Monday, March 27, 2017

Transparency update


CNN deliberately exaggerated the death rate of infants undergoing heart surgery at St. Mary’s Medical Center, purposefully painting a renowned surgeon as an incompetent doctor who butchers babies for profit, the physician’s lawyer told a judge on Friday. 

Dr. Michael Black is suing CNN for libel and defamation for its story on June 1, 2015, about St. Mary’s pediatric cardiac surgery program. The hospital closed the program a few months later and its CEO resigned.

“CNN intentionally manipulated statistical data to support its false narrative that Dr. Black was unfit to perform operations on these very sick children,” said his attorney, Libby Locke, after a hearing on whether to dismiss her client’s lawsuit.

“Through their defamatory articles and videos, CNN has deprived Palm Beach of an incredibly valuable pediatric cardiac surgery program.”

She urged Circuit Judge Richard Oftedal to reject the motion to dismiss and to allow a jury to decide what Black’s reputation is worth. She noted how the news network took a quote from one grieving parent that Black was offering up babies as sacrificial lambs,” and juxtaposed it with a photograph of the doctor.

Black contends in the defamation and libel lawsuit that CNN;’s story unfairly disparaged him and forever damaged his reputation. He still is employed at St. Mary’s, but has not done any surgery since the program was closed in August 2015.

The doctor is also facing several malpractice suits filed by parents of babies who died after heart surgery at St. Mary’s, but Friday’s hearing was about Black’s defamation claims against the cable news giant. CNN is trying to get Oftedal to dismiss the lawsuit.

Locke, his attorney, told the judge CNN went so far as to manipulate the calculations to report St. Mary’s death rate as three times the national average for pediatric heart surgery programs. She said CNN ignored data from the Society of Thoracic Surgeons that found St. Mary’s death rate for infant cardiac surgeries fell within the norm.

Instead, the news network compared raw data of open and closed heart surgeries with just open heart surgeries. It also compared raw death rate figures with those adjusted for the complexity of the surgery and illness of the patient, Locke said.

The Palm Beach Post reported in several articles about troubles with CNN’s data. The network eventually posted on its website a story explaining its methodology. Florida’s Agency for Health Care Administration got into the fray, calling CNN’s reporting sensationalistic.

Friday was the first time the two sides really squared off in front of the judge since Black filed his suit in February as judge entertained argument over CNN’s motion to dismiss Black’s suit.

The cable news network told Oftedal that CNN’s reporting is protected because Black as a prominent surgeon of a major pediatric heart surgery program was a public figure.


  1. CNN isn’t getting out of a defamation suit filed by a pediatric heart surgeon, a Florida court ruled Friday.

    Richard Oftedal, a Palm Beach County, Fla., circuit judge, ruled against the network’s motion to dismiss a suit filed in February 2016 by Dr. Michael Black, head of the pediatric cardiac surgery unit at St. Mary’s Medical Center. In his complaint, Black alleged that CNN — in a broadcast and in an article titled “Secret Deaths: CNN Finds High Surgical Death Rate for Children at a Florida Hospital” — had harmed his reputation by exaggerating his program’s failures. “We calculate that from 2011 to 2013, the death rate for open heart surgery on children at St. Mary’s Medical Center was more than three times higher than the national average,” noted CNN senior medical correspondent Elizabeth Cohen in her report.

    Charged Black: “By suggesting that Dr. Black treated ‘[b]abies as sacrificial lambs’ and made ‘[a] total mess with newborn babies,’ and by claiming that Dr. Black’s surgical mortality rate was over three times the national average, the CNN Defendants have attributed to Dr. Black conduct unfit for a medical doctor or surgeon as well as conduct rising to the level of criminality,” reads the complaint, which was prepared by the Florida law firm Kammerer Mariani and the Washington-area firm Clare Locke LLP, which waged a successful defamation suit against Rolling Stone over its retracted story about rape at the University of Virginia.

    CNN sought dismissal of the complaint on a grab bag of rationales — that Black is a public figure, triggering a showing of “actual malice,” i.e., the knowing publication of falsehoods or reckless disregard thereto; that many of Black’s gripes relate not to CNN statements about him, but rather to his program or St. Mary’s more broadly; that some of the material in the complaint is hyperbole whose use is protected by the First Amendments; and others.

    Oftedal batted away all of those arguments. In the story, CNN used two quotes as section headers in its online story on the program: “Babies as sacrificial lambs,” read one, with a photo of Black in the vicinity. “A total mess with newborn babies,” read another. CNN argued that those statements were “nonactionable” because they were uttered by others — a mother and an expert in the field, respectively. The judge isn’t buying that contention: “Dr. Black’s Complaint has sufficiently alleged that the CNN Defendants’ statements are actionable.”

