If a Tree Falls in the Forest . . .

It was Bishop Berkeley who asked rhetorically, “If a tree falls in the forest and no one hears it, does it make a sound?”

The judge in Pediatric Nephrology Assocs. v. Variety Children’s Hospital didn’t mention either the Bishop or the tree, but he used the same approach to dispose of a case brought by a Florida nephrology partnership against a former partner and the children’s hospital where they all worked.

The trouble began when the hospital started its own nephrology group and hired one of the partners, Dr. Ramirez, away from the partnership. When the remaining partners refused to join the hospital’s new group, the hospital, with the help of Dr. Ramirez, posted an ad to recruit nephrologists.

The partnership filed a federal lawsuit alleging, among other things, that the ad violated the federal Lanham Act, which prohibits false advertising. What was the falsehood? For one thing, the ad included a statement that the nephrology section had over 8,000 visits a year and over 20 dialysis patients, “under the direction of Dr. Ramirez.” The partnership argued that those were the numbers for the whole partnership, not just Dr. Ramirez. So the ad was misleading.

The court said that it couldn’t decide whether the statements were true or false. But what it could decide—and this is where the tree comes in—was that there was no evidence that any consumers even saw the ad, let alone were deceived. And just as a falling tree makes no sound if there’s no one around to hear it, a false statement doesn’t violate the Lanham Act if there’s no consumer around to be deceived by it.

The court gave the defendants summary judgment on the Lanham claim and dismissed the rest of the claims because they were state rather than federal claims.

The case is Pediatric Nephrology Assocs. v. Variety Children’s Hosp., No. 1:16-cv-24138-UU (S.D. Fla., Nov. 13, 2017).

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