090: Let Your Fingers Do the Walking — to Court

Stella Case No. 090, Originally Published: 27 April 2005

Michelle Knepper of Vancouver, Wash., decided she needed liposuction to remove excess body fat. So, she says, she chose a doctor out of the phonebook to perform the surgery.

Out of all the doctors listed she picked Timothy Brown, a Portland, Ore., dermatologist who noted in a Yellow Pages ad in the plastic surgery section that he performed liposuctions. The ad noted he was “Board Certified”. He was: in dermatology and in clinical and anatomic pathology; he was not, however, board-certified in plastic surgery. But then, quite a few doctors listed in that section weren’t board-certified either.

In any case, Brown did liposuction procedures on Knepper in 1997 and again in 1998. He did a lousy job, she says, leaving her “disfigured.” The Oregon Board of Medical examiners investigated Brown’s liposuction practice and found “repeated and serious violations” of medical standards, but the findings were not serious enough to warrant a revocation of his medical license. It did, however, put him on probation for five years and limit his practice to dermatology. Brown admitted negligence in his treatment of Knepper and paid a settlement to her and her husband, Jeff.

A great end to the story then, right? The doctor was censured, his victim was compensated, and no future patients will be victimized. The system worked! But no: this is the liposuction case that continues to want to suck; the Kneppers want another pound of flesh.

Not satisfied with winning their case against the doctor, Knepper and her husband, aided by attorney Gregory Smith, sued Dex Media Inc., the publisher of the phone book. The suit alleged the ad was “fraudulent” and that the Dex ad salesman who accepted Brown’s ad knew that the “Board Certified” tag only applied to dermatology, not plastic surgery, and thus Dex was responsible for her making a poor choice of doctor.

In its defense, Dex says there was no intent to mislead, and no evidence that there was such intent. Further, there was no evidence the couple “relied” on the ad, and no evidence of any fraud. The company said it did not know whether Brown was board-certified in plastic surgery or not, but that it’s obvious when visiting Brown’s office that he bills himself as a dermatologist, not as a plastic surgeon.

“Every year, Dex spends millions to come into our homes on radio and television saying, ‘Dex knows.’ Then they come to court and say, ‘We don’t know.’,” complains attorney Smith. “Board-certified is a big deal for consumers,” he says. “It’s OK if your pizza guy is not the best pizza guy, but your doctor…?”

If board certification was such a “big deal” for the Kneppers, then why didn’t they look at the certificates Brown had on his wall to see exactly what his education and board memberships were? Did they even ask? Is it reasonable or prudent to base their entire decision on who to use for invasive surgery on the Yellow Pages? And if he did such a terrible job in 1997, why did they go back to him again in 1998?

But that’s the case. It’s time for you, as a juror in the Court of Public Opinion, to rule on its merits. Then continue on to see if your ruling matches the civil court’s.

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The case was thrown out in 2000 — but reinstated in 2002. A trial in 2004 ended in a hung jury. A second trial was held in February 2005, and the jury was this time able to reach a verdict: it found for the Kneppers and awarded them $1.581 million, which was reduced by $175,000 — the amount of the prior settlement. Included in the award was $375,000 for Michelle’s husband, Jeff, for “loss of spousal services and companionship.”

Dex says it will appeal. “We publish 260 directories in 14 states,” a spokesman said, adding the company can’t “validate every claim” made in every ad.

Total time from Yellow Pages to the jury decision: eight years. (And counting, if Dex really appeals….)

Source

• “Directory Liable for Ad Fraud”, Portland Oregonian, 25 February 2005.

Case Status

Dex did, in fact, appeal to the Court of Appeals of Oregon. In its decision, several additional facts came out that were not in the newspaper article the case was based on.

First, not only did Mrs. Knepper not solely rely on the Yellow Pages ad, she visited with Dr. Brown first at a “Women’s Show” and spoke with Brown’s office manager, who told her Brown was a board-certified plastic surgeon. “Two months later, when Knepper went to Brown’s office, she was told by Dr. Brown himself that he was a board-certified plastic surgeon.” So the “detrimental reliance” is upon …the Yellow Pages’?!

But there was evidence on Knepper’s side, too. In such an appeal, the Appeals Court is required to view evidence “in the light most favorable to Knepper.” From the Appeal:

Steve Mueller, a Dex advertising consultant, helped Brown’s assistant, Sara Newman, develop a “mock up” of the ‘board certified’ advertisement. Newman told Mueller that Brown was interested in attracting more cosmetic patients, particularly liposuction candidates. Mueller suggested that the “plastic and reconstructive surgery” section was the best place to advertise, and that the advertisement should say that Brown was “board certified.” Newman, however, expressed concern to Mueller that the “board certified” statement would be misleading under the “plastic and reconstructive surgery” heading because Brown was “not a plastic surgeon, board certified or otherwise[.]” Mueller, however, “pushed toward just saying ‘board certified’ in the ad because patients were expecting a plastic surgeon to do these techniques.” Ultimately, the Yellow Pages advertisement represented that Brown was “board certified,” without further qualification.

Also, that Brown’s assistant told Dex’s representative that Brown was not only not a plastic surgeon, but then, obviously, not a Board Certified plastic surgeon. Thus, “That alone is persuasive evidence that certain risks of misrepresenting Brown’s qualifications were not only foreseeable; they were foreseen.”

What, really, is the difference?

