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It's Lawyer v. Lawyer in Auto Blog Defamation Dispute

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By Jonathan R. Tung, Esq. on February 12, 2016 2:58 PM

A Michigan psychiatrist who also happens to sit on that state's attorney discipline board has filed Request for Investigation against a fellow attorney. The source of the dispute? Comments the attorney made on his auto-law blog.

The RI filing amounts to a "lightweight defamation claim" according to the Consumer Law and Policy blog. Troubling issues are implicated by the case. Is the RI proper after the statute of limitations has run? And what makes defamation defamation?

Hatchet-Job

The blogging attorney in question here is Steven Gursten who maintains an auto-injury blog and practice in Michigan. One of his clients was examined by Dr. Rosalind Griffin, a psychiatrist, who was chosen by the client's insurer.

Gursten took issue with the fact that Griffin offered "independent medical exams" for insurers -- or, as he termed it, "IME hatched jobs." He proceeded to write about Griffin on his blog and excoriated doctors who perform IMEs for defendants' auto-insurers, accusing them of "do[ing] enormous damage to the people." He also added that Griffin was known by "many attorneys" as "rather dubious."

He then cited nine examples of what he strongly intimated were "hatchet job" tactics of the type that he had previously vilified on his blog. Gursten also provided Dr. Griffin's sworn testimony in court to help him buttress his contention that she was operating in less than good faith.

Gursten Has an Ally

Eric Turkowitz, whose blog covers personal injury and med-mal law issues, has his own very clear opinion and it's clearly for the attorney. Turkowitz's view seems to be that the messenger of a defamatory statement is shielded. To him, these comments are merely opinion, and "opinion is not actionable under the First Amendment. It isn't even a close call."

Differing Opinions on That

Well, reasonable minds can disagree on that one. Whether "don't shoot the messenger" is right or wrong, seems to us, a different issue.

Certain types of statements -- as fresh law grads know -- are per se actionable even if they have the gloss of being opinion. Those statements fall into that special category of speech that get increased attention: comments about one's professionalism, job performance, sexual deviance, chastity, etc.

On the other hand, one could make the argument that the court testimony was a public record and therefore were not a misrepresentation as such. Gursten, after all, invited readers to review Griffin's testimony and "decide for yourself" whether it was IME abuse. Griffin will say "decide for yourself if I'm a hack job -- let me count the ways" is the proper interpretation of the statement. A fascinating controversy either way.

Conflict?

All the more vexing is the fact that Dr. Griffin also happens to sit on the board of the organization which will be enforcing this investigation against Gursten. That could be coincidence. Even still, it doesn't look neutral from outside eyes.

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