Opinion
CIVIL ACTION NO. 3:00-CV-2417-P
September 30, 2002
MEMORANDUM OPINION AND ORDER
Now before the Court are:
1. Defendants' Motion for Summary Judgment, filed March 29, 2002;
Plaintiff filed his response brief on April 18, 2002 and Defendants filed their reply brief on May 2, 2002.
2. Defendants' Motion to Exclude Plaintiffs Journalism Expert, filed March 29, 2002;
3. Defendants' Objections to Plaintiffs Summary Judgment Evidence, filed May 2, 2002 ("Objections"); and
Plaintiff filed his response brief on April 18, 2002 and Defendants filed their reply brief on May 2, 2002.
Plaintiff did not file a response brief to the Objections.
4. Defendants' Second Motion for Sanctions, filed June 11, 2002.
Plaintiff filed his response brief on June 27, 2002 and Defendants filed a letter reply on July 16, 2002.
FACTS
This is a defamation case filed by Plaintiff Dr. James H. Fowler ("Dr. Fowler" or "Plaintiff") against Defendants concerning a "20/20" television broadcast entitled "Surgery Seminars" that aired on November 3, 1999 (the "Broadcast"). The Broadcast was couched as an investigatory report on elective cosmetic surgery and the doctors who perform such surgeries. Specifically, the Broadcast focused on the ability of licensed physicians to hold themselves out as cosmetic surgeons and whether such "crossover" doctors (i.e. doctors who switch their practice from one medical specialty to cosmetic surgery) receive adequate medical training from the weekend workshops and seminars at which some acquire their education and skills. Apparently, there has been some public debate concerning whether cosmetic surgeons, as opposed to plastic surgeons, are qualified to perform cosmetic surgery procedures, such as breast augmentation and liposuction. Cosmetic surgeons are not board certified by the American Medical Association ("AMA"), whereas plastic surgeons are board certified by the American Board of Medical Specialties (i.e. the board certifying arm of the AMA).The Broadcast was approximately twenty minutes long and was divided into two segments, with a commercial break between the two parts. In the first part of the program, Diane Sawyer explained that legally, doctors may hold themselves out as cosmetic surgeons even when they are not trained in and have not practiced surgery as their medical specialty. In other words, whereas plastic surgeons must study surgery in medical school before they can hold themselves out as plastic surgeons, cosmetic surgeons need not have done so. Moreover, some of the physicians who perform cosmetic surgical procedures acquire their surgical skills from weekend workshops and seminars and then, with that limited experience, start their practices. During Defendants' investigation for this program, Defendants enlisted two doctors to pose undercover with hidden cameras as attendees of two of these seminars. The undercover doctors reported on various aspects of the seminars, including the types of training provided.
The second segment of the Broadcast began with Diane Sawyer posing a question: "So what questions can patients use for choosing a surgeon? . . . Here are some words of caution." She then advises patients to "see if a doctor has hospital privileges for performing a specific procedure." "But," she says, "as we said before, doctors frequently do these procedures in their offices." This is followed by an "experienced, board-certified plastic surgeon . . . who teaches at UCLA" explaining that doctors' offices may not be safe places to conduct surgery and providing frightening illustrations of unsanitary conditions in some of those offices. Sawyer next cautions patients that they cannot "always trust what's on the printed material in a doctor's office." This is followed by a patient who learned that the doctor she used "had taken another doctor's brochures and put his name" on them — citing the other doctor's credentials and experience as his own.
Finally, Sawyer asks whether asking the doctor outright will help patients get the information they need. "And, if you ask, will a doctor always tell you about his experience?" At this point, the Broadcast airs an undercover camera shot of Dr. Fowler in his office. Sawyer's voiceover says, "We wondered what [Dr. Fowler] would say to direct questions, whether he's ever had complications . . ." The Broadcast then shows undercover video of Dr. Fowler answering questions during an office consultation with two "prospective patients" who were really investigative reporters working undercover for Defendants. Next, the Broadcast provides video excerpts from former patients and medical experts contradicting Dr. Fowler's answers to the "patients'" questions, thus leaving viewers with the impression that Dr. Fowler does not give straightforward answers to direct questions.
Dr. Fowler sued Defendants alleging that the program was defamatory and has caused him to be investigated by the Texas State Board of Medical Examiners (which was later dismissed). He also claims that his professional reputation has been damaged, and that he has suffered a loss of patients and a loss of his hospital privileges. (See Compl.)
