible! Its [sic] awful! And I don't care if they claim they have the best prices guarenteed [sic] - the quality of the service is what I care about. I would rather spend that extra 100… 200 dollars for a more professional/reliable service. Keep searching!" Id. at Ex. 3
A different Yahoo! Local user on November 27, 2009 responded to Ms. Donabedian's review explaining that he or she did not believe Ms. Donabedian's comments to be true and expressed generally positive comments about Dr. Sztulman. Ms. Donabedian responded to that post. Her comment, dated February 18, 2010, stated, as follows:
"You didn't check him out extensively enough - I found a bunch of websites that have articles about him being sued, pressed charges against. It's awful. Theres [sic] PDF files on his court cases. You have got to be kidding me if you think he is great. He's a liar. He told me if my sister if [sic] she buys a package of hair removal she'd get 1 year free guareenteed [sic] - well he took his word back and said 'it was a misunderstanding' and blamed it on the esthetician [sic]. Seriously - it's an absolute ridiculous company, all hes [sic] after is your money, I got that feeling as soon as she was told she couldn't have maintenance treatments for free, that he said[.]" Id.
Thereafter, Dr. Sztulman hired legal counsel to determine the identity of "Alicat" because, according to him, he believed the comments were damaging to his reputation and business. On January 27, 2010, a correspondence from Yahoo! (addressed to a California attorney) indicated it was in receipt of a subpoena, dated January 7, 2010, that was seeking information on one of its users. On February 4, 2011, Christian Lee, the Custodian of Records for Yahoo!, signed a declaration submitted to a California Superior Court that provided Ms. Donabedian's account information with Yahoo!. See Pls.' Opp'n. to Defs.' Cross-Mot. Summ. J., Ex. C.
At all relevant times, Ms. Donabedian was an employee of Aesthetic Laser. Dr. Coppa and Aesthetic Laser compete for business in Rhode Island with Dr. Sztulman and Skinsational. According to Dr. Sztulman's affidavit, neither Ms. Donabedian nor her sister was a patient or customer of his or at Skinsational at any time. (Dr. Sztulman Aff. ¶¶ 4-5, Sept. 5, 2012). Mrs. Coppa, in her deposition, stated that she directed Ms. Donabedian to post a review for Skinsational, not based on her own personal experiences but based on what other customers had told her. Following the 2009 posting, Dr. Sztulman commenced this action on December 2, 2009 ...