Two publications fare well in libel appeals, but Boston Globe hit with $2.1 million verdict

From the Spring 2002 issue of The News Media & The Law, page 32.

Sports Illustrated and the Atlanta Journal-Constitution scored victories in appeals courts in much-publicized libel cases, but a jury awarded a plaintiff a $2.1 million judgment against The Boston Globe. The case had a twist: Jurors were not asked to decide whether the newspaper had libeled the doctor who sued. The judge decided that issue, ruling that the newspaper was liable for defamation when the Globe refused to disclose confidential sources.

A defamation suit against CNN involving the network’s controversial Operation Tailwind broadcast was revived when a federal appeals court ordered the trial court to reconsider its dismissal of the claim.

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Boston Globe plans appeal of $2.1 million libel verdict

The Boston Globe will appeal the $2.1 million verdict that a jury ordered the newspaper and one of its reporters to pay to a doctor who said she was libeled in a story about an accidental chemotherapy overdose that killed a Globe columnist.

In all, the Suffolk County Superior Court jury on Feb. 12 awarded $4.2 million to Dr. Lois Ayash for emotional distress, lost wages and injury to her business reputation. The jury found Dana-Farber Cancer Institute, where Ayash worked, and its former physician-in-chief liable for the remainder of the damages.

Ayash sued the Globe in 1996, arguing that she was erroneously identified in a 1995 article as having approved a mistaken chemotherapy order, which resulted in an overdose that killed columnist Betsy Lehman and caused severe toxicity in another patient. The newspaper published a correction.

The jury did not decide whether the newspaper had libeled Ayash. The trial judge found the Globe and reporter Richard Knox liable in April 2001 by entering a default judgment against them to punish them for refusing to comply with a court order to disclose confidential sources.

The jury decided only the amount of damages the newspaper and reporter must pay. It found the newspaper liable for $1.68 million and Knox liable for $420,000.

Globe attorney Jonathan Albano said the judge’s punishment of the newspaper took away its chance to defend itself, especially since the confidential sources were not relevant to Ayash’s libel claim.

Ayash had sought the identities of the sources to prove that the hospital had invaded her privacy. The jury — without knowing the identities of the confidential sources — found the hospital had invaded her privacy. That verdict shows that the identities of the confidential sources were not needed, Albano said. (Ayash v. Dana-Farber Cancer Institute)

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Georgia Supreme Court refuses to hear Richard Jewell’s appeal

Richard Jewell, the exonerated one-time suspect in the bombing at the Atlanta Olympics, continues to fight the Georgia Court of Appeals’ ruling that he is a public figure for purposes of his libel suit against the Atlanta Journal-Constitution.

On Feb. 11, the Georgia Supreme Court decided not to hear Jewell’s appeal of the appellate court’s October ruling.

L. Lin Wood, Jewell’s attorney, said he will appeal to the U.S. Supreme Court. The Georgia Court of Appeals’ decision that Jewell was a public figure was based partly on the 10 interviews he gave to the press before he became a suspect. That ruling penalizes private citizens who voluntarily talk to the media, Wood said.

“Why should a private citizen be penalized and lose protection from defamation by agreeing to an interview?” Wood said.

Jewell is suing the Atlanta Journal-Constitution for libel for naming him as a suspect in the bombing at the 1996 summer Olympics in Atlanta.

The Georgia appellate court’s ruling that Jewell is a public figure means that he must prove actual malice to win damages. Under that standard, Jewell must show that the newspaper published information knowing it was false or with reckless disregard as to its truth. If he were a private figure, he would have to show only that the newspaper was negligent.

The appeals court also ruled that the newspaper did not have to reveal confidential sources.

Jewell had been credited with discovering the bomb, alerting authorities and evacuating bystanders. The FBI initially focused its investigation on Jewell but later dropped him as a suspect. (Jewell v. Cox Enterprises)

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Sports Illustrated wins appeal over boxing story verdict

A federal appeals court overturned a $10.7 million libel verdict against Sports Illustrated on Jan. 30.

The U.S. Court of Appeals in Cincinnati (6th Cir.) ruled that the magazine and its reporters did not act with actual malice when they published that former professional boxer and character actor Randall “Tex” Cobb was involved with fixing a match and that he used cocaine after the match.

“The jury’s verdict cannot stand without significantly infringing on the ‘breathing space’ that the (Supreme) Court has carved out for the freedom of speech,” the three-judge appellate panel wrote.

Sports Illustrated published an article titled “The Fix Was In” on Oct. 4, 1993. The article reported that Cobb knowingly participated with another boxer, Paul “Sonny” Barch, in fixing a boxing match in Florida in 1992. The article also said Cobb used cocaine with Barch after their fight. Cobb sued the magazine for libel in Tennessee.

Cobb had to prove that the magazine knew that the statements in the story were false, or that the magazine acted with reckless disregard for the truth.

Sports Illustrated based its story in part on interviews with Barch, whose truthfulness the magazine had reason to doubt, the court said. But the magazine’s reporters corroborated Barch’s story with at least one independent source who was a boxing expert, who witnessed the Cobb-Barch fight, and who reviewed a videotape of the match, the court found.

Sports Illustrated reporters with significant experience covering boxing also watched the videotape and concluded that Cobb was in on the fix, which gave the magazine further reason to believe Barch, the court wrote.

The magazine paid Barch for his first-person account but that did not amount to actual malice, the court said. (Cobb v. Time, Inc.)

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Defamation suit against CNN will proceed

The U.S. Court of Appeals in San Francisco (9th Cir.) on March 20 reversed a lower court’s dismissal of a defamation suit against CNN. The ruling sends the case back to the trial court.

The lawsuit stems from CNN’s controversial retraction of its 1998 report on Operation Tailwind, a U.S. military operation in Laos in 1970 in which CNN reported that the military used sarin gas to kill American defectors.

CNN broadcast the report in June 1998 and retracted it a month later. In its retraction, it named Robert Van Buskirk, a lieutenant in the U.S. Army Special Forces, as its primary source for the Tailwind report. The network said Van Buskirk gave inconsistent statements to CNN and had been taking drugs for a nervous disorder for 10 years but had stopped.

Van Buskirk sued, but a federal district judge dismissed the case. The appeals court agreed with the trial judge that Van Buskirk’s status as CNN’s primary source and the report about the inconsistent statements were not defamation.

However, the report about Van Buskirk’s medication for a nervous disorder was potentially defamatory, the appeals court ruled. CNN did not disclose that the medication was not mind-altering and that Van Buskirk had stopped taking it more than 10 years before the broadcasts.

“It would appear that CNN, in its zeal to shift all blame for its own failure to adequately investigate the Tailwind story, sought to portray Van Buskirk as unreliable by any means available,” the three-judge panel ruled.

The statements indicated that Van Buskirk was an unreliable source at the time of his interviews with CNN, the decision said. Alternatively, the statements could have given the impression that Van Buskirk was mentally ill, the court said. (Van Buskirk v. CNN) — MD