Defendants move the Court for summary judgment of Fowler's case for several reasons. First, Defendants contend that the statements made in the Broadcast were either true, not defamatory, or were non-actionable opinions. They also argue that Plaintiff was a public figure and that he has not established that Defendants acted with malice.
DISCUSSION
A. LEGAL STANDARDS.
1. Summary Judgment Standard.
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate in any case where the critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant. See Little v. Liquid Air Corp., 37 F.3d 1069, 1076 (5th Cir. 1994). However, all evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. See United States v. Diebold. Inc., 369 U.S. 654, 655 (1962).
The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. See Celotex, 477 U.S. at 323. Once the moving party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. See Matsushita Elec. Indus. Co.. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The mere existence of some factual dispute will not defeat a motion for summary judgment. See Willis v. Roche Biomedical Lab., Inc., 61 F.3d 313, 315 (5th Cir. 1995). Only disputes over facts that might affect the outcome of the suit under the governing law will preclude summary judgment. See id. Moreover, a dispute about a material fact is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See id.
The Court will not, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts. See Little, 37 F.3d at 1075. Therefore, if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case, and on which he bears the burden of proof at trial, summary judgment must be granted. See Celotex, 477 U.S. at 322-323.
Plaintiff has pled both a claim for libel and for slander. Because a broadcast over the television of a defamatory statement read from a script is considered libel rather than slander, the Court hereby DISMISSES Plaintiff's slander claim and analyzes this case as one of libel. See Kennedy v. Texoma Broadcasters. Inc., 507 S.W.2d 864, 866 n. 1 (Tex.Civ.App.-Dallas 1974, no writ) (citing Gibler v. Houston Post Co. 310 S.W.2d 377 (Tex.Civ.App.-Houston 1958, writ ref'd n.r.e.); Christy v. Stauffer Publications. Inc., 437 S.W.2d 814 (Tex. 1969)).
To prevail on a defamation claim, a private citizen plaintiff must establish (1) that the defendant published a false statement; (2) the false statement was defamatory (i.e. it damaged the plaintiffs reputation, exposing him to "public hatred, contempt, ridicule, or financial injury"); and (3) the defendant made the statement with negligence as to its truth. See Green v. CBS. Inc., 286 F.3d 281, 283 (5th Cir. 2002). For a public citizen plaintiff to sustain a defamation cause of action, he must prove the defendant: (1) published a statement; (2) the statement published concerning the public official or public figure was defamatory; and (3) that the statement was made with actual malice. See New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964); Casso v. Brand, 776 S.W.2d 551, 554 (Tex. 1989).
A statement is defamatory if the words tend to injure a person's reputation or to impeach a person's honesty, integrity, virtue, or reputation, thereby exposing the person to public hatred, contempt, ridicule, or financial injury." See Tex. Civ. Prac. Rem. Code Ann. § 73.001 (Vernon 1997); Joseph v. Solutia, Inc. 193 F. Supp.2d 989, 993 (S.D. Tex. 2002).
Whether a publication is capable of a defamatory meaning is initially a question of law to be determined by the court. See Turner v. KTRK Television. Inc., 38 S.W.3d 103, 114 (Tex. 2000); Wheeler v. New Times. Inc., 49 S.W.3d 471, 474 (Tex.App.-Dallas 2001, no pet.). A court must construe the statement as a whole in light of surrounding circumstances based upon how a person of ordinary intelligence would perceive the entire statement. See Joseph v. Solutia. Inc., 193 F. Supp.2d 989, 993 (S.D. Tex. 2002); Wheeler, 49 S.W.3d at 474. Only if a court determines that the language is ambiguous or of doubtful import should a jury determine the statement's meaning and the effect the statement's publication has on the ordinary person. See Joseph, 193 F. Supp.2d at 993; American Energy Svcs., Inc. v. Union Pac. Resources Co., No. 01-98-01264-CV, 2001 WL 953736, at *8 (Tex.App.-Houston [1st Dist.] Aug. 16, 2001, no pet.); Wheeler, 49 S.W.3d at 474.
