By Janice Morse
The Cincinnati Enquirer

MIDDLETOWN - After smoldering for two years, a legal battle over an antismoking poster has evaporated.

In a decision released Monday, the Ohio 12th District Court of Appeals said a lower court was correct when it ruled against a 2002 defamation lawsuit filed by James E. McWeeney, a Lebanon medical doctor who owns Doc's Smoke Shoppe, a Lebanon bar/nightclub that sells cigars and formerly sold imported cigarettes.

McWeeney took issue with a poster depicting "Doc's Stop Smoking Shoppe." Court records say the poster was illustrated with "a computer-generated 'clip-art' cartoon of a cross-eyed man with dark circles under his eyes, smoking eight cigarettes at once, surrounded by clouds of smoke, with handwritten lettering asking, 'Want to Quit?'"

A former medical practice partner of McWeeney, Michael Dulan, produced the poster in 2001 to advertise a smoking-cessation program at Middletown Regional Hospital. "After seeing (the poster), McWeeney believed the poster to be a personal and professional attack on him by Dulan," the appeals court said. The hospital ordered Dulan to take down the posters after hearing from McWeeney's lawyer.

Then McWeeney filed suit against Dulan and the hospital in March 2002, alleging defamation, tortious business interference and malicious injury to business reputation. A Warren County judge ruled in January 2003 in favor of Dulan and the hospital.

McWeeney appealed on the defamation issue, arguing that the poster "falsely suggests that (he) is associated with smoking, cancer, death, and infers that he promotes these things."

But the appeals court ruled the poster did not constitute actionable defamation.

"Dulan's poster arguably takes a dig at McWeeney's ownership of an establishment where cigarettes and other tobacco products have been sold in the past," the court said.

Further, the court said anyone who saw the poster and thought the cartoon was a caricature of McWeeney would have realized it was representing "hyperbole and opinion," not fact.