Greenberg v. CBS Inc.

• Decision Date: 06 August 1979
• Citation: 69 A.D.2d 693,419 N.Y.S.2d 988
• Parties: , 5 Media L. Rep. 1470 Joseph GREENBERG, M.D., Respondent-Appellant, v. CBS INC. et al., Appellants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 988

419 N.Y.S.2d 988

69 A.D.2d 693, 5 Media L. Rep. 1470

Joseph GREENBERG, M.D., Respondent-Appellant, v. CBS INC. et al., Appellants-Respondents.

Supreme Court, Appellate Division, Second Department.

Aug. 6, 1979.

Coudert Brothers, New York City (John M. Keene, III, Carleton G. Eldridge, Jr., Eugene L. Girden and Ronald E. Guttman, New York City, of counsel), for appellants-respondents.

Weinstein & Weinstein, Kew Gardens (Jonathan A. Weinstein, Kew Gardens, of counsel), for respondent-appellant.

Before HOPKINS, J. P., and DAMIANI, TITONE and MARTUSCELLO, JJ.

TITONE, Justice.

On November 7, 1976 the defendant-appellant CBS Inc. (CBS) telecast a show entitled "60 Minutes", which was estimated to have been viewed by 24 million people. A portion of the program dealing with amphetamine abuse, entitled "Over the Speed Limit", had been created and produced by defendant-appellant Grace Diekhaus. Defendant-appellant Mike Wallace served as the correspondent for this segment of the program. Purportedly, the program's primary purpose was to alert the public to the abuse and the potential for abuse of amphetamines and amphetamine substitutes in the treatment of obesity, or in the guise thereof.

During the pre-taped telecast of the segment in question, an unidentified woman appearing in a shadow made allegedly defamatory statements concerning the plaintiff, Joseph Greenberg, M.D., in response to questions asked by Mike Wallace. Thereafter, Dr. Greenberg, an endocrinologist, initiated a libel action against CBS, Grace Diekhaus and Mike Wallace allegedly resulting from the telecast and from the dissemination of the film and its transcript. After completion of pretrial discovery proceedings, defendants moved for summary judgment and plaintiff cross-applied for the same relief. Special Term denied each application on the ground that issues of fact existed relative to the falsity of the statements and the degree of care exercised by the network and the individual defendants in confirming their accuracy. Following is the relevant portion of the colloquy between Wallace and the woman, subsequently identified as one Barbara Goldstein:

"WALLACE: You eventually came to Dr. Joseph Greenberg?

"WOMAN: Right, in Great Neck.

"WALLACE: And what did he do for you?

"WOMAN: I was taking eighty pills a day.

"WALLACE: Under his direction?

"WOMAN: Under his direction.

"WALLACE: Eighty pills?

"WOMAN: Eighty pills a day. 8-0.

"WALLACE: And how many of those were amphetamines or amphetamine related or amphetamine substitutes?

"WOMAN: I would say between four and six a day were amphetamine-type drugs. I had a very, very strange experience, and this is perhaps why I finally left him: I could not determine where I ended and where you began.

"WALLACE: What?

"WOMAN: I could not determine where I ended and where you began for two years after that time. I walked around holding my hands because I did not know that they were attached to my body.

"WALLACE: And when you said that to Dr. Greenberg, he said what to you?

"WOMAN: Nothing. He said everyone feels that way.

"WOMAN: I had my daughter after ten years of marriage. She was born with some birth defects.

"WALLACE: Do you think as a result of amphetamines?

"WOMAN: Let me put it this way to you, Mike, Okay? We're real healthy people. My husband's family is real healthy people. My daughter comes along ten years after our marriage. She's got a kidney involvement. She's born with a virtual nil antibody level. She has all kinds of allergies. For the first three years, we thought she was hyperactive. She looked like strung-out on on medication. I feel that there has to be a connection between what I have done to my body, because of the medications that were given to me because I wanted to be thin."

At the outset, we take due cognizance that there is no privilege having a greater right to, or need for, protection, than that of freedom of the press. Throughout our history, publishers and broadcasters have rightly occupied a premier position in the unending struggle to maintain a free society. In recent years, all levels of the judiciary have endeavored to weigh the competing values and interests present in defamation suits against the media in order to insure that there be no deterrent to the vigorous and fruitful exercise of First Amendment freedoms.

However, a judicial policy against inhibition is not equivalent to insurance against all risks. A policy of freedom without responsibility would inure to the detriment not only to society in general but also to the disseminators of news information themselves (see Herbert v. Lando, --- U.S. ----, ----, 99 S.Ct. 1635, 60 L.Ed.2d 115).