A defendant can defeat a defamation claim by establishing the "substantial truth" of the statement. See Green, 286 F.3d at 283. "`A broadcast is substantially true if the alleged defamatory statement is not more damaging to the plaintiffs reputation, in the mind of the average person, than the truthful statement.'" Green, 286 F.3d at 283 (citations omitted); see UTV of San Antonio. Inc. v. Ardmore. Inc., — S.W.3d — (Tex.App.-San Antonio May 29, 2002, no pet.), 2002 WL 1058165, at *1. Courts look at the "gist" of the broadcast to determine whether it is substantially true. See Green, 286 F.3d at 283; UTV of San Antonio. Inc., 2002 WL 1058165, at *1. The defendant has the burden of proof of establishing the affirmative defense of truth. See UTV of San Antonio. Inc., 2002 WL 1058165, at *1.
Although substantial truth is an affirmative defense to a claim of defamation, it is no longer an absolute defense in Texas. See Turner v. KTRK Television. Inc., 38 S.W.3d 103 (Tex. 2000). Remarkably, both Defendants and Plaintiff have either inadvertently or convemently overlooked the recent Texas Supreme Court case that held that even when a broadcast's individual statements are true, a broadcast as a whole may still be defamatory. See id. In other words, when a publication gets the details right but fails to put them in the proper context and thereby gets the story's "gist" wrong, liability may attach. See id at 115' Wheeler, 49 S.W.3d at 474. In Turner, the Texas Supreme Court held that "under Texas law, a publication can convey a false and defamatory meaning by omitting or juxtaposing facts, even though all the story's individual statements considered in isolation were literally true or non-defamatory." Turner, 38 S.W.3d at 114; see American Energy Svcs., Inc., 2001 WL 953736, at *8. Thus, "a plaintiff can bring a claim for defamation when discrete facts, literally or substantially true, are published in such a way that they create a substantially false and defamatory impression by omitting material facts or juxtaposing facts in a misleading way." Turner, 38 S.W.3d at 115; see Green, 286 F.3d facts or juxtaposing facts in a misleading way." Turner, 38 S.W.3d at 115; see Green, 286 F.3d at 284; American Energy Svcs., Inc., 2001 WL 953736, at *8. Consequently, the literal truth of each individual statement is not a defense when there is an omission of material facts or a misleading presentation of true facts that can render an account just as false as an outright misstatement. See Turner, 38 S.W.3d at 115; American Energy Svcs., Inc., 2001 WL 953736, at *8.
However, a defendant cannot be liable for presenting a true account of events, regardless of what someone might conclude from the account. See Green 286 F.3d at 285; Joseph v. Solutia, Inc., 193 F. Supp.2d at 993 n. 3; Turner, 38 S.W.3d at 115; Larson v. Family Violence Sexual Assault Prevention Ct., 64 S.W.3d 506, 515 (Tex.App. — Corpus Christi 2001, no pet.).
B. DID THE BROADCAST DEFAME DR FOWLER?
1. Were the Actual Statements of and Concerning Dr. Fowler Actionable?
The Broadcast begins with the following introduction: Sawyer: (voiceover) This is Dr. James Fowler in Dallas, Texas. His offices are impressive. The walls are covered with newspaper articles and credentials showing that he has attended dozens of workshops, and he's performed thousands of cosmetic surgery procedures and has hospital privileges.
To the extent Plaintiff contends that the publication is false because his walls do not tell that he has hospital privileges or how many procedures he has done, the Court finds that the phrase about the number of procedures and the hospital privileges is independent of the phrase concerning the credentials on his walls showing that he has attended dozens of workshops. (See Defs.' App. at 105.)
The segment on Dr. Fowler was used to illustrate the problems associated with asking physicians direct questions about their experiences performing cosmetic surgery. Sawyer began the segment by posing the question of whether, if you ask, a doctor will tell you about his experience. The Broadcast then aired an excerpt from an undercover patient consultation
Defendants argue that the statements made in the Broadcast of and concerning Dr. Fowler are not actionable because they are either literally or substantially true, not defamatory, and/or protected opinion. (Defs.' Mot. at 16.) The Court will analyze each of the statements in turn.
a. Fowler's Statements Concerning Breast Implant and Liposuction Complications.
Sawyer states that her undercover "patients" wanted to see if Dr. Fowler would answer direct questions concerning whether his patients have ever suffered complications with breast implant surgery. The Broadcast next shows undercover video footage of Dr. Fowler's response to this purported question: "Never did." Following that response, Dr. Fowler was asked if his patients had experienced problems with liposuction. Dr. Fowler responded that he had never had a serious problem.
