J.H. Desnick, M.D. v. American Broadcastin

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3715
J.H. Desnick, M.D., Eye Services, Ltd.,
Plaintiff-Appellant,
v.
American Broadcasting Companies, Inc.,
Jon Entine, and Sam Donaldson,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 93 C 6534--John A. Nordberg, Judge.
Argued September 12, 2000--Decided October 27, 2000
Before Posner, Coffey, and Manion, Circuit Judges.
Posner, Circuit Judge. Seven years ago the
Desnick eye clinic, joined by two of the clinic’s
surgeons (who are no longer parties), brought
this diversity suit against the ABC television
network, a producer of ABC’s program "PrimeTime
Live," and the program’s star reporter, Sam
Donaldson, seeking damages for a variety of torts
allegedly committed by the defendants in
connection with a 15-minute program segment that
was highly critical of the clinic. We affirmed
the district court’s dismissal, on the ground of
failure to state a claim (Fed. R. Civ. P.
12(b)(6)), of all but the defamation charge. 44
F.3d 1345 (7th Cir. 1995). That charge was based
on an accusation in the broadcast that the
plaintiffs had tampered with a machine at the
clinic called an "auto-refractor," which tests
for cataract. The district judge had dismissed
the charge on the ground that the accusation had
not added significantly to the harm to the
plaintiffs’ reputation caused by the parts of the
broadcast segment that the plaintiffs had not
challenged. We reversed because the fact that the
plaintiffs had not challenged the other
accusations in the broadcast could not be
construed as a concession that those other
accusations were true. Id. at 1350-51. "Given the
obstacles to proving defamation, the failure to
mount a legal challenge to a defamatory statement
cannot be considered an admission that the
statement is true." Id. at 1350. On remand, the
district court granted summary judgment for the
defendants, without reaching the question whether
the accusation of tampering was true or false, on
the ground that there was insufficient evidence
of "actual malice" to permit the case to go
forward. The Desnick clinic has again appealed.
The clinic is conceded to be a "public figure,"
so that under the Supreme Court’s interpretation
of the free-speech clause of the First Amendment
it cannot maintain a suit for defamation unless
it can prove that the defendant acted with
"actual malice." This is a term of legal art that
means not what it seems to mean but that the
defendant either knew that the defamatory
statement (here, the accusation of tampering with
the auto-refractor) was false or was recklessly
indifferent to whether it was true or false.
E.g., Masson v. New Yorker Magazine, Inc., 501
U.S. 496, 510 (1991); Milsap v. Journal/Sentinel
Inc., 100 F.3d 1265, 1270 (7th Cir. 1996) (per
curiam). "Reckless indifference" denotes the same
state of mind that must be proved to establish
liability for infringement of a federal right
under color of state law or for violation of the
federal mail fraud statute: knowledge by the
defendant that there was a high risk of harm to
the plaintiff coupled with a failure to take any
feasible measure to counter the risk, either by
investigating further to see whether there really
is a risk and how serious it is or by desisting
from the risky activity. See, e.g., Farmer v.
Brennan, 511 U.S. 825, 837-38 (1994); Tesch v.
County of Green Lake, 157 F.3d 465, 474-75 (7th
Cir. 1998); Billman v. Indiana Dept. of
Corrections, 56 F.3d 785, 788-89 (7th Cir. 1995);
Archie v. City of Racine, 847 F.2d 1211, 1219
(7th Cir. 1988) (en banc); United States v. Dick,
744 F.2d 546, 551 (7th Cir. 1984); Chance v.
Armstrong, 143 F.3d 698, 703-04 (2d Cir. 1998);
United States v. DeSantis, 134 F.3d 760, 764 (6th
Cir. 1998); Keeper v. King, 130 F.3d 1309, 1314
(8th Cir. 1997).
In a defamation case by a public figure,
therefore, "the plaintiff must demonstrate that
the author ’in fact entertained serious doubts as
to the truth of his publication,’ . . . or acted
with a ’high degree of awareness of . . .
probable falsity,’" Masson v. New Yorker
Magazine, supra, 501 U.S. at 510 (quoting St.
