Pesta v. CBS, INC., 84-CV-5124-DT.
| Decision Date | 24 November 1986 |
| Docket Number | No. 84-CV-5124-DT.,84-CV-5124-DT. |
| Parties | Carl M. PESTA and Penny M. Pesta, Plaintiffs, v. CBS, INC., Ed Bradley, Morley Safer, Mike Wallace, Harry Reasoner, Monika Jensen, John Doe, Mary Roe, and Storer Communications, Inc., Defendants. |
| Court | U.S. District Court — Western District of Michigan |
Balfour Peisner, Southfield, Mich., for plaintiffs.
Richard E. Rassel, Detroit, Mich., for defendants.
This defamation action arises from the broadcast of a segment of the CBS program "60 Minutes," entitled "Tragic Assumptions." The segment was aired on October 30, 1983. On October 25, 1984, Plaintiffs commenced action in Macomb County Circuit Court, and the action was subsequently removed to this Court based on diversity jurisdiction. Plaintiff Carl M. Pesta seeks actual and compensatory damages. His wife, Penny M. Pesta, asserts a derivative claim for loss of consortium.1
This matter is presently before the Court on four motions. Plaintiff brings two motions in limine, one seeking a ruling that Defendants did not have a qualified privilege to publish the two allegedly defamatory statements upon which this action is based2 and the other seeking a ruling that Defendants may not produce evidence of previous malpractice actions against Plaintiff at trial. Also before the Court are Defendants' motion for summary judgment and Defendants' motion to strike Plaintiff's supplemental answers to certain interrogatories. Because resolution of Defendants' motion for summary judgment may obviate the need to consider Defendants' motion to strike answers to interrogatories and Plaintiff's motion in limine concerning evidence of previous malpractice claims, the Court will defer discussions of those motions. Plaintiff's motion in limine regarding the existence of a qualified privilege, however, goes to Plaintiff's burden of proof at trial and, accordingly, is appropriately considered before addressing the merits of Defendants' motion for summary judgment.3
In late December, 1972, sixteen-year-old John Haisenleder became ill with the flu. Because of the severity of his symptoms, John's mother contacted their family doctor. The family doctor suspected that John was suffering from Reye's Syndrome, the symptoms of which include vomiting, disorientation, and combative, or even violent, behavior. The family doctor instructed Mrs. Haisenleder to take her son to St. John's Hospital, where he would meet them.
Mrs. Haisenleder called the St. Clair Shores police for assistance. When they arrived, the police officers suspected that John was on drugs. Despite Mrs. Haisenleder's pleas to take her son to St. John's Hospital where the family doctor was waiting, the police officers insisted on taking John to Harrison Hospital which handled drug cases. The doctors at Harrison Hospital, including Plaintiff, could not diagnose John's illness. John died on January 2, 1973, purportedly of Reye's Syndrome.
CBS reported the story of John's death on the October 30, 1983 broadcast of "60 Minutes." Defendant Bradley introduced the segment as "a story about what happened when two policemen made a tragic assumption about what was wrong with a young man they were called to help during a medical emergency, and about what happened when a doctor in an emergency room went along with what turned out to be a misdiagnosis." (Transcript of 60 MINUTES, Vol. XVI, No. 7, Sunday, Oct. 30, 1983 hereinafter "Transcript", p. 11) Two statements made during the course of that broadcast are at issue in this case. The first statement at issue was made by Dr. Thomas Shope, who opined that the doctors at Harrison Hospital made a "critical mistake" by failing to order liver function studies on John. (Transcript, pp. 15-16) The second statement at issue was made by Defendant Bradley, indicating that John had an 80-90% chance of recovery when he was first brought to Harrison Hospital. (Transcript, p. 13) Plaintiff alleges that these statements, which he claims were false, injured him both monetarily and professionally.
Plaintiff moves in limine for a ruling by this Court that Defendants did not have a qualified privilege to publish the matters in issue and, therefore, that Plaintiff need only prove common law negligence in order to prevail at trial.4 As Defendants correctly point out, the Court addressed the issue of a qualified privilege in its Memorandum Opinion dated June 27, 1986. In that opinion, the Court stated:
Although the parties have not specifically addressed the issue, they agree that the appropriate standard of liability under Michigan law for defamation by the media of private persons concerning matters of public concern is that of "actual malice," as set forth in New York Times Co. v. Sullivan, 376 U.S. 254 84 S.Ct. 710, 11 L.Ed.2d 686 (1974); Gaynes v. Allen, 128 Mich.App. 42, 47 339 N.W.2d 678 (1983). In order for the Plaintiff, Carl Pesta, to prevail on his defamation claim, he must prove by clear and convincing evidence that Defendants broadcast the defamatory statement with knowledge that it was false or with reckless disregard of whether it was false or not. New York Times v. Sullivan, 376 U.S. at 271-72 84 S.Ct. at 721-22; Gaynes v. Allen, 128 Mich.App. at 45 339 N.W.2d 678.