Sawyer, And, if you ask, will a doctor always tell you about his experience? Dr. Fowler: (undercover video) When you smile, these things are still . . . Sawyer: (voiceover) This is Dr. James Dr. Fowler in Dallas, Texas. His offices are impressive. The walls are covered with newspaper articles and credentials showing that he has attended dozens of workshops, and he's performed thousands of cosmetic surgery procedures and has hospital privileges. We wondered what he would say to direct questions, whether he's ever had complications with breast implant surgery.
Offscreen Voice #1: (undercover video) You have? Dr. Fowler: (undercover video) Never did. Offscreen Voice #1: (undercover video) Never did? Sawyer: (voiceover) And what about problems with liposuction? Dr. Fowler: (undercover video) I probably did three or 4,000 cases, three or 4,000 cases, procedures.
And I grew up with it. I have never had a serious problem.
i) Fowler's Statements Disputed By Fowler's Own Video Deposition
The Broadcast then airs a segment of a video deposition of Dr. Fowler during which he was asked whether he had been a defendant in any other medical malpractice cases, to which he responded "Yes." Sawyer then followed up with the statement that Dr. Fowler has "had six [malpractice suits] involving breast or liposuction. "One's pending, the rest settled." This leads the viewer to conclude that Dr. Fowler was lying when he said he had never had any "complications" with breast implant surgery or "serious problems" with liposuction.
Unidentified Offscreen Voice #2: (deposition video) Have you been a defendant in any other medical malpractice cases?
Dr. Fowler: (deposition video) Yes. Sawyer: (voiceover) This is a deposition from a cosmetic surgery malpractice suit against Dr. Fowler.
He's had six involving breast or liposuction.
ii) Falsity of the Broadcast Statements.
Plaintiff has not presented any evidence that this publication is false. There is no evidence that Dr. Fowler said something other than what was aired by the Broadcast. Although, in his deposition, Dr. Fowler challenges the context in which the video footage is presented, he has not presented any evidence to support his contention. (See Defs.' App. at 105-07.) In fact, Defendants have submitted a written transcription of the "consultation" between Dr. Fowler and the "patients" that confirms that the Broadcast accurately depicts the content of their discussion. (See Defs.' App. at 47-52.)
Dr. Fowler: "[t]hat was totally taken out of context, and that answer was taken from a different segment of the video . . . She didn't ask me, have you ever had any complications with breast implant surgery. . . She asked me something to the effect, have you really had any bad complications resulting from breast implant surgery. And I may have mentioned that I had not had anything bad, but this [video] was not referring to the fact that I'd never had any complications with breast implant surgery because I went ahead and stated that we had had problems with breast implant surgery." (Defs.' App. at 106-07.)
Dr. Fowler challenges the veracity of Sawyer's statement that Dr. Fowler has had six malpractice suits involving breast surgery or liposuction. Dr. Fowler alleges that the statement is false because he has only had one lawsuit involving liposuction alone — most of the lawsuits concerned liposuction in conjunction with other procedures. (See Defs.' App. at 112-13.) However, that fact does not make Sawyer's statement false. The statement made by Sawyer — that Dr. Fowler has "had six [malpractice suits] involving breast or liposuction" — does not state or suggest that all the lawsuits involved complications with liposuction only. In fact, Dr. Fowler concedes elsewhere in his deposition that the statement is true. (See Defs.' App. at 114.)
b. Fowler's Statements Concerning Karen Saridan.
Next, Sawyer concedes that Dr. Fowler did mention to the "patients" two incidents of complications, one of which concerned a woman whose "thigh" became infected after liposuction surgery. In the undercover video footage, Dr. Fowler explains to the "patients" that although the woman was hospitalized and given an IV, she was never at risk of losing an extremity.
Sawyer: (voiceover) Back in his office Dr. Fowler did mention to us two incidents, one a woman whose thigh became infected after liposuction.
Dr. Fowler: (undercover video) We had to put her in the hospital, put her on IV antibiotics, but there was never, ever, ever, ever any risk of losing an extremity or anything like that.
i) Fowler's Statements Disputed by Saridan's Interview.
The camera then focuses on this presumed patient, Ms. Karen Saridan, who states that she was in so much pain that her friends were concerned she might not survive the infection. Sawyer explains that Ms. Saridan's infection was not limited to her thigh, but had spread "throughout most of her body." The infection was so bad, says Sawyer, that Ms. Saridan's infectious disease doctor said he had seen only two cases like hers before — and one of those patients died.
