Attorney tries to close Kish hearing, case continues

Mindy Ragan Wood, The Norman Transcript, Okla.
·4 min read

Mar. 15—A local judge declined to close a hearing to the public on a slander lawsuit Monday involving a local optometrist and may decide later this week to dismiss the suit or let the arguments continue.

Dr. Nicole Kish filed a lawsuit against Kathryn Taylor, Christian Sanchez and Kristy Vandenheuvel in January. Vandenheuvel has not been successfully served, court records show. Kish has accused the defendants of making false and defamatory statements on social media during her trip to Washington D.C. where she attended President Trump's rally. She is seeking damages of $500,000.

District Judge Jeff Virgin was set to hear arguments Monday morning. However, Kish's attorney, Kelly Lynn told The Transcript on Monday before the proceedings that, "This is a closed hearing." When asked why he made the request, he said, "Because I requested it." No request for a closed hearing, which would bar public access, was filed with the court. The defendants' attorney, Andrew Casey said he was not aware of the request. The hearing remained open and continued.

Kish's sworn affidavit alleges she has lost at least $95,083 and 53 longstanding clients. She also claimed that she was forced to hire off-duty police officers for protection after the clinic received harassing phone calls and death threats.

Lynn argued before the court that his client's losses were the direct result of Facebook posts and those who made them did not exercise reasonable caution or attempt to learn if their statements were true. Exhibits to the court show Taylor posted a photo of Kish and her "significant other, Rarchar Tortorello" who were not wearing masks on an airplane and while outside.

One photo was shared to the Norman Ward 8 Facebook page with the following comment:

"Optometrist Nicole Kish is pictured here without a mask. There are pics of her on a plane without a mask. I called her office and she will be seeing patients next week. If you have an appointment with her in the next two weeks, you might consider canceling or rescheduling," her post reads.

In another comment, Taylor called Kish "irresponsible" and states her husband is looking "for a new eye doctor." A further comment shows "Jordan Yanch" planned to leave a review on her business listing online.

Sanchez accused the pair of criminal acts when he wrote, "they must be prosecuted and exposed," The Transcript previously reported. Kish's affidavit states Taylor of claimed Kish had COVID-19.

Casey argued to the court that his clients exercised their free speech rights, acted within the law based on their concerns for the public and that their comments included a Norman City Council candidate, Rarchar Tortorello, which qualifies as public interest.

Lynn called the free speech and public interest argument a disguise for defamation.

"A matter of public concern," he said. "That's what defendant Taylor seeks to use as a shield of free speech, as a guise of a matter of public concern. The CDC (Centers for Disease Control and Prevention) were followed by my client. What would be the matter of public concern?"

Lynn argued his clients were allowed to be unmasked for two reasons under CDC guideline exemptions: while consuming a beverage or food and in the event that one is communicating with a person who is hearing impaired.

"Mr. Tortorello is a decorated veteran that suffers from severe, from a service- related hearing impairment," Lynn said. "A reasonable person would have done a simple investigation before making defamatory and false statements."

Casey challenged Kish's sworn statement about the loss of business she claims to have incurred as a result of the social media posts. He claimed Kish's sworn statement attesting to financial harm was insufficient.

"The idea where you claim you have lost 53 clients through the actions of a defendant school teacher (Taylor) and another defendant, a young person, about not wearing a mask or showing up to a protest in Washington D.C. that turned violent and deadly is not sufficiently stating any of the evidence," Case said.

Judge Virgin did not issue a ruling.

Mindy Wood covers City Hall news and notable court cases for The Transcript. Reach her at mwood@normantranscript.com or 405-416-4420.