Federal Judge Orinda Evans. (File photo) Federal Judge Orinda Evans (File photo)


libel case against CNN stemming from the cable network’s investigation of children’s deaths at a Florida hospital will go forward, after an Atlanta federal judge found that the hospital’s former CEO has presented enough evidence at this early stage of the case to suggest that CNN “was acting recklessly with regard to the accuracy of its reporting.”

In a one-two punch that marked a clear win for plaintiff Davide Carbone, the former CEO of St. Mary’s Medical Center in West Palm Beach, Florida, and his attorney, Atlanta lawyer L. Lin Wood, U.S. District Court Senior Judge Orinda Evans also rejected arguments by CNN and several Georgia media organizations that the libel suit violated the state’s anti-SLAPP statute and should be dismissed.

In her ruling, handed down Wednesday, Evans said a number of statements broadcast or published by CNN in 25 reports on pediatric deaths following cardiac surgery at St. Mary’s were exempt from a libel claim, such as those expressed in interviews with bereft parents. But the judge held that Carbone’s chief libel claims—which centered on statistics that CNN cited to support its case that the hospital’s pediatric mortality rate skewed higher than the national average—presented factual questions that should be decided by a jury. But, Evans added in the 18-page order, “This is not to say that the question of falsity is not a close one here.”

Carbone is seeking $30 million in damages from CNN, claiming that a faulty statistical analysis tainted its 2015 investigation titled “Secret Deaths: CNN Finds High Surgical Death Rate for Children at a Florida Hospital.” The hospital’s pediatric cardiac surgery program shut down and Carbone was forced to resign as a result of the reports. Since then, Carbone has been unemployed.

On Wednesday, Wood called Evans’ decision not to dismiss the libel case a victory. “False and defamatory accusations against real people have serious consequences,” he said. “Neither St. Mary’s or Mr. Carbone did anything to deserve being the objects of the heinous accusation that they harmed or put babies and young children at risk for profit.”

Wood also took aim at an amicus brief filed on behalf of CNN by The Atlanta Journal-Constitution, WAGA Fox 5, the Georgia Press Association, the Georgia First Amendment Foundation and the Motion Picture Association of America asking for the case to be dismissed. The organizations branded it a “strategic lawsuit against public participation” or SLAPP suit that they argued was intended to chill public interest reporting by saddling media outlets with a costly lawsuit even if the defamation claims were meritless. Twenty-eight states, including Georgia, now have anti-SLAPP laws on the books.

“The ruling,” he said, “serves as a well-reasoned reminder that the media, its defense lawyers and its lobbyists do not have a corner on the market of correct interpretation and application of the First Amendment.”

CNN’s lead counsel in Washington, Charles Tobin of Holland & Knight, was not available for comment. Co-counsel Cynthia Burnside at Holland & Knight in Atlanta also could not be reached.

The case, as it proceeds, will likely turn on a legal battle over how CNN compiled and then interpreted the statistics it used to bolster its investigation, in an era when investigative reporting is being increasingly undergirded with computer-assisted and data-based analyses.

Evans, in her order, focused on CNN’s assertion that St. Mary’s mortality rate for pediatric cardiac surgery was three times the national average. Carbone contends that in calculating that rate, CNN compared “apples to oranges”: the number of more risky pediatric open-heart surgeries at St. Mary’s to a national average that included both open-heart and less risky closed-heart surgeries. Carbone said that when St. Mary’s pointed out the inaccuracy, CNN “doubled down” on its original assertion rather than correcting it.

CNN countered that both sets of numbers it used to calculate and then compare St. Mary’s pediatric mortality rate were for open-heart surgery, and the data dispute, as Evans characterized it, is “simply an academic disagreement over statistical methodology.”

Carbone does not dispute how CNN did the math, Evans observed, “but whether it compared its own math to a non-comparable figure in a way that misled its viewers.” That, she concluded, is a question for a jury.

Evans also addressed Carbone’s second claim that CNN had continued to report that Florida’s Agency for Health Care Administration (AHCA) had launched an investigation of St. Mary’s sparked by its reports after the agency issued a public statement that it was not investigating the hospital.

CNN has claimed that its report on the supposed inquiry by AHCA is protected by the fair report privilege which shields the media from liability if they accurately report government proceedings. However, Evans said bluntly, “Given that there was allegedly no such investigation, it would be difficult to apply a privilege to a non-existent proceeding,” Actual malice, she added, “as evidenced by CNN’s continued publication about an official investigation when the AHCA had affirmatively stated that none existed, generally overrules the privilege.” That, too, she concluded, is ultimately a jury question.

Finally, Carbone contended that CNN’s negative reporting on St. Mary’s defamed him personally because he was the hospital’s chief administrator, he had hired the pediatric surgeon that was the primary focus of CNN’s investigative reports, and CNN had published and broadcast his name and photo multiple times in connection with the investigation. Evans said “CNN was literally making [Carbone] the face of that culpable administration.”

Contact R. Robin McDonald at rmcdonald@alm.com. On Twitter: @rrobinmcdonald