Opinion

Smiledirectclub, Inc. v. NBCUniversal Media, LLC

Court: Court of Appeals of Tennessee
Filed: Sep 19, 2024
Status: Published
On the bench: Presiding Judge Frank G. Clement, Jr.
Cited by: 0 cases
Authority: More cited than 30.6%

“Tennessee’s courts have, since the earliest days of statehood, recognized and followed self-imposed rules to promote judicial restraint and to provide criteria for determining whether the courts should hear and decide a particular case.”

How later courts described this case

“Tennessee’s courts have, since the earliest days of statehood, recognized and followed self-imposed rules to promote judicial restraint and to provide criteria for determining whether the courts should hear and decide a particular case.”
“Failing to investigate information provided by others before publishing it, even when a reasonably prudent person would have done so, is not sufficient by itself to establish reckless disregard.” (citations omitted)
holding claims for product disparagement were “subject to the same first amendment requirements that govern actions for defamation.”
a petition for bankruptcy relief “automatically stays all proceedings against the debtor” (citing 11 U.S.C. § 362(a)(1))

Written by the judges who cited it.

The opinion

09/19/2024

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

February 8, 2023 Session

SMILEDIRECTCLUB, INC., ET AL. v. NBCUNIVERSAL MEDIA, LLC, ET

AL.

Appeal from the Circuit Court for Davidson County

No. 20C1054 Thomas W. Brothers, Judge

___________________________________

No. M2021-01491-COA-R3-CV

___________________________________

This is an action for defamation and violation of the Tennessee Consumer Protection

Act (“the TCPA”). The plaintiffs operated a teledentistry platform dedicated to providing

remote treatment for mild-to-moderate malocclusion of the teeth. The defendants published

an online article and broadcast an “investigative report” that alleged, inter alia, that the

plaintiffs’ customers were experiencing “painful problems” such as nerve damage, joint

damage, and loss of teeth. In their complaint, the plaintiffs argued these and other

statements—as well as the implications derived from those statements—injured the

plaintiffs’ reputation and disparaged the plaintiffs’ products, services, and business. The

trial court dismissed the action under the Tennessee Public Participation Act (“the TPPA”),

holding that the TCPA did not apply and that the plaintiffs failed to make a prima facie

case for their defamation claims. This appeal followed. Considering the evidence in a light

most favorable to the plaintiffs and disregarding all countervailing evidence, we have

determined that the plaintiffs presented prima facie evidence of falsity to support some of

their claims but failed to produce clear and convincing evidence of actual malice.

Accordingly, we affirm the judgment of the trial court. Defendants ask for an award of

their appellate attorney’s fees under Tennessee Code Annotated § 20-17-107, which

requires an award of costs and fees “[i]f the court dismisses a legal action pursuant to a

petition filed under [the TPPA].” Because we have affirmed the dismissal of the plaintiffs’

claims under the TPPA, Defendants are entitled to an award to be determined by the trial

court on remand.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed and Remanded

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which W. NEAL

MCBRAYER and KRISTI M. DAVIS, JJ., joined.

J. Erik Connolly and Nicole E. Wrigley, pro hac vice, Chicago, Illinois, and John R.

Jacobsen and Katharine R. Klein, Nashville, Tennessee, for the appellant, Cluster Holdco,

LLC.1

William J. Harbison, II; Ronald George Harris; and James F. Sanders, Nashville,

Tennessee, and Jonathan D. Hacker, pro hac vice, Washington, DC, and Daniel M.

Petrocelli, pro hac vice, Los Angeles, California, for the appellees, NBCUniversal Media,

LLC, and Vicky Nguyen.

Herbert H. Slatery, III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor

General; and Janet M. Kleinfelter, Deputy Attorney General, for the appellee, State of

Tennessee.

OPINION

FACTS AND PROCEDURAL HISTORY

I. SMILEDIRECTCLUB

SmileDirectClub (“SDC”) operated a telehealth platform for remote treatment of

mild-to-moderate malocclusion of the teeth, i.e., misaligned teeth. When signing up,

prospective patients gave SDC their health history and executed a consent form in which

the patient warranted, inter alia, that he or she had seen a dentist within the last six months.

SDC matched each patient with one of its “affiliated” dentists for review.

If the dentist approved the patient for treatment, SDC used impressions or photos of

the patient’s teeth to create a 3-D model. SDC then drafted a proposed treatment plan to

gradually shift the patient’s teeth with a series of custom-made plastic aligners. If the

patient’s SDC-affiliated dentist approved the treatment plan, SDC would arrange for the

aligners to be manufactured by a dental lab and sent directly to the patient.

Oral argument for this case was heard on February 8, 2023. Thereafter, SmileDirectClub, Inc.,

SmileDirectClub, LLC, and other affiliated entities petitioned for bankruptcy protection in the U.S.

Bankruptcy Court for the Southern District of Texas. See In re SmileDirectClub, Inc., No. 23-90786 (CML)

(Bankr. S.D. Tex.). Thus, on December 1, 2023, we entered an order staying the proceedings. See Cathey

v. Johns-Manville Sales Corp., 711 F.2d 60, 61 (6th Cir. 1983) (a petition for bankruptcy relief

“automatically stays all proceedings against the debtor” (citing 11 U.S.C. § 362(a)(1))). In May 2024, the

bankruptcy court gave Cluster Holdco, LLC, sole and exclusive authority and standing to investigate, file,

prosecute, settle or release, arrange financing for, retain professionals (including counsel), and/or otherwise

administer all matters in relation to the SDC entities’ claims and causes of action. Accordingly, on August

6, 2024, this court lifted the stay of proceedings and substituted Cluster Holdco, LLC, in place of appellants

SmileDirectClub, Inc., SDC Financial, LLC, and SmileDirect, LLC.

-2-

At the beginning of treatment and periodically thereafter, each patient was

instructed to send photos of his or her teeth to SDC. The assigned dentist or a member of

SDC’s “Dental Team” would review the photos to ensure the aligners fit properly and that

the patient’s teeth were moving correctly. SDC’s Dental Team also handled all patient

questions and concerns except for those involving “clinical” issues, which were forwarded

to the patient’s SDC-affiliated dentist. Once the patient finished each phase of the

prescribed aligners, his or her SDC-affiliated dentist would review the patient’s most recent

photos to determine whether further treatment was necessary.

By using this novel approach to aligner treatment, SDC could provide its products

and services for much less than the cost of traditional braces.

II. NBC REPORTS

In November 2019, NBC producer Lauren Dunn and NBC “investigative and

consumer correspondent” Vicky Nguyen began looking into rumors that some patients

suffered serious complications from using SDC’s aligners. The “investigation” culminated

in two reports: an article published to the Health News section of NBCNews.com (“the

Article”) and a video segment broadcast on NBC Nightly News with Lester Holt (“the

Broadcast”) (collectively, “the Reports”). Each was published on February 13, 2020.

