Dr. William Boothe Sues Kidd Kraddick, Kellie Raspberry, and Al Mack

CAUSE NO. 04-12468-C

WILLIAM A BOOTHE, M.D.,                   IN THE DISTRICT COURT
an individual,     
              
                      PLAINTIFF,
vs. DALLAS COUNTY, TEXAS
KIDD KRADDICK, and individual,  
KELLY RASPBERRY, and individual, and
AL MACK, an individual.


C-68TH JUDICIAL DISTRICT
                     DEFENDANTS.

PLAINTIFF'S ORIGINAL PETITION

        Plaintiff, William A. Boothe, M.D. ("Dr. Boothe"), for his claims against the Defendants, Kidd Kraddick ("Kraddick"), Kelly Raspberry ("Raspberry") and Al Mack ("Mack"), alleges and states as follows:

1.    DISCOVERY CONTROL PLAN

        1.1    Pursuant to Rule 1904 of the Texas Rules of Civil Procedure, Dr. Boothe intends to conduct Discovery in this case under a Level 3 Discovery Control Plan that has been or will be submitted to the Court for its approval.

2.    PARTIES

        2.1    Dr. Boothe, a natural person, is a private individual within the meaning of Texas law and is a citizen of the State of Texas, and at all times relevant hereto resided in Dallas County, Texas.

        2.2    Defendant Kraddick, a natural person, is a private individual within the meaning of Texas law and is a citizen of the State of Texas, and upon information and belief, is a resident of Dallas County, Texas.  Upon information and belief, Kraddick can be served with service of process at his residence or at KISS-FM in Dallas County, Texas.

        2.3.    Defendant Raspberry, a natural person, is private individual within the meaning of Texas law and is a citizen of the State of Texas, and, upon information and belief, is a resident of Dallas County, Texas.  Upon information and belief, Raspberry can be served with service of process at her residence or at KISS-FM in Dallas County, Texas.

        2.4    Defendant Mack, a natural person, is private individual within the meaning of Texas law and is a citizen of the State of Texas, and, upon information and belief, is a resident of Dallas County, Texas.  Upon information and belief, Mack can be served with service of process at his residence or at KISS-FM in Dallas County, Texas.

3.     JURISDICTION AND VENUE

        3.1.    This court has jurisdiction over the subject matter in this Petition as the amount in controversy exceeds the minimum jurisdictional limits of the Court.

        3.2.    Venue is proper in Dallas County, Texas under 15.017 Texas Civil Practices and Remedies Code because, upon information and belief, Defendants Kraddick, Raspberry and Mack reside in Dallas County, Texas.  Venue is also proper in Dallas County, Texas under 15.017 Texas Civil Practices and Remedies Code because, upon information and belief, Defendants Kraddick, Raspberry and Mack reside in Dallas County, Texas.  Venue is also proper in Dallas County, Texas under 15.002(a)(1) of the Texas Civil Practices and Remedies Code because all or a substantial part of the events or omissions giving rise to the claims herein occurred in Dallas County, Texas in that the broadcasts that are the subject of this action were transmitted to KISS-FM's audience in Dallas County, Texas.

FACTS COMMON TO ALL CLAIMS 

4.        The Plaintiff 

        4.1    At all times material to this lawsuit, Dr. Boothe has been a licensed medical doctor.  Dr. Boothe owns and operates the Boothe Eye Care and Laser Center.

        4.2    Prior to the defamatory radio broadcasts by the defendants, Dr. Boothe had enjoyed a successful medical practice for many years.  As a result of his success, Dr. Booth (sic) and the Boothe Eye Care and Laser Center became one of the nation's largest providers of Laser eye-care services.  At all times material to these claims, Dr. Boothe enjoyed an excellent reputation in his community, in his profession, and at the Boothe Eye Care and Laser Center.

