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Opinion Florida court denies CNN request to toss defamation case from heart surgeon

Security guards walk past the entrance to CNN headquarters in Atlanta in 2014.

CNN isn’t getting out of a defamation suit filed by a pediatric heart surgeon, a Florida court ruled Friday.

Richard Oftedal, a Palm Beach County, Fla., circuit judge, ruled against the network’s motion to dismiss a suit filed in February 2016 by Dr. Michael Black, head of the pediatric cardiac surgery unit at St. Mary’s Medical Center. In his complaint, Black alleged that CNN — in a broadcast and in an article titled “Secret Deaths: CNN Finds High Surgical Death Rate for Children at a Florida Hospital” — had harmed his reputation by exaggerating his program’s failures. “We calculate that from 2011 to 2013, the death rate for open heart surgery on children at St. Mary’s Medical Center was more than three times higher than the national average,” noted CNN senior medical correspondent Elizabeth Cohen in her report.

Charged Black: “By suggesting that Dr. Black treated ‘[b]abies as sacrificial lambs’ and made ‘[a] total mess with newborn babies,’ and by claiming that Dr. Black’s surgical mortality rate was over three times the national average, the CNN Defendants have attributed to Dr. Black conduct unfit for a medical doctor or surgeon as well as conduct rising to the level of criminality,” reads the complaint, which was prepared by the Florida law firm Kammerer Mariani and the Washington-area firm Clare Locke LLP, which waged a successful defamation suit against Rolling Stone over its retracted story about rape at the University of Virginia.

CNN sought dismissal of the complaint on a grab bag of rationales — that Black is a public figure, triggering a showing of “actual malice,” i.e., the knowing publication of falsehoods or reckless disregard thereto; that many of Black’s gripes relate not to CNN statements about him, but rather to his program or St. Mary’s more broadly; that some of the material in the complaint is hyperbole whose use is protected by the First Amendments; and others.

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Oftedal batted away all of those arguments. In the story, CNN used two quotes as section headers in its online story on the program: “Babies as sacrificial lambs,” read one, with a photo of Black in the vicinity. “A total mess with newborn babies,” read another. CNN argued that those statements were “nonactionable” because they were uttered by others — a mother and an expert in the field, respectively. The judge isn’t buying that contention: “Dr. Black’s Complaint has sufficiently alleged that the CNN Defendants’ statements are actionable.”

In a separate proceeding, a federal judge in Atlanta reached a similar ruling in February in a defamation case from Davide Carbone, who formerly served as the chief executive of St. Mary’s. Judge Orinda Evans wrote, “The Court finds these allegations sufficient to establish that CNN was acting recklessly with regard to the accuracy of its report, i.e., with ‘actual malice.’ ”

So there appears to be a cross-jurisdictional judicial consensus: CNN has some explaining to do.