A. Article

The Article reported that “an NBC News investigation into a growing list of

complaints found this new trend in teeth straightening is leading to painful problems for

some people.” It moved forward by telling the story of two former patients, interspersed

with narrative from Ms. Nguyen and excerpts from interviews with a professor of

orthodontics and SDC’s chief legal counsel:

Anna Rosemond was drawn to the advertisements for SmileDirectClub,

which promises to straighten teeth for under $2,000—about a third the cost

or traditional braces—in as little as six months and all from the comfort of

home.

“It seemed like a really simple, easy way that they were offering people to

straighten their teeth,” said Rosemond of Richmond, Virginia.

Rosemond ordered one of the kits and took an impression of her teeth with

the putty and tray she received.

To get started, SmileDirectClub customers either can get a 3D image of their

teeth in one of its SmileShops or have an at-home kit sent to them. A few

weeks later, she received dental aligners and followed the instructions to send

in photos of her mouth every 90 days. SmileDirectClub told her the treatment

-3-

would be reviewed remotely by one of its 250 dentists and orthodontists. All

of her care was done online, she said.

After a year, Rosemond was in pain.

“I really noticed that things didn’t feel right with the bite,” Rosemond said.

“My head was hurting frequently.”

She’d been assured that she’d be able to get in touch with her assigned

dentist, but after multiple attempts, she said she was never connected, nor

given contact information. So she consulted an outside orthodontist, who

diagnosed her with a cross[ ]bite, or misalignment, possibly caused by the

aligners. What’s more, her orthodontist said the cross[ ]bite was causing

other symptoms: strain in her neck and jaw muscles, which led to migraines.

Rosemond, who says she tried SmileDirectClub because of the money she

thought she’d save, wound up spending thousands on traditional braces to fix

her teeth.

While SmileDirectClub, the largest at home dental alignment company, and

others promise to leave patients smiling, an NBC News investigation into a

growing list of complaints found that this new trend in straightening teeth is

leading to painful problems for some people.

The Better Business Bureau reports more than 1,800 complaints nationwide

involving SmileDirectClub. Most of the complaints involve customer service

issues-such as broken aligners, delivery issues and payment problems-but

dozens describe concerns about treatment results: complaints like broken

teeth and nerve damage.

Last month, nine members of Congress asked the Food and Drug

Administration and the Federal Trade Commission to investigate

SmileDirectClub “to ensure that it is not misleading consumers or causing

patient harm.”

And in January, in an effort to protect patients, a law went into effect in

California requiring all teledentistry patients to get an X-ray before

undergoing online aligner treatment. Virginia is considering similar rules.

Dr. Chung Kau, chairman and professor of orthodontics at the University of

Alabama in Birmingham, said moving teeth without in-person supervision

can lead to permanent harm.

-4-

Problems with a person’s bite aren’t just cosmetic. “If you can’t get a proper

bite, that affects the entire function of your jaw,” Kau said. “You could get

migraines, jaw joint problems, [and] disintegration of your joints.”

“This harm is irreparable. I want to state that,” he said. “It’s because things

like bone loss, disease, loss of a tooth—you can’t put it back in the mouth.”

That’s what happened to Tom Harwood, 40, of Winnemucca, Nevada.

Harwood told NBC News that his dentist said the SmileDirectClub aligners

moved his teeth so fast that it caused some of them to detach from the bone.

“Now I stand to lose two to three of my bottom teeth and two to three of my

front teeth,” Harwood said. “Every day I wake up—it feels like I’m being

punched. It’s just an all day type pain.”

Harwood said that he stopped his treatment after about 3 months, before the

90-day mark when customers are asked to send photos of their mouths to

SmileDirectClub to monitor progress. He also said that he tried to get in touch

with his assigned dentist, but that he was unable to do so.

It’s important for teeth straightening patients to see an orthodontist regularly

to make sure their bite is correct and their mouth is healthy overall, Kau said.

Regular visits with an orthodontist help ensure everything is on track, Kau

said, “Every visit that we spend with a patient, we’re constantly making

adjustments so we can get the best, optimal care for the patient,” he said.

SmileDirectClub said that they can’t comment on individual cases like

Rosemond’s and Harwood’s because of privacy concerns but the company’s

chief legal officer, Susan Greenspon-Rammelt, said the company has helped

more than 750,000 people with its network of licensed dental professionals.

“They’re subject to the same standards of care that a doctor in a traditional

setting is,” she said.

But NBC News found complaints related to poor patient outcomes, including

problems with bite and spacing.

Greenspon-Rammelt said that SmileDirectClub’s network of dentists, not the

company itself, is responsible for treatment plans, but said that undesirable

results could occur if patients aren’t adhering to the program correctly. “That

could be because they weren’t following the instructions for use, they didn’t

come in for a midcourse correction when they were advised to do that, they

didn’t follow up with the dental team,” she said.

-5-

SmileDirectClub Reviews all patient scans before sending the first treatment

kits, and only sends them to patients that they think are good candidates,

Greenspon-Rammelt said, adding that 95 percent of people reviewed for

treatment are accepted. All customers are required to see a dentist within six

months before starting, which Greenspon-Rammelt says offers proof that

their teeth are healthy enough for the treatment.

But NBC News hidden cameras recorded employees at SmileDirectClub

shops in Ohio, New Jersey and Alabama advising potential customers they

didn’t have to see a dentist before starting treatment.

One employee said “it’s not mandatory” to see a dentist first. Another said,

“that’s what the scans are for.” Kau, however, said the scans are just a map

of the teeth and don’t provide a full picture of someone’s oral health.

“That may be a Smile guide who didn’t actually have or remember the proper

training,” Greenspon-Rammelt said in response to the videos.

Another employee said that the home impression kits used by thousands of

customers who never set foot in a SmileDirectClub shop may not be reliable,

and that “anything could go wrong.” Greenspon-Rammelt characterized that

statement as a “personal opinion” of the employee, not the company.

If customers can show the treatment didn’t work and want a refund outside

the return window, SmileDirectClub requires they sign a confidentiality

agreement, raising the possibility that there may be more complaints than

have been made public.

Greenspon-Rammelt responded that in many instances, by the time such

customers are asked to sign the confidentiality agreement, “they’ve already

gone out there, they’ve put this on social media, they’ve filed complaints,”

Greenspon-Rammelt said.

Harwood refused to sign that confidentiality agreement and was unable to

get his money back.

