Rinsley v. Brandt

• Decision Date: 22 February 1983
• Docket Number: No. 80-1623,80-1623
• Citation: 700 F.2d 1304
• Parties: 9 Media L. Rep. 1225 Donald B. RINSLEY, M.D., Plaintiff-Appellant, v. Anthony BRANDT and William Morrow and Company, Inc., a corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1304

700 F.2d 1304

9 Media L. Rep. 1225

Donald B. RINSLEY, M.D., Plaintiff-Appellant, v. Anthony BRANDT and William Morrow and Company, Inc., a corporation, Defendants-Appellees.

No. 80-1623.

United States Court of Appeals, Tenth Circuit.

Feb. 22, 1983.

Leon B. Graves, Topeka, Kan., for plaintiff-appellant.

Sam L. Colville, Kansas City, Mo. (Richard L. Sandler of Shook, Hardy & Bacon, Kansas City, Mo., and Grant M. Glenn of Cosgrove, Webb & Oman, Topeka, Kan., with him on the brief), for defendant-appellee Anthony Brandt.

Donald Patterson of Fisher, Patterson, Sayler & Smith, Topeka, Kan., for defendant-appellee William Morrow and Co., Inc.

Before SETH, Chief Judge, and BREITENSTEIN and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

Donald B. Rinsley, M.D., appeals from the district court's grant of summary judgment for defendants Anthony Brandt and William Morrow and Company, Inc. in this diversity case. In granting summary judgment, the district court rejected Rinsley's claim that publication of Brandt's book, Reality Police: The Experience of Insanity in America (1975), constituted an invasion of Rinsley's privacy because certain statements in the book placed him before the public in a false light. Analogizing the false light privacy action to a defamation suit, the court found that every statement of which Rinsley complained was either true or an opinion, and therefore not actionable. ¹ Alternatively, the court found that even if some statements were false assertions of fact, Rinsley was a public figure and a public official and that Brandt and Morrow had not published these statements with actual malice. On appeal Rinsley contends that the district court erred (1) in finding that some statements were substantially true; (2) in finding that other statements were opinions or "rhetorical hyperbole"; (3) in separately analyzing each statement rather than considering the effect of those statements taken as a whole (4) in finding that Rinsley was a public figure and public official; and (5) in finding that in publishing the statements, the defendants lacked actual malice. ²

I

In 1975 Morrow published Reality Police, in which Brandt bitterly criticizes the treatment of patients in mental institutions. As Brandt states, Reality Police

"is about the exercise of [the power of psychiatrists to institutionalize people], about what happens to people we call crazy, or more often 'mentally ill.' About what the psychiatrists who work for us do to them and for them in the name of mental health.... What I have deep reservations about is the power we give [psychiatrists] to institutionalize and try to restructure people whose behavior distresses us for one reason or another--people we all too readily call crazy."

Reality Police at 13-14.

As one example of a psychiatrist's abuse of power in institutionalizing and treating mental health patients, Brandt discusses Doctor Rinsley, who was director of the Children's Section of Topeka State Hospital. Brandt generally criticizes Rinsley for being "accountable, in effect, to no one," id. at 218, and for his treatment of sick adolescents through intensive and often prolonged residential psychiatric treatment, id. at 220. Brandt illustrates his criticism through a "chilling example," id. at 217, involving Kelly Ann Brooks:

"The case involves a little girl whom I shall call Melissa. According to her parents, this particular child was born with a mild case of cerebral palsy, one of the symptoms of which was something called 'tongue thrust.' Her tongue pushed the food out of her mouth when she tried to swallow. It is a fairly common symptom in CP and it sometimes makes for difficult feeding problems. Melissa's case was mild, however, mild enough, in fact, that over a period of years different doctors made different diagnoses; some decided she suffered from allergies, others from brain damage suffered at birth, and so on. Meanwhile Melissa, who was a bright child, learned to walk, albeit clumsily, and talk, though with a speech defect, and development seemed to be proceeding almost normally."

Id. at 222-23.

