Colorado Appellate Court Issues Precedential Decision Upholding Free Speech Rights of Consumer Reviewers
The Colorado Court of Appeals on December 22, 2022, issued an important decision upholding the free speech rights of consumer reviewers in Colorado who honestly post about their experiences with licensed professionals. Kathryn Sullivan, a dental patient who received root canals from Dr. Andrew Stubbs of Creekside Endodontics in Denver, complained in one-star reviews she posted to Yelp and Google Reviews that her root canals were overfilled, causing pain and the need for further treatment. She also told readers of the reviews that Dr. Stubbs, who refused to re-treat her teeth and told her she should see a neurologist, ignored her pain, and “gaslighted” her. Dr. Stubbs and his endodontics practice sued Sullivan for defamation and trade disparagement, seeking compensatory and punitive damages.
Ms. Sullivan filed a special motion to dismiss under Colorado’s new “anti-SLAPP” statute, enacted in 2019, which provides a mechanism for early dismissal of meritless lawsuits arising from speech on issues of public interest. She submitted evidence showing she honestly believed what she said about the root canals and that her statements were based largely on the views of three dental professionals with whom she consulted after having the root canal treatment. She argued no jury could find she posted her reviews with actual malice (knowledge that her statements were false or recklessly disregarding whether they were true or false), and that portions of her reviews were opinions that cannot form the basis for a defamation claim. The district court, located in Saguache County, Colorado, denied Sullivan’s anti-SLAPP motion.
In Creekside Endodontics v. Sullivan, No. 21CA1615, the Colorado Court of Appeals reversed in a decision that is only the third appellate decision under Colorado’s anti-SLAPP statute, which was enacted in 2019. The court held that given the extensive evidence submitted by Ms. Sullivan, including two dentists’ declarations and the medical records of a third, no jury could reasonably conclude she posted her reviews with actual malice. The court also agreed that Ms. Sullivan’s characterizations of Dr. Stubbs’ responses to her complaints were her constitutionally protected opinions. The court assumed, without deciding, that the anti-SLAPP statute applied in the first place because the plaintiffs did not argue on appeal that the reviews were not about “a matter of public interest.”
Ashley Kissinger of Ballard Spahr’s Colorado offices, and Lauren Russell of the firm’s Washington, D.C. office, represent Ms. Sullivan.
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