5.        The Defendants

        5.1    Non-defendant, Clear Channel Worldwide, Inc., a/k/a Clear Channel Communications, owns operates and controls radio station KHKS-FM 106.1-KISS FM.  Clear Channel is a diversified media company that operates in various business segments that include television broadcasting, radio broadcasting, outdoor advertising and live entertainment.  The television and radio broadcasting segments include television and radio stations for which Clear Channel is the licensee and for which it programs and/or sells air time to television and radio stations in the Fort Worth and Dallas areas.  Clear Channel and KISS-FM broadcast daily from Dallas, Texas, and are generally listened to throughout the Dallas/Fort Worth metroplex and throughout the Sate (sic) of Texas. Its website is viewed around the world.

        5.2    Clear Channel also sponsors and maintain websites on the world wide web using the URL locators www.1061kissfm.com and www.kiddlive.com, on which matters relating to its broadcasts are further published.

        5.3    Defendant Kraddick is a radio personality whose program is broadcast by Clear Channel.  At all times relevant hereto, Defendant Kraddick was acting in his individual capacity and as an agent or employee or authorized representative of Clear Channel.

        5.4    Defendant Raspberry is a radio personality who regularly appears on Kraddick's radio show broadcast by Clear Channel.  At all times relevant hereto, Raspberry was acting in her individual capacity and as an agent or employee or authorized representative of Clear Channel.

        5.5    Defendant Mack is a radio personality who regularly appears on Kraddick's radio show broadcast by Clear Channel.  At all times relevant hereto, Mack was acting in his individual capacity and as an agent or employee or authorized representative of Clear Channel.

6.    Operative Facts

        5.3    Defendant Kraddick is a radio personality whose program is broadcast by Clear Channel.  At all times relevant hereto, Defendant Kraddick was acting in his individual capacity and as an agent or employee or authorized representative of Clear Channel.

        5.4    Defendant Raspberry is a radio personality who regularly appears on Kraddick's radio show broadcast by Clear Channel.  At all times relevant hereto, Raspberry was acting in her individual capacity and as an agent or employee or authorized representative of Clear Channel.

        5.5    Defendant Mack is a radio personality who regularly appears on Kraddick's radio show broadcast by Clear Channel.  At all times relevant hereto, Mack was acting in his individual capacity and as an agent or employee or authorized representative of Clear Channel.

6.        Operative Facts

        6.1    For a substantial period of time preceding this lawsuit, Dr. Boothe and the Boothe Eye Care and Laser Center have purchased large blocks of advertising from Clear Channel.  Dr. Boothe's advertisements have regularly appeared on Clear Channel Stations and, in particular, on KISS-FM.  Dr. Boothe has also purchased an advertising link on KISS FM's homepage on the worldwide web located at www.1061kissfm.com.

        6.2    Dr. Boothe's advertising on Clear Channel and on KISS-FM prominently refer to the fact that Dr. Boothe has performed tens of thousands of eye surgeries and that he and the Boothe Eye Care and Laser Center are the area's largest provider of refractive surgical procedures.  Dr. Boothe has expended a large amount of money developing an advertising campaign which identifies him as a highly experienced ocular surgeon and which creates an association in a listener's mind between Dr. Boothe and the Boothe Eye Care and Laser Center on the one hand and the tens of thousands of refractive surgeries that Dr. Boothe has performed on the other.  The purpose of this association is to identify Dr. Booth (sic) as experienced and competent and the Boothe Eye Car (sic) and Laser Center as a desirable place to have refractive surgery performed.  Because of the volume of advertising purchased by Dr. Boothe, virtually any KISS FM listener can and does make a mental association between the tens of thousands of procedures performed by Dr. Boothe and the Boothe Eye Care and Laser Center.  

FIRST CLAIM FOR RELIEF -- DEFAMATION

7.        Defendants' Defamation of Plaintiff as to the June 28, 2001, Broadcast

        7.1    Dr. Boothe incorporates by reference the allegations contained in Sections 1 through 6, above, as if set forth in their entirety herein.

        7.2    On or about June 28, 2001, Defendants Kraddick, Raspberry and Mack made a broadcast which was defamatory per se of and about Dr. Boothe in that the gist of the broadcast, when taken as a whole and as would have been perceived by a reasonable listener, stated that:

  1. Dr. Boothe was not a competent physician;

  2. Dr. Boothe was not in sufficiently good physical condition to perform refractive surgeries;

  3. Dr. Boothe was too physically tired to perform refractive surgeries;

  4. Dr. Boothe had a "clouded and fogged brain' which impaired his ability to perform refractive surgeries;

  5. Dr. Boothe had carpel tunnel syndrome which would, in turn, impair his ability to perform refractive surgeries;

  6. Dr. Booth (sic) has performed so many refractive surgeries that he had probably "gone crazy;" and

  7. Dr. Boothe "probably couldn't hold the laser straight."

The foregoing statements are/were false.  A transcript of the subject broadcast is attached to this petition as Exhibit "A."