Amant v. Thompson, 390 U.S. 727, 731 (1968), and
Garrison v. Louisiana, 379 U.S. 64, 74 (1964),
respectively), or, while suspecting falsity,
deliberately avoided taking steps that would have
confirmed the suspicion. Harte-Hanks
Communications, Inc. v. Connaughton, 491 U.S.
657, 692-93 (1989) ("intent to avoid the truth,"
id. at 693); Eastwood v. National Enquirer, Inc.,
123 F.3d 1249, 1251 (9th Cir. 1997); McFarlane v.
Sheridan Square Press, Inc., 91 F.3d 1501, 1510
(D.C. Cir. 1996). (For the analog to this
"ostrich" or "willful blindness" principle in
cases under 42 U.S.C. sec. 1983, see West v.
Waymire, 114 F.3d 646, 651 (7th Cir. 1997).) In
other words, the defendant must either know that
his published statement was probably false or,
suspecting that it may be false, deliberately
close his eyes to the possibility.
This is the criminal sense of recklessness,
Farmer v. Brennan, supra, 511 U.S. at 839-40;
Hill v. Shobe, 93 F.3d 418, 421 (7th Cir. 1996);
Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir.
1998) (per curiam), or, if a little broader, is
so only by a hair, West v. Waymire, supra, 114
F.3d at 650-52, whereas in tort cases the term
sometimes denotes little more than gross
negligence. Farmer v. Brennan, supra, 511 U.S. at836 n. 4; Duckworth v. Franzen, 780 F.2d 645, 652
(7th Cir. 1985); In re New York City Asbestos
Litigation, 678 N.E.2d 467 (N.Y. 1997) (per
curiam); W. Page Keeton et al., Prosser and
Keeton on the Law of Torts sec. 34, p. 213-14
(5th ed. 1984). Negligence, the standard in
defamation suits brought by private rather than
public figures, does not require proof of a state
of mind at all, but only that the defendant
failed to exercise the care that a reasonable
person in his position would have exercised. The
contrast with recklessness in the strong sense in
which the term is used to denote the standard in
constitutional, mail-fraud, and public-figure
defamation cases is stark. "Reckless conduct [in
a public-figure defamation case] is not measured
by whether a reasonably prudent man would have
published, or would have investigated before
publishing. There must be sufficient evidence to
permit the conclusion that the defendant in fact
entertained serious doubts as to the truth of his
publication. Publishing with such doubts shows
reckless disregard for truth or falsity and
demonstrates actual malice." St. Amant v.
Thompson, supra, 390 U.S. at 731. We may assume
that the defendants were careless in having
failed to investigate the auto-refractor
accusation further; but there is no evidence that
they actually believed the accusation to be false
and so the question is whether the clinic has
presented enough evidence of recklessness to
defeat summary judgment.
The accusation of tampering was made originally
by Paddy Kalish, an optometrist who had worked
for the Desnick eye clinic for two years. Kalish
claimed that technicians employed by the clinic
tampered (at the clinic’s direction) with the
auto-refractor in order to produce false
diagnoses of cataract. A symptom of cataract is
that one’s normal eyesight becomes severely
degraded when there is a lot of glare. The auto-
refractor tests for this symptom as follows.
First it inspects the patient’s eyes without
glare. The machine automatically adjusts for
whatever correction the patient requires, so that
if the patient’s vision has been corrected to
20/20 that is what the eye chart in the machine
will report. Then the glare function is
activated. If the patient does not have a
cataract, his vision will still register as
20/20, but if he does have a cataract, the glare
will degrade his vision, and if it degrades it to
20/50 or worse this is an indication that he
needs surgery to remove the cataract. According
to Kalish, the glare created by the machine can
be amplified to degrade the patient’s vision even
if the patient does not have a cataract. In an
interview with Donaldson that was videotaped
(only part of which was used in the broadcast),
Kalish first tested Donaldson to ascertain that
without tampering his corrected vision was 20/20
even with the glare produced by the (untampered-
with) machine. In other words, Donaldson did not
have a cataract. Then Kalish explained that the
glare could be intensified by removing the
housing of a part of the machine and unscrewing
the "glare bulb" exposed by that removal,
covering the bulb with a piece of scotch tape,
"painting" the tape with a magic marker, and
reinstalling the bulb. The dimming of this bulb
caused by the tampering is detected by a glare
detector in the machine, and the glare detector
reacts by sending more power to the glare bulb,
and Kalish said that the net effect is to create
increased glare in the patient’s field of vision.
