Plastic not so fantastic: video shot in medical facility didn't defame or infringe facility's TM rights

Weirton Medical Center, Inc. v. Introublezone, Inc., 2018 WL 3458261, J-A06003-18 (Pa. Super. Ct. Jul. 18, 2018)

Dr. Craig Richard Oser was a plastic surgeon with staff privileges at plaintiff WMC from 2009 to 2014, making him an employee according to WMC.  Dr. Oser entered into an agreement with defendants to create a reality show, “Drastic Plastic,” “intended to highlight the most salacious elements of Dr. Oser’s practice at WMC. Among other things, the production dubbed Dr. Oser ‘The Vagician’ because of his specialization in labiaplasty and vaginal reconstruction.”  A “sizzle reel” was filmed at WMC’s Medical Office Building, and included statements by individuals who identified themselves as Dr. Oser’s patients and employees. The video labeled the patients “crazy” and included offensive references to Dr. Oser’s work in breast augmentation, allegedly portraying the residents of West Virginia as uneducated and willing to waste money on unnecessary plastic surgery. The video allegedly appeared to include images of actual patient medical files. WMC alleged that it did not consent or authorize the use of its facilities for this purpose. The video was posted on Vimeo, as well as on Dr. Oser’s website and Facebook page.

WMC sued for defamation, violation of the Lanham Act, and trespass.  The trial court watched the Video “three times” and found “nothing defamatory. Poor taste, yes; Defamation—No.” Nothing in nthe video identified WMC; plaques and pictures on the wall were illegible.  “That Dr. Oser is an employee of [WMC] is well known and [WMC] has advertised his employment by it. Nevertheless, this connection does not give rise to a cause of action for something he did, with others, that [WMC] doesn’t like but does not defame it.” The trial court dismissed all the claims.

WMC appealed, arguing that the trial court shouldn’t have watched the video when it wasn’t attached to the complaint. Under federal law, this is easy: the video is a document essential to understanding the claims.  The court of appeals here agreed (over a dissent): you can’t tell whether the video is capable of defamatory meaning without viewing the video.  Anyway, there was no prima facie case for defamation. Nothing in the video identified WMC.  WMC argued that the use of “WMC’s identifying characteristics, medical professionals and employees (most notably Dr. Oser), and facilities in the Video creates the reasonable likelihood that individuals will believe that WMC is associated with or otherwise endorses Drastic Plastic.” But WMC didn’t allege where in the video these uses were made, and the other material surrounding the proposed show had no mention of WMC.  Even if WMC had been identified in the video, WMC didn’t allege the defamatory character of the video as to WMC—defamation requires more than annoyance or embarrassment.

False association and/or false advertising under the Lanham Act: WMC didn’t allege a relevant trademark, only use of “names and likenesses of [WMC’s] medical professionals and employees (in particular, Dr. Oser), facilities, and confidential patient information.” There were no allegedly false statements about WMC’s medical services.

However, WMC did state a claim for trespass.  Dr. Oser’s apparent authority to authorize defendants to enter was a factual issue not suited for dismissal.  [Hmm… Too bad there’s no anti-SLAPP law here.] “WMC’s damages may be limited to two peppercorns, but it has pled a sufficient claim to get past the preliminary objection stage.”