Media law journal covers social media and fair trial, mugshot privacy, 'true threat,' China's FOIA, more

The latest edition of the Journal of Media Law & Ethics (8:2, Fall/Winter 2020) spans a range of fascinating issues.  Here is the table of contents from editor Eric Easton and publisher University of Baltimore Law School.

Social Media Access, Jury Restraint and the Right to a Fair Trial
Zia Akhtar

To Post or Not To Post: The Ethics of Mugshot Websites
Mark Grabowski

The Trouble with “True Threats”
Eric P. Robinson & Morgan B. Hill

Merely Window Dressing or Substantial Authoritarian Transparency? Twelve Years of Enforcing China’s Version of Freedom of Information Law
Yong Tang

Free Expression or Protected Speech? Looking for the Concept of State Action in News
Christopher Terry, Jonathan Anderson, Sarah Kay Wiley, & Scott Memmel

A description from Dr. Easton:

In the current issue, British lawyer Zia Akhtar takes a hard look at the use of social media by jurors in criminal trials and the accompanying concern that the rights of a defendant may be prejudiced by the practice. The article advocates a legal code that would prohibit juror access to information about a defendant’s previous record.  

Mark Grabowski follows with an examination of so-called “mugshot” websites through the lens of the Society of Professional Journalists’ Code of Ethics. The article concludes that, while mugshot sites are not an inherently unethical journalism practice, many news outlets present mugshots utilizing ethically dubious methods that urgently need to be reformed.

The need for clear standards governing the kinds of communication that can be considered unprotected “true threats” is demonstrated by the analysis of Eric Robinson and Morgan Hill in our third article. The authors point out that, when the Supreme Court had the opportunity to clarify the elusive concept, in Elonis v. United States and three subsequent cases, they failed to resolve the ambiguities of the doctrine, notwithstanding the prevalence of abusive language online.

It may surprise many of readers that freedom of information is alive, if not entirely well, in China. Based on a massive quantitative study, Yong Tang suggests that enforcement of freedom of information law in the PRC seems more forceful than many Western observers would expect, although there is scant evidence that the law has led to more accountability and better governance.

Finally, Christopher Terry and associates point out that the national press has been woefully remiss in explaining why the so-called censorship of right-wing and other voices by social media platforms is not an abridgment of First Amendment rights. While all likely readers of this journal understand the concept of “state action” in the First Amendment context, the media has generally left the public clueless.

I serve on the journal's editorial board.

Scharf urges rational statutory construction to ease immigration plight of child victims of abuse, neglect

My colleague Irene Scharf published further research into easing immigration hardships for undocumented youth who have been victimized by abuse, abandonment, or neglect.  She explains (footnotes omitted):

In 1990, aiming to ease the difficult situation for undocumented child immigrants who were dependent on juvenile courts for their protection, Congress enacted the Special Immigrant Juvenile provision of the Immigration and Nationality Act, located at 8 U.S.C. § 1101(a)(27)(J) (the provision). In 2008, in an effort to further ease the plight of these young people, it amended the provision to relieve the proof requirement from proving abuse, abandonment, or neglect by both parents to that of one or both parents. Unfortunately, the provision maintains its “two-tier” citizenship system because one of its subsections denies Special Immigrant Juveniles (SIJ) who naturalize the same rights as other citizens possess to petition for their parents to immigrate [8 U.S.C. § 1101(a)(27)(J)(iii)(II)]. In Second Class Citizenship? The Plight of Special Immigrant Juveniles [40 Cardozo L. Rev. 579 (2019)], I concluded that this limitation violates Due Process by creating this two-tier citizenship system. To address this inequity, courts should employ the doctrine of “rational legislating” to interpret this provision in a way that would place SIJs on an equal footing with other citizens. This would more accurately reflect the intent Congress had when it amended the provision in 2008, and permit naturalized SIJs to reunify with their parents.

Professor Scharf in the article further frames the problem in describing its impact on the lives of young people from Guatemala, Honduras, and El Salvador, relating experiences amalgamated from real clients of the immigration law clinic she has supervised for nearly two decades.

The article is Robbing Special Immigrant Juveniles of Their Rights as U.S. Citizens: The Legislative Error in the 2008 TVPRA Amendments, 30 Berkeley La Raza L.J. 41 (2020).