Karen Saridan: And I was in such pain, I was just screaming. And my friends were concerned that I was not going to survive it.
Sawyer: (voiceover) This is Karen Saridan, one of Fowler's patients who had not just an infected thigh, but an infection throughout most of her body. She says an infectious disease doctor told her he'd only seen two cases like hers before. (shows Karen Saridan's infected legs)
Karen Sandan: In one case, the woman died, and in the second case, I don't want to know.
After hearing Ms. Saridan's story, the viewer is left to conclude that Dr. Fowler was lying when he said his patient's infection was limited to her thigh, and that he had never experienced any "serious problems" with liposuction.
Dr. Fowler argues that Ms. Saridan's statements that she was "in such pain, I was just screaming. And my friends were concerned that I was not going to survive it" were false because she was not suffering more than other liposuction patients, she was not at risk of dying, and her friends were not concerned for her survival. Yet Dr. Fowler's evidence does not demonstrate the falsity of the statements.
First, Ms. Saridan's statement that she was "in such pain, I was just screaming. And my friends were concerned that I was not going to survive it" is a statement made by Ms. Saridan concerning her own condition. Dr. Fowler does not provide any evidence that her statements are not true. Moreover, Defendants have submitted affidavits from two of Ms. Saridan's friends who attest to the fact that Ms. Saridan was moaning and screaming in pain and that they were concerned she was not going to survive the infection. (Defs.' App. at 72-77.)
Second, Defendants cannot be liable for Ms. Saridan's statement concerning the extent of her infection because a media defendant need only prove that the statements made by the third party (Ms. Saridan) were in fact uttered; Defendants need not demonstrate that the statements themselves are substantially true. See UTV of San Antonio. Inc., 2002 WL 1058165, at *3; Dolcefino v. Randolph, 19 S.W.3d 906, 918 (Tex.App. — Hous. [14th Dist.] 2000, pet. denied.) There can be no dispute that Ms. Saridan, a third-party, made the statements about her infection that are at issue.
Dr. Fowler also argues that Ms. Saridan's infection was limited to her thigh, did not spread throughout her body, and that Sawyer's statement to that effect is false. (Defs.' App. at 117.) In his deposition, Dr. Fowler maintains that the statement is "totally false" because "she didn't have an infection all over her body. She had a superficial infection to an area of her thigh and around her knee." (Defs.' App. at 117.)
Later in his deposition, Dr. Fowler corrected his testimony and clarified that the infection was located in Ms. Saridan's calf, not her thigh. (Defs.' App. at 201.)
The image of Ms. Saridan's infection that was shown during the Broadcast depicts an infection that appears to cover both calves and thighs. Likewise, the photographs of Ms. Saridan's infection that were submitted into evidence by Defendants appear to depict sores/blisters on both of Ms. Saridan's calves and thighs. (Defs.' App. at 35-37.) There is also one photograph that appears to depict some infection on her arms, but it is unclear. (Defs.' App. at 35.)
In a letter signed by Dr. Melvin A. Shiffman, (concerning the Board of Medical Examiner's investigation into Dr. Fowler's treatment of Ms. Saridan (see Defs.' Second Mot. for Sanctions at 2.)) Ms. Saridan's infection is characterized as "superficial cellulitis in the left lower thigh and left upper calf." (Pl.'s App. at 76.) The plastic surgeon who Ms. Saridan consulted concerning her infection also described the infection as "on her leg." (Pl.'s App. at 80.) The infectious disease doctor diagnosed her as having "cellulitis of the leg." (Pl.'s App. at 82.)
Based on the evidence, the Court concludes the statement "This is Karen Saridan, one of Fowler's patients who had not just an infected thigh, but an infection throughout most of her body" is substantially true. "`A broadcast is substantially true if the alleged defamatory statement is not more damaging to the plaintiffs reputation, in the mind of the average person, than the truthful statement.'" Green, 286 F.3d at 283 (citations omitted see UTV of San Antonio. Inc. v. Ardmore. Inc., ___ S.W.3d ___, (Tex.App.-San Antonio May 29, 2002, no pet.), 2002 WL 1058165, at * 1. Courts look at the "gist" of the broadcast to determine whether it is substantially true. See Green, 286 F.3d at 283; UTV of San Antonio, Inc., 2002 WL 1058165, at *1.