“It was basically like, here’s your money back, but you can’t ever talk about

us,” he said. “It’s not right. There are so many people out there putting their

trust in a company that should be doing right by you, and they’re not.”

The Article also included a photo of Ms. Rosemond’s teeth in the margins with the

caption, “One of several photos of her mouth that Rosemond submitted to

SmileDirectClub, which were said to be used to monitor her treatment.” The Article also

featured a pop-out quote from Dr. Kau, stating in large, bold letters, “This harm is

irreparable. I want to state that.”

-6-

B. Broadcast

Defendants made similar claims and statements in the Broadcast, which featured

narration by Ms. Nguyen and began with a montage of SDC commercials2:

MR HOLT: Now to our NBC news investigation and a look at a new trend

in teeth straightening for much less than the cost of traditional braces. But

some patients complain these at-home treatments do not leave them smiling.

Here’s investigative and consumer correspondent, Vicky Nguyen.

[SDC COMMERCIAL]: “This is an aligner.”

[NARRATION]: The ads promise to straighten your teeth—

[SDC COMMERCIAL]: —“for up to 60% less than braces”—

[NARRATION]: —in six months on average, for under two grand.

[SDC COMMERCIAL]: “We didn’t have to make any appointments.”

[NARRATION]: Get a scan in the store, or a kit through the mail, do the rest

from home.

MS. ROSEMOND: It seemed like a really simple, easy way that they were

offering people to straighten their teeth.

[NARRATION]: Anna Rosemond ordered a kit and took an impression of

her teeth.

MS. ROSEMOND: They would have you take the two different putties and

mix them all together and then put it in your mouth.

[NARRATION]: A few weeks later, she received dental aligners and

followed the instructions to send in photos of her mouth every 90 days.

SmileDirectClub told her that treatment would be reviewed remotely by one

of its 250 dentists and orthodontists.

MS. NGUYEN: So this is all done online?

MS. ROSEMOND: Yes.

The parties refer to and rely solely on a transcript of the Broadcast. We will limit our analysis

accordingly.

-7-

[NARRATION]: After a year, Anna was in pain and she says she tried but

couldn’t speak to her assigned dentist. So, she found an orthodontist who

diagnosed her with a cross bite possibly caused by the aligners, straining her

neck and jaw muscles, sparking migraines.

MS. ROSEMOND: I really noticed that things like didn’t feel right with the

bite, my head was hurting frequently.

[NARRATION]: SmileDirectClub says it won’t discuss individual cases due

to privacy concerns. There have been more than 1,800 complaints filed with

the Better Business Bureau nationwide. Most are customer service issues, but

dozens also include concerns about treatment results. And now, nine

congressmen have asked the FDA and FTC to investigate SmileDirectClub

to ensure it is not misleading consumers or causing patient harm.

[NARRATION]: Dr. Chung Kau, Chair of Orthodontics at The University of

Alabama, says moving teeth without supervision in person, can lead to

permanent harm.

DR. KAU: Things like bone loss, disease, loss of a tooth.

[NARRATION]: SmileDirect’s Susan Greenspon-Rammelt, says the

company has helped more than 750,000 people and says it isn’t responsible

for treatment. It relies on its licensed dentist[s].

MS. RAMMELT: They’re subject to the same standards of care that a doctor

in a traditional setting is. We are an industry disruptor.

MS. NGUYEN: There have been a few complaints. I’m going to go back to

the BBB, where people say, “The end results caused my teeth not to bite

down. 10 months later, still in limbo. My bite is worse. My back teeth don’t

touch on the left side.” How do you answer to that?

MS. RAMMELT: That could be because they weren’t following the

instructions for use. They didn’t come in for a mid course correction when

they were advised to do that. They didn’t follow up with the dental team.

[NARRATION]: She says 95 percent of people reviewed for treatment are

accepted. They’re required to see a dentist within six months before starting.

But that’s not what we found with our hidden cameras.

MS. NGUYEN: I don’t have to go see a dentist first.

FEMALE 1: No.

-8-

MS. NGUYEN: If I don’t want to.

FEMALE 1: If you don’t want to, it’s not mandatory.

MS. NGUYEN: So do I ever have to see a dentist before I start or anything

like that?

FEMALE 2: I’m—so that’s what—that’s what our photos and stuff are for.

[NARRATION]: We showed [Ms. Rammelt-Greenspon] the video.

MS. RAMMELT: That maybe a smile guide who didn’t actually have or

didn’t remember the proper training. I’m glad you brought this to my

attention.

[NARRATION]: This employee told us the at-home impression kits may not

be reliable.

FEMALE 3: I mean, even as a dental assistant, there’s always prone for

human error. Taking them and especially relying on somebody who’s never

done them before to do it, anything could go wrong.

MS. RAMMELT: That’s her personal opinion. That is not a company opinion.

[NARRATION]: If customers can show the treatment didn’t work and want

a refund outside the return window, they’re required to sign a confidentiality

agreement.

[MS. NGUYEN:] Is it possible there are many more complaints about

SmileDirectClub that the public doesn’t know about because you require

unhappy customers to sign these nondisclosure agreements?

MS. RAMMELT: I think that’s a loaded question. Is it possible? Of course

it’s possible, but I would tell you that in many instances, by the time these

people are asked to sign, they’ve already gone out there. They’ve put this on

social media. They’ve filed complaints.

[NARRATION]: Anna says she never got a refund and wound up spending

thousands more to fix her teeth.

MR. HOLT: So Vicky, orthodontists are clearly worried about their patients

and also maybe their business. But where do regulators come down on all

this?

-9-

MS. NGUYEN: Well Lester, California just enacted the first law that would

require a dentist to look at an x-ray before anyone can start this kind of

treatment. That law in California also bans those confidentiality agreements.

MR. HOLT: Alright Vicky, thanks very much.

The day after the Reports were published, SDC’s market value dropped by over

$950 million.

III. COMPLAINT

In May 2020, SDC commenced this action against NBCUniversal Media, LLC, and

Ms. Nguyen (collectively, “Defendants”). SDC asserted four claims for “defamation by

implication” claims; nine claims for “defamation”; and one claim for disparagement of its

products, services, and business under the Tennessee Consumer Protection Act of 1977

(“the TCPA”), Tenn. Code Ann. §§ 47-18-103 to -135.

Defendants responded to the complaint by filing a petition to dismiss under the

Tennessee Public Participation Act (“the TPPA”), Tenn. Code Ann. §§ 20-17-101 to -110.

But before Defendants’ TPPA petition was heard, SDC raised a constitutional challenge to

the Act, asserting that it violated the separation-of-powers doctrine and the right to a jury

trial. Thus, the State of Tennessee’s Attorney General’s Office intervened to defend the

Act.