        7.3    The "gist" of the radio broadcast was calculated and designed by the defendants to leave the listener with an entirely false and untrue impression that Dr. Boothe was not a highly skilled physician and that his surgical abilities were substandard.  These untrue statements of and about Dr. Boothe have defamed him in his personal and professional life, thus causing his personal and professional harm, embarrassment, humiliation and other condensable damages.

        7.4    The reasonable interpretations as a reasonable listener would have, on the whole, from defendants' false, scandalous, and defamatory statements and implications about Dr. Boothe from the broadcast include, but are not limited to those set forth above.

        7.5    The false information aired by the defendants as alleged in this Petition is defamatory, in that, as reasonably understood, the information tended harmed the character and reputation of Dr. Boothe, so as to lower him in the opinion and estimation of the community and in his profession and deterred other persons from associating or dealing with him.  As a result of the defamatory statements, Dr. Boothe has suffered general and special damages.

SECOND CLAIM FOR RELIEF -- BUSINESS DISPARAGEMENT

8.        Defendants' Disparagement of Dr. Boothe's business

        8.1    All previous allegations in this petition are re-alleged, incorporated and adopted as if set forth at length.

        8.2    The statements of the defendants have disparaged Dr. Boothe's business.  As a result of the defendants' business disparagement, the public image as to the quality of Dr. Boothe's professional services has been lessened which, in turn, has likely caused persons who would have otherwise purchased his services not to purchase his services.

        8.3    As a further result of the defendants' business disparagement, the marketing campaign that Dr. Boothe has funded to increase public awareness as to the quality of his services has been greatly diminished and the large sums of money paid to Clear Channel by Dr. Boothe to conduct his marketing campaign have been wasted.  Incredibly, much of the money that Dr. Boothe has spent in his marketing campaign has been with Clear Channel, and has directly or indirectly funded Clear Channel and the compensation of Kidd Craddock (sic), Kelly Raspberry and Al Mack.  Even more incredible is the fact that the defendants have intentionally and maliciously "bitten the hand that feeds them" by disparaging Dr. Boothe in a reckless and malicious manner.

        8.4    As a result of the defendants' business disparagement, Dr. Boothe has suffered general and special damages.

THIRD CLAIM FOR RELIEF -- OUTRAGE

9.        Defendants' Outrageous Conduct

        9.1    All previous allegations in this petition are re-alleged, incorporated and adopted as if set forth at length.

        9.2    Clear Channel has maintained a course of action in which it regularly accepted thousands of dollars from Dr. Boothe for advertising which it knew was being expended for the purpose of building his reputation and his business.  These revenues paid to Clear Channel have directly or indirectly contributed to the financial support of the defendants.  Nonetheless, the defendants set upon a course of action to lessen the value of the advertising Dr. Boothe purchased from Clear Channel and to lower Dr. Boothe's professional reputation.  In so doing, the defendants acted intentionally or recklessly.  Moreover, their actions were extreme and outrageous and caused Dr. Boothe severe emotional distress.

        9.3    In so acting, the defendant's conduct was so extreme and so outrageous in character as to go beyond all possible bounds of decency and should be regarded as atrocious and utterly intolerable in a civilized society.

        9.4    As a result of the defendants' business disparagement, Dr. Boothe has suffered general and special damages.

FOURTH CLAIM FOR RELIEF -- DECEPTIVE TRADE PRACTICES

10.        The Defendants' Deceptive Trade Practices

        10.1    All previous allegations in this petition are re-alleged, incorporated and adopted as if set forth at length.

        10.2    The statements of the defendants disparaged the services of Dr. Boothe by making false and misleading representations of fact in violation of Title 2, 17.46(b)(8) of the Business and Commerce Code -Deceptive Trade Practices and Consumer Protection Act.

