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A prominent laser eye surgeon has no defamation claim against a medical-malpractice lawyer for advertising for possibly disgruntled patients, a New Jersey appeals court ruled on March 12. The newspaper ad in question was not defamatory because it did not say that the doctor “is incompetent or that he has a history of bad results,” said the Appellate Division in Dello Russo v. Nagel, A-3307. The ad, in The Record of Hackensack on Aug. 1, 2001, read: “Attention Laser Eye Surgery Patients. Have You Been Treated by Dr. Joseph Dello Russo or Dr. William Kellogg at the New Jersey Eye Center? Have You Suffered a Bad Result from Laser Eye Surgery? Please Call Us For a Free Consultation to Discuss Your Legal Rights.” The ad placer — Bruce Nagel of Nagel, Rice, Dreifuss & Mazie in Livingston, N.J. — says he has nine malpractice cases against Dello Russo, who operates Laser Vision Centers in Bergenfield, N.J., Manhattan and Brooklyn. In his suit, Della Russo blamed Nagel’s ad for canceled surgeries and a drop in new patients, contending it sent a message that he was such a bad surgeon that his patients should sue him. He also said the ad should have mentioned the many successful surgeries he has done. Bergen County Superior Court Judge Richard Donahue dismissed the suit on summary judgment, and the Appellate Division agreed. Use of the term “bad” was “not significant because the defendants were trying to limit the patients who contacted them to those who experienced unfavorable results,” wrote Judge James Petrella, joined by Dennis Braithwaite and Jack Lintner. Dello Russo also attacked statements allegedly made by Nagel at a meeting between Nagel and Della Russo’s attorneys, Steven Kern and Robert Conroy, partners with Kern Augustine Conroy & Schoppmann in Bridgewater, N.J. Nagel allegedly rejected a $2 million offer to stop suing Dello Russo and countered with a demand for $3 million to go away, accompanied by threats to contact the media and place an ad if Dello Russo did not comply. The ad, which followed soon after, was part of a “campaign to destroy my good name and medical practice,” alleged Dello Russo. The Appellate Division found, however, that whatever was said at the meeting was not actionable because it was protected by the litigation privilege. The panel also affirmed dismissal of claims for tortious interference and theft by extortion, ruling as to the latter that there is no such civil cause of action. Dello Russo’s lawyer, Richard Koppenaal of Hackensack, N.J., says the holding opens the door for lawyers and others to target specific individuals in ads.

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