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Russo v. Nagel

March 12, 2003

JOSEPH DELLO RUSSO, M.D., JOSEPH DELLO RUSSO, M.D., P.A., T/A NEW JERSEY EYE CENTER, MEDICAL CARE, P.L.L.C., D/B/A DELLO RUSSO LASER VISION, A FOREIGN CORPORATION AND STEPHANIE DELLO RUSSO, PLAINTIFFS-APPELLANTS,
v.
BRUCE H. NAGEL, ESQ., JAY J. RICE, ESQ., DAVID A. MAZIE, ESQ., JOANNE M. BONACCI, ESQ., ROBERT D. SOLOMON, ESQ., ADAM SLATER, ESQ., INDIVIDUALLY, AND NAGEL, RICE, DREIFUSS & MAZIE, L.L.P., DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Docket Number BER-L- 9831-01.

Before Judges Petrella, Braithwaite and Lintner.

The opinion of the court was delivered by: Petrella, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 3, 2003

Plaintiffs Joseph Dello Russo, M.D., Joseph Dello Russo, M.D., P.A., t/a New Jersey Eye Care Center, Medical Care, P.L.L.C., d/b/a Dello Russo Laser Vision, and Stephanie Dello Russo, filed an appeal of a February 2, 2002 order granting summary judgment to defendants and dismissing their complaint. Their motion for reconsideration was denied. The claims brought by plaintiffs against defendants, the law firm of Nagel, Rice, Dreifuss & Mazie, L.L.P., and its principals, alleged that the defendants orchestrated a campaign to destroy the good name and medical practice of Dr. Dello Russo. The complaint alleged defamation, extortion, attempted harmful actions, and tortious interference with plaintiffs' contract and business opportunity. Dr. Dello Russo's wife, Stephanie Dello Russo, also alleged negligent infliction of emotional distress. A per quod claim was then asserted on behalf of Dr. Dello Russo based on the asserted emotional distress suffered by his wife.

On appeal plaintiffs argue that the motion judge erred: (1) in dismissing their complaint because a cause of action upon which relief may be granted was pled; (2) when he found that defendants' defamatory statements were not actionable and were subject to privilege because the advertisement placed by the respondents was defamatory; (3) in determining, as a matter of law, that defendants' actions did not constitute an actionable claim for tortious interference with plaintiffs' contract and business opportunity; (4) in dismissing Stephanie Dello Russo's complaint based upon negligent infliction of emotional distress; and (5) in dismissing Joseph Dello Russo's per quod claim which relied on his wife's claims.

Between March and November 2001, the law firm of Nagal Rice Dreifuss & Mazie, filed four separate civil lawsuits against Dr. Dello Russo. The first two cases, DeAngelis v. New Jersey Eye Center, et al., and Cucopulis v. New Jersey Eye Center, et al., alleged: (1) negligent medical care in connection with laser eye surgery, and (2) fraud and battery arising from post-operative care provided by William T, Kellogg when his medical license was revoked. The third case, Dell'ermo v. NJ Eye Center, et al., asserted medical malpractice arising out of the performance of laser surgery on a man who was an inappropriate candidate. The fourth case was Macedo v. NJ Eye Center, et al. which sought class action status on behalf of all persons claiming improper treatment by Kellogg, who was asserted to be an unlicenced doctor who was allegedly held out by Dr. Dello Russo to be a physician.

According to the record of this appeal, at a meeting at the Nagel firm, Dr. Dello Russo's attorney offered defendants $2 million, provided, among other things, that the firm would agree not to sue Dr. Dello Russo in the future. That offer was rejected. Plaintiffs contend that Bruce Nagel demanded $3 million from Dr. Dello Russo personally to make matters go away. Dr. Dello Russo asserted that Nagel allegedly threatened that if he did not comply, Nagel would go public, contact the media, call a press conference and also place an ad in the newspapers. Dr. Dello Russo refused his demands.

On August 1, 2001, the defendant law firm ran a newspaper advertisement for the purposes of soliciting potential claimants who might have complaints against Dr. Dello Russo. The advertisement asked whether readers were "treated by Dr. Dello Russo or Dr. William Kellogg at the NJ Eye Center," and whether they "suffered a bad result from eye surgery," and if so, defendants offered a "free consultation to discuss your legal rights."

After this newspaper advertisement was published, Dr. Dello Russo sought injunctive relief against the law firm and sought to prevent it from interviewing potential witnesses in connection with the four pending lawsuits instituted on behalf of the firm's clients against Dr. Dello Russo and his business. This application was denied and the action was dismissed for failure to state a legally cognizable claim. Dr. Dello Russo contends that the result of this publication had an immediate and continuing impact on his medical practice and his reputation. He asserts that many of his patients canceled their surgeries and his office suffered a significant drop-off in new patients, and that defendants contacted several of his patients seeking information regarding their treatment.

I.

A motion to dismiss for failure to state a claim under R. 4:6-2(e) is granted with great caution. Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 771-772 (1989); Leon v. Rite Aid Corp., 340 N.J. Super. 462, 466 (App. Div. 2001). The test is whether a cause of action is suggested by the facts alleged in the complaint.

The first, second, third, and fifth counts of the verified complaint were predicated on claims that plaintiffs were defamed. Whether a statement is defamatory is a matter of law to be determined by the court. Higgins v. Pascack Valley Hosp., 158 N.J. 404, 426 (1999). To establish a prima facie case of defamation, whether denominated libel or slander, a plaintiff must show that defendant communicated a false statement about plaintiff to a third person that harms plaintiff's reputation in the eyes of the community or deters third persons from associating with the plaintiff. Lynch v. N.J. Educ. Ass'n, 161 N.J. 152, 164-165 (1999). Plaintiffs' burden of proof for each of the elements of defamation is by clear and convincing evidence. Rocci v. Ecole Secondaire Macdonald-Carter, 165 N.J. 149, 159 (2000); Lynch, supra (161 N.J. at 165). When determining if a statement is defamatory on its face "a court must scrutinize the language 'according to the fair and natural meaning which will be given it by reasonable persons of ordinary intelligence.'" Ibid. (quoting Romaine v. Kallinger, 109 N.J. 282, 290 (1988)). The threshold issue is whether the language used is reasonably susceptible of a defamatory meaning. Decker v. Princeton Packet, 116 N.J. 418, 424 (1989); Romaine, supra (109 N.J. at 290-291); Kotlikoff v. The Cmty. News, 89 N.J. 62, 67 (1982). If the statement is susceptible of only a non-defamatory meaning, it cannot be considered defamatory, and the complaint must be dismissed. Romaine, supra (109 N.J. at 290). However, where the statement is capable of more than one meaning, one of which is defamatory and another not, the question of whether its content is defamatory must be resolved by the fact finder. Id. at 290-291.

In deciding whether a statement is defamatory a court examines its content, verifiability, and context. Id. at 167; Ward v. Zelikovsky, 136 N.J. 516, 529 (1994). A statement's content is judged by its objective meaning to a reasonable person of ordinary intelligence. Lynch, supra (161 N.J. at 167-168). Secondly, only verifiable statements can be defamatory. Ibid.; Ward, supra (136 N.J. at 530-531). Finally, a statement's meaning can be affected by its context. Lynch, supra (161 N.J. at 168). The focus is on the effect of the alleged defamatory statement on third persons, that is, whether they viewed the plaintiff in a lesser light as a result of ...


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