United Medical Laboratories v. Columbia Broadcasting Sys.
| Decision Date | 04 October 1966 |
| Docket Number | Civ. No. 65-318. |
| Citation | 258 F. Supp. 735 |
| Parties | UNITED MEDICAL LABORATORIES, INC., an Oregon corporation, Plaintiff, v. COLUMBIA BROADCASTING SYSTEM, INC., a New York corporation, Walter Cronkite, Jay McMullen, Morris Schaeffer, and Victor Buhler, Defendants. |
| Court | U.S. District Court — District of Oregon |
COPYRIGHT MATERIAL OMITTED
Roland F. Banks, Jr., Mautz, Souther, Spaulding, Kinsey & Williamson, Portland, Or., for plaintiff.
Manley B. Strayer, Cleveland C. Corey, Davies, Biggs, Strayer, Stoel & Boley, Portland, Or., for defendants.
Plaintiff charges the defendants with maliciously publishing false and defamatory statements related to plaintiff by means of radio, television and the press. Substantial special, compensatory and punitive damages are claimed. Previously, the Court quashed the service of process on defendants Morris Schaeffer and Victor Buhler. United Medical Laboratories, Inc. v. Columbia Broadcasting System, Inc., et al., 256 F.Supp. 570 (D.Or.1966).
The cause is before the Court on the motion of the remaining defendants to dismiss.
All of the broadcast material is before the Court and in the course of the hearing on the motion to dismiss, the Court actually viewed the telecasts. The parties have indicated that all relevant and material matters with reference to plaintiff's claim are now before the Court.
Plaintiff is an Oregon corporation operating a clinical testing laboratory. It tests and analyzes biological specimens and samples, which it receives by mail from physicians and pharmaceutical companies throughout the United States. Defendant McMullen is head of the Fact Finding Unit of defendant Columbia Broadcasting System, Inc. (CBS). Shaeffer is head of the Bureau of Laboratories of the New York City Department of Health. Cronkite is the featured news commentator on "CBS Evening News," a nightly television broadcast. Buhler is President of the College of American Pathologists.
Defendants participated in the telecasts "CBS Evening News with Walter Cronkite" on the evenings of June 22nd, 23rd and 24th, 1965, and in the broadcasts of "The World Tonight" on June 22nd and 23rd. Defendants also caused the publication of a news release on June 23rd, describing the disclosures made on the telecast of the night before.
Before the programs and news release were published on June 23rd, plaintiff demanded, by telephone, that CBS retract the alleged implications of statements during the June 22nd programs. CBS took no such action. Later on June 23rd, CBS contacted plaintiff through its affiliate, KOIN-TV, requesting pictures of plaintiff's operations and an interview with its employees, with a view toward publishing these as a part of the June 24th edition of "CBS Evening News." Pictures were taken by KOIN-TV personnel, and an interview with one of plaintiff's employees was recorded. These materials were sent to CBS on June 24th, but did not appear on the June 24th programs, and have not appeared since.
Plaintiff claims that the broadcasts of June 22nd and June 23rd were seen and heard by persons within and without Oregon. These persons, and the persons and organizations who received the news release, are said to have understood the matter therein to refer to plaintiff. Plaintiff claims that its business damage as a result of these publications totals $500,000.00, that it has lost $100,000.00 worth of physicians' accounts, and that it is entitled to exemplary damages in the sum of $500,000.00.
The broadcasts publicized the results of a five-month investigation by Jay McMullen and the CBS News Fact Finding Unit. Under the name of a "cooperating physician" in New York City, letters were sent to 43 mail-order laboratories outside New York State, in 33 cities in 14 states (not including Oregon, as a map displayed on one of the broadcasts showed.) Thirteen of these did not reply; thirteen others, according to McMullen, "said that most of the tests required could not be handled accurately through the mails * * * and suggested that these tests be done locally in New York City." Seventeen, or 39%, sent the equipment and mailing containers requested in the letters, indicating their willingness to conduct one or more of the six routine laboratory experiments described. Specimens were prepared and packaged in the containers and immediately airmailed back. Samples of each specimen were also sent to four control laboratories in New York City. Comparison of the findings formed the basis of the "Special Report." The results, in substance, were as follows:
Of five New York City laboratories subsequently tested, and one of the control laboratories, all failed the "Salmonella Group D" test.
These disclosures were made on the Cronkite broadcast of June 22nd and repeated on "The World Tonight" later that evening. The next evening, both programs were devoted to a single laboratory that had failed the same test, a "hormone assay" on urine, 12 times, and to the unethical practices in which CBS research indicated the laboratory's owners were involved. The third telecast discussed the implications of the findings. The news release of June 23rd summarized the first telecast.