After allowing for limited discovery, the trial court docketed two hearings: one for

SDC’s constitutional challenge and one for Defendants’ TPPA petition, if necessary.

After the first hearing, the court held that the TPPA does not violate the right to a

jury trial because, inter alia, the Act requires courts to make “the familiar determination of

whether the facts asserted by the [p]laintiff, standing alone and unrebutted, are sufficient

to support a finding for each element of the plaintiff[’]s action.” The court also held that

the TPPA does not violate the separation-of-powers doctrine because the Act’s

requirements “are both reasonable and workable within the framework already adopted by

the judiciary.”

After the second hearing, the trial court held that SDC had made a prima facie case

that six statements in the Reports were false and defamatory, and the court held that SDC

“established a prima facie showing that it suffered actual damages.” However, the court

also determined that SDC was a public figure as a matter of law and thus was required to

produce clear and convincing evidence that Defendants acted with actual malice. The court

concluded that SDC had not met this standard:

[R]espectfully, the Court finds that SDC has failed to establish a prima facie

showing of any of the counts that it would be reasonably able to submit

admissible evidence to prove malice by clear and convincing proof at the

- 10 -

summary judgment stage or at trial. At best, you’ve raised some questions

possibly touching on being able to present proof to a degree of preponderance

of the evidence. But respectfully, I just don’t see that going into that high

clear and convincing standard, which is required when you’ve got a public

figure.

. . .

. . . That unfortunately applies to all of the 13 counts that effectively relate

to defamation, even the two I didn’t find were supported by the statements. I

just don’t see the actual malice showing that you have a reasonable

probability of proving that by clear and convincing evidence at trial.

Accordingly, the petition should be granted as to Counts I through XIII.

The trial court also dismissed SDC’s TCPA claim on the ground that the Act did not

apply to news reports:

The Court finds that SDC, respectfully, has not established a prima facie case

supporting all of the essential elements of a TCPA claim, and therefore, may

not avail itself of the TCPA under these circumstances. I’m guided by the

plain language of Tennessee Code Annotated 47-18-102, which provides,

“ . . . this part shall be liberally construed to promote the following

policies: . . . To protect consumers and legitimate business enterprises from

those who engage in unfair or deceptive acts or practices in the conduct of

any trade or commerce in part or wholly within this state.”

The issue here is whether the reports which were news stories published on

NBC’s media platform were made in the conduct of any trade or commerce.

T.C.A. 47-18-103(19) defines trade or commerce as the advertising, offering

for sale, lease or rental, or distribution of any goods, services, or property,

tangible or intangible, real, personal, or mixed, and other articles,

commodities, or things of value wherever situated. Frankly, it cannot be said

that the publishing of news reports satisfies any of the criteria identified

above. Accordingly, the Court can reasonably find that NBC did not engage

in a trade or commerce, and therefore, SDC does not have a TCPA claim.

For these reasons, the court granted Defendant’s TPPA petition and dismissed

SDC’s action with prejudice. This appeal followed.

ISSUES

SDC raises four issues on appeal, which we state as follows:

1. Whether the trial court erred in dismissing SDC’s defamation by

implication claims when SDC presented evidence that: (1) readers and

- 11 -

viewers understood that Defendants’ reports conveyed defamatory

implications; (2) the defamatory implications were false; and (3)

Defendants possessed information contradicting the defamatory

implications.

2. Whether the trial court erred in dismissing SDC’s defamation claims

when SDC presented evidence that: (1) Defendants published false

statements about SDC; (2) Defendants had reasons to doubt the

credibility of its sources; and (3) Defendants had information that

contradicted its statements.

3. Whether the trial court erred in dismissing SDC’s claim under the TCPA,

when SDC presented evidence that: (1) Defendants published false and

defamatory representations about SDC; and (2) SDC suffered an

ascertainable loss because of Defendants’ conduct.

4. Whether the trial court erred in finding the TPPA constitutional.

Defendants do not raise any additional issues but ask for an award of reasonable

appellate costs and fees under Tennessee Code Annotated § 20-17-107.

STANDARD OF REVIEW

Whether a party established a prima facie case for purposes of a TPPA petition is a

legal issue we review de novo. See Charles v. McQueen, 693 S.W.3d 262, 272–73 (Tenn.

2024). Likewise, “[i]ssues of constitutional interpretation are questions of law, which we

review de novo without any presumption of correctness given to the legal conclusions of

the courts below.” J.A.C. by & through Carter v. Methodist Healthcare Memphis Hosps.,

542 S.W.3d 502, 510 (Tenn. Ct. App. 2016) (quoting Waters v. Farr, 291 S.W.3d 873, 882

(Tenn. 2009)).

ANALYSIS

SDC contends that the trial court erred in two ways: (1) by denying SDC’s

constitutional challenge to the TPPA and (2) by holding that SDC did not make a prima

facie case for each element of its claims. We will address SDC’s constitutional challenge

first.

I. CONSTITUTIONAL CHALLENGE

SDC contends that the TPPA violates the separation-of-powers doctrine because the

Act “creates procedural rules that conflict with the Tennessee Supreme Court’s notice-

pleading regime” and violates the right to a jury trial because the Act “requires courts to

make merit-based determinations that should be decided by a jury.”

- 12 -

We start by observing that “our Legislature may enact any law which our

Constitution does not prohibit, and the Courts of this State cannot strike down one of its

statutes unless it clearly appears that such statute does contravene some provision of the

Constitution.” Willeford v. Klepper, 597 S.W.3d 454, 465 (Tenn. 2020) (citations omitted).

Accordingly, when considering whether a statute contravenes the Constitution, “we begin

with the presumption that an act of the General Assembly is constitutional” and “indulge

every presumption and resolve every doubt in favor of the statute’s constitutionality.”

Fisher v. Hargett, 604 S.W.3d 381, 395 (Tenn. 2020) (quoting Willeford, 597 S.W.3d at

465).

A. Separation-of-Powers Doctrine

Article II of the Tennessee Constitution divides the state government into “three

distinct departments: the legislative, executive, and judicial,” and it states that “[n]o person

or persons belonging to one of these departments shall exercise any of the powers properly

belonging to either of the others.” Tenn. Const. art. II, §§ 1, 2.

The judiciary has exclusive authority over court practice and procedure. Willeford,

597 S.W.3d at 465–66 (quoting State v. McCoy, 459 S.W.3d 1, 9 (Tenn. 2014)). However,

“[a] legislative enactment which does not frustrate or interfere with the adjudicative

function of the courts does not constitute an impermissible encroachment upon the judicial

branch of government.” Lynch v. City of Jellico, 205 S.W.3d 384, 393 (Tenn. 2006)

(quoting Underwood v. State, 529 S.W.2d 45, 47 (Tenn. 1975)).

