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The power of New Jersey’s Shield Law for reporters, one of America’s strongest, is under attack in a privacy rights and fraud case against a New York Times Co. unit that makes films for a graphic cable show, “Trauma: Life in the ER.” The plaintiff is suing the Times for invading his privacy by filming him while he was being treated in a hospital emergency room for serious injuries suffered in a fall. The plaintiff wants the unaired film in discovery and the Times won’t turn it over, claiming its privileges under the state Shield Law. It’s a seemingly easy decision, but media lawyers are following the dispute because it raises two special questions. First, does the Shield Law’s broad definition of news include the increasingly popular and gory reality programs that may titillate more than inform? The answer is likely to be yes, media law experts say, even though some doctors and psychologists have denounced these shows as frightening, tasteless schlock. Second, and perhaps more important, the judge in the case, Kinsella v. Welch and NYT Television, Mon-L-1836-02, has agreed to decide whether the right of a newsperson to withhold unaired or published material trumps the rights of a filmed subject suing for invasion of privacy. Media lawyers lean toward a pro-newsperson ruling on that question, too. Yet a Times’ in-house counsel, David McCraw, concedes “it’s an interesting case” and both sides have vowed to appeal if they lose. Monmouth County, N.J., Superior Court Judge Louis Locascio is preparing an opinion on whether the Times’ film unit should be compelled to turn over outtakes showing plaintiff Joseph Kinsella of Highlands, N.J., in the emergency room. Kinsella was spraying pesticide on a friend’s roof on July 9, 2001, when he slipped and fell to the ground, suffering horrific injuries. Medics rushed him to Jersey Shore Medical Center in Neptune, N.J., where, by happenstance, NYT was filming with the hospital’s permission. They filmed as doctors stopped his bleeding, patched him up, wired his mouth shut and performed a tracheotomy, according to a complaint filed by Kinsella’s lawyer, Gerald Clark, an associate at Shrewsbury, N.J.’s Lynch Martin. Afterward, Kinsella signed an appearance consent presented to him by a producer. Clark says he heard of the film while preparing a personal injury suit against Stuart Welch, owner of the building from which Kinsella fell. The lawyer had an inspiration. He would get the film and show it at the trial as graphic evidence of Kinsella’s pain and suffering. But executives at NYT said no to a request for the film, which had not aired. So Clark took a bold step. After hearing about the manner of the filming, he became convinced that his client had causes of actions against NYT. He amended his suit against Welch to include NYT, saying the film unit invaded Kinsella’s privacy by filming without his permission. Yes he signed an appearance release, but it was obtained fraudulently; Kinsella was in a daze and thought he was signing something presented to him by a nurse, the suit says. The interception of his private conversations with the doctor violated laws against third party taping of conversations without permission. Total damages: $750,000, says Clark. Clark wants the film to show it to the jury to prove his case. Getting it in discovery is particularly important because if the case against the Times founders, he can try to use the film against Welch, as he originally intended. In pleadings and arguments during an Oct. 25 hearing, NYT’s outside lawyer, Peter Banta of Hackensack, N.J.’s Winne, Banta, Hetherington & Basralian, has denied the substantive allegations. He also says the Shield Law, N.J.S.A 2A: 84A-21, empowers the film unit to withhold unaired products of its newsgathering. The central issue is whether Kinsella’s privacy rights trump NYT’s statutory privileges, which New Jersey courts have interpreted as broad protections to guarantee the free flow of information. That may be so, Clark argues, but he says privacy rights are conferred by the United States and New Jersey constitutions and therefore take precedence over a mere statute. He cites a line of cases in which New Jersey courts have invoked the constitutional rights to privacy in matters involving familial relations, refusal of medical treatment, consensual sex, elective abortion and voluntary sterilization. The two traditional interests in privacy — autonomy and confidentiality — are implicated in Kinsella’s case, Clark argues, because his right to make medical decisions and have his treatment performed in private was compromised. Times lawyer McCraw says it’s true that constitutional rights can overcome a newsperson’s privilege, but the only examples in New Jersey have been in criminal cases. There have been cases in which the Sixth Amendment right to a fair trial trumped a reporter’s rights. But McCraw says there is no constitutional right to privacy in civil cases like Kinsella’s. And when there is a constitutional right to privacy in a civil context, it is to prevent government