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LEHMAN v. DISCOVERY COMMUNICATIONS

September 1, 2004.

MARTIN A. LEHMAN, Plaintiff,
v.
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.

I. BACKGROUND

  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 plaintiff.

  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.

  II. DISCUSSION

  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 ...


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