A few weeks back we told you about a former dentist in Georgia who pled guilty in 2009 to filing Medicaid claims for procedures he didn’t actually perform, and who was trying to sue an anonymous YouTuber over a nearly seven-year-old news story that included allegations of physical assault from some patients. This week, the doctor agreed to withdraw his lawsuit and fork over $12,000 in fees for the unnamed defendant.
Just to backtrack a bit for newcomers: Back in 2008, Dr. Gordon Austin was indicted for allegedly assaulting patients by striking them with a dental tool while undergoing dental procedures. Austin eventually ended up pleading guilty to six counts of misdemeanor theft for submitting claims to the Georgia Medicaid program for teeth extractions he did not perform.
According to the state Board of Dentistry, the guilty pleas were given in exchange for prosecutors not pursuing the other indictments against Austin, who was never tried or convicted of any of the assault allegations. The doctor was also barred from practicing oral surgery and dentistry in Georgia for a period of ten years.
Let Sleeping Dogs Lie
While Austin’s story made regional headlines at the time, it never made its way into the national spotlight. Additionally, thanks to poor archiving and website redesigns, many of the local news stories from 2008 and 2009 have been lost.
Even the state attorney general’s 2009 press release of the guilty plea has been effectively scrubbed from the AG’s website because Austin successfully petitioned to have it removed under Georgia’s first-time offender protections.
One relic of that era that did remain was this 2009 YouTube posting of a two-part local news story from a FOX affiliate in Atlanta:
“The main reason I posted the video onto YouTube was to make sure what happened regarding Dr. Gordon Austin wouldn’t simply fade away,” the YouTuber told Consumerist via email.
Until very recently, that clip had only been watched a few thousand times over the course of more than six years. Not exactly a viral hit.
Stirring Things Up
Then in January, Dr. Austin filed a lawsuit [PDF], alleging that the unnamed YouTube user had illegally defamed him “via various false accusations and statements,” without specifying which of the statements made in the video are problematic.
The video even disappeared briefly from YouTube after someone reported it as “spam,” a “scam” or “commercially deceptive.” After we contacted YouTube, the video was reinstated but no one at the streaming service or Google would explain why it was so easy to have the clip taken down. As of this writing, more than 78,000 people have watched the video.
In response to Austin’s lawsuit and his attempt to subpoena Google to provide the YouTuber’s real name, Defendant “Doe” received legal assistance from Public Citizen’s Paul Alan Levy and Phil Malone from Stanford University Law School. They filed a motion to quash the subpoena, arguing that Dr. Austin’s couldn’t succeed, and that he’d provided no evidence that the anonymous user did anything defamatory.
In California, where the subpoena was served, the legal standard for unmasking an anonymous online user requires the plaintiff to provide evidence to support their claim before being able to learn an anonymous user’s identity. The motion to quash contended that Austin only made vague allegations of false and defamatory statements.
Additionally, as the video was posted in 2009 and had not been edited or revised since, the statute of limitations for defamation claims had long expired in both California and Georgia (where the lawsuit itself was filed), so the defendant argued that Austin’s case failed for being filed years too late.
A Costly Decision
Court documents filed this week [PDF] in California show that Defendant Doe has withdrawn that motion to quash, but only because Austin has agreed to drop the Georgia defamation case “with prejudice,” meaning it couldn’t be filed again once this has all died down. Additionally, Austin has paid Doe $12,000 to cover legal fees and expenses related to this lawsuit.
“It remains a mystery why Austin and his lawyers thought they could get away with a meritless libel suit,” writes Levy in his update on the case. He notes that Austin’s attorneys were advised that the motion to quash would be filed and that it likely be granted, giving them the opportunity to get out before incurring any expenses. “My best guess is that they never focused on the fact that section 1987.2 of California’s Code of Civil Procedure provides that, when a Doe defendant successfully moves to quash an identifying subpoena, attorney fees ‘shall’ be awarded in favor of the Doe.”