    In a separate proceeding, a federal judge in Atlanta reached a similar ruling in February in a defamation case from Davide Carbone, who formerly served as the chief executive of St. Mary’s. Judge Orinda Evans wrote, “The Court finds these allegations sufficient to establish that CNN was acting recklessly with regard to the accuracy of its report, i.e., with ‘actual malice.’ ”

  2. CNN and its star presenter Anderson Cooper are trying to force two Canadian universities and a Toronto hospital to hand over private files on a heart surgeon whose high-flying career was allegedly destroyed by a CNN report about newborn babies dying after his operations.

    The surgeon has filed a massive defamation lawsuit, so any records — even from the distant past — that might undermine his claim to be “impeccably credentialed” would be useful for CNN’s defence.

    Michael Black was educated and trained in Ontario, where he developed a reputation as a “miracle worker” at Toronto’s Hospital for Sick Children in the late 1990s. He pioneered a kind of minimally invasive heart surgery for infants, attracting newborn patients in dire condition from around the world, but he left for a leadership post at Stanford University in 1999 after a dispute with Sick Kids about ownership of surgical tools he invented.

    Years later, in 2011, Black was recruited to run a new pediatric cardiac surgery program at St. Mary’s Medical Center in West Palm Beach, Fla., which tried to compete with larger Florida hospitals in the rarefied world of neonatal heart surgery, in which Black had become a superstar.(continued)

  3. (continued)That all came crashing down in 2015 after the publication of ‘Secret Deaths: CNN Finds High Surgical Death Rate for Children at a Florida Hospital.’ Within months, the hospital’s CEO had resigned, the surgical program was shuttered, and Black’s career was “effectively ended,” he claims in legal documents. He also claims his family has been subjected as a result to “numerous violent threats.”

    The report, which was broadcast on TV and remains online, claimed eight infants had died in a little over three years at St. Mary’s. Using data that Black alleges was misinterpreted, CNN calculated a death rate of 12.5 per cent after open heart surgeries, more than three times the reported national average.

    In his defamation lawsuit, CNN manufactured “an outrageous, headline-grabbing story about an incompetent, dishonest and inexperienced doctor leading a surgical program in crisis and recklessly operating on young children to profit at the expense of those children’s lives,” Black claims.

    “There is no room for institutions that are lying to families to get them to offer up their babies as sacrificial lambs,” said the mother of one baby who died, quoted by CNN.

    CNN is defending against the suit, which names the network; Cooper, who discussed the report on his show; Elizabeth Cohen, CNN’s senior medical correspondent and author of the book The Empowered Patient; producer John Bonifield; reporter Dana Ford; and Kelly Robinson, a key source and mother of a child with a heart problem.

    Black alleges Robinson harassed his patients; for example, once coming to the hospital and shouting at a family: “Dr. Black is a baby-killing wacko!”

    As part of its defence, CNN has been looking into Black’s work history, in both the U.S. and Canada. Any records that undermine his claim that he is “impeccably credentialled” would benefit CNN’s defence, and could limit any possible future damages if they lose the lawsuit.

    So the cross-border legal demand is something like a fishing expedition, according to records Black filed in Florida court. It demands details of “complaints, accolades, awards, performance or performance reviews,” and other records from the University of Toronto, where Black went to medical school and did a surgical internship, and later took a faculty position, and the University of Ottawa, where he trained, and Sick Kids, where he did a surgical fellowship. The subpoenas also demand details of why he left each institution, and any grants or prizes he received.

    Black’s registration details with the College of Physicians and Surgeons of Ontario show no history of disciplinary action or restrictions on his practice.

    Black objected to the Canadian subpoenas, calling the material CNN is seeking “completely irrelevant.” He argued the subpoenas are “vastly overbroad” and would unduly burden the schools and the hospital with a duty to dig up everything down to his pay stubs. A judge clarified the wording, but otherwise approved the subpoenas.

    A hearing is scheduled for January in Toronto, at which lawyers for CNN will argue Ontario Superior Court should enforce those subpoenas, according to CNN’s counsel in Toronto, Julia Wilkes.

  4. Nevertheless, inspired by the intense feelings surrounding a federal judge's dismissal of Sarah Palin's defamation lawsuit against The New York Times, we'll go out on a limb to prophesize the nine justices will accept a defamation case soon enough. However, it's not the Palin suit we envision being tackled. Before that case was rejected, CNN highlighted the case as an exemplar of the media's tough year in the courtroom. Oddly, CNN ignored a decision earlier this year that's caused tremendous concern among media lawyers and one we'd bet is destined for the Supreme Court. It involves CNN, and there's even a Donald Trump cameo.

    The Time Warner subsidiary is facing claims over its reporting in June 2015 on the infant mortality rate for open-heart surgery at West Palm Beach, Fla.-based St. Mary's Medical Center. CNN is actually facing two lawsuits. One comes from Dr. Michael Black, a heart surgeon who has made it past CNN's motion to dismiss in Florida state court. The other comes from David Carbone, who was the CEO at St. Mary's until he was forced to resign upon CNN's report. The Carbone action is the one to focus on for the time being.

