Desnick, M.D. v. American Broadcasting Co., 99-3715

• Decision Date: 27 October 2000
• Docket Number: No. 99-3715,99-3715
• Citation: 233 F.3d 514
• Parties: (7th Cir. 2000) J.H. Desnick, M.D., Eye Services, Ltd., Plaintiff-Appellant, v. American Broadcasting Companies, Inc., Jon Entine, and Sam Donaldson, Defendants-Appellees
• Court: U.S. Court of Appeals — Seventh Circuit

Page 514

233 F.3d 514 (7th Cir. 2000)

J.H. Desnick, M.D., Eye Services, Ltd., Plaintiff-Appellant, v. American Broadcasting Companies, Inc., Jon Entine, and Sam Donaldson, Defendants-Appellees.

No. 99-3715

In the United States Court of Appeals For the Seventh Circuit

Argued September 12, 2000

Decided October 27, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 93 C 6534--John A. Nordberg, Judge. [Copyrighted Material Omitted] 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. at 836 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...