Antitrust Law Daily Wrap Up, ADVERTISING—3rd Cir.: False light claims barred by res judicata, (Mar 20, 2014)

By Jody Coultas, J.D.

A doctor’s second lawsuit against the American Association of Orthopaedic Surgeons and American Academy of Orthopaedic Surgeons (AAOS), claiming that AAOS had tortiously placed him in a false light, was barred by the doctrine of res judicata, the U.S. Court of Appeals in Philadelphia has ruled (Graboff v. American Assn. of Orthopaedic Surgeons, March 19, 2014, Shwartz, P.).

AAOS suspended the doctor’s membership and published an article describing the suspension in the September 2009 issue of AAOS Now, a periodical freely available on the Internet through AAOS’s website. The doctor alleged that AAOS had tortiously placed him in a false light, and a jury found in the doctor’s favor. However, AAOS refused to remove the article from its website.

The doctor then filed the current complaint alleging that the article continued to place him in a false light. AAOS moved to dismiss the complaint based on res judicata and that the request for an order directing AAOS to remove the article from its website was precluded under Pennsylvania law. The court agreed. The doctor appealed the dismissal.

Because the claims were based on Pennsylvania law, that state’s preclusion rules applied. Under Pennsylvania law, a final judgment on the merits precludes any future suit between the parties or their privies on the same cause of action, even if different or additional relief or grounds for relief are sought. For res judicata to apply, Pennsylvania courts require the two actions to share the following characteristics: “(1) the thing sued upon or for; (2) the cause of action; (3) the persons and parties to the action; and (4) the capacity of the parties to sue or be sued.”

The second complaint was barred by the doctrine of res judicata, according to the court. Both claims were based on the publication of the article. The single, continuous publication could not give rise to separate claims. The original printing of defamatory material gives rise to a cause of action, not the circulation of the material. The continued availability of the article online did not constitute republication. Because the claims were based on the same facts, involved the same parties, and final judgment was entered in the first suit, the second suit was barred by res judicata.

The case is No. 13-2549.

Attorneys: Clifford E. Haines (Haines & Associates) for Steven R. Graboff, M.D. Christopher M. Guth (Blank Rome) for American Assn. of Orthopaedic Surgeons and American Academy of Orthopaedic Surgeons.

Companies: American Assn. of Orthopaedic Surgeons; American Academy of Orthopaedic Surgeons

Cases: Advertising DelawareNews NewJerseyNews PennsylvaniaNews