Plaintiff contends that slogans flashed across the television images during the first telecast, stating the percentage of error among the mail-order laboratories tested, did not limit the reference to only those laboratories which participated in the survey, e. g., "Mail Order Laboratories 100% Wrong." The dialogue set forth in the Addenum is representative of the materials and includes all references that conceivably could be construed as relating inferentially to United Medical Laboratories.
I. Were the "references" published clearly limited to parties explicitly identified, or identified as participants in the CBS tests?
On the telecast of June 22nd, Cronkite noted the widespread reliance by doctors on mail-order tests. Giving short shrift to the view that such reliance is often necessary because of the deficiencies of local laboratories, he said that "for some small town doctors the inducement may be partly convenience." (Emphasis supplied.) This, coupled with the dramatic statement that "anyone" can engage in such a business without fear of federal interference, the two statements being sandwiched around a charge that some mail-order laboratories advertise "cut rate service," conveys the impression that the practice may often be neither necessary nor greatly advantageous in the treatment of patients.
Dr. Buhler is then heard to say that results are often inaccurate due to the deterioration of specimens in the mails; McMullen, however, immediatey refers to this as a "doubt," shared by many experts, as to the possibility of accurate testing of certain specimens through the mails.
All of this is immediately clarified as speculation, insofar as it may suggest inferences relating to mail-order laboratories generally, by McMullen's explanation of the CBS investigation. Of 43 laboratories contacted outside New York, 13 replied, saying that the specimens mailed could not be tested accurately by mail. Only 17 labs, less than half of those contacted (excluding the five New York laboratories), attempted to perform the tests.
Despite whatever might have been suggested by the slogans flashed across the screen, the dialogue clearly emphasized the fact that the results being reported related only to the laboratories actually tested. The concluding comments of Cronkite and McMullen referring to the "labs in question" and the "labs tested," may hint at problems inherent in mail-order work, but include the following clear qualification by McMullen:
Similarly, McMullen's explanation of the investigation, and his concluding remarks, clarified any possible broad connotations of Calmer's remarks on the radio broadcast of June 22nd. Calmer spoke briefly of "mail-order medicine," then of how far "your doctor" might ship a sample of "your blood," but his remarks were immediately followed by the interview and comment aired earlier on the Cronkite show.
The news release of June 23rd is nothing more than a recitation of the test results, clearly indicating, in context, that the figures quoted related only to the laboratories tested, and were not projected estimates of the probable performance of mail-order laboratories generally. It merely repeats the fact that various authorities "doubted" the ability of such laboratories to perform certain kinds of tests, due to the deterioration of the specimens in the mails.
The telecast of June 23rd includes a summary by Cronkite of the test-results broadcast the night before, showing "widespread error among the mail order labs checked by the CBS News Fact...
To continue reading
Request your trial
-
Taylor v. Portland Paramount Corporation, 21334.
...Co., 1966, 253 F.Supp. 280; United Medical Laboratories, Inc. v. Columbia Broadcasting System, Inc., 1966, 256 F.Supp. 570, dismissed, 258 F.Supp. 735; Richey v. Sumoge, 1966, 257 F.Supp. 32; David v. London Shirt Co., 1966, 259 F.Supp. 5 Ill.Rev.Stat.1955, ch. 110, §§ 16-17. 6 We note, how......
-
Curtis Publishing Co v. Butts Associated Press v. Walker
...Curtis Publishing Co., D.C., 247 F.Supp. 595; Walker v. Courier-Journal & Louisville Times Co., D.C., 246 F.Supp. 231; United Medical Labs v. CBS, Inc., 258 F.Supp. 735; Klahr v. Winterble, 4 Ariz.App. 158, 418 P.2d 404; Walker v. Associated Press, 417 P.2d 486 (Colo.); Powell v. Monitor Pu......
-
United Medical Laboratories v. Columbia Broadcasting Sys.
...Judges. Certiorari Denied March 24, 1969. See 89 S.Ct. 1197. JOHNSEN, Circuit Judge. The District Court dismissed on summary judgment, 258 F.Supp. 735, an action in diversity jurisdiction for a claim of libel under Oregon law. We affirm the judgment, but upon another ground than those on wh......
-
New England Tractor Trailer Training of Connecticut, Inc. v. Globe Newspaper Co.
...to the plaintiff. See Brauer v. Globe Newspaper Co., 351 Mass. 53, 56-57, 217 N.E.2d 736 (1966); United Medical Labs, Inc. v. Columbia Bdcst. Sys., Inc., 258 F.Supp. 735, 740 (D.Or.1966). Nothing herein is intended to restrict the trial judge in ruling on the admission of these articles in ......