Virginia Supreme Court upholds award of $2 million to doctor in ‘Dirty Doc’ case

From the Summer 2002 issue of The News Media & The Law, page 49.

A television station in Washington, D.C., lost its appeal of a $2 million libel verdict for a news story and promotions about a physician’s treatment of female patients. The Virginia Supreme Court ruled that the jury award against WJLA-TV was proper.

Courts in other defamation cases ruled in favor of the media. The U.S. Court of Appeals in Boston (1st Cir.) ruled that the author of the nonfiction book “A Civil Action” did not libel a person who was portrayed in the bestseller. And the Mississippi Supreme Court found that a newspaper columnist’s critical comments about a former sheriff were not defamatory.

* WJLA ruling not a total loss

A Virginia Supreme Court ruling that upheld a $2 million libel verdict against WJLA-TV in Washington, D.C., was not a complete loss for the media, according to attorneys involved in the case.

The court’s ruling on June 7 reversed the jury’s finding that Dr. Stephen Levin should win an additional $575,000 from the ABC affiliate for misappropriation of the doctor’s image in advertisements promoting a news story about him.

The court found that the station used Levin’s image for a newsworthy purpose, not to advertise the station.

The Reporters Committee for Freedom of the Press and other media groups argued in a friend-of-the-court brief that holding the media liable for misappropriation would open the door to allowing claims for false light invasion of privacy, a tort that Virginia does not recognize.

The court’s ruling keeps that door closed.

“We don’t want to add another cause of action that could be used against the media for writing stories of newsworthiness,” said Thomas Spahn, one of the attorneys who wrote the friend-of-the-court brief.

Levin, an orthopedist, sued WJLA for the station’s broadcast on Nov. 18, 1997, and several promotional ads that he said accused him of sexually assaulting female patients and performing inappropriate medical procedures.

The reports discussed a procedure Levin used, called “intravaginal manipulation,” to treat a condition that causes pain in the buttocks, lower back and legs. Several patients complained to the state Board of Medicine, which held a hearing and dismissed the complaints. One of the complaining patients contacted WJLA.

Promotional ads before the WJLA broadcast referred to Levin as “Dirty Doc” and “the X-Rated Doctor” and asked, “When does a physical examination become a sexual assault?” The broadcast referred to the treatment as “inappropriate pelvic exams” and “highly unusual.”

WJLA had argued on appeal that the jury should not have been able to consider all of the allegedly defamatory statements collectively in deciding whether the station had defamed Levin. Instead, each statement should have been considered individually, the station argued.

The state Supreme Court ruled that WJLA waived this argument when it failed to object at trial to a jury instruction that allowed a verdict for Levin if the jury found that the station made “any one” of the allegedly defamatory statements.

The trial judge also properly allowed the jury to decide whether the station acted with actual malice, the Supreme Court ruled. To win presumed damages, Levin, a private figure, had to prove that the station acted with actual malice, meaning the station knew the report was false or acted with reckless disregard for the truth.

The jury could have found actual malice when the station quoted another doctor as saying Levin’s treatment technique was not medically appropriate, even though the doctor later retracted that statement, Justice Lawrence L. Koontz wrote for the court.

The ruling set a precedent in Virginia libel law, said Lee Levine, the attorney for WJLA on appeal.

Plaintiffs in defamation cases must prove that the allegedly defamatory statement was “of and concerning” the plaintiff. A plaintiff meets this requirement when the same defendant makes statements regarding one specific subject or event over a relatively short period of time, even if some of the statements clearly identify the plaintiff and others do not, the court ruled.

“This is so even where the publication identifying the plaintiff is made subsequent to those that do not identify him,” the court ruled.

Levine, the attorney, said that portion of the ruling holds a lesson for TV news broadcasts.