invasions of privacy — the kind of privacy rights upheld in Roe v. Wade. “The key here is that he doesn’t have a constitutional privacy claim as a matter of law,” McCraw says. “The constitution protects against governmental action.” What Clark does have is a common law privacy claim, McCraw says, and if Locascio says such a claim takes precedence over the reporters’ privilege, it will be the first such ruling in New Jersey. In the leading case on the issue of common law rights versus a newsperson’s privilege, Maressa v. New Jersey Monthly 89 N.J. 176 (1982), the state supreme court denied access to a defendant’s notes in a libel case. The court said the Shield Law affords an absolute privilege “absent any conflicting constitutional right.” Two lawyers who represent news organizations say they agree with McCraw’s analysis and that there is no constitutional right to privacy despite the penumbra cases like Roe v. Wade. “Privacy rights are not cloaked with a constitutional patina,” says John Connell, a partner in Haddonfield, N.J.’s Archer & Greiner. And without such protection, the Shield Law is bound to prevail, says Arlene Turinchak, an associate in Somerset, N.J.’s McGimpsey & Cafferty. They also say the precedents are against the plaintiff on whether “Trauma: Life in the ER” qualifies as news under the statute. Clark says the show is strictly entertainment, with no news value. To support his position he submitted exhibits showing publicity for The Learning Channel, the network that airs the trauma show. The Web site contains a photo gallery of such gory sights as a man with two fingers cut in a meat slicer and surgical tubes sticking from a stabbing victim’s abdominal wound. “It’s a shock cable television show,” he told Locascio. “It’s in business for ratings and it just simply has nothing to do with the news.” He cites health professionals’ criticism of such reports. One emergency medicine practitioner writing in The Wall Street Journal, William Schumacher of Lafayette, La., likened “Trauma: Life in the ER” to “Candid Camera” for voyeurs who have no interest in medicine, only in seeing prurient material. Banta retorted that the show does have news value and isn’t as gory as Clark depicts it. “We have no apologies for this kind of programming,” he said. “It has an entertainment value; it has a very informative value for people to see how the healthcare system works.” He said NYT clearly fits the Shield Law’s broad definition of the news media — newspapers, magazines, press associations and other outlets that disseminate news to the general public. And Banta said the material fits the even broader definition of news: material disseminated or gathered by people connected to the news media. Media lawyers Turinchak and Connell agree. Some states have a narrow definition, but in New Jersey the privilege is a huge blanket, they say. For example, In re Avila, 206 N.J. Super. 61 (App. Div. 1985), found the privilege applied to the publisher of an unsolicited, free, mailed shopping circular containing mostly ads, all in Spanish. Petition of Burnett, 269 N.J. Super. 493 (Law Div. 1993), said the privilege covered A.M. Best, a company that sent ratings of insurance companies to private subscribers. Even if Clark loses the discovery battle, he will have an opportunity to present witnesses to the emergency room episode to try to make his privacy case. That would cast attention on the methods of highly rated programs like “Trauma: Life in the ER” and competitors that show auto accidents, police pursuits and even embarrassing, real-life conversations of taxicab passengers. The suit says that a patient in an emergency room has a reasonable expectation that his treatment will be a matter of confidentiality to people not connected with giving care. The filming was an uninvited third-party intrusion in violation of such laws as the N.J. Patient Bill of Rights, Clark says in a brief. The New Jersey Wiretapping and Electronic Surveillance and Control Act provides a private right of action in cases of interception of oral communications of people who can reasonably expect privacy, the brief says. The permission slip does not justify the filming because Kinsella didn’t know what he was signing, the suit suggests. It may not be relevant whether NYT even needed an appearance release for what it considered to be a news program filmed on premises with the host’s permission. McCraw says such appearance releases are obtained only “out of an abundance of caution,” not because they are legally required. In a defense certification, Amanda Zinoman, a former NYT producer, sought to refute the suggestion Kinsella didn’t know what he was signing. She said she wore press credentials and that Kinsella had been moved out of the emergency room and was lucid. She also denied Kinsella’s assertion that she told him patients who were filmed would get better treatment and doctors. She added, though, “I may have mentioned to Mr. Kinsella that often times doctors appear to me to pay more attention to patients when they are being filmed.”

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