Professional Documents
Culture Documents
v.
THIS MATTER came before the Court on Defendants, Cable News Network, Inc.,
Elizabeth Cohen, John Bonifield, Dana Ford, and Anderson Coopers (collectively CNN
Plaintiff, Michael D. Black, MD, MBA (Dr. Black), filed a Response in Opposition to
Defendants Motion (Response). The CNN Defendants filed a Reply on December 9, 2016.
On December 16, 2016, the Court held a hearing on Defendants Motion. Prior to this Courts
ruling on the Motion, on February 15, 2017, Dr. Black provided the Court and the CNN
Defendants with a Notice of Supplemental Authority.1 The Court has carefully considered the
1
The Notice of Supplemental Authority is a decision rendered by the Northern District of Georgia in the
case of Davide M. Carbone v. Cable News Network, Inc., No. 16-cv-1720 (N.D. Ga.) (the Carbone
case). In the Carbone case, Davide Carbone, a former CEO of St. Marys Medical Center, is suing CNN
for defamation based on some of the same statements that form the basis for the defamation claims
against CNN in the instant case. In the Carbone case, the Northern District of Georgia denied the CNN
Defendants Motion to Strike, or in the Alternative, to Dismiss, reasoning that Davide Carbones
Complaint adequately stated a claim for defamation. Although the Carbone case is not binding on this
Court, the Court finds it to be highly relevant and persuasive.
Motion, Plaintiffs Response, the arguments introduced at hearing, the Notice of Supplemental
FACTUAL BACKGROUND
This case arises out of a defamation action filed against the CNN Defendants for a series
of articles and news reports detailing the infant mortality rate of the pediatric cardiac surgery
program at the St. Marys Medical Center at the Palm Beach Childrens Hospital (St. Marys).
Beginning in June 2015, the CNN Defendants published an article titled Secret Deaths: CNN
Finds High Surgical Death Rate for Children at a Florida Hospital and a video report titled The
Hospital with a Serious Heart Problem. (Compl. 1.) The article and video report, which were
published by the CNN Defendants on CNNs website and broadcast live on CNNs cable
television station, juxtaposed a photograph of Dr. Black with the headline [b]abies as sacrificial
lambs, and claimed that Dr. Black made [a] total mess with newborn babies. (Compl. 3.)
The video report also juxtaposed a photograph of Dr. Black with an interview of some of the
parents of the deceased infants, simultaneously posing the question of why St. Marys and Dr.
Black were continuing to perform heart surgery on children. (Compl. 3.) In response to this
rhetorical question, the video report stated that the answer may come down to one thing:
money. (Compl. 3.) The article and video report also claimed that [b]y the end of 2013, the
mortality rate for babies having heart surgery there [at St. Marys] was three times the national
average, and that the death rate for open heart surgeries [was] 12.5%, more than three times
the national average of 3.3% cited by the Society of Thoracic Surgeons.2 (Compl. 4.)
2
These statements also form the basis of the defamation action against CNN in the Carbone case.
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On February 16, 2016, Dr. Black, the former Director of the program at St. Marys, filed
a twenty-two (22) count Complaint against the CNN Defendants. Specifically, Dr. Blacks
Complaint alleges that the CNN Defendants articles and reports, which claim that the 12.5
percent mortality rate for children undergoing open-heart surgery during the years 2011-2013
was more than three times the national average, are defamatory and based on false and
misleading statistics. In addition to alleging statistical manipulation, the Complaint also asserts
claims for defamation based on alleged statements by the CNN Defendants that Dr. Black treated
babies as sacrificial lambs and made a total mess with newborn babies. Dr. Black also
alleges that he suffered severe reputational and significant economic harms as a result of St.
Marys closure of the program following the CNN Defendants news reports. On August 4,
In support of dismissal, the CNN Defendants raise six arguments in their Motion: (1) that
Dr. Black is a public figure, and, as such, must allege that the CNN Defendants published the
statements with actual malice; (2) that many of the alleged false and defamatory statements are
not of and concerning Dr. Black, but rather, are of and concerning St. Marys Medical
Center and/or its program; (3) that Dr. Black has failed to allege falsity; (4) that certain
statements are rhetorical hyperbole protected under the First Amendment and Florida law; (5)
that many of the CNN Defendants statements are protected by the fair report privilege; and (6)
that Dr. Blacks defamation-by-implication claims fail. Each of these claims is addressed
individually below. For the reasons set forth below, the Motion is denied.
allegations in the complaint to be true, the plaintiff would be entitled to the relief requested.
