The man in an ad a for prostate device wears a smile on his healthy- and happy-looking face. He isn't smiling now.
Ubaldo Dominguez Ramos, a 58-year-old model from Brooklyn Center, claims that Fridley-based Medtronic defamed him by illegally using his photograph in an ad touting its prostate device next to the words, "Now I can go like I am 19 again!"
Ramos said in a Hennepin County District Court lawsuit this week that he has never suffered from prostate problems. He said the advertisement alarmed his mother in Texas when she saw it.
In the suit filed by his lawyer, Peter Nickitas of Minneapolis, Ramos seeks a jury trial and more than $75,000 in general damages. He also wants Medtronic to be permanently banned from using his photograph. Ramos claims that he's the victim of defamation and invasion of privacy through commercial misappropriation.
In a statement Thursday, Medtronic said: "Whenever Medtronic uses a photo in association with our product materials, the appropriate rights and permissions are obtained. Medtronic has no further comment on this litigation, which was just served/filed yesterday."
Nickitas also declined to comment on the suit.
In 1998, Ramos posed for a photo through the Meredith Modeling Agency of Minneapolis. Getty Images Inc., through subsidiary Photodisc Inc., obtained a contractual release from Ramos for the photograph. Ramos wore a solid shirt in the session and signed a release allowing use of the photo, he says in his suit.
In 2001, Ramos appeared at an audition for a photo shoot at Markert Photo in Minneapolis. He wore a patterned shirt. He said he never signed a release for any photo taken there.
In addition to differences in the shirts, in the later photo, Ramos' hair is grayer, his mustache is a different shape and his face is fuller, the lawsuit noted. That's the photo that showed up in the objectionable ad; he can tell by the shirt, his lawsuit claims.
"At no time in his life has Mr. Ramos signed a release or contract pertaining to a photograph of him taken in a patterned shirt," the lawsuit said.
'I can go like I'm 19 again'
Ramos learned of the ad in October 2007, when it appeared in The Monitor newspaper in McAllen, Texas.
In large print next to his photo, the ad reads, "`I was on prostate medication for almost two years, but it wasn't working like it did at first. My doctor suggested RF therapy. Now I can go like I'm 19 again!' -- Arturo, RF therapy procedure March 2005."
The ad continues, "So what are you waiting for?" and directs customers to www.take controlofyourflow.com. The ad carries the Medtronic logo.
In small print at the bottom, a disclaimer notes that the quote is from an actual patient but says "Patient not pictured to protect privacy."
Ramos also learned that his photo was used in an ad for a "Senior Sunday Seminar" at McAllen Heart Hospital. The ad was titled, "Prostate Cancer: Beating the Odds." That ad did not have a disclaimer, the lawsuit said.
The lawsuit said Ramos' mother saw the ad and called him, "expressing alarm" that he had prostate problems. He said Medtronic used his 2001 photograph to sell products in ads in multiple states, including Minnesota and North Dakota. The suit noted the ads were used in areas with large Hispanic populations.
"But for the fact of Mr. Ramos's Hispanic ancestry, image, and appearance, defendant would not have used his image, likeness, identity and photograph on its PROSTIVA RF advertisements to Hispanic audiences," the lawsuit said.
Ramos claims to have lost economic opportunities because of the alleged misuse of his photograph. The lawsuit also claims he suffered emotional distress for being exploited for his race and portrayed as a person with prostate problems or sexual dysfunction.
First Amendment lawyer Paul Hannah said, "Everything depends on the circumstances surrounding the taking of the photograph."
But he said winning a defamation claim seems unlikely in this case. "I'm not sure what the damages would be. If you have a loathsome disease and you're falsely accused, that's libel per se. This seems a little far-fetched," Hannah said.
According to the Medtronic website, as the prostate grows later in life, it can "squeeze" the urethra and partly block the flow of urine, like a clamp on a garden hose.
It causes discomfort and other problems. More than 8 million men in the United States have symptoms.
Commonly used treatment involves drugs, or surgery in serious cases. But Medtronic's treatment, RF Therapy, is administered in a doctor's office. The Medicare-approved procedure uses low-level radio signals to destroy excess prostate tissue.