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Neurodiagnostic Consultants, LLC v. Villalobos

Court of Appeals of Texas, Third District, Austin

October 4, 2019

Neurodiagnostic Consultants, LLC d/b/a Synaptic Resources of Austin, LLC, a Texas Limited Liability Company, Appellant
Corey Villalobos, Appellee


          Before Chief Justice Rose, Justices Kelly and Smith


          Edward Smith, Justice.

         This appeal concerns a defamation claim by Neurodiagnostic Consultants, LLC d/b/a Synaptic Resources of Austin, LLC (Synaptic), against Corey Villalobos, a former employee. The claim arose from a comment concerning Synaptic that Villalobos left on a post in a LinkedIn group. Synaptic alleged that Villalobos falsely accused Synaptic of engaging in criminal activity. The district court dismissed Synaptic's claim under the Texas Citizens Participation Act (TCPA). See Tex. Civ. Prac. & Rem. Code §§ 27.001-.011. We will affirm the district court's order.


         Synaptic supplies intraoperative neuromonitoring services (IONM) to hospitals, clinics, and surgeons. This means that a technologist, hired and trained by Synaptic, uses specialized equipment to monitor the integrity of a patient's nervous system during surgery. In January 2015, Synaptic hired Villalobos as a technologist and, one year later, promoted him to a field manager position. Villalobos left Synaptic in September 2016 and immediately began working for Traxx, a newly formed competitor of Synaptic. Synaptic subsequently sued Villalobos, Traxx, and several other defendants. In general, Synaptic alleged that before leaving Synaptic, Villalobos coordinated with Traxx officers and employees to harm Synaptic and benefit Traxx.

         Villalobos and Jon Schiff, President of Synaptic, both had access to a LinkedIn group called "Surgical Neurophysiology & Neuromonitoring." While the lawsuit was ongoing, Villalobos commented on a post there from Neuro News. This post was titled "Medical Board says Austin surgeon took neuromonitoring kickbacks-Growth in neuromonitoring driven mainly by crooks. The final blow-out?" The post linked to an article from the Austin American Statesman titled "Medical board says Austin surgeon took neuromonitoring kickbacks." The text of the Statesman's article is not in the record, but Schiff described its contents in an affidavit:

The subject of this article was that the Texas Medical Board had accused a neurosurgeon of misleading patients and violating anti-kickback laws as he referred his patients to a neuromonitoring company in which he had a financial interest. National Neuromonitoring Services, which is a direct competitor of Synaptic, was implicated in the article. The article further stated an anonymous person had sent letters containing allegations against the physician to the board.[2]

         Villalobos left the following comment below the Neuro News post: "It's said that the 'anonymous' person is Jon Schiff, president of [S]ynaptic [R]esources. They are equally as dirty [a] company. And do these things to get surgeons to switch to their company."

         Synaptic subsequently amended its pleadings to sue Villalobos for defamation. Specifically, Synaptic alleged Villalobos falsely stated Synaptic "engages in illegal conduct, including providing illegal kickbacks, to develop business." Villalobos filed a motion to dismiss that claim under the TCPA. Synaptic filed a response and attached Schiff's affidavit and a screenshot of the LinkedIn post and Villalobos' comment. The district court dismissed the defamation claim, which was then Synaptic's only remaining cause of action.[3] This appeal ensued. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(12) (authorizing accelerated appeal from interlocutory order denying TCPA motion to dismiss).


         The purpose of the TCPA is to "encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law" while still "protect[ing] the rights of a person to file meritorious lawsuits for demonstrable injury." Id. § 27.002; see id. § 27.001(2)-(4) (defining exercise of protected rights). To effectuate this purpose, the Legislature has provided for a special motion to dismiss designed to expedite the dismissal of claims brought to intimidate or to silence a party's exercise of the protected rights. ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017) (per curiam).

         "Reviewing a TCPA motion to dismiss requires a three-step analysis." Youngkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018). As a threshold matter, the moving party must show by a preponderance of the evidence that the TCPA properly applies to the legal action against it. Tex. Civ. Prac. & Rem. Code § 27.005(b). If the moving party meets that burden, the nonmoving party must establish "by clear and specific evidence a prima facie case for each essential element of the claim in question." Id. § 27.005(c). If the nonmoving party satisfies that requirement, the burden shift backs to the moving party to prove each essential element of any valid defense by a preponderance of the evidence. Id. § 27.005(d).

         In determining whether to dismiss a legal action under the TCPA, courts are to consider, as evidence, "the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based." Id. § 27.006(a). We review de novo whether each party carried its assigned burden. Long Canyon Phase II & III ...

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