Trial begins in case of Ozark mom who says CoxHealth CEO defamed her on social media
Arguments began Monday in a Greene County lawsuit pitting an Ozark real-estate agent and single parent against Springfield-based CoxHealth and its CEO, Steve Edwards.
It's a convoluted court battle centered on dueling social media postings, sparked by the use of the word "COVID" as a promotional code to access free telehealth visits.
In August 2020, Samantha Cherry took to Facebook to "vent," in her words, after she was dissatisfied with the requirement from Cox's "virtual visit" service that the word "COVID" be used as a promotional code, as the News-Leader reported last year.
"COVID WARNING!!!," Cherry wrote at the beginning of a detailed Facebook post decorated with seven emoji symbols representing feelings of anger and concern.
Shortly afterward, Edwards responded to the brouhaha on Twitter when he wrote on Aug. 2, "In March, Cox decided to provide free COVID telemedicine to address the uninsured and reduce exposure risk. In the software, a coupon code had to be chosen instead of insurance field, 'COVID' It was a public service. I regret anyone would think it is part of a conspiracy theory."
More: CoxHealth asks judge for gag order in 'COVID' promo code lawsuit
Edwards also screenshotted an early version of Cherry's Facebook post, without redacting Cherry's name or that of her underage child, for whom she'd sought the virtual visit. He then posted his words, and Cherry's, for his 13,000 Twitter followers — along with anyone else on the internet who might attempt to access his publicly available account on the global platform.
(The News-Leader is not reproducing Cherry's Facebook post or Edwards' Twitter message to accompany this report because the media contain an apparent reference to the first name of Cherry's underage son.)
Cherry, who told the court Monday she has "two full-time jobs" with eXp Realty and Branson-based Vacations Made Easy, soon sued Cox and Edwards, claiming Edwards' tweet was libelous, defamatory, violated the medical privacy of her child and damaged her business reputation as a lead buyers agent with eXp Realty.
Cherry also claimed she had been harmed "psychologically, physically and emotionally" by the tweet, according to her lawsuit filed in August 2020.
In court Monday, she and her attorney Kristi Fulnecky argued that the behavior of Cox and its CEO was deeply unfair and that Edwards was essentially calling Cherry a "conspiracy theorist."
"I would never do that to a customer," Cherry told the court. "It doesn't matter what realm of business." She said she was "publicly shamed for not obeying" Cox and Edwards.
Fulnecky argued that Cherry's Facebook "venting" was a "personal" post, though shortly after Cherry made the post, it was set to public distribution and accessible by anyone online, according to screenshots presented in court.
"Consider this," Fulnecky told jurors during opening arguments. "A CEO of a hospital made untrue and defamatory statements on social media."
Later, Fulnecky told jurors, "I like to refer to this as a David and Goliath case."
Judge rebukes Fulnecky: 'I don't appreciate you saying that'
Fulnecky, who is also a former City Council member and Springfield mayoral candidate, called Cherry to the stand as the first witness in the case, which is being tried before a jury.
Later, Fulnecky appeared to struggle with court procedures related to admitting exhibits for the court to consider as Cherry testified and was cross-examined by Cox's lead attorney, Bryan Wade.
(Editor's note: Wade, managing partner of Husch Blackwell’s Springfield office, in the past has represented the News-Leader in media-related legal matters. His office also subpoenaed the News-Leader for online readership information related to the Cherry v. CoxHealth case.)
"I practice in a lot of different counties; it's different," Fulnecky told Judge Michael Cordonnier at one point in the proceedings, when she hesitated with regard to procedure.
Later, Fulnecky said, "I'm just trying to follow the rules for both of you (Judge Cordonnier and Cox's attorney, Wade)."
With that, Judge Cordonnier grew stern and said, "The rules are the rules," explaining that they apply equally to Fulnecky; the judge himself; and Cox's legal team.
"I don't appreciate you saying that," the judge added, in an apparent rebuke to Fulnecky.
Judge Cordonnier also appeared to grow impatient with Cherry. "Let's repeat the question so she understands it," he curtly instructed Cox attorney Wade, as Wade was cross-examining Cherry. Not long after, the judge ordered a recess for the night.
'People from California don't read KY3'
On Monday, much of Cox's argument centered on the notion that Cherry had not experienced business or health fallout from Edwards' tweeting two years ago, contrary to the claims in her lawsuit. Cox argued that Cherry courted publicity as her income increased, with no evidence that she booked any health care appointments in the time since she sued Cox.