But at about age six, Kelly stopped eating and began to lose weight. Her parents took her to the Kansas University Medical Center, where she underwent treatment, initially with her parents' consent. Treatment continued without their consent after the state took legal custody of the child from her parents for medical neglect. Kelly stayed at the Medical Center for eighteen months, where doctors ultimately resorted to tube feeding and where, according to Mr. Brandt, "The doctors had the idea that by depriving the child of affection and other comforts they could make her swallow." Id. at 224. But, as Brandt alleges, the Medical Center gave up on Kelly and sent her to Rinsley's unit at the Topeka State Hospital "where the battle intensified." Id.

During the three years Kelly stayed at Topeka State, Rinsley and his staff continued to treat Kelly's inability to swallow food as a psychological rather than a physiological problem. Many of Brandt's severest criticisms of Rinsley focus on his treatment of Kelly. Brandt claims, for example, that Rinsley and his staff strictly limited her parents' visitation rights, secluded Kelly from the staff and other patients for long periods of time, used physical restraints, and employed "God knows what other cruelties he calls treatment." Id. at 227. According to Brandt, "God, parenthood, love were out; they had all been replaced by psychiatric theory. A theory to which they were willing to sacrifice a child's life." Id. at 226.

As was the Medical Center, Rinsley and his staff were unsuccessful in their treatment; Kelly never regained the ability to swallow food. Tragically, when Kelly was eleven, she vomited her food during one of her tube feedings and choked to death. Stating that he is overwhelmed by "anger and rage at the unbelievable arrogance of this man's methods," Brandt asks, "What does it take to put a stop to such a man? How many more children must die?" Id. at 227.

II

In Froelich v. Adair, 213 Kan. 357, 516 P.2d 993, 995-96 (1973), the Kansas Supreme Court recognized a cause of action for invasion of privacy and adopted the four types of invasion of privacy set forth in the Restatement (Second) of Torts. ³ Among them is the tort of "Publicity Placing Person in False Light," or the false light privacy action:

"One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed."

Restatement (Second) of Torts Sec. 652E (1977).

The false light privacy action differs from a defamation action in that the injury in privacy actions is mental distress from having been exposed to public view, while the injury in defamation actions is damage to reputation. See Time, Inc. v. Hill, 385 U.S. 374, 384 n. 9, 87 S.Ct. 534, 540 n. 9, 17 L.Ed.2d 456 (1967). In most aspects, however, the two actions are similar. For example, essential to both a false light privacy claim and a defamation claim is a determination that "the matter published concerning the plaintiff is not true." Restatement (Second) of Torts Sec. 652E comment a, at 395. Thus, in a false light privacy action, as in a defamation action, truth is an absolute defense. Similarly, the defense available in a defamation action that the allegedly defamatory statements are opinions, not assertions of fact, is also available in a false light privacy action. This is because "[u]nder the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 94 S.Ct. 2997, 3006-07, 41 L.Ed.2d 789 (1974).

III

Rinsley questions the correctness of the trial court's findings that two statements are true. Alternatively, he argues that it is improper for the court to make such factual findings on disputed issues in a summary judgment order.

In a false light privacy action whether a statement is true or false is a question of fact. Cf. Restatement (Second) of Torts Sec. 617 (1977) (truth of statement is a question for the jury in defamation actions). Because a summary judgment order is proper only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law," Fed.R.Civ.P. 56(c), the district court's findings regarding the truth of the two statements were proper only if Rinsley failed to raise a material issue of fact.

There is no material issue of fact concerning one of the statements Rinsley contends is false: "Has [Rinsley] done any follow-up studies to evaluate the long-term effectiveness of his methods? I have scanned his writings and found none." Reality Police at 227. In a deposition Rinsley in effect admitted the truth of Brandt's statement:

"Q: And there really has been no statistical study or followup study that focuses exclusively upon your work.

A: No, that was not the objective of the study.

Q: All right, sir, so when he asked the rhetorical question, Has he done any followup study to evaluate the long-term effectiveness of his methods, there really has been no followup study that is focussed [sic] upon the long-term effectiveness of your methods, or the correctness of your diagnosis, or your selection of modality of treatment that is directed toward the decisions that Dr. Rinsley made, has there?

A: Well, Mr. Patterson, in...