“If you’re going to promote a piece, there’s a pretty good chance that a court’s going to read the promotions together with the actual broadcast in deciding all sorts of things like, was it defamatory, was it false, was it of and concerning the plaintiff,” Levine said. “You shouldn’t assume that the promotions are going to be judged as something separate and apart from the broadcast.” (WJLA-TV v. Levin)

* ‘A Civil Action’ not libelous

The author of “A Civil Action” did not libel a tannery operator portrayed in the book, the U.S. Court of Appeals in Boston (1st Cir.) ruled on June 11.

The writer, Jonathan Harr, discussed the facts underlying opinions in the book, and he gave information from which a reader could draw a different conclusion, the three-judge panel decided.

The decision affirmed a trial court’s dismissal of tannery operator John J. Riley Jr.’s lawsuit against Harr, Random House and Vintage Books.

Harr’s book, which became a movie, recounts a toxic tort lawsuit brought by residents of Woburn, Mass., who claimed that Beatrice Foods Co., W.R. Grace & Co. and others polluted two city drinking-water wells with a toxic solvent that killed several children. The residents’ lawsuit claimed that some of the solvent found in the wells came from a tannery operated by Riley. A jury ruled against the Woburn residents in 1986.

Riley’s lawsuit claimed that the book, published in 1995, called him a liar, a perjurer, a killer and a bully.

Riley had to prove that the statements were false. But even a provably false statement is protected by the First Amendment when an author outlines the facts available to him, makes it clear that the statements represent his own interpretation of the facts and leaves the reader free to draw different conclusions, Judge Kermit Lipez wrote for the appellate panel.

The court noted that the book tells the story from the perspective of the plaintiffs’ attorney, Jan Schlichtmann. Several of the challenged statements were protected from liability because they were Schlichtmann’s opinion and followed a summary of the facts on which the opinion was based, Lipez wrote.

The statements would be protected under the First Amendment even if they were Harr’s opinion, the decision says. Some statements that Riley said portrayed him as a liar were “based on evidence — some pointing in one direction, some in another — which the book describes in substantial detail,” the court noted.

The court held that an author who fairly describes events and offers an opinion about those events is not liable for defamation.

“Otherwise, authors would hesitate to venture beyond dry, colorless descriptions of facts, bereft of analysis or insight, and the threat of defamation lawsuits would discourage expressions of opinion by commentators, experts in a field, figures closely involved in a public controversy, or others whose perspectives might be of interest to the public,” the ruling says. (Riley v. Harr)

* Critical column was not libelous

The Mississippi Supreme Court upheld the dismissal of a former sheriff’s libel lawsuit against newspaper columnist Wilson “Bill” Minor.

In a May 9 ruling, the high court agreed with a trial judge that Minor did not libel Rex P. Armistead in a column that contained substantially true information about the sheriff’s history of involvement in civil-rights incidents and a political scandal.

Minor writes a column called “Eyes on Mississippi” that is published in newspapers across the state. (Minor also is a member of the steering committee for the Reporters Committee for Freedom of the Press.)

Minor’s column in April 1998 on Armistead was sparked by a story in The (Memphis) Commercial Appeal about Armistead’s involvement as a paid investigator for the “Arkansas Project,” an effort by American Spectator magazine to produce exposes about then-President Bill Clinton.

Minor’s column recounted Armistead’s activities dating to the 1960s. The column described Armistead’s “odoriferous background in Mississippi, ranging all the way from head-bashing of black civil rights workers to concocting a bizarre homosexual scandal in an attempt to defeat a gubernatorial candidate.”

Ample publications supported the gist of the information in Minor’s column, the state Supreme Court ruled.

Armistead, a public figure, also failed to prove that Minor acted with actual malice, meaning that the columnist knew the published statements were false or acted with reckless disregard for the truth, the court ruled.

“While it may be evident that Minor does not hold Armistead in high regard, such feelings do not amount to actual malice,” Justice James W. Smith Jr. wrote in the 8-0 decision. (Armistead v. Minor) — MD