A plastic surgeon has failed to convince a judge that he was defamed by one of the "Mob Wives" who insisted on the popular VH1 reality TV show that she "flat-lined" after a "full-body lift" that turned into a "plastic surgery nightmare."
In Klapper v. Graziano, 1639/12, Acting Supreme Court Justice Bernard Graham in Brooklyn (See Profile) dismissed Dr. Andrew Klapper's defamation suit against the owners and producers of "Mob Wives" over comments made by Renee Graziano, the daughter of a convicted member of the Bonnano crime family.
"The particular nature of a reality television program is that the participant subjects himself or herself to the 'reality' of the real life events," the judge wrote. "The 'storyline' may be unscripted with the exchanges extemporaneous and it is generally accepted that the behavior may be outlandish or provocative. The medical professional who agrees to participate in such a program does so with a certain amount of risk. While the potential benefit may be a boost in the doctor's business from the exposure to the viewing audience, the risk is that he or she may be criticized or second-guessed and portrayed in an unflattering manner,"
"Mob Wives," which has wrapped three seasons, follows the ups and downs of several Staten Island women who have family members who are serving time in prison for organized crime activity. Graziano, the judge wrote, is an "outspoken" character.
Graziano's decision to undergo plastic surgery was incorporated into the initial episodes of the second season. Klapper, a board certified plastic surgeon, performed the "full-body lift" at his offices with cameras rolling after he signed agreements, including an appearance release.
The release's wording said he agreed "not to sue and irrevocably and unconditionally release, waive and forever discharge" the production company, along with its past, present and future parents, subsidiaries, affiliates and other entities "from any and all manner of liabilities, claims and demands of any kind or nature, whatsoever."
The release also said producers retained the right to use Klapper's appearance "for advertising, publicity, marketing, promotional and commercial tie-in purposes."
Other release language said the signer was responsible for "any attorneys' fees incurred…in connection with any claim or lawsuit brought in violation of this agreement."
As Klapper performed the surgery, complications allegedly arose when he removed a tattoo from Graziano's lower back and the skin could not be closed. He ordered the cameras out of the operating area.
The defendants, including Graziano, contend she needed emergency treatment at Staten Island University Hospital but Klapper disputed that assertion and said he made no medical errors.
In any event, the procedure and the ensuing events became part of three episodes in which Graziano said she "flat-lined," "almost died" and underwent a "plastic surgery nightmare."
In various online reports and radio and TV appearances Graziano discussed the procedure and repeated her assertions of medical negligence.
Klapper sued Graziano, the owners and producers of "Mob Wives," such as VH1, The Weinstein Company and Viacom Media Networks, for claims including defamation and tortious interference with prospective business relationships and economic advantage.
Klapper's attorney, Barry Levin, a Garden City solo practitioner, said in an interview that Klapper no longer works as a plastic surgeon, having lost his practice in the wake of the series.
The owners and producers sought dismissal, arguing they were protected by the release. But Klapper countered that New York law does not allow parties to insulate themselves from the consequences of their own future tortious acts. Furthermore, the doctor claimed the release was unenforceable owing to a lack of specificity on the sort of conduct for which corporate defendants could be held harmless.
Graziano was not involved in the dismissal motion at bar.
Graham said the need for releases in reality TV programming "appears obvious" given the "tremendous" potential for litigation due to "unpredictable story lines and freewheeling exchanges."
In a footnote, the judge said he purposely did not watch the episodes in dispute "to avoid any potential prejudice that might result."
Here, the judge said the release was "straight forward" and meant to block lawsuits stemming from someone's appearance on a reality show. Moreover, he noted Klapper made no claim he was coerced or fraudulently induced to sign the release.
"Dr. Klapper signed on to participate in a television show and took the risk of what may transpire. To a certain extent he bargained for the chance for publicity with the possibility that the outcome may not be as he expected," Graham said.
The judge added that there was "no indication" the owners and producers meant to harm Klapper or his practice.
"The acts of the corporate defendants involve the publicity and advertising for the show and using portions of the show to promote Mob Wives," the judge said, adding that advertising was "unequivocally addressed" in the release.
Graham also said Klapper offered "only speculative and conclusory statements" to back his claim of interference with contracts or prospective business.
The judge said the release's wording pertaining to legal fees was "explicit and understandable." As a result, he called for a hearing to determine fee amounts.
Levin, Klapper's lawyer, said he was "obviously disappointed" in the ruling. He added that the release his client signed was just for an appearance on the show "and not a bar for any future claims that resulted from the future defamation committed by the defendants."
Levin made the analogy that "the judge's decision basically states that if two neighbors settle a property dispute and one neighbor goes back and shoots the neighbor, the release absolves the former neighbor based on the property dispute release."
Levin said no decision had been made yet on whether to appeal, nevertheless his client will press ahead with his claims against Graziano.
Elizabeth McNamara of Davis Wright Tremaine represented the corporate defendants.
"The court's ruling that Dr. Klapper's appearance release is fully enforceable and bars claims arising out of his depiction on 'Mob Wives' is an important industry decision," she said.
@|Andrew Keshner can be contacted at email@example.com.