New Jersey Verdicts
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Patient who posted online she ‘almost died’ denied it was libel
Monmouth County Superior Court
Intentional Torts – Defamation; Business Law – Tortious Interference with a Business Relationship
Frank Scaccia, M.D. v. Marcy Piscopo,
March 27, 2018
Frank Scaccia (Male)
Anthony M. Juliano;
Brach Eichler LLC;
Bennett, Bricklin & Saltzburg, LLC;
State Farm Insurance Cos.
In April 2014, plaintiff Frank Scaccia, a plastic surgeon, discovered that a patient had posted comments that were critical about his work on the website Yelp, which reviews businesses. In September 2010, Scaccia had performed a rhinoplasty and deviated septum surgery on the patient, Marcy Piscopo, in Red Bank. Piscopo, in her subsequent website post, stated that “I almost died during surgery.” She also commented that the physician was overly concerned with payment for the procedures. Scaccia sued Piscopo, alleging defamation and tortious interference with a business relationship. Scaccia’s counsel argued that there was never any indication or testimony that Piscopo had feared for her life. She went home an hour after the surgery was complete. Piscopo had never commented that she almost died to anyone until posting on Yelp “I almost died” in April of 2014, some three-and-a-half years after the surgery. Scaccia testified that Piscopo was happy with the procedure and even allowed him to post before and after photos on his website. He said that he believed the allegedly defamatory statements were motivated by Piscopo being sued in 2012 by the anesthesia company involved in the procedure, for non-payment. Piscopo maintained that the post was not defamatory. According to Piscopo, following the procedures, she was informed that there was excessive bleeding and that an unexpected hole had developed in her nasal cavity that had to be filled with cartilage. Piscopo testified that this had worried her and caused her to temporarily fear for her life, prompting her to comment in the Yelp post that she almost died. Piscopo’s counsel cited Scaccia’s operative report that noted that she had experienced heavy bleeding and a hole in her nasal cavity that had to be remediated with cartilage. Scaccia’s counsel argued that there was never a hole in Piscopo’s nose. The operative report cites a roof deformity that was smoothed out with cartilage, a common occurrence in rhinoplasty.
Scaccia maintained that the defamatory post caused him to lose business, resulting in $500,000 in lost earnings. Scaccia presented bookkeeping records from 2013 onward, which showed a downtick in business in the years after the post. Piscopo’s counsel questioned Scaccia’s allegation of lost earnings, since bookkeeping records from prior to 2013 were not presented, which would have given a more comprehensive picture as to the physician’s earnings in the years leading up to the Yelp post.
The jury found that Piscopo’s website post was not substantially false and therefore she was not liable. The jury also found that there was no tortious interference with a business relationship.
Mara E. Zazzali-Hogan
This report is based on information that was provided by plaintiff’s and defense counsel.