Daycare Dispute Over Negative Online Reviews Leads To Defamation Lawsuit

MIAMI (CBSMiami) – On January 23, Kimberly Moore said she picked up her son, Owen, 2, from his Sunrise daycare facility, The Learning Experience.

When she arrived and saw her son, she knew something was wrong.

"His eyes were swollen," Moore said. "Rash all over his body."

Moore says it's because she believes the facility "had given him a bagel with cream cheese."

Owen is allergic to milk and Moore said they made sure to tell The Learning Experience that when they enrolled Owen.

She even showed CBS4 News the daycare enrollment form with the "Yes" box checked next to "Allergies" and the word "Milk" written in the comment section next to it.

"We told them in the initial registration into the school," Moore said. "We listed that he had allergies to milk."

What she saw on January 23, affected Moore deeply.

"It makes me very upset," she said. "I trust those people to take care of my son. So, I just wanted to be notified of it. I wasn't even notified."

Moore, a pediatric nurse, said she and her significant other, Marc LaRocco, Owen's father, would soon learn that this was not an isolated occurrence.

Moore said the daycare routinely sent pictures of Owen throughout the day, something the couple said is done for all parents of children at the facility.

The very next day, on January 24, Moore said she received a photo notification that they were serving Owen a cheese quesadilla for lunch.

"I called them immediately and they told me that Owen wanted the school lunch," she said. "He's 2. He doesn't know. So, they went ahead and gave it to him."

Fortunately, Moore said she called the daycare in time for them to remove the quesadilla from Owen.

The couple showed CBS4 News a series of photos of Owen at the daycare showing him with a snack or lunch in front of him.

In the pictures from late December to mid-January there are bagels and cream cheese, macaroni and cheese and creamy noodles.

Moore said if Owen eats milk or dairy, he can have a severe reaction.

"It can be a skin reaction,' Moore said. "He gets hives all over his body. He can have diarrhea, vomiting, swollen eyes."

Even worse, she said Owen is not always able to communicate quickly to alert staff.

"His speech is delayed so without him being able to communicate like if his stomach hurt, if skin was itchy, he wasn't able to tell them any of that," she said.

Moore said it all came to head on Valentine's Day when the daycare had a party.

She said she got a call from the daycare asking if they could give Owen cheese pizza but with the cheese removed.

"No, because he has an allergy," she recalled telling them. "He cannot have cheese pizza."

She said a half hour later she got a call from the daycare informing her that Owen was vomiting and she needed to pick him up.

Moore and LaRocco said the daycare told them they did not give him pizza with cheese but Moore said he was not sick that day and cannot think of another explanation.

After that, Moore and LaRocco decided to take Owen out of the daycare.

The couple then took their complaints to the internet describing what happened. They left lengthy online reviews on social media.

According to the defamation lawsuit filed by The Learning Experience, the couple wrote things like, "The Learning Experience- Sunrise is ill equipped to handle children with any type of special needs." The lawsuit says the couple also wrote, "This school needs a complete overhaul in training and management." Another comment mentioned in the lawsuit - "If you value your child's life, do not allow them to attend this facility."

Days later Moore and LaRocco say they were notified that they were being sued for defamation by The Learning Experience in Sunrise.

CBS4 News made repeated attempts to speak with the owner and attorney for The Learning Experience in Sunrise.

However, despite numerous phone calls, emails and texts, they did not comment. However, many of the daycare's claims are laid out in their lawsuit filed in Broward County court.

In the suit, The Learning Experience claims that the comments made by Kimberly and Marc were false and made with "reckless disregard for the truth."

The company says comments that they "intentionally fed a child food that the child is allergic to" were "false and injurious."

The lawsuit says the "statements were communicated to at least 500,000 third parties" and that the comments "negatively impacted (The Learning Experience's) trustworthiness and character."

On the daycare's Facebook page, the reviews from Moore and LaRocco sparked comments on both sides of the issue. Some stood up for the Moore and LaRocco. Others said their experiences with their daycare were overwhelmingly positive.

One woman wrote that her child also has dairy allergies and has never been fed anything that would make him ill or have a reaction.

Defamation lawsuits and threats of legal action are on the rise, according to Bob Jarvis, a law professor at the Shepard Broad College of Law at Nova Southeastern University.

Jarvis said when it comes to online reviews, a consumer can typically feel free to share their opinion in reviews. However, he said when it comes to facts, they better be true.

"It has always been understood that you have a right to speak, you have to right to write, you have a right to let the world know what's on your mind but again, if you do so in a way that's defamatory, if you engage in libel or slander you can be held responsible," Jarvis explained. "You will be expected at a trial to show that what you wrote either was not defamatory — that no person could think that that was in some way harming the reputation of the plaintiff — or that what you wrote did in fact harm the reputation, but it was true."

Jarvis added that he believes there are things the consumer and the business should do should a problem or dispute arise.

"The first thing you have to do is take a deep breath and you ought to wait 24 hours," Jarvis said. "The second thing you should do, of course, is go to the business and let them know because reputable businesses are interested in feedback and want customers to have a good experience."

This case has another twist involving online reviews. Moore and LaRocco filed a counter claim against The Learning Experience claiming that the owner and authorized members of the daycare listed with the State of Florida Division of Corporations posted positive reviews of the daycare without disclosing their roles with the business.

In their counter claim, the couple pointed to several reviews from some of the company officials that made comments like, "Professionally run, high standards kept" and "Thank you TLE (The Learning Experience) Sunrise for taking good care of my daughter."

The couple says one of the reasons they chose The Learning Experience in Sunrise was because of the positive reviews they read.

We also tried to ask The Learning Experience about this allegation but they did not offer a comment.

However, attorneys for The Learning Experience filed a motion in court to dismiss the counterclaim, saying Moore & LaRocco's argument has no merit.

Moore and LaRocco said being sued surprised them but they've refused to remove their reviews.

"I think they're trying to bully us into taking the reviews down to not make their school look bad," LaRocco said.

"We literally merely stated facts of what happened and our experience," said Moore. "They may not have been happy with those comments but that's what happened."

CBS4 News also reached out to the corporate offices of The Learning Experience for a comment.

A company spokesperson told CBS4 News, "This litigation was brought independently by a local franchisee without our involvement. We have no knowledge whatsoever regarding any aspect of the case."