The gist of this statement is that Plaintiff was not being fortheoming when he described Ms. Saridan's infection as being limited to her thigh and that Plaintiff downplayed the serious nature of the infection. The Court believes, after reviewing all the evidence before it, that the average person likewise would conclude that Dr. Fowler was less than fortheoming in his description of the scope and seriousness of Saridan's infection. The Court finds, after viewing the Broadcast's images of Ms. Saridan's infection, that Sawyer's statement that the infection was located "throughout most of [Saridan's] body" was no more damaging to Plaintiffs reputation than the more accurate or truthful statement [i.e. the actual photographs] would have been. It is not significant that Sawyer described the infection as being located "throughout most of [Saridan's] body," because the point was made, without Sawyer's statement — but rather through the use of the photographs, Saridan's own statement, and Dr. May's comments when shown the photographs — that Dr. Fowler was not being truthful about the extent or seriousness of Ms. Saridan's infection.
Dr. Fowler also complains about Sawyer's statement that Ms. Saridan's infectious disease doctor said he had only seen two cases like hers before. Dr. Fowler complains that the statement is false, but provides no evidence of its falsity. There is no evidence that the infectious disease doctor did not tell Ms. Saridan that he had only seen two cases like hers before. In fact, Dr. Fowler's own testimony essentially confirms the statement at issue. (Defs.' App. at 119.) He admits that the infectious disease doctor told him of only one other case he had seen like this one. (Defs.' App. at 120.) Moreover, Defendants cannot be liable for Sawyer's statement that Ms. Saridan stated that her infectious disease doctor told her he had only seen two cases like hers before because a media defendant need only prove that the statements made by Ms. Saridan were in fact made; Defendants need not demonstrate that the statements themselves are substantially true. See Antonio Inc., 2002 WL 1058165, at *3; Dolcefino v. Randolph, 19 S.W.3d 906, 918 (Tex.App. — Hous. [14th Dist.] 2000, pet. denied.) There can be no dispute that Ms. Saridan, a third party, made the statements about what the infectious disease doctor told her.
ii) Fowler's Statements Disputed by Expert Surgeons.
Sawyer next asks her panel of "experts" (i.e. board-certified plastic surgeons) to look at photographs of Ms. Saridan's infection — to which one of the doctors commented that the infection was "devastating." Dr. Fowler argues that the doctor's statement is false "because it wasn't a devastating complication," but acknowledges that the doctor is rendering an opinion. (Defs.' App. at 122.)
Sawyer: So I want to show you this infection. Is this an ordinary complication? Dr. James May of Harvard Medical School: This is devastating. This is a devastating complication.
Defendants cannot be liable for Dr. May's statement concerning the gravity of Ms. Saridan's infection because a media defendant need only prove that the statements made by a third party — in this case, Dr. May — were in fact uttered; Defendants need not demonstrate that the statements themselves are substantially true. See UTV of San Antonio. Inc., 2002 WL 1058165, at *3; Dolcefino v. Randolph, 19 S.W.3d 906, 918 (Tex.App. — Hous. [14th Dist.] 2000, pet. denied.). There can be no dispute that Dr. May, a third party, made the statements about Ms. Saridan's infection that are at issue.
iii) Fowler's Statements Disputed by Interview of Ms. Saridan.
Next, Sawyer tells the viewers that Ms. Saridan sued Dr. Fowler and that the parties settled out-of-court, with Dr. Fowler admitting wrongdoing (which Fowler admits is true). The Broadcast then shows Ms. Saridan watching the undercover video of Dr. Fowler and saying "I think he's leading you on the same path he's led me on. He had another complication that he had told me about, and it was just in passing. I don't think he assumes any responsibility."
Sawyer: (voiceover) Dr. Fowler settled with Karen Saridan out of a court admitting wrongdoing. After we showed Karen what Dr. Fowler told us during our visit? (Dr. Fowler on hidden camera tape; Ms. Saridan watching hidden camera video)
Ms. Saridan: I think he's leading you on the same path he's led me on. He had another complication that he had told me about, and it was just in passing. I don't think he assumes any responsibility.
Dr. Fowler maintains that the statement by Ms. Saridan is false because he "wasn't leading her down any path. I was very honest with Karen Saridan — always was." (Defs.' App. at 124.)