Court: 'Hyperbole,' not slander, in Fox News monolog about Cohen 'catch and kill' payment to protect Trump

McDougal in 2007
(Sam Posten III CC BY-SA 2.0)

A defamation lawsuit by Karen McDougal, former Playboy model and alleged extra-marital consort of President Donald Trump, against Fox News was dismissed last week in federal court in the Southern District of New York.

The case arose in connection with allegations that Trump and lawyer Michael Cohen cooperated with the National Enquirer to "catch and kill," that is pay for and suppress, potentially damaging stories about Trump's personal life.  Relying on allegations in the complaint (citations and notes here omitted), the court summarized the background as favorable to the plaintiff:

Ms. McDougal ... became the subject of front-page stories following the 2016 United States Presidential Election based on allegations that she had engaged in a year-long affair (from 2006-2007) with now-President Trump.

The allegations of an affair arose during the 2018 investigation and guilty plea of Mr. Trump’s lawyer and aide Michael Cohen on charges that he violated federal campaign finance laws. Specifically, law enforcement investigators and the media revealed that in the months leading up to the 2016 election, American Media, Inc. (“AMI”)—the company behind National Enquirer and whose CEO, David Pecker, allegedly is close with the President—had paid Ms. McDougal $150,000 in exchange for the rights to her story about the affair with Mr. Trump. AMI then assigned the rights to the story to a corporate shell entity formed by Mr. Cohen allegedly at Mr. Trump’s direction, and in exchange for the assignment Mr. Cohen paid AMI $125,000.

During the Government’s investigation of these payments, Mr. Cohen and Mr. Pecker both revealed that Mr. Trump had directed the AMI payment to Ms. McDougal in the first place, and then personally reimbursed the payments himself, all as part of an effort to avoid having the allegations affect the 2016 election. Mr. Trump initially had denied knowledge of any payments to McDougal, but by December 2018, had admitted to the payments, arguing that they were made on the advice of Mr. Cohen and that any illegality was Cohen’s fault. Mr. Cohen ultimately was charged with and pleaded guilty to violations of campaign finance laws.

Carlson in 2018 (Gage Skidmore CC BY-SA 2.0)

On Tucker Carlson Tonight, on Fox News, December 10, 2018, Carlson said, as quoted in the court opinion:

"Remember the facts of the story. These are undisputed. Two women approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn’t give them money. Now, that sounds like a classic case of extortion.

"Yet, for whatever reason, Trump caves to it, and he directs Michael Cohen to pay the ransom. Now, more than two years later, Trump is a felon for doing this. It doesn’t seem to make any sense.

"Oh, but you're not a federal prosecutor on a political mission. If you were a federal prosecutor on a political mission, you would construe those extortion payments as campaign contributions."

McDougal sued for slander per se over the accusation of extortion.  The court dismissed the case on Thursday on two grounds.  First, the court ruled that Carlson's statements were protected by the First Amendment as hyperbolic comment on politics.  Second, the court ruled that McDougal had failed to plead a case that could meet the high bar of actual malice, i.e., that Carlson knew the assertions to be false or spoke in reckless disregard of truth or falsity.

The case seems soundly decided, though has curious implications for what passes as journalism today.  As Slate observed, the former holding accepts the argument of Fox News that reasonable viewers of Carlson's show are "in on the gag[:] ... [that] Carlson is not 'stating actual facts' but simply engaging in 'non-literal commentary'[;] ... that given Mr. Carlson’s reputation, any reasonable viewer 'arrive[s] with an appropriate amount of skepticism' about the statements he makes."  The court concluded, "Whether the Court frames Mr. Carlson’s statements as 'exaggeration,' 'non-literal commentary,' or simply bloviating for his audience, the conclusion remains the same—the statements are not actionable."

The case is McDougal v. Fox News Network, LLC, No. 1:19-cv-11161 (S.D.N.Y. Sept. 24, 2020).  The case was decided by U.S. District Judge Mary Kay Vyskocil, a New York City corporate litigator whom President Trump appointed to the bench.  For the related subject of "catch and kill," I added links to McDougal under the Clifford cases at the Trump Litigation Seminar.  Read more about Tucker Carlson in the Columbia Journalism Review (Sept. 5, 2018).

