A food critic's alleged misidentification of what he ate at a Philadelphia steakhouse –- and his refusal to print a correction -- may give the restaurant owner a shot at overcoming the obstacles to a successful defamation suit.

As the 2nd U.S. Circuit Court of Appeals has noted, restaurant reviews are “the well recognized home of opinion and comment.” But the owner of Chops alleges critic Craig LaBan of the Philadelphia Inquirer made an actionable statement of fact by writing in a brief Feb. 4 review that he ate a “miserably tough and fatty strip steak.”

“In reality, Laban ... ate a steak sandwich without bread, not a strip steak, and therefore had, and has, no personal knowledge of the quality of the Chops strip steak,” restaurateur Barry Plotkin says in a complaint filed last month.

Chops “purchases only the highest quality meats for its customers,” Plotkin also claims, accusing LaBan of fabricating the review as part of a “long-standing vendetta” against him.

Libel cases against restaurant reviewers don't normally get very far (see table) because of the strong protection for statements of opinion and the difficulty of proving actual malice. “The natural function of the review is to convey the critic's opinion of the restaurant reviewed,” the 2nd Circuit said in Mr. Chow of New York v. Ste. Jour Azur, 759 F.2d 219 (1985).

But Plotkin's claims may be supported by the precedent of Terillo v. New York Newsday, 519 N.Y.S.2d 914 (1987), in which a New York City judge said a restaurant reviewer could be liable for incorrectly listing the ingredients of a cassoulet dish and then refusing to correct the error.

“Integrity is not only standing up for one's rights of free expression but also owning up to one's wrongs, even if eating humble pie (cassoulet),” Supreme Court Justice Norman C. Ryp reasoned.

In 2005, the owner of Il Mulino in Dallas dropped a defamation case against the Dallas Morning News after the paper agreed to publish a re-review of the restaurant. The settlement did not include any money for damages and the paper said a new review of Il Mulino was due anyway.

Plotkin says in his suit that he has demanded a retraction from LaBan, but the critic, while admitting he did not eat a strip steak at Chops, has not complied.

LaBan -- who has been called the "the most influential voice on dining out" in the Philadelphia area -- could still argue he honestly thought he was eating a strip steak. And how malicious could the review possibly be when LaBan also praised the crabcake as “excellent?”