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Cintron v. Osmose Wood Preserving, Inc., 681 So. 2d 859, 860-61 (Fla. 5th DCA 1996). In
conducting this analysis, all reasonable inferences must be drawn in favor of the plaintiff.
Republic Servs. of Fla. v. Workers Temp. Staffing, Inc., 123 So. 3d 650, 653 (Fla. 4th DCA
2013). [I]f a complaint, taken as a whole, states a cause of action, it should not be dismissed,
but . . . extraneous portions of the complaint should be treated as surplusage. Harrell v. Hess
Oil & Chem. Corp., 287 So. 2d 291, 294 (Fla. 1973).
Defamation (libel and slander) may generally be defined as the unprivileged publication
of false statements which naturally and proximately result in injury to another. Wolfson v. Kirk,
273 So. 2d 774, 776 (Fla. 4th DCA 1973). An adequately pleaded defamation action requires
five elements: (1) publication; (2) falsity; (3) the actor must act with knowledge or reckless
disregard as to the falsity on the matter concerning a public official, or at least negligently on a
matter concerning a private person; (4) actual damages; and (5) the statement must be
defamatory. See Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008). To determine
whether an actual malice standard of proof applies, the status of the plaintiff as a public official,
general public figure, limited public figure, or private figure must be established. Della-
Donna v. Gore Newspapers Co., 489 So. 2d 72, 73 (Fla. 4th DCA 1986).
The CNN Defendants first argument seeks dismissal of the Complaint because Dr. Black
is a limited-purpose public figure, who is required to plead actual malice, but failed to do so. In
his Response, Dr. Black argues that the CNN Defendants cannot satisfy their burden of proving
that Dr. Black was a public figure at the time they made their defamatory statements.
Limited-purpose public figures are those persons who have thrust themselves to the
forefront of particular public controversies in order to influence the resolution of the issues
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involved. Mile Marker, Inc. v. Petersen Publg, L.L.C., 811 So. 2d 841, 845 (Fla. 4th DCA
2002) (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974)). Whether a plaintiff is a
public figure is a question of law to be determined by the court. Id. On a motion to dismiss, the
trial court [is] required to accept the plaintiffs allegations that he [is] not a public figure.
At this stage of the proceedings, the Court is required to accept Dr. Blacks allegation
that he is not a public figure. See Dockery v. Fla. Democratic Party, 719 So. 2d 9, 11 (Fla. 2d
DCA 1998) (reversing the trial courts order dismissing the plaintiffs complaint for defamation
where there was no admission that the plaintiff was a public figure, reasoning that [o]n a motion
to dismiss, the trial court was required to accept the plaintiffs allegations that he was not a
public figure). Although the CNN Defendants rely on Mile Marker for the proposition that the
status of a plaintiff as a public figure is a question of law for the court, the CNN Defendants
reliance is misplaced because Mile Marker was decided during the summary judgment phase,
where the court was allowed to consider evidence outside the four corners of the Complaint. 811
So. 2d at 845.
Similarly, the Carbone court held that although Davide Carbone initially appeared to
plead that he is a private figure, he also appeared to plead that he should be considered a
limited purpose public figure because [h]e was the Chief Executive Officer of St. Marys and
responsible for its administration, [and] was well-known to the public in the West Palm
Beach area and in the medical community in the State of Florida and beyond. (Carbone slip op.
at 17.) Likewise, Dr. Blacks Complaint appears to plead that Dr. Black should be considered a
limited-purpose public figure because Dr. Black was the Medical Director of the pediatric
cardiac surgery program at St. Marys and was similarly well-known to the public in the West
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Palm Beach area and in the medical community in the State of Florida and beyond. (Compl.
43-59.)