Ms. Saridan's statements "I think he's leading you on the same path he's led me on" and "I don't think he assumes any responsibility" are non-actionable statements of opinion. Moreover, there is no evidence in the record that the statement "He had another complication that he had told me about, and it was just in passing" is false. Therefore, these statements are not actionable.
2. Did the Broadcast as a Whole Present a Defamatory Impression of Dr. Fowler?
a. Applicable Legal Standard.
In Texas, even if the broadcast's individual statements are true, the broadcast as a whole may still be defamatory. See Turner v. KTRK Television, Inc., 38 S.W.3d 103 (Tex. 2000). Thus, "a plaintiff can bring a claim for defamation when discrete facts, literally or substantially true, are published in such a way that they create a substantially false and defamatory impression by omitting material facts or juxtaposing facts in a misleading way." Turner v. KTRK Television. Inc., 38 S.W.3d 103, 115 (Tex. 2000).
b. What was the "Gist" of the Broadcast?
Plaintiff argues that the gist of the Broadcast was to expose doctors who hold themselves out as cosmetic surgeons after attending superficial weekend workshops, and who, consequently, are undertrained, underqualified, and inexperienced, thus posing a greater risk to patients. (Pl.'s Resp. at 10.) Plaintiff argues that by profiling Dr. Fowler in particular and highlighting the "devastating" complications suffered by his patient, viewers lump Dr. Fowler into this category of dangerous cosmetic surgeons who acquire their skills at these workshops.
The Court disagrees. When viewing the Broadcast in its entirety, the first part of the Broadcast discusses the weekend seminars and doctors who attend one or a few of these and then begin to practice cosmetic surgery. Following this segment, Sawyer asks "So what questions can patients use for choosing a surgeon?" She then states that there are no studies showing that plastic surgeons have better results than cosmetic surgeons, and that the man who developed the most widely used liposuction methods was not a plastic surgeon, but a dermatologist. She then asks, "So where do you begin? Here are some words of caution." Sawyer suggests that patients should check to see if the doctor has hospital privileges for performing a specific procedure. Next is a discussion about doctors who perform their procedures in the doctor's office. Sawyer follows that discussion with a warning that a patient cannot always trust what is contained in the printed material and brochures in doctors' offices.
Sawyer next inquires "And if you ask, will a doctor always tell you about his experience?" Sawyer then introduces Dr. Fowler. Dr. Fowler is not lumped in with doctors who are not adequately trained to perform cosmetic surgeries. To the contrary, he is described as having performed thousands of cosmetic surgery procedures, having attended dozens of workshops, and having hospital privileges. He is distinguished from the doctors the first segment of the Broadcast was warning consumers about because he is not portrayed as a doctor who attended a few weekend seminars and started a practice on that limited experience. Instead, the viewer is told that Fowler has attended dozens of workshops (not specified as weekend workshops), has performed thousands of procedures (thus, very experienced), and has hospital privileges (which the viewer has just been told is one of the things to check for in selecting a surgeon). Therefore, the gist of the Broadcast is that even though a doctor appears legitimate, and is not undertrained, inexperienced, and/or incompetent, he may not answer questions directly and honestly. For example, Dr. Fowler was not always truthful in response to direct questions asked by patients about prior negative experiences.
Sawyer: (voiceover) This is Dr. James Fowler in Dallas, Texas. His offices are impressive. The walls are covered with newspaper articles and credentials showing he has attended dozens of workshops, and he's performed thousands of cosmetic surgery procedures and has hospital privileges.
Plaintiff also argues that the gist of the Broadcast was to portray Dr. Fowler's credentials as worthless or fraudulent. (Pl.'s Resp. at 11.) The Court does not agree. Although Sawyer begins her segment on Dr. Fowler by introducing him as having walls "covered with newspaper articles and credentials showing that he has attended dozens of workshops," she does not suggest that his credentials are illegitimate or meaningless. Sawyer's discussion about the legitimacy of certificates found in doctors' offices is a new and separate issue that follows the segment on Dr. Fowler, and does not implicate him in any way.
Based on the foregoing, the Court DENIES as MOOT Defendants' Motion to Exclude Plaintiffs Journalism Expert and Defendants' Objections to Plaintiff's Summary Judgment Evidence.
For these reasons, Defendants' Motion for Summary Judgment is hereby GRANTED and Plaintiffs claims against Defendants are DISMISSED in their entirety.
