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 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 ...