United States District Court, E.D. New York
September 1, 2004.
MARTIN A. LEHMAN, Plaintiff,
DISCOVERY COMMUNICATIONS, INC., Defendant.
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
Presently before the Court is a motion by the defendant
Discovery Communications, Inc. ("DCI" or the "defendant") for
summary judgment dismissing the complaint in its entirety. For
the reasons set forth below, the defendant's motion is denied.
The following facts are undisputed unless otherwise indicated.
On May 21, 1997, Dr. Martin A. Lehman ("Dr. Lehman" or the
"plaintiff"), an orthopaedic surgeon who is now retired, was
arrested and charged with insurance fraud. His arrest was in
connection with a two year undercover sting operation, "Operation
Backbone." This investigation was conducted to address growing
incidences of insurance fraud by medical providers and legal
representatives in the area of automobile no-fault, disability
and workers' compensation claims. The operation was conducted
jointly by the Special Investigations Bureau of the Office of the
District Attorney, the Nassau County Police Department, and the
United States Postal Inspection Services. Multiple insurance
industries entities also participated in Operation Backbone. This
operation led to the arrests of 20 individuals, including the
The sting operation was reported extensively by the media,
including local television stations, numerous local and national
newspapers, and the ABC News Series 20/20. The Office of the
District Attorney of Nassau County held a press conference
following the arrests and discussed Operation Backbone in detail.
In addition, the District Attorney's Office issued and posted on
its website detailed press releases about the arrests made in
connection with the sting operation. The District Attorney's
Office prosecuted the plaintiff, and on March 3, 1999, following
a jury trial, he was acquitted of all charges.
On March 21, 1999, DCI first aired a television program
entitled "World's Most Outstanding Undercover Stings" on The
Learning Channel. The program included a segment reporting on
Operation Backbone. The complaint describes that Assistant
District Attorney Barbara Kornblau appeared on the program and
described "Operation Backbone." In particular, Kornblau explained
that she was one of the supervisors of the operation, which
targeted professionals who had allegedly provided false
information to insurance companies or had submitted false
insurance claims. Kornblau also said that personnel involved in
Operation Backbone videotaped doctors performing examinations of
patients, and the prosecutors used the videotapes extensively
during their grand jury presentations. In the televised
interview, Kornblau opined that the videotapes led many
defendants to enter guilty pleas.
At one point during the television program, several clips of
the videotapes were shown while Kornblau or a narrator spoke in
the background. In one clip, the plaintiff is shown examining a
patient during a follow-up visit. According to the plaintiff, the
clip from the videotape also shows him taking x-rays of the
patient, performing range-of-motion tests, and discussing a
diagnosis and treatment plan with the patient. While this clip is
shown, the narrator states, "`Twelve undercover agents found
corruption on every level from doctors willing to spend only
seconds examining a phoney patient.'"
Further, the plaintiff appears in another videotape clip, and
the narrator states, "With enough evidence in their possession,
twenty professionals involved in billing more than two million
dollars in false claims are brought to justice." The third clip
consists of pictures of three health care providers. Two of the
people displayed had been convicted of insurance fraud, while the
third person was the plaintiff who had been acquitted of such
charges. While these three pictures were shown, the following
comments were made: "Operation Backbone is a success but the
fight to eliminate false insurance claims continues. For anyone
tempted to try this get rich quickly scheme, listen to Ted
Kerner, `Be careful when you consider faking an insurance claim.
In the modern era, we are going to find out, and a felony
conviction as an adult changes the expectation of the rest of
your adult life.'"
Without any changes in its content, the program was aired on
The Learning Channel on 17 occasions from March 21, 1999 until
May 24, 2001.
On June 21, 2001, Dr. Lehman commenced this action, alleging
that, on May 24, 2001, the defendant aired the program on The
Learning Channel. The plaintiff alleges that several quotations
from the program constitute libel and slander per se and seeks
both compensatory and punitive damages in connection with only
the May 24, 2001 airing of the program.