Nevertheless, the Carbone court held that [t]he [c]ourt need not decide at this stage
whether [p]laintiff is a private or limited purpose public figure, however, because he has
sufficiently pled actual malice. (Carbone slip op. at 17.) In light of the courts holdings in
Dockery and Carbone, this Court agrees that it is not required to determine whether Dr. Black is
Furthermore, for the reasons stated below, this Court agrees with the holding of the Carbone
court that a determination of the plaintiffs status is unnecessary because the plaintiff has
2. Actual Malice
A public official or limited-purpose public figure must prove by clear and convincing
evidence that the defendants acted with actual malice. New York Times Co. v. Sullivan, 376 U.S.
254, 279-80 (1964). Actual malice is defined as publication with knowledge that [the allegedly
defamatory statement] was false or with reckless disregard of whether it was false or not.
Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510 (1991) (quoting New York Times Co.
v. Sullivan, 376 U.S. 254, 279-80 (1964)). In the Carbone case, the court held that the plaintiff
sufficiently pled actual malice, reasoning that [p]laintiffs Complaint is replete with statements
that St. Marys and others were bringing to CNNs attention the fact that the very society from
which it was supposedly getting its data, the STS, was at the same time bestowing upon St.
Marys a two-star ranking given only to those programs with a mortality rate within the expected
range relative to the national average. (Carbone slip op. at 18.) In finding that the plaintiff
sufficiently pled that the CNN defendants acted with actual malice in publishing its statistics, the
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Carbone court stated that the discrepancy between the significance of the two-star ranking and
the statistics being provided to CNN by the STS should have raised doubts for CNN.
Similarly, with respect to Dr. Black, this Court holds that the Complaint sufficiently
pleads actual malice to withstand dismissal. As pleaded in the Complaint, the CNN defendants
published their statements knowing that they were false or with reckless disregard for their truth
or falsity. For example, Dr. Blacks Complaint alleges that the CNN defendants were aware of
objective, independent assessments of Dr. Blacks pediatric cardiac surgical performance at St.
Marys that directly contradicted their claims. Specifically, Dr. Blacks Complaint, like
Carbones Complaint, alleges that CNN was aware that the STS gave the program a two-star
ranking, which is given to those programs that have a mortality rate that is statistically no
different than the natural average. (Compl. 225.) Therefore, Dr. Black has sufficiently pleaded
in his Complaint that the CNN defendants acted with actual malice.
3. Of and Concerning
Although the CNN Defendants seek dismissal of Dr. Blacks Complaint on the ground
that the articles and reports are not of and concerning Dr. Black, if the allegations in the
Complaint are taken as true, Dr. Black is adequately identified as the subject of the defamatory
comments. In their Motion, the CNN Defendants argue that the following statements referenced
in the Complaint are about St. Marys and do not reference Dr. Black at all: (1) [b]y the end of
2013, the mortality rate for babies having heart surgery there [at St. Marys] was three times the
national average; (2) [f]rom those numbers, CNN was able to calculate the death rate for open
heart surgeries at 12.5%, more than three times the national average of 3.3% cited by the Society
[of] Thoracic Surgeons; (3) Dr. Black treated [b]abies as sacrificial lambs; (4) Dr. Black
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made [a] total mess with newborn babies; (5) [t]hese parents want to know why St. Marys is
still doing heart surgeries on babies. The answer may come down to one thing: money; (6)
[t]he investigation came in response to a CNN story this week . . . .; (7) the CNN
investigation found mortality rate 3x higher than natl. [sic] average; and (8) [i]n its
investigation, CNN calculated that . . . . Regarding these statements, the CNN Defendants
argue for dismissal, reasoning that Dr. Blacks position as medical director of the program does
not automatically convert these statements into actionable statements about him. For the
First, the Fourth District Court of Appeal has held that, when determining whether a
It is not essential that the person defamed be named in the publication if, by
intrinsic reference, the allusion is apparent, or if the publication contains matters
of description or reference to facts and circumstances from which others may
understand that he is the person referred to, or if he is pointed out by extraneous
circumstances so that persons knowing him can and do understand that he is the
person referred to; and it is sufficient if those who know the plaintiff can make
out that he is the person meant.
Harwood v. Bush, 223 So. 2d 359, 362 (Fla. 4th DCA 1969). Based on the Fourth District Court
of Appeals holding in Harwood, this Court rejects the CNN Defendants argument that Dr.