        10.3    As a result of the defendants' violation of the Deceptive Trade Practice and Consumer Protection Act, Dr. Boothe has suffered general and special damages.

11.        PRAYER

        WHEREFORE, PREMISES CONSIDERED, Dr. Boothe requests that the defendants be cited to appear and answer, and that upon final trial of this matter, Dr. Boothe be awarded by this Court judgment against each of the defendants jointly and severally, for the following relief.

        11.1    For his economic damages, an amount not exceeding $1,00,00.0;

        11.2    For his emotional distress and mental anguish, an amount not exceeding $1,000,00.00;

        11.3    Punitive damages against the defendants or, alternatively, additional damages under the Deceptive Trade Practices Act in an amount not to exceed $2,00,00.

        11.4    Costs and attorney fees according to law; and

        11.5    All other relief to which Dr. Boothe may be entitled.

JURY TRIAL DEMANDED AND APPROPRIATE FEE TENDERED

Respectfully submitted,

RICHARDSON, STOOPS,
RICHARDSON & WARD

Gary L. Richardson, TBA#16863500
6555 South Lewis Avenue
Tulsa, Oklahoma 74136
(918) 492-7674
(918) 493-1925 Facsimile


Transcription of Radio Broadcast / Kidd Kraddick of January 28, 2001

Inaudible...
Male: No, no, no...
Female: I want to do the weather first.
KC: Yeah, good spot.
Male: Ok, do the spot...
Female: ...partly cloudy
Male: Do the spot.
Female: ...91 today, 73 now.  Brought to you by Parts City Auto Leasing.
Male Ready?
2nd Male: Hold on.
Female: ...(inaudible) on traffic
Male: You guys ready?
Male: Ready?
2nd Male: ...two, one, go.
Male: If you have been considering Lasik surgery I have a question for ya.
2nd Male: What's that?
Male: Does the Lasik doctor you're considering work out?
2nd Male: Ah, yeah, I hope so.  I want him to be in good shape.
Male: It's very important.  Not just be in good physical shape you want him to be in good mental condition.
2nd Male: Uh-huh, yeah.
Female: Yeah, brain power.
Male: I get nervous when I hear this one ad that runs on the radio, I hear the guy go Dr. Show-and-Tell-It performs sixty-four thousand of these!  He's got to be really tired, don't you think?
Female: Brain's all clouded...
2nd Male: Yeah.
Male: Yeah.
Female: Fogged...
Male: Do you want to be one of sixty four thousand...
2nd Male: Ehh... if he's done sixty-four thousand you know he doesn't have time to work out, you know, and get himself in top physical and mental condition.
Male: He's probably about to go crazy.
Female: He's probably developed arthritis in his hands.
Male: And he's got that carbal [sic] thing...
2nd Male: Carpal tunnel thing.
Female: (Inaudible)... he probably (inaudible) can't hold the laser straight...
Male: Dr. Whitman is doing Pilates for his patients.
Female: Really!?
2nd Male: Shut up!
Male: ...(inaudible) can afford that.
Female: That helps him develop the inner peace of mind...(inaudible) more comfortably.
Male: ...does Pilates now so he's in tip top physical and mental condition when he performs his surgery and maybe the Pilates is a small reason to be a...(inaudible) a reason to mention the Best Lasik surgeon in all of Dallas Ft. Worth.
Female: Pilates can't hurt Kidd...
2nd Male: It can't hurt.  I've done it.
Male: Now it's uh blade free Lasik and they're having a big seminar, uh, next Thursday night.  That's a week from tonight.  Dallas and Plano.  You can watch the surgery being performed.  I know that sounds like oh-my-god I can't watch that.  It's so nothing.  I mean...(inaudible).
Female: And that's the point.  That's why they let you watch it so...
Male: And you can go to the Pilates place and watch Dr. Whitman do Pilates too if you want to
2nd Male: Yeah, yeah.
Male: I haven't worn glasses in years thanks to Dr. Whitman and, uh, you don't have to either.  Give him a call at 214-220-EYES...
Commercial:    Want a Lexus or a BMW...