Dr. Timothy Brown is a licensed medical doctor certified in dermatology and anat

Question

   Dr. Timothy Brown is a licensed medical doctor certified in dermatology and anatomic and clini- cal pathology. Brown started a dermatology prac- tice and thereafter maintained an advertisement in Dex’s Yellow Pages directory, under the subhead- ing “Dermatology (skin).” Brown later began to offer liposuction in his office, after receiving some limited informal training in how to perform that procedure. Brown placed a second advertisement in Dex’s Yellow Pages—this time under the subhead- ing “Surgery, Plastic and Reconstructive.” The newadvertisement stated that Brown was “Board Certi- fied”—without specifying any area of certification. Brown added the new advertisement at the urging of a Dex sales representative, Mueller. Mueller said that the “plastic and reconstruction surgery” subheading in the Yellow Pages would be the best place to reach the desired target market. Mueller also said that the advertisement should identify Brown as “board certified,” because “patients were expecting a [board-certified] plastic surgeon to do these techniques.”
Knepper was considering cosmetic liposuction surgery. She consulted the “Surgery, Plastic and Reconstructive” subheading in the Yellow Pages and saw Brown’s advertisement, believing him to be a plastic surgeon because of the location of his ad and the board-certified designation that appeared after his name. Knepper decided to retain Brown, and he performed a liposuction procedure on her. After the procedure, Knepper contacted Brown’s office to report continuing pain and “misshapenness,” and Brown performed two more liposuction procedures in an unsuccessful attempt to repair the damage. Knepper eventually sued Brown and Dex. Brown later settled with Knepper, leaving her fraud claim against Dex for intentional misrepresentation. The jury returned a $1.58 mil- lion verdict for the plaintiff, which the trial court reduced by the amount of Knepper’s settlement with Brown. Dex appealed, arguing that Knepper failed to prove her claims. How did the court rule on appeal? What does Knepper need to demon- strate to win her claim for intentional misrepresen- tation? [Knepper v. Brown, 345 Or. 320 (2008).]

Explanation / Answer

The court ruled fairly under the light of evidence.

Knepper needs to demonstrate that Brown gave the correct advertisement for publishing and it was Dexes' mistake of representing it incorrectly in the wrong section.

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