After several failed attempts to degrade
Donaldson’s vision, Kalish with the aid of a
friend of his, a technician formerly employed by
him, was able to degrade Donaldson’s vision to
20/40.
There is nothing, so far, to indicate any
recklessness on the part of ABC in crediting
Kalish’s accusation. It is true that Kalish and
the technician needed several attempts to degrade
Donaldson’s vision, but this is not surprising or
suspicious. The machine was new to the
technician, and Kalish had not done the tampering
of the eye clinic’s machine himself. Nor is it
significant that Donaldson’s vision was not
degraded to the 20/50 level, given the
technician’s lack of tampering experience and the
fact that Donaldson was younger than the patients
at the clinic, almost all of whom were Medicare-
eligible and thus 65 or older. The technique of
tampering was odd--dimming the glare bulb in
order to signal the glare detector to restore its
brightness doesn’t seem a likely recipe for a net
increase in glare. The obvious way to achieve
this end would be to mask the detector, causing
it to send additional power to the undimmed glare
bulb. The manufacturer of the auto-refractor
acknowledged that the machine could be caused to
register false positives in this way, and it is
likely that Kalish, who had not done the actual
tampering himself but merely observed it,
mistakenly thought that the tamperer covered the
bulb rather than the detector, which sits beside
it in the machine.
The accusation of tampering was corroborated by
the fact that ABC’s investigation of the Desnick
clinic turned up evidence of unneeded surgery,
alteration of patients’ records to show they
needed cataract surgery when they didn’t,
diagnoses by clinic surgeons of cataract in
testers (ABC "undercover agents") with normal
eyesight, and statements by former employees of
the clinic that almost everyone failed the glare
test. The plaintiff points out correctly that
these "facts" have not yet been established,
because the district judge dismissed the suit
before determining their truth. But that is
irrelevant. All that matters is that ABC was not
reckless in stating these as facts, facts
establishing a pattern of herding elderly
patients into unneeded cataract surgery, or in
making the further charge that a diagnostic
machine had been tampered with to produce false
positives.
The defendants knew more than the facts we have
summarized so far, however, and it is on the
"more" that the plaintiff pitches its contention
that a jury could infer that they knew there was
a high probability that Kalish’s accusation, at
least, was false. But neither singly nor in
combination do the additional facts that the
defendants knew permit such an inference.
One thing they knew was that the U.S. Attorney
had refused to join Kalish’s multimillion
whistleblower dollar suit against the clinic (a
suit that ultimately failed, though for a reason
unrelated to Kalish’s credibility--that he lacked
standing to bring such a suit) because he didn’t
think that Kalish could be the centerpiece of a
credible suit. But he didn’t think that because
he thought Kalish was lying but because he
thought Kalish might not be believed, having
worked for the clinic for two years and during
his employment having participated in the
clinic’s unethical practices. That Kalish might
not be credible enough to have a good chance of
persuading a jury does not mean that he was not
credible enough to be a source for a news story.
Many a criminal conviction has rested entirely on
the testimony of coconspirators despite the
requirement in a criminal case of proof beyond a
reasonable doubt; a fortiori a broadcaster is
entitled to repose confidence in a conspirator
unless the circumstances create in the
broadcaster’s mind a belief that there is a high
probability that the conspirator is lying.