A. Standard of Review
A motion for summary judgment should be granted only when
"there is no genuine issue as to any material fact and . . . the
moving party is entitled to a judgment as a matter of law."
Fed.R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317,
322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The moving party
bears the burden of establishing the absence of a genuine issue
of material fact. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 256, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Once the
moving party has met this burden, the non-moving party "must set
forth specific facts showing that there is a genuine issue for
trial." Fed.R. Civ. P. 56(e).
When deciding a motion for summary judgment, the Court must
view the evidence in the light most favorable to the non-moving
party and must draw all permissible inferences from the submitted
affidavits, exhibits, interrogatory answers, and depositions in
favor of that party. See Anderson, 477 U.S. at 155; Van v.
City of New York, 72 F.3d 1040, 1048-49 (2d Cir. 1995). In the
case of a pro se party, the court must "read the pleadings of
a pro se plaintiff liberally and interpret them `to raise the
strongest arguments that they suggest.'" McPherson v. Coombe,
174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins,
14 F.3d 787, 790 (2d Cir. 1994)). Nevertheless, pro se status
"`does not exempt a party from compliance with relevant rules of
procedural and substantive law.'" Traguth v. Zuck, 710 F.2d 90,
95 (2d Cir. 1983) (quoting Birl v. Estelle, 660 F.2d 592, 593
(5th Cir. 1981)).
B. Statute of Limitations
The defendant first argues that the complaint is barred by the
statute of limitations for defamation. The statute of limitations
for defamation in New York is one year. N.Y.C.P.L.R. § 215(3). In
determining when the statute of limitations begins to run on a
defamation claim, New York applies the single publication rule.
Gregoire v. G.P. Putnam's Sons, 298 N.Y. 119, 125,
81 N.E. 2d 45(1948). Under this rule, any edition of a book or article,
regardless of the number of copies sold, is considered a "single
publication" which gives rise to only one cause of action. Van
Buskirk v. The New York Times Co., 325 F.3d 87, 89 (2d Cir.
2003) (citing Gregoire, 298 N.Y. at 126)). In New York, the
statute of limitations for libel is one year, see N.Y.C.P.L.R.
§ 215(3), and begins to accrue at the time of the first
publication, which is defined as "the earliest date on which the
work was placed on sale or became generally available to the
public." Van Buskirk, 325 F.3d at 89 (internal quotations and
The purpose of the single publication rule is "to prevent a
multiplicity of actions, leading to potential harassment and
excessive liability, and draining of judicial resources." Firth
v. State of New York, 98 N.Y.2d 365, 369-70, 775 N.E.2d 463
(2002) (citations omitted). The rule further "reduces the
possibility of hardship to plaintiffs by allowing the collection
of all damages in one case commenced in a single jurisdiction."
Id. at 371. Courts have adopted the rule to books and
newspapers and have extended it to Internet publishing. See
id. ("no rational basis upon which to distinguish publication
of a book or report through traditional printed media and
publication through electronic means by making a copy of the text
of a Report available via the Internet.").
According to the defendant, the single publication rule should
be applied to a rebroadcast of defamatory material on television.
In support of its argument, DCI points out that, in relation to
television programming in the context of privacy claims, New York
courts have applied the rule and have not treated each individual
broadcast as a republication. In particular, the defendant cites
to Zoll v. Jordache Enterprises, Inc., No. 01 CV 1339, 2002
U.S. Dist. LEXIS 24570, at * 34 (S.D.N.Y. Dec. 20, 2002), in
which a court held that the statute of limitations for a right of
privacy claim begins to run the first time the commercial is
aired. In Zoll, the plaintiff modeled the defendant's jeans in
a video shoot in 1978. Id. at *3. The footage was used in a
series of jeans commercials in 1978 and 1979 and was then later
incorporated in a new commercial and aired, without any change,
in the year 2000 to publicize a new line of vintage jeans. Id.
