Summary
The Florida Fourth District Court of Appeal reviewed summary judgments in a defamation action brought by Michael D. Black against CNN and related individuals concerning reporting on mortality rates at a pediatric cardiac surgery program. The court held that the evidence could allow a reasonable jury to find that CNN’s use of raw mortality data and related reporting implied that Dr. Black’s performance caused patient deaths, and therefore reversed the summary judgments for CNN, Elizabeth Cohen, John Bonifield, and Anderson Cooper. It affirmed summary judgment for Dana Ford, reversed the associated costs judgment, and remanded for further proceedings.
Topics
Practice areas
Questions Presented
- Whether the summary-judgment record presented a genuine issue of material fact regarding whether CNN's use of a calculated raw mortality rate and related reporting could support Dr. Black's defamation claims.
- Whether the reports could support defamation-by-implication claims even if some individual statements were not literally false.
- Whether summary judgment was proper for Anderson Cooper based on his alleged role in presenting CNN's reporting.
- Whether summary judgment was proper for Dana Ford, who republished information previously investigated and vetted by CNN.
- Whether the costs judgment should stand after reversal of the underlying summary judgments.
Holdings
- Reversal was required because the summary-judgment record contained evidence from which a reasonable jury could find that CNN's use of a raw mortality rate, without adequate risk adjustment or context, implied that babies were dying because of Dr. Black and supported the elements of defamation.
- The circuit court erred in granting summary judgment on the defamation-by-implication claims because statements that are not literally false may nevertheless be defamatory when they create a false impression.
- Summary judgment for Dana Ford was affirmed because the record showed that she relied on previously reported and vetted CNN information and had no involvement in CNN's other reports or evidence indicating that she should have questioned their accuracy.
- Summary judgment for Anderson Cooper was reversed, with the concurrence explaining that the trial court must determine whether Cooper merely read vetted copy or also participated significantly as a producer or in investigating, editing, or vetting the challenged reports.
- The costs judgment was reversed because the court reversed the underlying summary judgments in favor of CNN, Cohen, Bonifield, and Cooper.
Key quotations
“The value of raw mortality rates as an evaluative tool appears, at best, ambiguous.” (8)
“Based on the summary judgment record, we believe a trial on the merits is required to decide whether CNN’s use of a calculated, raw mortality rate to imply babies were dying because of Dr. Black is sufficient to satisfy a defamation claim.” (10)
“Statements that are not false can be defamatory when they create a false impression.” (10)
“But Dr. Black presented evidence alleging CNN and its employees published a story implying Dr. Black’s allegedly deficient performance caused babies to die.” (10)
“What needs to be resolved on remand with respect to Cooper is whether his role on the three Anderson Cooper 360° programs that are a subject of Black’s complaint was limited to “reporter,” or whether he also was a producer on any of those programs.” (11)
Factual background
CNN published online and televised reports concerning St. Mary's pediatric cardiothoracic surgery program, stating that the program had a 12.5% raw mortality rate from 2011 to 2013, more than three times the national average. The reports emphasized that the hospital kept its death rate secret and implied that babies were dying because Dr. Black, the surgeon leading the program, failed to conduct surgeries safely. Dr. Black presented evidence that raw mortality data could be misleading without risk adjustment for case mix and that CNN had been warned about the limitations of raw mortality rates. CNN and the hospital disputed the calculation and the methodology, and the hospital later stated that its risk-adjusted mortality rate was 5.3%.
Procedural history
Dr. Black sued CNN and its employees, alleging that reports about the mortality rate of St. Mary's pediatric cardiothoracic surgery program defamed him and implied that he was an unsafe or incompetent surgeon. The circuit court initially granted Dr. Black's motion to seek punitive damages, but the Fourth District reversed that ruling, holding that he had not shown a reasonable evidentiary basis for actual malice. The circuit court later granted summary judgment to all defendants and entered a costs judgment. The Fourth District affirmed as to Dana Ford, reversed as to CNN, Elizabeth Cohen, John Bonifield, and Anderson Cooper, reversed the costs judgment, and remanded.
Remand instructions
Remand for further proceedings consistent with the opinion, including trial on the merits of the defamation and defamation-by-implication claims against CNN, Cohen, and Bonifield. With respect to Cooper, the trial court should determine whether his role was limited to reading vetted copy or included producing or materially investigating, editing, or vetting the challenged programs; summary judgment may be appropriate if he merely relied on vetted copy and had no significant role. Dana Ford's summary judgment remains affirmed.