The plaintiff in its brief repeatedly urges us
to view the "outtakes" of Donaldson’s interview
of Kalish, that is, the parts of the videotape
that were not broadcast; and we have done so. The
plaintiff directs us to Donaldson’s statement in
the outtakes that "this is silly." But the
referent is omitted. In one of the failed
attempts to rig the machine, the piece of scotch
tape was left wedged in it and Kalish suggested
that he darken the bulb with the magic marker and
then reinsert it. Evidently what Donaldson
thought "silly" was attempting to rig the machine
in two stages. The fact revealed by the outtakes
and much harped on by the plaintiff that Kalish
and the technician needed repeated attempts to
tamper with the machine successfully has no
significance given that the technician was not as
knowledgeable about the machine as a Desnick eye
clinic technician would have been. Incidentally,
the fact that Kalish couldn’t do the tampering
himself, that he is clumsy and needed the
assistance of a technician, has a significance
unrecognized by the plaintiff. Given his lack of
mechanical aptitude, it is unlikely that Kalish
could have made up this method of tampering had
he never seen or heard about it, though as we
noted earlier he may have been confused as the
precise method of tampering that he had observed.
The clinic’s lawyer speculated at the oral
argument of the appeal that maybe Kalish had
heard about the method of tampering from someone
unrelated to Desnick’s clinic. Maybe. But it was
not a possibility that ABC was required to
entertain seriously, given all the evidence it
had that was corroborative of Kalish’s
accusation.
The plaintiff points out that ABC did not
attempt to hunt up the actual technicians
employed by the plaintiff who had tampered with
the machine. This is true, and maybe that failure
was negligent, though it is understandable why
ABC might think it an unprofitable quest: people
are reluctant to admit their misconduct. But
negligence is not the applicable standard.
Potentially the best fact for the plaintiff is
that, as the defendants well knew (because the
plaintiff’s lawyer told them), the clinic had
sued Kalish in state court on account of the
tampering accusation, which Kalish had made on a
local television station before the "PrimeTime
Live" broadcast, and had won a judgment. The
plaintiff argues that the judgment "necessarily
encompassed a finding that Kalish had made false
statements about Dr. Desnick," but that is
incorrect; summary judgment was granted for the
plaintiff after Kalish’s lawyer failed to make a
timely response to a request for admissions.
Still, the fact that Kalish had lost a defamation
suit based on the identical accusation should
have set off warning bells at ABC; and it is
conceivable (though we need not decide) that the
failure to follow up was reckless, was a case of
"intent not to learn the truth." There is
nevertheless a fatal flaw in this part of the
plaintiff’s case: the plaintiff’s failure to
indicate what following up would have revealed.
It is not enough to argue that ABC should have
examined the state court record. The plaintiff
must show what the record contained that would
bear on Kalish’s credibility. True, this
principle is assumed rather than stated in the
cases. See McFarlane v. Sheridan Square Press,
Inc., supra, 91 F.3d at 1510; Brown v. Hearst
Corp., 54 F.3d 21, 26 (1st Cir. 1995); Perk v.
Readers Digest Association, Inc., 931 F.2d 408,
412 (6th Cir. 1991). But there is a compelling
analogy to the duty of a party who complains
about the exclusion of testimony to show by an
offer of proof that the testimony would have been
helpful. Fed. R. Evid. 103(a)(2); United States
v. Vest, 116 F.3d 1179, 1189 (7th Cir. 1997);
Israel Travel Advisor Service v. Israel Identity
Tours, 61 F.3d 1250, 1260 (7th Cir. 1995); Faigin
v. Kelly, 184 F.3d 67, 86 (1st Cir. 1999).
Suppose that all that a study of the record in
the clinic’s suit against Kalish would have
revealed was a procedural bobble on the part of
Kalish’s lawyer. It would not be surprising if
the suit had not been defended vigorously, for
Kalish appears to be a person of modest means and
it is entirely possible that the clinic sued him
not in the hope of obtaining a collectible
judgment but in the hope of silencing him and
destroying his credibility. This is speculation;
our point is different--it is that without any
indication that ABC would have learned that
Kalish’s accusations were false had it studied
the record of the clinic’s suit against him,
there is no evidence of a causal relation between
ABC’s alleged recklessness and the injury to the
clinic. So far as appears, a study of the record
would have brought to light nothing that would
have cast any doubt on Kalish’s truthfulness. The
only aspect of the defendants’ conduct that might
be considered reckless was also, so far as the
record discloses, harmless. Cf. Franks v.
Delaware, 438 U.S. 154, 171-72 (1978).
Affirmed.