On Friday, June 18, 2021, the Tennessee Court of Appeals published an opinion in a case entitled “Nandigam Neurology, PLC v. Beavers.”
This is an important case for all businesses and professional practices, including medical practices, to know about as it involves what can happen when a customer or a patient leaves a negative online review and the business or practice then sues the customer or patient for defamation.
The facts of the case were essentially as follows: The Defendant, Kelly Beavers, and her father visited the office of Dr. Kaveer Nandigam, a neurologist, in early November 2019. There was a disagreement over whether the Defendant could make a video recording of the appointment with her phone. After the appointment, the Defendant posted an online Yelp! review regarding Dr. Nandigam and his practice, Nandigam Neurology, PLC. The review was negative, stating in its entirety:
This “Dr’s” behavior today was totally unprofessional and unethical to put it mildly. I will be reporting him to the State of TN Medical Review Board and be filing a formal complaint. How this guy is in business is beyond me. Since when did they start allowing Doctors, to throw a complete temper tantrum in front of Patients and slam things when they get upset? He does not belong in the medical field at all.
Nandigam Neurology, PLC sued the Defendant in the Circuit Court of Wilson County, Tennessee, for defamation, libel, false light, and conspiracy, alleging that the Yelp! review contained “false, disappearing, and misleading statements.”
The Defendant filed a motion to dismiss the lawsuit pursuant to the Tennessee Public Participation Act (the “TPPA”), specifically T.C.A. Section 20-17-104(a). The Defendant claimed that the lawsuit filed by Nandigam Neurology, PLC was a strategic lawsuit against public participation, essentially meaning that the Defendant claimed that the lawsuit was intended to deter the Defendant’s lawful exercise of her right to free speech and that the lawsuit should be dismissed.
Before the circuit court could rule on the Defendant’s motion to dismiss, Nandigam Neurology, PLC filed a notice of voluntary dismissal of its lawsuit in the circuit court. A short time later, Nandigam Neurology, PLC and Dr. Nandigam filed a new lawsuit in the General Sessions Court of Wilson County, Tennessee, also alleging defamation as to both Plaintiffs and false light invasion of privacy as to Dr. Nandigam.
The Defendant again filed a petition to dismiss the Plaintiffs’ case, alleging that the Plaintiffs’ lawsuit failed to state a claim for which relief could be granted, that the statement by the Defendant was not defamatory because it expressed only opinions and rhetorical hyperbole, that the Defendant’s Yelp! review was a statement made in connection with a matter of public concern, and that the Plaintiffs’ lawsuit was one filed in response to the Defendant’s exercise of the right to free speech. In addition to requesting that the Plaintiffs’ case be dismissed, the Defendant asked that she be awarded posts and attorney’s fees, and that the court sanction the Plaintiffs pursuant to T.C.A. Section 20-17-107. In addition to her petition to dismiss, the Defendant attached an affidavit from the Defendant that indicated that her online review was baed on her personal observations and that she had no reason to believe any of the statements in the review were false.
Six days after the court held a hearing on the Defendant’s TPPA petition and only one day before the court was scheduled to rule on the Defendant’s TPPA petition, the Plaintiffs filed a pleading titled “Plaintiff’s Supplemental Answer to Defendant’s ยง 20-17-104(a) Motion to Dismiss.” In connection with that filing, the Plaintiffs also included an affidavit from Dr. Nandigam.
At the hearing the following day to hear the court’s ruling on the Defendant’s TPPA petition, the Defendant argued that the Plaintiffs’ supplemental answer was untimely pursuant to T.C.A. Section 20-17-104(c), which provides that a response to a TPPA petition to dismiss “may be served and filed by the opposing party no less than five (5) days before the hearing or, in the court’s discretion, at any earlier time that the court deems proper.” Since the Plaintiffs’ supplemental response and affidavit were not filed until nearly a week after the hearing on the Defendant’s TPPA petition and just one day before the scheduled ruling from the court, the Defendant argued that the Plaintiffs’ response should not be considered, and, thus, that the Plaintiffs had not offered countervailing proof in response to the Defendant’s TPPA petition.
The court ruled that the Plaintiffs failed to state a claim for defamation because they did not plead the substance of the statement at issue, the TPPA applies in general sessions court, and that the Defendant’s TPPA petition for dismissal was granted due to the “lack of facts” offered by the Plaintiffs.
The Plaintiffs appealed to the Circuit Court of Wilson County, Tennessee. The circuit court entered an order transferring the Plaintiffs’ notice of appeal to the Court of Appeals, finding that pursuant to T.C.A. Section 20-17-106, the circuit court lacked subject matter jurisdiction.
After reviewing the facts and the law, the Tennessee Court of Appeals that when a case is dismissed based upon a TPPA petition, the exclusive forum for an appeal of such dismissal is the Court of Appeals. So, if a case in a Tennessee general sessions court is dismissed based on a TPPA petition, the appeal is not to the circuit court, but rather immediately and exclusively to the Court of Appeals.
The Court of Appeals noted that under the TPPA, the party petitioning the court for dismissal has the burden of making a prima facie case that a legal action against the petitioning party is based on, relates to, or is in response to that party’s exercise of the right to free speech, right to petition, or right of association. The exercise of the right of free speech includes communications made in connection with a matter of public concern, and matters of public concern include issues related to health or safety or a good, product, or service in the marketplace. The petitioner may rely on sworn affidavits or other admissible evidence in reaching this burden.
If the petitioner satisfies his or her burden, the burden shifts to the responding party who must establish a prima facie case for each essential element of the claim in the legal action. In the event the responding party does not meet this burden, the court shall dismiss the legal action. A party’s response to a TPPA petition, including any opposing affidavits, may be served and filed by the opposing party no less than five (5) days before the hearing or, in the court’s discretion, at any earlier time that the court deems proper.