Mem.Op. at 2-3 (emphasis added). Defendants argue that Plaintiff's concession that actual malice is the appropriate standard of liability, amounts to a judicial admission and Plaintiffs are estopped from asserting a contrary position at this stage of the litigation. Plaintiff denies that any such concession was made. Moreover, Plaintiff contends that the issue was not properly resolved in the Court's June 27th Memorandum Opinion because the parties did not squarely address the issue in either their briefs or at oral arguments. Plaintiff suggests that the Court's statements were merely gratuitous, amounting to dicta at best. The Court disagrees.
In its June 27th Memorandum Opinion, the Court denied Plaintiffs' motion to compel answers to interrogatories, in which Plaintiff sought to discover the names of medical experts, if any, employed at CBS presently and/or at the time of the broadcast in question. Plaintiff argued that this information was relevant to establishing that Defendants acted with reckless disregard for the truth in publishing the allegedly defamatory statements which are the subject of this litigation. At oral arguments, Plaintiff specifically stated, through counsel, that the motion was premised on the theory that failure to investigate amounted to reckless disregard for the truth.5 In asserting this argument, Plaintiffs clearly accepted "actual malice" as the appropriate standard for liability inasmuch as the issue of whether a defendant published the defamatory statement with reckless disregard for the truth arises only where a plaintiff is required to prove actual malice. See Rouch v. Enquirer & News, 137 Mich.App. 39, 59, 357 N.W.2d 794 (1984), leave to appeal granted, 422 Mich. 937 (1985). Moreover, a plaintiff does not bear the burden of proving actual malice unless the defendant enjoys a qualified privilege with respect to publishing the allegedly defamatory matter. Id. Thus, Plaintiff has impliedly admitted that Defendants had a qualified privilege to publish the statements at issue in this case. Having taken this position, Plaintiff is estopped from asserting a contrary position in his motion in limine. See Mertz v. Mertz, 311 Mich. 46, 56-57, 18 N.W.2d 271 (1945).
Even if the Court were not persuaded that Plaintiff's admission at oral arguments constituted an admission, the Court would conclude that Defendants had a qualified privilege to publish the statements in question. The parties agree that in Michigan, a media defendant enjoys a qualified privilege of "fair comment" to report on matters of public concern. See, e.g., Lawrence v. Fox, 357 Mich. 134, 142, 97 N.W.2d 719 (1959); Kurz v. Evening News Ass'n, 144 Mich.App. 205, 209, 375 N.W.2d 391 (1985). This privilege applies in libel actions brought by both public persons and private individuals. See Kurz, 144 Mich.App. at 210, 375 N.W.2d 391; Peisner v. Detroit Free Press, Inc., 82 Mich.App. 153, 161, 266 N.W.2d 693 (1978), aff'd, 421 Mich. 125, 364 N.W.2d 600 (1984). Moreover, the privilege attaches irrespective of any federal constitutional privilege which the media defendant may also enjoy. Gaynes v. Allen, 128 Mich.App. 42, 45-47, 339 N.W.2d 678 (1983); see also Schultz v. Reader's Digest Ass'n, 468 F.Supp., 551, 560-61 (E.D.Mich.1979).
In this case, Plaintiff draws a distinction between reports on matters of public concern and reports on matters which are "merely interesting to the public." In this regard, Plaintiff argues that reports on matters of the latter type are not protected by the common law qualified privilege. Plaintiff relies on the Michigan Court of Appeals decisions in Rouch, supra, and Nabkey v. Booth Newspapers, 140 Mich. App. 507, 364 N.W.2d 363 (1985). In response, Defendants argue that reports relating to health care delivery necessarily involve matters of public concern and, thus, are the subject of a qualified privilege. Defendants cite three court of appeals decisions in support of this proposition: Gaynes v. Allen, supra; Bortell v. Citizens for Better Care Institute, Inc., 6 Med.L.Rptr. 1797 (Mich.App.1980); and Mehelas v. Arends, No. 80807 (Mich.App. Oct. 24, 1985). Having carefully reviewed these decisions, the Court agrees with Defendants.
In each of the cases cited by Defendants, the Michigan Court of Appeals held that a media defendant enjoys a qualified privilege to report on matters relating to the quality and delivery of health care services. In Gaynes, for example, the plaintiff brought a libel action against the publisher of a professional newsletter based on the publication of statements concerning the plaintiff's competency as an optometrist. In holding that ...
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Pesta v. CBS, INC.
...Plaintiff alleges that these statements, which he claims were false, injured him both monetarily and professionally. (Pesta v. CBS, Inc., 653 F.Supp. 350 (E.D.Mich.1986) (footnote On November 24, 1986, this Court granted summary judgment in favor of Defendants. The Court reasoned that the a......