The judiciary may consent “to the application of procedural or evidentiary rules

promulgated by the legislature” so long as those procedures “(1) are reasonable and

workable within the framework already adopted by the judiciary, and (2) work to

supplement the rules already promulgated by the Supreme Court.” State v. Lowe, 552

S.W.3d 842, 856–57 (Tenn. 2018) (quoting State v. Mallard, 40 S.W.3d 473, 481 (Tenn

2001)); cf. Norma Faye Pyles Lynch Fam. Purpose LLC v. Putnam Cnty., 301 S.W.3d 196,

202 (Tenn. 2009) (“Tennessee’s courts have, since the earliest days of statehood,

recognized and followed self-imposed rules to promote judicial restraint and to provide

criteria for determining whether the courts should hear and decide a particular case.”). In

other words, when the Supreme Court “has promulgated rules that relate to practice and

procedure, and a statute provides a contrary practice or procedure, the statute is

unconstitutional to the extent of the conflict.” Willeford, 597 S.W.3d at 466 (quoting

Massey v. David, 979 So. 2d 931, 937 (Fla. 2008)).

SDC contends that the TPPA conflicts with Rules 8 and 12.02 of the Tennessee

Rules of Civil Procedure because the Act (a) “requires plaintiffs to affirmatively prove at

the outset of litigation that they can prevail on their claims at trial”; (b) permits defendants

“to prove up a ‘valid defense’ at the outset of a case”; and (c) “abrogates [courts] discretion

to grant plaintiffs leave to replead.” But we have determined that SDC waived these issues

by not making a complete legal argument in its appellate brief.

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Rule 27 of the Tennessee Rules of Appellate Procedure requires an appellant’s brief

to contain an argument section that sets forth “the contentions of the appellant with respect

to the issues presented, and the reasons therefor, including the reasons why the contentions

require appellate relief, with citations to the authorities and appropriate references to the

record.” Tenn. R. App. P. 27(a). In the argument section of its brief, SDC explains the

principles and purpose of the separation-of-powers doctrine, with citation to relevant legal

authority, but SDC fails to develop an argument to support its contention that the TPPA

conflicts with Rules 8 and 12.02. The entirety of SDC’s argument on this issue reads:

The Tennessee Supreme Court implemented its notice-pleading regime “to

insure [sic] that cases and controversies be determined upon their merits and

not upon legal technicalities or procedural niceties.” Without the notice-

pleading regime, one can have “no confidence” that a dismissed claim “was

frivolous or nonmeritorious.” The legislature nevertheless thwarted the

Court’s rules and policy goals to create and serve its own. Accordingly, the

TPPA is unconstitutional.

(Citations omitted).

As our courts have said many times before, “It is not the role of the courts, trial or

appellate, to research or construct a litigant’s case or arguments for him or her, and where

a party fails to develop an argument in support of his or her contention or merely constructs

a skeletal argument, the issue is waived.” Sneed v. Bd. of Pro. Resp. of Supreme Ct., 301

S.W.3d 603, 615 (Tenn. 2010).

For this reason, we affirm the trial court’s dismissal of SDC’s constitutional

challenge based on the separation-of-powers doctrine.

B. Right to Jury Trial

“The right to a jury trial in Tennessee is expressly guaranteed by Article 1, Section

6, of the Tennessee Constitution, which mandates that ‘the right of trial by jury shall remain

inviolate.’” McClay v. Airport Mgmt. Servs., LLC, 596 S.W.3d 686, 690 (Tenn. 2020). Our

courts have interpreted this mandate as giving parties a “right to have a jury determine the

underlying facts of the case.” Id. at 692.

SDC argues that the TPPA violates a respondent’s right to have a jury determine the

facts of the case because—according to SDC—section 47-18-105(d) lets courts consider

countervailing evidence and § 20-17-105(f) allows courts to determine whether a plaintiff

has a “likelihood of prevailing”:

The TPPA . . . requires courts to determine before discovery if a plaintiff’s

claim is supported by evidence and has a threshold level of “merit.” Courts

can even consider countervailing evidence. In short, courts consider the

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factual heft of a complaint, weigh evidence, and conduct a trial-like scrutiny

of the merits, to determine whether a plaintiff has a “likelihood of

prevailing.” That is a “merits-based determination.” In fact, the trial court

weighed SDC’s evidence and determined it could conceivably show actual

malice by a preponderance of the evidence but not by clear and convincing

evidence.

(Citations omitted).

We disagree with SDC’s interpretation of the statute. Subsection 105(d) states, “The

court may base its decision on supporting and opposing sworn affidavits stating admissible

evidence upon which the liability or defense is based and on other admissible evidence

presented by the parties.” Tenn. Code Ann. § 20-17-105(d). This language simply defines

the scope of evidence that a court may consider when adjudicating a TPPA petition; it does

not change the underlying standard of review, which is whether the petitioner or respondent

established a “prima facie case.”

As the Tennessee Supreme Court explained in Charles v. McQueen, 693 S.W.3d

262 (Tenn. 2024), the TPPA’s prima facie case requirement is analogous to the evidentiary

requirements in Rules 50.01 and 56 of the Tennessee Rules of Civil Procedure because the

Act requires the “production of enough evidence to allow the fact-trier to infer the fact at

issue and rule in the party’s favor.” Id. at 280 (quoting Prima Facie Case, Black’s Law

Dictionary 1441 (11th ed. 2019)). Accordingly, when determining whether a party has

satisfied its burden, courts must “view the evidence in the light most favorable to the party

seeking to establish the prima facie case and disregard countervailing evidence.” Id. at 281.

Similarly, we reject SDC’s contention that the TPPA violates the right to a jury trial

by letting courts determine whether a respondent has a “likelihood of prevailing” on the

merits. SDC’s argument is based on subsection 105(f), which provides:

(f) If the court determines the responding party established a likelihood of

prevailing on a claim:

(1) The fact that the court made that determination and the substance

of the determination may not be admitted into evidence later in the

case; and

(2) The determination does not affect the burden or standard of proof

in the proceeding.

Tenn. Code Ann. § 20-17-105(f).

Again, the TPPA requires courts to determine “whether the respondent has made a

prima facie case for each essential element of his claim.” Charles, 693 S.W.3d at 267

(quoting Tenn. Code Ann. § 20-17-105(b)) (emphasis added). “If the respondent meets this

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burden, the court must deny the petition unless ‘the petitioning party establishes a valid

defense to the claims in the legal action.’” Id. at 267–68 (quoting Tenn. Code Ann. § 20-

17-105(b)–(c) (emphasis added)). Subsection 105(f) simply states that if the court

determines that the responding party showed a likelihood of prevailing, “that determination

and the substance of the determination may not be admitted into evidence later in the case”

and “does not affect the burden or standard of proof in the proceeding.” Tenn. Code Ann.

