The U.S. Court of Appeals for the Eleventh Circuit has rejected an appeal by CNN to dismiss a libel case over the cable network’s 2015 investigation of infant deaths at a Florida hospital.
The opinion, penned by Judge William Pryor, rejected CNN’s contention that a pending federal defamation case against the network should be thrown out under Georgia’s anti-SLAPP law. The unanimous opinion also dismissed CNN’s petition to overturn U.S. District Senior Judge Orinda Evans’ 2017 decision not to dismiss the case.
The panel included Judge Gerald Tjoflat and U.S. District Judge Stephen Murphy of the Eastern District of Michigan.
Anti-SLAPP statutes originally were intended to limit the use of SLAPP, or Strategic Lawsuits Against Public Participation, lawsuits intended to curtail citizen protests of zoning changes sought by developers. But, because anti-SLAPP laws are couched in constitutional free speech principles, media outlets have begun turning to anti-SLAPP statutes as grounds to dismiss pending defamation claims.
The result has been a growing split among the nation’s circuit courts over whether the heightened standards to pursue litigation set by anti-SLAPP laws can be used by media outlets to defend themselves from libel and defamation claims.
Evans refused to dismiss a lawsuit in February 2017 brought by Davide Carbone, the former CEO of St. Mary’s Medical Center in West Palm Beach, Florida, over a 2015 CNN investigation titled “Secret Deaths: CNN Finds High Surgical Death Rate for Children at a Florida Hospital.” The investigation asserted that St. Mary’s mortality rate for pediatric cardiac surgery was three times the national average—statistics that Carbone claimed were a misleading “manipulation” of the numbers that ultimately cost him his job and reputation.
Evans found that Carbone lawyers L. Lin Wood of L. Lin Wood Law, partner Jonathan Grunberg, and Stacey Evans of Atlanta’s Wargo French had presented enough evidence to suggest that CNN “was acting recklessly with regard to the accuracy of its reporting.”
St. Mary’s pediatric cardiac surgery program shut down and Carbone was force to resign in the wake of CNN’s reports. Carbone is seeking $30 million in damages from CNN.
On Friday, Wood called the Eleventh Circuit opinion a big win.
“In recent years, anti-SLAPP statutes have been abused by media defendants in defamation cases to impose demanding standards of proof at an early stage of litigation while denying plaintiffs the development of a full factual record through discovery,” he said.
CNN lead counsel Charles Tobin of Ballard Spahr in Washington, D.C., could not be reached for comment by telephone or email. David Vigilante, senior vice president of legal for CNN, also could not be reached.
Georgia’s anti-SLAPP statute requires that, for a defamation case to go forward, a plaintiff must demonstrate prior to any discovery that they are likely to prevail. That mandate sets up a conflict with rules of the federal judiciary that govern the adjudication of pending civil cases, Pryor wrote.
Federal rules, “express with unmistakable clarity that proof of probability of success on the merits is not required in federal courts to avoid pretrial dismissal, and that the evidentiary sufficiency of a claim should not be tested before discovery,” Pryor continued. “But the relevant provisions of the Georgia anti-SLAPP statute explicitly require proof of a probability of success on the merits without the benefit of discovery. The result is a ‘direct collision’ between the federal rules and the motion-to-strike provision of the Georgia statute.”
The judiciary’s rules give a plaintiff “a right to proceed to trial if he proves the existence of a genuine dispute of material fact,” Pryor said. “The anti-SLAPP statute would nullify that entitlement by requiring the plaintiff to prove that it is likely, and not merely possible, that a reasonable jury would find in his favor and to do so while relying exclusively on evidence he was able to obtain without discovery.”
Pryor noted that CNN relied on conflicting decisions in other circuits, including the First and the Ninth, to promote their argument that a state anti-SLAPP law trumped federal rules. But Pryor suggested some of those decisions assume state anti-SLAPP statutes apply in federal court with virtually no analysis.
“We are not persuaded by the reasoning of these decisions,” he said.
Pryor also noted that Thursday’s opinion “is a pure question of law that we may resolve without touching on the legal or factual merits of Carbone’s complaint.”