Hale, a board-certified plastic surgeon, testified regarding the significance of board certification to the injuries suffered by Knepper. He explained that dermatology is not a surgical specialty and does not involve surgical training. A “board-certified” plastic surgeon would have received four years of medical school education, a first year of residency, four or five years of general surgery residency, and then two more years of plastic surgery training. After that, a surgeon must take written and oral examinations and receive a recommendation from the American Board of Plastic Surgery before becoming “board certified” in that specialty. Hale testified that, “generally if you add the two boards written and orals, it is probably [a] 25 to 30 percent fail rate” for getting board certified as a plastic surgeon. In addition, Hale testified that he had never seen a board-certified plastic surgeon commit the type of malpractice that occurred in this case.

So yes, the difference is significant and important.

The Appeals Court affirmed the lower court’s decision — it upheld its verdict.

So Dex appealed the Appeals Court verdict to the Oregon Supreme Court — a long shot. It too tossed the case.

With the additional evidence that Dex indeed knew of the falsity of the advertisement before it was published, I, as “the judge” of the True Stella Awards, reverse the Stella Award in this case.

The case was #5 in the 2005 Stella Awards.

Update Sources:

• “M.M. KNEPPER and J.J. Knepper, Plaintiffs-Respondents, v. Timothy BROWN, M.D.; Timothy Brown, M.D. PC.; American Academy of Cosmetic Surgery; and American Society of Lipo-Suction Surgery, Inc., Defendants, Dex Media, Inc., fka U.S. West Dex, Inc., Defendant-Appellant.”, Court of Appeals of Oregon, decided 5 July 2007.
• “M.M. KNEPPER and J.J. Knepper, Respondents on Review, v. Timothy BROWN, M.D.;  Timothy Brown, M.D. P.C.;  American Academy of Cosmetic Surgery;  and American Society of Lipo-Suction Surgery, Inc., Defendants, Dex Media, Inc., fka U.S. West Dex, Inc., Petitioner on Review.”, Supreme Court of Oregon, decided 9 October 2008.

My 2021 Thoughts on the Case

Just in case you skipped over the update information: again, I have reversed the Stella Award in this case for the reasons cited above.

Something particularly good came out of the case: Dex amended its ad policy to require doctors to state in which specific specialties they claimed Board Certification. No doubt other director publishers took notice, even though by now few Americans use phonebooks anymore.

One wonders how much the company spent fighting this case.

Dr. Timothy Mather Brown’s practice apparently survived the lawsuit: he kept his license until it lapsed (after retirement?) on 1 January 2018. He testified to the Oregon Board of Medical Examiners that he ceased doing liposuction treatments in early May, 1999. The Board then prohibited him from doing plastic surgery under threat of losing his medical license.

It was noted the court fight took eight years, “And counting, if Dex really appeals….” Those appeals added 3-1/2+ more years. Litigation is a long, drawn-out affair.

Letters

First, a couple of letters on the case of the fraternity brother who sued his frat because he chose to dive into a “rinse off” pool that he could see had only about a foot of water in it.

Scott in Virginia: “This is why my insurance premiums and medical costs are so high. Nobody ever wants to take the blame for being STUPID! And the rest of us with a small amount of common sense are left to pay the bills. This country’s legal system SUCKS!”

Paul, an economics professor in California: “Although the lawsuit against the ATO frat house is terribly unfair, your focus on that masks the more important lesson of this story: the U.S. lacks a decent system for providing medical and support services to the sick and injured. In America, a person who is badly injured in a stupid accident often finds that the ONLY way to gather funds to pay for medical and living expenses is to blame someone with deep pockets for his plight. This is not a case of good guys and bad guys. It is a case of our stupid system working as it does to provide lifelong care for a teenager who was unlucky enough not survive the stupid escapades of his teenage years. When I think about my own teenage years, I shudder and think, ‘There, but for fortune, go I.’”

And I can’t disagree with him.

With that case I also published a letter from a lawyer in Scotland. The mail in response was pretty evenly divided. The first sort:

Liz in Wisconsin: “As a 17-year-old teenage girl I am appalled, outraged and insulted!! Most of my peers are good people and enjoy doing things for others. What kind of teens had this guy or girl been in contact with?! Of course, not everyone enjoys helping others, and many adolescents make, in my opinion, unintelligible decisions but in my experience, most are good.”

Dennis in California: “I like and admire the way you can respond to jerks like the Scottish lawyer with his childish, cheap and cynical attitude toward Americans.”

The other take on it was that the letter was an example of dry Brit humour, and should not be taken literally. However, the letter was first passed along by the writer’s Scottish colleague (and TSA reader), and he seemed to take it seriously.

Other readers in the U.K. also didn’t think it was a joke. For example:

David in the U.K.: “The reaction of the Scottish lawyer to the cookie case is typical of the levels of derision, indeed hatred, that is felt by many toward Americans in this country (the UK). There are indeed many parts of the world where American, as well as European, values are enforced at gunpoint; the UK however, is not one of them. Every negative trend in British society, trends such as fast food addiction and compensation culture, is ultimately our own responsibility. Such things are not imposed on us by an evil corporate America, they are ‘allowed’ to happen by our own inaction against greedy, ill-informed and short sighted individuals within our own society. It has always been the way of the world — blame a scapegoat instead of taking the slightest responsibility for the mess that unfolds around you. Without people like you, only ignorance prevails and things will never get better.”

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