In an intense period of cross-examination, Cherry discussed her PTSD diagnosis following a forcible rape by the father of one of her children. It was unclear if the sexual assault occurred in 2005 or in the early 2010s, based on testimony presented in court Monday, but Cherry shared painful details of waiting for the return of a long-delayed rape kit with test results to prove her claims. She admitted she had fallen into, then risen out of, a "bad downward spiral," and fought her way through a bankruptcy.
But Cherry had not sought out any mental wellness care since 2016, Cox attorney Wade argued, citing medical records, and had not used Cox health services since Edwards' tweet.
As far as Cherry's business, Wade presented evidence to the jury showing Cherry earned more than $96,000 in 2019 due to her tourism career.
She earned a real estate license in 2020 after the pandemic "shut all the cities down," in Cherry's words, impacting her tourism income: Wade presented evidence that she earned closer to $89,000 in 2020, a drop of more than 7 percent from the previous year.
But 2021 saw greater earnings for Cherry: Last year, she earned $114,000 from Vacations Made Easy, and another $177,000 from eXp Realty, according to W-2 and 1099 forms presented to the court as evidence.
Cox's defense team also presented social media posts by Cherry showing she was named one of eXp Realty's "Top 10 Producers" at least two times last year, in September and November, more than a year after Edwards' tweet and Cherry's lawsuit.
Wade argued that Cherry's complaints of privacy violations by Cox were mingled with attempts on her part to publicize her social media battle with Edwards, resulting in greater public awareness about her real estate business.
In one instance, Cherry wrote a posting urging her followers to "PLEASE SHARE!!!!" her accounting of the dispute, according to evidence presented Monday. Cherry also gave interviews to the News-Leader, KYTV and KSGF's Nick Reed, Cox's attorney said.
"You made it more public, not less public?" Wade asked Cherry on the witness stand. At another time, Wade asked, "You sold more houses than before you went to the News-Leader?"
"People in California are not reading KY3," Cherry replied. She argued that gaining more certifications in the real estate field had earned her more business: "I was a real estate rookie whenever the tweet first happened," she said. Later on, she became a "relocation specialist" serving out-of-state clients.
Citing monthly online traffic data the News-Leader provided in response to a subpoena, Wade noted that News-Leader.com attracted 2 million page views, 1.126 million user sessions and roughly 1 million users in July 2021, the month the case was featured in a news story.
"You expanded the viewership of this tweet substantially," Wade argued.
"No," Cherry said. "They're not going to search me out for this."
News coverage has been an issue in the case for months, as the News-Leader reported in September. The judge in the case has suppressed docket entries from appearing in public view in Missouri's online court records system, Case.net. Such a move makes it harder for news organizations to track a court case.
What did 'I hung up' mean?
Cox's legal team also disputed the way Cherry characterized her phone call with Cox customer service, after the failed attempt to log on to a telehealth visit.
Cherry said she sought telemedicine care for her child after he experienced on-and-off ear pain for a couple of weeks in summer 2020. When she couldn't log on to the virtual visit, she got a call from a Cox customer service rep.
In a recording of the call played in court two times on Monday by Cox's legal team, Cox virtual visits official Tondaleigha Jones can be heard explaining that the "COVID" promo code was for all types of health issues: "Right now that's the (code) for everybody and everything," Jones said.
When Cherry describes her son's ear pain, Jones says, "We actually generally don't treat ear concerns in general just because we cannot physically look into the ear to verify kind of what is going on."
"OK," Cherry says on the recording. "Well, I guess that solves that then."
Jones says on the recording, "I apologize" as the call continued, and at the end of the call, Cherry says, "That's OK. Thank you."
On Facebook, Cherry wrote, "I hung up," along with three emoji symbols representing anger and curse words.
In court, Cherry said, "I didn't say I hung up on her, I just hung up."
The trial is set to continue Tuesday morning.
Reach News-Leader reporter Gregory Holman by emailing gholman@gannett.com. He is also on Twitter at @GregHolmanNL. Please consider subscribing to support vital local journalism.
This article originally appeared on Springfield News-Leader: Trial starts in Ozark mom's lawsuit vs. CoxHealth CEO Steve Edwards