What is also at stake in the dissemination of information in the public domain is the reputation and privacy of the individual or individuals mentioned or discussed therein "Hit and run" journalism is no more protected under the First Amendment, than speeding on a crowded sidewalk is permitted under a valid driver's license. As Mr. Justice STEWART has recognized, an individual's vested right to the protection and comfort of his own good name " reflects no more than our basic concept of the essential dignity and worth of every human being a concept at the root of any decent system of ordered liberty" (Rosenblatt v. Baer, 383 U.S. 75, 92, 86 S.Ct. 669, 679, 15 L.Ed.2d 597, concurring opn.). It might also be observed that biased and untrammeled sensationalism in the name of free speech and free press in disregard of the truth or without regard for the truth, is no virtue, while responsible and exhaustive investigative journalism in the quest for truth is no vice.

We also realize that motions for summary judgment in defamation actions are invaluable devices to insure the free and uninhibited debate of matters of public concern by obviating the necessity for protracted and expensive litigation where there are no factual issues (Washington Post Co. v. Keogh, 125 U.S.App.D.C. 32, 35, 365 F.2d 965, 968, cert. den. 385 U.S. 1011, 87 S.Ct. 708, 17 L.Ed.2d 548). However "solicitude for first amendment freedoms was not intended to abrogate the fundamental rules governing the administration of summary judgment" (Bandelin v. Pietsch, 98 Idaho 337, 563 P.2d 395, 399, cert. den. 434 U.S. 891, 98 S.Ct. 266, 54 L.Ed.2d 177). If a material, triable issue of fact exists in a libel action, summary judgment must be denied (Hutchinson v. Proxmire, --- U.S. ---- (1979), n. 9, 99 S.Ct. 2675, 61 L.Ed.2d 411; Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 384, 397 N.Y.S.2d 943, 952, 366 N.E.2d 1299, 1308, cert. den. 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456; James v. Gannett Co., 40 N.Y.2d 415, 418, 386 N.Y.S.2d 871, 873, 353 N.E.2d 834, 836; Chapadeau v. Utica Observer-Dispatch, 38 N.Y.2d 196, 200, 379 N.Y.S.2d 61, 64, 341 N.E.2d 569, 571).

Having carefully scrutinized the contentions of the parties and the issues raised in the appendix and briefs on appeal we conclude that Mr. Justice NIEHOFF properly resolved the competing interests present at this stage of the case by denying all applications for summary judgment. Therefore we affirm.

In arriving at our determination to affirm, we have employed a two-pronged analysis to ascertain if factual questions exist. First, the form, content, effect, and falsity of the allegedly defamatory statements were examined since the plaintiff bears the burden of showing that the statements are in fact libelous (see Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 490, 95 S.Ct. 1029, 43 L.Ed.2d 328). Second, the First Amendment limitations on recovery were then applied; the burden of defeating the constitutionally mandated privileges raised by the defendants was also on the plaintiff (see Rinaldi v. Holt, Rinehart & Winston, supra, 42 N.Y.2d p. 380, 397 N.Y.S.2d p. 950, 366 N.E.2d p. 1305). In making such two-pronged analysis, the following issues were considered: (1) the libelous nature of the statements; (2) whether the status of Dr. Greenberg was that of a "limited issue" public figure; and (3) the telecasters' duty of care in assessing the accuracy of Barbara Goldstein's comments.

THE LIBELOUS NATURE OF THE STATEMENTS.

An allegedly libelous statement must be understood in the context in which it is heard (Balabanoff v. Hearst Consol. Pub., 294 N.Y. 351, 62 N.E.2d 599). The whole thrust of "Over the Speed Limit" was not only that the prescribing of amphetamines and amphetamine substitutes for obesity was bad medical practice, but that such practice was illegal and carried criminal sanctions that were difficult to enforce. Moreover, the defamatory nature of the statements was reinforced both by the context of the telecast and the setting in which the statements were made. Be that as it may, there can be no recovery unless the statements are false.

Defendants contend that the undocumented statements made by Barbara Goldstein, a former patient of the plaintiff, concerning the amount and nature of the medication prescribed for her by the plaintiff, are true. The plaintiff, however, has presented evidence which significantly challenges her veracity. Dr. Greenberg's records show, and Barbara Goldstein has admitted, that during the short period in which she was treated by the plaintiff, she was also being treated by at least four other physicians, one of whom treated her as an in-patient at Smithtown General Hospital. Greenberg's records also indicate that he never prescribed 80 pills per day and that some of the medication which he has been accused of prescribing was actually prescribed by other doctors.

Plaintiff admits that he prescribed drugs called "Presate" and "Tenuate-Dospan"; the defendants argue that these are "amphetamine-type" drugs while plaintiff disputes this classification. It should be noted that the term amphetamine substitutes or amphetamine-type or related drugs were not defined during the program. Both parties rely on the Physicians Desk Reference, 1978, which...