Black has failed to allege that the statements are of and concerning him because his name does
not appear before many of the statements. Dr. Blacks Complaint sufficiently pleads that the
statements are of and concerning him because he alleges that he was the medical director of
the pediatric cardiac surgery program at St. Marys and the only pediatric surgeon performing
surgeries for the program. (Compl. 25.) See Horsley v. Feldt, 304 F.3d 1125, 1137 (applying
Florida law and holding that the fact that [defendants] comments . . . did not explicitly name
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[plaintiff] did not prevent them from being actionable because references in broadcast to
website plaintiff owned and ran made [plaintiffs] identity readily ascertainable).
Similarly, Dr. Blacks Complaint has sufficiently pleaded that his roles as medical
director and sole pediatric surgeon for St. Marys program are sufficient to make his identity
readily ascertainable regarding the allegedly defamatory statements. Moreover, Dr. Blacks
Complaint alleges that Dr. Black is well-known in the community and recently received a Heroes
in Medicine Award for Palm Beach County, Florida. (Compl. 23.) During the hearing on the
Motion, defense counsel even conceded that [t]he cardiac surgical programs chief surgeon was
Additionally, Dr. Black alleges that several of the statements, including a photograph of
Dr. Black captioned Dr. Michael Black, pediatric heart surgeon, St. Marys Medical Center,
which appears in the CNN Defendants video, do mention Dr. Black by name. (Compl. 286.)
Dr. Blacks Complaint even alleges that people who read the CNN Defendants allegedly
defamatory statements actually understood the statements as being about Dr. Black, as evidenced
by threats of violence against him subsequent to publication of the articles and video reports.
(Compl. 203, 217-18.) Taking all allegations as true, Dr. Blacks Complaint sufficiently
pleads that his status at St. Marys and in the Palm Beach community could lead others to believe
that he is the person being referred to by the CNN Defendants statements, despite not being
As further support for denial of the CNN Defendants Motion, this Court finds the
opinion in Eramo v. Rolling Stone LLC, et al.3, to be persuasive. In Eramo, the United States
3
Eramo v. Rolling Stone LLC, Case No. 3:15-CV-00023, 2016 WL 5942328 (W.D. Va. Oct. 11, 2016).
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District Court for the Western District of Virginia held that there is no dispute that the
statements that specifically mention [the plaintiff] are of or concerning her, and the court
intends to so instruct the jury. However, while the court believes the remaining challenged
statements could be of or concerning the plaintiff, whether these statements actually are of or
concerning [the plaintiff] is a question for the factfinder. 2016 WL 5942328, at *1. (emphasis
in original); see also Fornshill v. Ruddy, 891 F. Supp. 1062, 1070 (D. Md. 1995) (holding that
the question of whether a publication is of and concerning a defamation plaintiff is a matter for
the jury to decide.) Based on the courts holdings in Eramo and Fornshill that the of and
concerning requirement is an issue for the jury to decide, Dr. Blacks Complaint has sufficiently
alleged that the statements are of and concerning him, and should withstand dismissal at this
4. Falsity
This Court rejects the argument that Dr. Blacks Complaint should be dismissed for
failure to allege that the statements relating to Dr. Blacks pediatric cardiac surgical mortality
rate are false. Specifically, the CNN Defendants claim that the following statements are not
false, but rather are either factual or constitute a choice of methodology that is opinion and
cannot serve as the basis for a defamation claim: (1) that [b]y the end of 2013, the mortality rate
for babies having heart surgery [at St. Marys] was three times the national average and (2) the
death rate for open heart surgeries was 12.5%, more than three times the national average cited
by the [STS]. As pleaded in the Complaint, Dr. Black has alleged that these statements are
false, and that he did not have a mortality rate of 12.5%. (Compl. 219.) Moreover, Dr. Black
alleges that the CNN Defendants manipulated the statistics by comparing a mortality rate for
Dr. Black and the program that only considered Dr. Blacks and the Programs open-heart
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surgeries to a STS national rate that included both open-heart and closed-heart surgeries.