§ 20-17-105(f).

For these reasons, we affirm the trial court’s dismissal of SDC’s constitutional

challenge based on the right to a jury trial.

II. PRIMA FACIE CASE: DEFAMATION CLAIMS

To make a prima facie case for each of its defamation claims, SDC had to produce

evidence from which a rational jury could conclude that Defendants damaged SDC’s

reputation by knowingly or recklessly publishing a statement that conveyed a false,

defamatory fact about SDC. See Press, Inc. v. Verran, 569 S.W.2d 435, 442 (Tenn. 1978).

On appeal, it is uncontested that Defendants published the Reports and that SDC

produced prima facie evidence of actual damages. Further, Defendants do not seriously

challenge whether the statements at issue could be understood in a defamatory way.

Consequently, we will focus our analysis on whether SDC produced evidence from which

a rational jury could conclude that the Reports conveyed false facts and, if so, evidence

from which a rational jury could clearly and convincingly conclude that Defendants

conveyed those facts with knowledge of their falsity or with reckless disregard, i.e., with

“actual malice.” 3 See Charles, 693 S.W.3d 262, at 268.

SDC’s defamation claims fall into two categories. First, SDC alleges that the

Reports contained false statements of fact. Second, SDC alleges that the Reports contained

true statements of fact that nonetheless imply other false facts. SDC refers to the latter as

its claims for “defamation by implication.” We will discuss each in turn.

A. Claims Based on Allegedly False Statements of Fact

“Common law has long provided that a person who repeats defamatory statements

made by another is also liable for defamation.” Funk v. Scripps Media, Inc., 570 S.W.3d

205, 211 (Tenn. 2019); see also Burke v. Sparta Newspapers, Inc., 592 S.W.3d 116, 117,

121–22 (Tenn. 2019) (action for defamation based on republication of statements made by

SDC has not appealed the trial court’s determination that SDC is subject to the “actual malice”

standard.

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a third party to a newspaper reporter). SDC asserts claims based on statements made by

Ms. Rosemond, Mr. Harwood, and Ms. Nguyen.4

1. Statements by Ms. Rosemond and Mr. Harwood

SDC contends that it made a prima facie case of defamation based on the statement

that Ms. Rosemond’s outside orthodontist “diagnosed her with a cross bite possibly caused

by the aligners” and the statement that SDC’s aligners caused Mr. Harwood’s teeth “to

detach from the bone.” SDC also contends that it established a prima facie case of

defamation based on the statement that Ms. Rosemond “tried but couldn’t speak to her

assigned dentist” and the statement that Mr. Harwood “tried to get in touch with his

assigned dentist, but . . . was unable to do so.”

But SDC produced no evidence that Ms. Rosemond’s dentist did not diagnose her

with a cross bite, and it produced no evidence that the aligners did not “possibly” cause

Ms. Rosemond’s injuries. That said, SDC did produce evidence that its aligners could not

have caused Mr. Harwood’s injuries. In a declaration, Mr. Harwood’s dentist, Dr. Taylor

Rice, stated his professional opinion that “the treatment [he] provided to Mr. Harwood via

SDC’s platform could not have caused the problems of which Mr. Harwood complained.”

(Emphasis added). We agree this is prima facie evidence of falsity regarding the statement

about Mr. Harwood’s teeth detaching from his jawbone.

To prove falsity regarding the statements about Ms. Rosemond and Mr. Harwood’s

attempts to contact their SDC-affiliated dentists, SDC produced copies of Ms. Rosemond

and Mr. Harwood’s account logs and declarations from their respective SDC-affiliated

dentists. Ms. Rosemond’s dentist, Dr. David Dowling, said that Ms. Rosemond never tried

to contact him, and Ms. Rosemond’s account log corroborates this. Likewise, Mr.

Harwood’s dentist, Dr. Rice, said that Mr. Harwood never tried to contact him, and Mr.

Harwood’s account log corroborates that fact. We conclude this is prima facie evidence of

falsity regarding these statements.

Even so, we have also determined that SDC did not produce prima facie evidence

of actual malice regarding the statements by and about Ms. Rosemond and Mr. Harwood.

Unlike the other elements of a public-figure defamation claim, “actual malice” must be

proved by clear and convincing evidence. See Charles, 693 S.W.3d at 280. “Evidence is

clear and convincing when ‘there is no serious or substantial doubt about the correctness

of the conclusions drawn from the evidence.’” Id. at 281–82 (quoting Furlough v. Spherion

Atl. Workforce, LLC, 397 S.W.3d 114, 128 (Tenn. 2013)). Thus, at this stage in the

SDC also contends that the Reports contained false statements made by Dr. Kau. However, SDC’s

brief fails to identify any statement by Dr. Kau that was literally false. See West v. Media Gen. Convergence,

Inc., 53 S.W.3d 640, 645 (Tenn. 2001) (“In defamation law, only statements that are false are actionable.”

(quoting Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70, 83 (W. Va. 1984)).

- 17 -

proceedings, SDC had to produce evidence from which a rational jury could conclude that

SDC established actual malice “by clear and convincing evidence.” See id. at 281.

To show actual malice, SDC relies only on the declaration of its Vice President of

Communications, Kim Atkinson. According to Ms. Atkinson, Defendants did not tell SDC

that the Reports would include Ms. Rosemond and Mr. Harwood. SDC asserts this

evidence supports “[a] reasonable inference” that Defendants “avoided asking SDC about

Ms. Rosemond [and Mr. Harwood]” because Defendants “did not want to learn something

that would contradict” their stories. We disagree this inference is reasonable. Regardless,

Ms. Atkinson’s declaration falls far short of the clear and convincing standard for showing

actual malice. See Lewis v. NewsChannel 5 Network, L.P., 238 S.W.3d 270, 301 (Tenn. Ct.

App. 2007) (“Failing to investigate information provided by others before publishing it,

even when a reasonably prudent person would have done so, is not sufficient by itself to

establish reckless disregard.” (citations omitted)).

For this reason, we conclude that SDC failed to establish a prima facie case of

defamation based on the statements about Ms. Rosemond and Mr. Harwood.

2. Statements: State Laws

SDC contends it made a prima facie case of defamation based on Ms. Nguyen’s

statement in the Broadcast that “California just enacted the first law that would require a

dentist to look at an x-ray before anyone can start this kind of treatment” and her statement

that the California law “bans [SDC]’s confidentiality agreements.” The Article similarly

stated that “a law went into effect in California requiring all teledentistry patients to get an

X-ray before undergoing online aligner treatment” and that “Virginia is considering similar

rules.”