Applying the single publication rule, the court granted the
defendant's motion for summary judgment in its favor on the
plaintiff's right of publicity claims, holding that the claims
were time-barred because the re-airing of the 1978 commercial as
the 2000 re-release was not a republication. Id. at *34.
Relying on the holding from Nelson v. Working Class, Inc., No.
99 CV 8854, 2000 U.S. Dist. LEXIS 4848 (S.D.N.Y. Apr. 5, 2000),
which applied the single publication rule to the airing of
commercials in the context of a right of privacy claim, the court
held that the statute of limitations was not retriggered with
each subsequent airing of the commercial. Id. at *30-31. The
court noted that, although the Restatement (Second) § 577A(3)
states that the rebroadcast of defamatory material over radio or
television reaches a new audience and justifies a new cause of
action, the court stated that "New York's application of the
single publication rule to right of privacy actions does appear
to diverge from the approach set out in the Restatement, which
discusses the application of the single publication rule in
defamation cases." Id. at *30.
The Zoll court considered the issue again in connection with
a motion for reconsideration. Zoll v. Jordache Enter., Inc.,
No. 01 CV 1339, 2003 U.S. Dist. LEXIS 6991 (S.D.N.Y. Apr. 22,
2003). In particular, the court examined whether the 2000
re-release was a republication because it was used to sell a new,
updated product and the defendant made a "very conscious
decision" to re-release the 1978 commercial for marketing
purposes. Id. at *6. The court noted that whether a publication
is designed to reach a new audience is merely a factor in
determining whether there has been a republication. Id. at *7.
The court rejected this factor and explained that there must be
something more, such as modification to the original publication,
for there to be republication. Id. at *8.
The defendant urges this Court to apply the single publication
rule for a rebroadcast of a television program with regard to a
defamation claim. According to the defendant, based upon the
holdings from Zoll and Nelson, the subsequent re-airing of a
television program, in a format identical to the original
broadcast, does not constitute a republication in the defamation
context. As such, the defendant argues that the statute of
limitations began to run from the first broadcast on March 21,
1999. As a result, the defendant argues that, because the
plaintiff did not commence this action until June 21, 2001, his
complaint is untimely. The Court disagrees.
The Court notes that the holdings in Zoll and Nelson were
in the context of privacy claims. The Second Restatement of Torts
specifically provides that "each communication of the same
defamatory matter by the same defamer, whether to a new person or
to the same person, is a separate and distinct publication, for
which a separate cause of action arises." Restatement (Second) of
Torts § 577A subs (1) comt. While the single publication rule
recognizes that one printing of an edition of a book, magazine,
or newspaper is one communication, an exception to this rule
exists where the defendant subsequently republishes or reissues
the statement. Firth, 98 N.Y.2d at 371. Thus, courts have
recognized that "repetition of a defamatory statement in a later
edition of a book, magazine or newspaper may give rise to a new
cause of action." Id.; see, e.g., Rinaldi v. Viking
Penguin, Inc., 101 Misc. 2d 928, 422 N.Y.S.2d 552, 556 (Sup. Ct.
1979), aff'd as modified, 73 A.D.2d 43, 425 N.Y.S.2d 101 (1st
Dep't 1980) (issuance of a paperback edition which contained
defamatory statements was a separate and distinct publication);
Karaduman v. Newsday, Inc., 71 A.D.2d 411, 422 N.Y.S.2d 426
(1st Dep't 1979) (article which first appeared in a newspaper
and then rewrote in a book constituted a republication); Cook v.
Conners, 215 N.Y. 175, 179 (4th Dep't 1915) (article first
published in a morning edition and then published in an afternoon
edition by the same newspaper constituted a republication).