(Compl. 134.) In its Motion, the CNN Defendants claim that their chosen statistical
methodology was transparently explained to the public, and that, nevertheless, academic
The Carbone court addressed the same issue, and found that, drawing all inferences in
favor of the plaintiff, he has met his burden on the falsity of CNNs numbers for purposes of a
motion to dismiss. (Carbone slip op. at 14.) The Carbone court rejected the CNN Defendants
claim that the difference between using raw data and risk-adjusted data was simply an academic
disagreement over statistical methodology. (Carbone slip op. at 14.) In so holding, the
Carbone court reasoned that the plaintiff is not disputing how CNN did the math, but rather
whether it compared its own math to a non-comparable figure in a way that misled its viewers.
(Carbone slip op. at 14.) In his Complaint, Dr. Black similarly alleged that the CNN
Defendants knowingly and misleadingly compared a mortality rate for Dr. Black and the
Program that only considered Dr. Blacks and the Programs open-heart surgeries to an STS
national rate that includes both open-heart and closed-heart surgeries. (Compl. 134).
5. Rhetorical Hyperbole
As pleaded in the Complaint, Dr. Black has alleged that the CNN Defendants statements
accusing Dr. Black of treating [b]abies as sacrificial lambs and making [a] total mess with
newborn babies are actionable, despite the CNN Defendants argument that these statements are
nonactionable rhetorical hyperbole. (Compl. 213-36.) Specifically, the CNN Defendants argue
that the statements are nonactionable because they were made by someone other than the CNN
Defendants. In response, Dr. Black alleges that the CNN Defendants adopted the statements
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about babies as sacrificial lambs and making a total mess with newborn babies by using
those quotes as headings for its articles and juxtaposing those headings with a picture of Dr.
Black. (Compl. 43.) (Tr. at 52-53.) Dr. Blacks Complaint has sufficiently alleged that the
In support of dismissal, the CNN Defendants assert that the fair report privilege shields
them from liability for some of their defamatory statements. This Court rejects the CNN
Defendants argument because, as stated above, Dr. Blacks Complaint has sufficiently pled
actual malice, which Florida courts have held override the fair report privilege. See Schreidell v.
Shoter, 500 So. 2d 228 (Fla. 3d DCA 1986); see also Axelrod v. Califano, 357 So. 2d 1048 (Fla.
4th DCA 1978) (holding that actual malice, or malice in fact, constitutes an abuse of qualified
privilege, leaving the defendant liable). Similarly, the Carbone court held that the fair report
privilege did not apply to shield the CNN Defendants from liability against Davide Carbones
defamation complaint because Carbone pled actual malice. (Carbone slip op. at 15) For these
reasons, this Court rejects the CNN Defendants claim that the fair report privilege shields them
from liability at the motion to dismiss stage where Dr. Black has sufficiently pled actual malice.
7. Defamation-by-Implication Claims
Taking all facts as true, Dr. Black has adequately pleaded his defamation-by-implication
juxtaposes a series of facts so as to imply a defamatory connection between them, or (2) creates a
defamatory implication by omitting facts, such that he may be held responsible for the
defamatory implication. Jews for Jesus, 997 So. 2d at 1106. In his Complaint, Dr. Black
alleges that the CNN Defendants falsely implied and suggested that Dr. Black is an
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incompetent, dishonest, and inexperienced doctor leading a surgical program in crisis and
juxtaposing photographs and out-of-context statements so as to link them and convey false
messages about Dr. Black. (Compl. 239.) In their Motion, the CNN Defendants claim that
these statements do not constitute defamation-by-implication because they are just opinions. Dr.
incorporating the articles containing the allegedly defamatory statements with juxtaposed
Therefore, drawing all inferences in favor of Dr. Black, he has met the pleading standard
to maintain a claim for defamation under Florida law. Accordingly, it is hereby ORDERED that
DONE and SIGNED in Chambers at West Palm Beach, Palm Beach County, Florida,
_______________________
RICHARD OFTEDAL
Circuit Judge
COPIES FURNISHED:
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Thomas A. Clare, Esq.
Elizabeth M. Locke, Esq.
Joseph R. Oliveri, Esq.
Dustin A. Pusch, Esq.
10 Prince Street
Alexandria, VA 22314
tom@clarelocke.com
libby@clarelocke.com
joe@clarelocke.com
dustin@clarelocke.com
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