SDC contends these statements are false because the California law requires treating

dentists to review a patient’s “most recent diagnostic digital or conventional radiographs

or other equivalent bone imaging suitable for orthodontia.” Cal. Bus. & Prof. Code §

1680(ah). Likewise, the proposed Virginia legislation would have required dentists to

review “bone images or X-rays of the patient” before providing “an appliance for a patient

through teledentistry.” S.B. 210, 2020 Sess. § 54.1-2708.5(A) (Va. 2020).

In other words, the Reports said that the California and Virginia laws required “x-

rays” when the laws also allowed “bone imaging.” We find the distinction immaterial

because a statement of the truth would not have a different effect on the reader or viewer.

See Stones River Motors, Inc. v. Mid-S. Pub. Co., 651 S.W.2d 713, 719–20 (Tenn. Ct. App.

1983) (statement is non-actionable unless “the libel as published would have a different

effect on the mind of the reader from that which the pleaded truth would have produced”

(quoting Memphis Pub. Co. v. Nichols, 569 S.W.2d 412, 420 (Tenn. 1978)). Thus, the

Reports’ summary of the California and Virginia laws was not materially false.

- 18 -

SDC also failed to produce evidence to show that the California law did not ban

SDC’s confidentiality agreements. The California law states, “A provider of dental services

shall not require a patient to sign an agreement that limits the patient’s ability to file a

complaint with the board,” i.e., the Dental Board of California. Cal. Bus. & Prof. Code §

1680(ah). SDC contends that, contrary to the Broadcast’s statement, the California law

does not apply to the agreements that SDC used. But SDC did not produce a copy of its

confidentiality agreement. Thus, we cannot say whether the agreement limited “the

patient’s ability to file a complaint with the [Dental Board of California].”

For these reasons, we conclude that SDC did not make a prima facie case of

defamation based on the Reports’ statements regarding state laws.

3. Statements: Hidden-Camera Footage

SDC contends that it made a prima facie case for its defamation claim based on the

Article’s statement that “employees at SmileDirectClub shops in Ohio, New Jersey, and

Alabama advis[ed] potential customers they didn’t have to see a dentist before starting

treatment.”5

SDC contends it presented prima facie evidence of falsity by producing transcripts

of the unedited hidden-camera footage. First, SDC points to the following passage from

the Alabama transcript:

Speaker 1: Do you—do I need to go to a dentist before I do this?

Smile Shop Guide: Yes, I would always recommend. You can do it while

you’re waiting your three to four weeks or whatnot. But, as long as you have

recent radiographs taken within the past two years, I believe is when it’s

recommended to do that . . . .

Speaker 1: Like an X-ray, a radiograph?

Smile Shop Guide: Yeah, that’s an X-ray. Yeah.

Speaker 1: So I should go to a dentist and get an X-ray?

Smile Shop Guide: Yes, right. Yes, absolutely. . . .

. . .

SDC also quotes the Broadcast. However, SDC’s analysis concerns only the statement that

“employees at SmileDirectClub shops in Ohio, New Jersey, and Alabama advis[ed] potential customers

they didn’t have to see a dentist before starting treatment.” The Broadcast did not include this statement.

- 19 -

Speaker 1: So you recommend going to the dentist. Is it required?

Smile Shop Guide: I mean, we do have that in our terms and conditions. So,

I mean, I can say it is required . . . .

(Emphasis added). Viewing this evidence in a light most favorable to SDC, we agree that

it is prima facie evidence of falsity regarding the statement that an employee in Alabama

“advis[ed] potential customers they didn’t have to see a dentist before starting treatment.”

Second, SDC relies on the following excerpt from the Ohio transcript:

Speaker 1: . . . So do I ever—do I have to see a dentist just before I start or

anything like that?

Smile Direct Rep: So that’s what our photos and stuff are for. So our doctors

are going to make a determination based on like the health of your teeth and

photos, make sure that everything looks okay, we don’t treat things like like

[sic] periodontal disease, like–

Speaker 1: Right.

Smile Direct Rep : –gum recession, any kind of like something we could,

you know, damage and if we don’t know for sure. They’ll ask you to get a

clearance from your doctor. So they’ll ask you to go through the process of

going to your dentist, having your doctor sign off on it and make sure that

you’re in—you’re good.

Speaker 1: So that’s if the scan shows I have any sort of issues?

Smile Direct Rep: Scan and photos. So if that is the case, if there is a situation

like that, we won’t do treatment for you, we won’t create a plan, there’ll be

no charging of anything. We won’t do anything until there’s like a dental

clearance . . . .

(Emphasis added). Viewing this evidence in a light most favorable to SDC, we conclude

that it is prima facie evidence of falsity with regard to the statement that an employee in

Ohio “advis[ed] potential customers they didn’t have to see a dentist before starting

treatment.”6

Although the Reports accurately quoted the Ohio employee as saying, “[T]hat’s what our photos

and stuff are for,” the Reports omitted the fact that the employee was discussing dental visits in the context

of SDC’s onboarding process, i.e., whether seeing a dentist is necessary to get started. This omission is

- 20 -

And third, SDC relies on the following exchange in the New Jersey transcript:

VICKY NGUYEN: . . . And do I need to go see a dentist before I do it?

Speaker 1: We recommend you do but either [sic] it’s not mandatory. Like

if you’re updated with your dental cleanings and your fillings you should be

fine. . . .

(Emphasis added). This evidence supports rather than rebuts the assertion that SDC’s New

Jersey employee “advis[ed] potential customers they didn’t have to see a dentist before

starting treatment.”

Although SDC’s evidence is capable of proving falsity with regard to the statements

attributed to two SDC employees, we conclude this evidence is incapable of proving

material falsity. The “gist” or “sting” of this part of the Article is that SDC employees were

contradicting Ms. Greenspon-Rammelt. A correct statement of the truth would not have

changed the message conveyed. See Stones River Motors, Inc., 651 S.W.2d at 719–20. For

example, if the Article accurately stated that one SDC employee said dentist visits are “not

mandatory,” the reader would still be left with the impression that Ms. Rammelt-Greenspon

was, at the very least, being insincere.

For these reasons, we conclude that SDC did not make a prima facie case of

defamation based on the Article’s statement that “employees at SmileDirectClub shops in

Ohio, New Jersey, and Alabama advis[ed] potential customers they didn’t have to see a

dentist before starting treatment.”

B. Claims Based on Allegedly Defamatory Implications

Along with the allegedly false statements considered above, SDC contends that the

reports used true statements to imply false, defamatory facts.