Section 577A(3) (comment d) of the Restatement (Second) of
Torts explicitly recognizes that a rebroadcast of defamatory
material via television constitutes a separate publication:
Rebroadcast of the defamation over radio or
television or a second run of a motion picture on the
same evening . . . [is a separate publication] that
reaches a new group and the repetition justifies a
new cause of action. The justification for this
conclusion usually offered is that in these cases the
second publication is intended to and does reach a
Like a publication of the same defamatory statement in both a
morning and evening editions of a newspaper, a rebroadcast of a
television show is intended to reach a new audience and is
therefore an additional communication. A rebroadcast has renewed
impact with each viewing and creates a new opportunity for
injury, thereby justifying a new cause of action.
If a court determines that a broadcast contains defamatory
statements, the offender cannot rebroadcast such statement. To
avoid liability, the decision maker need only make a conscious
decision to refrain from rebroadcast. If the decision maker has
sustained her maximum liability when she first broadcasts the
television program, she has no motivation to limit the injury.
Thus, the Court finds that the rebroadcast of the television
program constitutes a republication and therefore provides for a
new cause of action and refreshes the statute of limitations. The
plaintiff here commenced this action on June 21, 2001 for the
broadcast of the May 24, 2001 program on The Learning Channel. As
such, the complaint is not barred by the statute of limitation.
C. The Defendant's Liability
The defendant next argues that it is entitled to summary
judgment dismissing the plaintiff's defamation claim because its
actions were not "grossly irresponsible" in reporting on a matter
of legitimate public concern. In addition, the defendant contends
that the plaintiff's punitive damages claims must be dismissed
because he cannot establish any evidence that the defendant acted
with actual malice.
The defendant contends, and the plaintiff appears to concede,
that the program on insurance fraud was one of legitimate public
concern and that Dr. Lehman may not recover unless DCI acted in a
"grossly irresponsible manner." To determine whether a publisher
acted in a grossly irresponsible manner, a court considers
whether it "(1) followed sound journalistic practices in
preparing the allegedly defamatory article; (2) followed normal
procedures, including editorial review of the copy; (3) had any
reason to doubt the accuracy of the source relied upon and thus a
duty to make further inquiry to verify the information; and (4)
could easily verify the truth." Chaiken v. VV Publishing Corp.,
119 F.3d 1018, 1032 (2d Cir. 1997) (internal quotations and
citations omitted); see also Weber v. Multimedia
Entertainment, Inc., No. 97 CV 0682, 2000 U.S. Dist. LEXIS 5688,
at *22 (S.D.N.Y. Apr. 29, 2000) (quoting Hawks v. Record
Printing and Pub. Co., 109 A.D.2d 972, 486 N.Y.S.2d 463, 466
(App. Div. 1985))
In this case, DCI has not met its initial burden of
demonstrating the absence of a genuine issue of material fact
with regard to the issue of whether it acted grossly
irresponsible. While the defendant has established that the
program was within the sphere of legitimate public concern, it
has not provided any affidavits explaining the standard procedure
for DCI in broadcasting a program or stating that its methods are
standard practice in its industry.
The plaintiff asserts that DCI did not verify the truth in its
broadcast; verify the allegedly defamatory material by checking
the public record; request the Nassau County District Attorney's
office for documentary proof; or contact the plaintiff to
determine whether the content of the program was true. However,
because the defendant's papers are completely silent as to the
practices surrounding the broadcast of its television program,
the Court is unable to determine whether the defendant acted in a
"grossly irresponsible" manner. For similar reasons, the Court is
unable to determine whether the defendant acted with actual
malice. Accordingly, given the defendant's failure to meet its
initial burden of establishing the absence of any genuine issue
of material fact with regard to these issues, the defendant's
motion for summary judgment must be denied.
Based on the foregoing, it is hereby
ORDERED, that the defendant's motion for summary judgment for
an order dismissing the complaint in its entirety is DENIED;
and it is further
ORDERED, that the parties are directed to appear for jury
selection on October 25, 2004, at 9:00 a.m., at the Long Island
Federal Courthouse, 1024 Federal Plaza, Central Islip, New York
11722, in Room 1020.
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