    Carbone filed his complaint in May 2016 in a Georgia federal court. He could have brought claims in the Palm Beach circuit as Black did, but interestingly, he did not. Citing the fact that he was a citizen of Florida and that CNN is a citizen of either Georgia or Delaware, Carbone invoked diversity jurisdiction to bring his claims to a federal court. His lawsuit questions CNN's conclusion that St. Mary's "death rate" was three times the national average. Carbone alleges CNN made an unfair comparison to hospitals that did both open-heart and closed-heart surgeries and that a more proper comparison would be adjusted for risk.

    Every defamation lawsuit brings about a defense that depends on the circumstances and facts at play. In Palin's lawsuit, for example, The New York Times raised various rejoinders, but the winning one was the absence of actual malice, or knowledge of falsity or reckless disregard for the truth. Given Carbone's lack of notoriety, and the ambiguity about whether he'd qualify as a public figure, CNN chose to put aside the issue of malice in its initial motions. Instead, CNN argued that its reporting didn't concern Carbone, that an academic disagreement about methodology couldn't form the basis of a defamation claim and that its chosen methodology comparing mortality rates constituted non-actionable opinion…

    Using California's anti-SLAPP statute, which provides early recourse for those facing frivolous litigation interfering with First Amendment activity, Makaeff attempted to strike Trump's counterclaims. The opposition from Trump — as hard as it might be to believe now — is that Trump University wasn't a public figure, and Makaeff couldn't demonstrate actual malice.(continued)

  5. (continued)This question went up to the 9th Circuit Court of Appeals in 2013. Reversing the lower court, the appellate circuit ruled that Trump University was indeed a public figure, or at least, a limited one.

    But that's not why the decision has left a mark.

    Instead, it was former 9th Circuit chief judge Alex Kozinski's concurring opinion in the case where he wrote that the application of California's anti-SLAPP statute in federal court has created a "hybrid mess." According to Kozinski, federal courts should follow federal rules of procedure.

    "Pre-discovery motions, discovery, summary adjudication and trial follow a logical order and pace so that cases proceed smartly towards final judgment or settlement," wrote Kozinski. "The California anti-SLAPP statute cuts an ugly gash through this orderly process. Designed to extricate certain defendants from the spiderweb of litigation, it enables them to test the factual sufficiency of a plaintiff's case prior to any discovery; it changes the standard for surviving summary judgment by requiring a plaintiff to show a 'reasonable probability' that he will prevail, rather than merely a triable issue of fact; it authorizes attorneys' fees against a plaintiff who loses the special motion by a standard far different from that applicable under Federal Rule of Civil Procedure 11; and it gives a defendant who loses the motion to strike the right to an interlocutory appeal, in clear contravention of Supreme Court admonitions that such appeals are to be entertained only very sparingly because they are so disruptive of the litigation process."

    Now, judges throughout the nation are having second thoughts on burdening defamation plaintiffs with the higher standards evoked by SLAPP laws. Last week, a federal judge in New York in the midst of Gawker's bankruptcy cited Kozinski and said a SLAPP statute wouldn't apply to alt righter Chuck Johnson's defamation claims. One week earlier, in a libel case against The New York Times, the 5th Circuit Court of Appeals hinted it would consider doing the same should the issue be properly presented.

    Then, there's Carbone's case against CNN.

    In February, CNN failed to persuade a Georgia federal judge that it should get the benefit of Georgia's anti-SLAPP law. U.S. District Court Judge Orinda Evans decided to go with federal rules, which meant that Carbone only needed to show plausibility on his claims rather than probability in prevailing. The judge ruled that Carbone had succeeded.

    The matter is now before the 11th Circuit Court of Appeals, where CNN suggests in its opening brief filed earlier this month that Evans' decision could lead to forum shopping, meaning litigants who strategically pick the forums where a dispute is adjudicated. Standing by CNN is ABC, Bloomberg, Comcast, Dow Jones, the Motion Picture Association of America, National Public Radio, The New York Times Company, 21st Century Fox, Univision, The Walt Disney Company and other media organizations who argue in an amicus brief that anti-SLAPP provisions are needed in federal court to protect valuable speech.

    But now, the appeal has become even more messy because of a Carbone motion last week.

    CNN not only wants a review over whether a state's free speech-protecting law has a place in federal court, but it's also arguing the appellate court has pendent jurisdiction to take up its alternative motion to dismiss (the federal standards one) because it's "inextricably intertwined" with the anti-SLAPP motion. Carbone's lawyers respond that there is no link and thus no jurisdiction.

    What it all adds up to is an extraordinary defamation battle that is highly worthy of Supreme Court review. What's more, it may be necessary for the high court to tackle this one to settle immense confusion among lower courts.