Under the doctrine of defamation by implication, a true statement of fact may

support a defamation claim if the statement reasonably conveys a defamatory meaning. See

Memphis Pub. Co., 569 S.W.2d at 420; see also Loftis v. Rayburn, No. M2017-01502-

COA-R3-CV, 2018 WL 1895842, at *5 (Tenn. Ct. App. Apr. 20, 2018) (discussing law of

defamation by implication). In a claim for defamation by implication, “it is the implication

that must be false, the implication that must be defamatory and unprivileged and the

implication that must be published with the requisite degree of fault.” Dobbs et. al, The

Law of Torts § 566 (2d ed.). The test is whether the statements made are “capable of

material because Defendants used the employee’s statement in a way that made it appear that the employee

was contradicting Ms. Rammelt-Greenspon’s assertion that prospective patients are required to have seen

a dentist within 6 months before starting treatment.

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implicitly bearing a defamatory meaning when read by a reasonable person.” Grant v. Com.

Appeal, No. W2015-00208-COA-R3-CV, 2015 WL 5772524, at *13 (Tenn. Ct. App. Sept.

18, 2015).

SDC contends that various statements in the Reports implied that SDC’s dentists

are not actually involved during treatment; that treatment through SDC’s platform can

cause permanent and irreparable harm; that treatment through SDC’s platform does not

deliver expected results; and that SDC is a “dishonest company.”

1. Implication: Dentist Involvement

First, SDC contends that statements in the Article7 implied that SDC’s dentists were

not actually involved in the supervision of treatment through SDC’s platform. In support

of this argument, SDC relies on the following passages:

To get started, SmileDirectClub customers either can get a 3D image of their

teeth in one of its SmileShops or have an at-home kit sent to them. A few

weeks later, [Ms. Rosemond] received dental aligners and followed the

instructions to send in photos of her mouth every 90 days. SmileDirectClub

told her the treatment would be reviewed remotely by one of its 250 dentists

and orthodontists. All of her care was done online, she said.

. . .

She’d been assured that she’d be able to get in touch with her assigned

dentist, but after multiple attempts, she said she was never connected, nor

given contact information. . . .

. . .

While SmileDirectClub, the largest at home dental alignment company, and

others promise to leave patients smiling, an NBC News investigation into a

growing list of complaints found that this new trend in straightening teeth is

leading to painful problems for some people.

. . .

. . . [Mr. Harwood] also said that he tried to get in touch with his assigned

dentist, but that he was unable to do so.

SDC did not cite any portion of the Broadcast in support of this argument.

- 22 -

It’s important for teeth straightening patients to see an orthodontist regularly

to make sure their bite is correct and their mouth is healthy overall, Kau said.

Regular visits with an orthodontist help ensure everything is on track, Kau

said, “Every visit that we spend with a patient, we’re constantly making

adjustments so we can get the best, optimal care for the patient,” he said.

. . .

SmileDirectClub reviews all patient scans before sending the first treatment

kits, and only sends them to patients that they think are good candidates . . . .

We agree these and other statements in the Article “are capable of implicitly bearing

a defamatory meaning when read by a reasonable person.” See Grant, 2015 WL 5772524,

at *13. Specifically, a reasonable person could conclude that SDC—as opposed to its

dentists—provided patient care during treatment. However, we have also determined that

SDC failed to present prima facie evidence that this implication is false.

To establish falsity, SDC points to a declaration from its Chief Medical Officer, Dr.

Jeffrey Sulitzer, and a declaration from an SDC-affiliated dentist, Dr. Gary Moore. Dr.

Sulitzer stated that SDC-affiliated dentists “assess, diagnose, and treat patients.” And Dr.

Moore described the steps he took before, during, and after treatment. Based on this

evidence, SDC argues that “patients do not receive aligners until: they provide their doctors

with medical and dental histories, and detailed images of their teeth and gums; share with

the doctors a primary objective of treatment; have their doctors review and approve a

treatment plan; and [have] their doctors prescribe aligners.”

However, Dr. Sulitzer and Dr. Moore’s declarations, as well as other evidence

submitted by SDC, show that SDC-affiliated dentists play a minimal albeit important role

during treatment. It is undisputed that SDC developed the treatment plan; SDC assigned

the dentist; SDC facilitated the prescription and manufacturing process; SDC maintained

patient records; and SDC fielded all patient inquiries. In fact, the record shows that SDC-

affiliated dentists had no contact with their patients unless there was a “clinical” question

or concern.8 This limited role was at the heart of SDC’s business model: The company

SDC has not explained what it considers to be “clinical.” The customer service logs for Ms.

Rosemond and Mr. Harwood show that each patient contacted SDC on multiple occasions with concerns

about pain and improper tooth movement. All those concerns were handled by customer service

representatives and Dental Team members, not the assigned dentist.

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offered faster, cheaper treatment for mild-to-moderate malocclusion of the teeth by, inter

alia, reducing the patient’s need to make regular visits with their dentist.9

Thus, the implication that SDC-affiliated dentists are essentially MIA during

treatment is substantially true because a statement of the truth would not “have a different

effect on the mind of the reader from that which the pleaded truth would have produced.”

Stones River Motors, Inc., 651 S.W.2d at 712 (quoting Memphis Pub. Co., 569 S.W.2d at

420).

For these reasons, we conclude that SDC did not make a prima facie case of

defamation based on the implication that doctors are “not actually” involved.

2. Implication: Permanent Harm

SDC contends that it made a prima facie case of defamation based on the implication

that treatment through SDC’s platform can cause permanent and irreparable harm.

SDC relies on the following statements from the Article:

The Better Business Bureau reports more than 1,800 complaints nationwide

involving SmileDirectClub. Most of the complaints involve customer service

issues-such as broken aligners, delivery issues and payment problems-but

dozens describe concerns about treatment results: complaints like broken

teeth and nerve damage.

. . .

Dr. Chung Kau, chairman and professor of orthodontics at the University of

Alabama in Birmingham, said moving teeth without in-person supervision

can lead to permanent harm.

In the transcript Defendants’ hidden-camera footage in Ohio, an SDC employee explains as

follows:

The dentist that we assign to your case, it’s going to be an orthodontist or a general dentist.

Each of our states have their own different set, so it has to be a doctor that’s licensed in

your area, of course. But basically he or she would just stay in their own private office

because essentially they’re kind of like contracted through us. So they get a certain

percentage based upon the creation of a treatment plan. And then our dental team is the

one who helps you throughout your treatment through what we call your patient portal.

And the Alabama SmileShop employee said that customer inquiries were handled by SDC’s “team,” not

“the dentist or orthodontist.” She explained, “That’s how we keep it less expensive.”

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