DEFENDANTS' SECOND MOTION FOR SANCTIONS
Defendants complain that Plaintiff has violated the Federal Rules of Civil Procedure and a prior Court order by withholding certain documents that were requested during discovery. Specifically, Defendants argue that Plaintiff failed to produce (1) letters from the board of Medical Examiners about its investigation and (2) letters to the Board of Medical Examiners from other physicians who treated Ms. Saridan's infection, all of which Plaintiff submitted to the Court in support of his response to Defendants' Motion for Summary Judgment.
After reviewing the Parties' briefing, the Court finds that Plaintiff violated the Federal Rules by failing to provide responsive documents that were in Plaintiffs possession, custody, and control to Request for Production No. 14, which sought "any and all documents relating to any investigations, findings, or actions against [Dr. Fowler] by the Texas State Board of Medical Examiners." As Defendants point out, had they been provided copies of these documents during discovery, they "could have questioned witnesses about those documents during depositions, including Fowler himself; they could have questioned the other physicians and obtained documents from them, and they could have relied on that evidence to prove the truthfulness of the Saridan statements in the Broadcast." (Defs.' Mot. for Sanctions at 11.) The Court also finds that Plaintiffs conduct is sanctionable. According to the Federal Rules, a court may sanction a party for failing to respond to a discovery request by requiring the nonmovant to pay the moving party the reasonable expenses incurred in making the motion. See Fed.R.Civ.P. 37(a)(4)(A).
The Court also finds that Plaintiff violated the Court's prior discovery order by failing to produce Mike Hardee's patient file, Fowler's files relating to his staff privileges or practice at HCA Plano and Presbyterian Hospital, Fowler's calendar from 1995 to present (in redacted form), and copies of items (i) through (xvii) on pages 11-12 of this Court's April 26, 2002 Order. However, Plaintiffs failure to produce these documents did not result in any additional prejudice to Defendants.
Those items include:
i. The names and last known addresses of any patients whose records Plaintiff sent to other doctors allegedly as a result of the broadcast;
ii. The names and last known addresses of any patients who allegedly canceled surgery as a result of the broadcast;
iii. The general ledger, profit and loss statements and balance sheets for Plaintiff's practice on a monthly, quarterly, and yearly basis from 1995 forward;
iv. Patient files for any patient that Plaintiff allegedly lost as a result of the Broadcast;
v. Individual patient files for any patient who scheduled surgery during November or December 1999;
vi. All monthly statistics showing the number of procedures performed by Plaintiff in any particular month since 1995;
vii. All financial data or spreadsheets in the form given to Ralph Scott from 1995 to the present;
viii. Plaintiffs payroll records from 1995 to the present;
xi. All records of patients that Plaintiff sent to other doctors as a result of the Broadcast;
x. Plaintiffs "monthly marketing reports" from January 1, 1995 to the present and the raw data used to compile such reports for the months which no report was prepared;
xi. Any documents in Plaintiffs "ABC" file that have not already been produced;
xii. Plaintiffs application to the American Board of Cosmetic Surgery;
xiii. The patient file for Mike Hardee;
xiv. Plaintiffs procedures manual;
xv. Documents evidencing persons who spoke to Plaintiff or to Catherine Fowler about the broadcast;
xvi. Plaintiff's file at each hospital or surgery center at which he has practiced, including at Garland Community Hospital; and
xvii. Copies of any articles, diplomas, certification, and all other matter on Plaintiffs office walls.
(Order of April 26, 2002 at 11-12.)
Therefore, Defendants' Motion for Sanctions is hereby GRANTED and Plaintiff is ordered to reimburse all attorneys' fees and costs incurred by Defendants in connection with filing the Second Motion for Sanctions. Defendants are directed to file an affidavit with the Court setting forth the time reasonably spent in connection with the Second Motion for Sanctions, the rate charged, and the total amount of fees and expenses sought. If Plaintiff chooses to contest the fees and expenses sought, Plaintiff should file its responsive documents within twenty (20) days after the filing of Defendants' documents. Defendants will have fifteen (15) days to reply.
CONCLUSION
For the reasons stated herein, Defendants' Motion for Summary Judgment is GRANTED, Defendants' Motion to Exclude Plaintiffs Journalism Expert is DENIED as MOOT, Defendants' Objections to Plaintiffs Summary Judgment Evidence is DENIED as MOOT, and Defendants' Motion for Sanctions is GRANTED.