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Saturday, May 2, 2009

New York State Appellate Court Upholds Summary Judgment In Kipper v. New York Post

A New York state appellate court has upheld a lower court summary judgment ruling in Kipper v. NYP Holdings, finding that the plaintiff failed to show with clear and convincing evidence that the defendant published the statements with actual malice.

On December 7, 2003, page 24 of the New York Post's Sunday edition carried a short, eight-paragraph, "rewrite" of a 98-paragraph article taken from the Los Angeles Times's wire service. The Times article, entitled "Harsh Reality of 'Osbournes' No Laughing Matter," described the rock-singer John "Ozzy" Osbourne's allegations that his former physician, plaintiff David A. Kipper, had overprescribed various medications to him during the time that Osbourne starred in a television reality series. In addition, the Times article accurately stated that the California Medical Board had "moved to revoke" plaintiff's license due to his alleged gross negligence in the treatment of other patients. But the Post article, which appeared under the inaccurate headline "Ozzy's Rx doc's license pulled," contained an error. Despite clearly indicating that it was based upon "Los Angeles Times reports," the sixth paragraph of the Post rewrite incorrectly stated that "the state medical board revoked Kipper's license."

...

On appeal, our task is to undertake an independent review to determine whether the record evidence is capable of demonstrating actual malice with "convincing clarity"....We turn then to plaintiff's argument that the record contains evidence sufficient for a reasonable jury to find that the Post published the erroneous statements regarding his license with reckless disregard for the truth.

Although incapable of "one infallible definition . . . . reckless conduct is not measured by whether a reasonably prudent [person] would have published, or would have investigated before publishing" (see St. Amant v Thompson, 390 U.S. 727, 730-731 [1968]). Instead, to cross the constitutional threshold of actual malice, there must be "clear and convincing evidence that the author in fact entertained serious doubts as to the truth of his publication or acted with a high degree of awareness of . . . probable falsity".... The inquiry is thus a subjective one, focusing upon the state of mind of the publisher of the allegedly libelous statements at the time of publication.... This decidedly high standard of culpability has been set because "it is essential that the First Amendment protect some erroneous publications as well as true ones".... The actual malice standard recognizes that falsehoods relating to public figures are "inevitable in free debate" and that publishers must have sufficient "breathing space"...so that the First Amendment's commitment to "the principle that debate on public issues should be uninhibited, robust, and wide-open" will be realized....

...

We agree with the Appellate Division that the present record lacks the clear and convincing evidence necessary for a jury to conclude that defendant's inaccurate statements were published with actual malice. As an initial matter, plaintiff's reliance upon the Post's failure to employ fact-checkers, to attempt to verify the status of his license prior to publication, or to identify those individuals responsible for the false headline and statement is misplaced. Put simply, such proof of "[m]ere negligence does not suffice" to establish actual malice by clear and convincing evidence.... Conceivably, in an extreme case, a failure to investigate could be so gross as to prove a willful avoidance of knowledge..., but this is not that case.

...

We are concerned here with whether there is "concrete" or "affirmative evidence"...in the record that would allow a jury to conclude with "convincing clarity"...whether the Post's employees actually entertained serious doubts about the truth of the rewrite's inaccurate headline and sentence or that they published those statements with a high degree of awareness of their falsity. Plaintiff argues that a jury applying the New York Times actual malice standard could find in his favor because the record establishes that a Post editor fabricated the facts concerning plaintiff's licensure to make Gittens's rewrite "more sensational[]" and thereby generate increased sales. Other than the fact that the rewrite contains two erroneous statements, however, there is no evidence that Gittens, his editor Venezia, or anyone else at the Post seriously doubted the truth of the complained-of statements or was highly aware that they were incorrect prior to publication. Evidence of falsity does not equate with proof of actual malice....

Given this lack of concrete proof, plaintiff relies heavily upon Gittens's testimony that the lead paragraph of a wire service article was usually edited to make it "more Post-like."  But the full context of Gittens's testimony along with his affidavit, Angelo's affidavit, and Venezia's testimony, demonstrate that this short-hand phrase referred to stylistic alterations and not to the fabrication of facts. A writer can make an article a "better read" and engage in "more interesting word selection" without sacrificing factual integrity. Clearly, the First Amendment offers no shield to "calculated falsehoods"..., but at no point does this record even suggest that the Post set out to falsely defame plaintiff in this instance, or other individuals regularly, to increase its sales. Moreover, plaintiff's heavy reliance on the "more Post-like" testimony is flawed since Gittens's deposition indicates that he was using that jargon to refer to changes made to a rewrite's lead paragraph. Here, however, plaintiff does not contend that that paragraph is inaccurate.

...

[T]he possible revocation of defendant's license was accurately mentioned in a lengthy Los Angeles Times wire service article. Thus, plaintiff's license controversy was not thrust into the public eye merely on defendant's whim. Second, there is no evidence that defendant's employees intentionally or recklessly fabricated the relevant false statements. Although the actual status of plaintiff's license could be verified through an accurate reading of the Times article, this potentiality does not negate the possibility that Gittens or his editors, all working under a deadline, simply misperceived the correct statement in the Times article or draft rewrite.... Certainly, there is no evidence that any Post employee deliberately avoided consulting the Times article so as to publish a more sensational, albeit concocted, story with an untarnished mental state...[along with other circumstantial evidence, newspaper's failure to interview key witness or to listen to available tape recordings that would verify or refute account of newspaper's source constituted an actionable "purposeful avoidance of the truth"] [internal citation omitted])....

...

In sum, a reasonable jury confronted with these facts and circumstances could not find with convincing clarity that defendant's erroneous statements were published with actual malice. Rather, the record bespeaks non-actionable mistake or negligence. Thus, a grant of summary judgment in defendant's favor was appropriate.


The case is Kipper v. NYP Holdings, 2009 NY Slip Op 3407; 2009 N.Y. LEXIS 762 (2009).



 


 



 


 

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