Court greats both cautioned us on NYT v. Sullivan

I'm indebted to Trump Litigation Seminar student Kevin Burchill, who timely unearthed this interview with the late Justices Ruth Bader Ginsburg and Antonin Scalia by journalist and journalism professor Marvin Kalb.  From the cue linked below (at 21:42, for six or so minutes), they discuss New York Times v. Sullivan (U.S. 1964).

 

Nonetheless a First Amendment advocate, I have long shared Justice Scalia's unpopular position that Sullivan was incorrectly decided.  I don't contend that the newspaper should have lost.  In the civil rights context in which the case arose, Sullivan played a critical role in relieving segregationists of state tort law as a weapon.  However, there were many paths to that outcome that did not require the wholesale federalization and constitutionalization of state defamation torts.

The consequences, as suggested even by chapter 19 ("Back to the Drawing Board?") of Anthony Lewis's classic 1991 panegyric and case biography, Make No Law, have been disastrous, because Sullivan undermined the laboratory of common law experimentation in the states.  Today, for example, the "public interest" approach to public-figure defamation in the UK Defamation Act shows great promise as a model to balance the rights of reputation and free speech.  And other countries, such as Australia, seem to be getting along well with much more limited Sullivan-like protection for free speech on public affairs, without the big sky of democracy collapsing across the outback.  Yet we in the United States remain tethered to a near-immunity doctrine born of a bygone era.

RBG (Kalb Report)

In this interview with Kalb, Justices Ginsburg and Scalia characteristically state their opposing positions on the correctness of Sullivan, for and against, respectively.  What I find compelling, though, is that Justice Ginsburg acknowledged Sullivan's unintended problematic consequences.  Sullivan was a product of civil rights exigency, she reiterated.  But, she recognized, its doctrine was tailor-made for a press on the same page of mighty ideals in the mission and ethics of journalism.

What if, say, new technology caused mass media entry barriers to fall?  And then we had a proliferation of partisan pundits, or even disinformation, pouring through our information flows?  If Sullivan were then not up to the job, we might find our hands tied by unyielding constitutional cable.  We might flail, helpless, in trying to restore integrity to the democratic space.

Perish the thought.

Abolition of police qualified immunity in Colorado, accountable development lead in FOI Summit topics

Transparency and accountability in contexts including police reform and economic development were on the agenda at the (virtual) annual summit (#FOIsummit) of the National Freedom of Information Coalition (NFOIC) late last week.  The conference continues on Tuesday and Wednesday this week.

Rep. Herod

The most provocative panel was on police reform, focusing on California, Colorado, and New York.  Colorado State Rep. Leslie Herod spoke with conviction about the raft of reforms signed into law in Colorado on Juneteenth 2020.  Included was the state's landmark elimination of qualified immunity for police.  Herod explained that the 2020 protest movement sparked an opportunity in bipartisan alignment.  The libertarian Cato Institute, she said, would like to have seen qualified immunity for public officials abolished across the board.  Police were a start.  Read more about the Colorado law from Jay Schweikert at Cato and from Russell Berman in The Atlantic.  The session is available on YouTube.

 

The conference's first general session focused on economic development and offered up another compelling colloquy.  Nothing was settled, but advocates on both sides of the transparency problem pressed their best arguments and pulled no punches.  

Greg LeRoy, executive director of D.C.-based NGO Good Jobs First, emphasized the public money at stake in economic development projects and lamented localities' complicity in the empowerment of unaccountable corporate powers over public services.  He had data from one representative development project showing public investment that could not possibly generate a justifiable return.  Such a transaction is none other than a transfer of public wealth to corporate shareholders, he said.  Good Jobs First has model legislation.  

Bryant (RLB)

Meanwhile Ronnie L. Bryant, principal of consulting firm Ronnie L. Bryant, LLC, pleaded passionately that troubled urban centers throughout America, and the people living in them, don't stand a chance at economic opportunity without offering incentives to private investors.  As moderator Dalia Thornton wrangled the pair to common ground, Bryant proved willing to guarantee transparency before and after negotiation on a deal, but not during.

Caught in the crossfire, Albuquerque, N.M., chief administrative officer Sarita Nair has worked previously on both sides of the divide, and now, she said, is the policymaker having to balance priorities.  I agreed with her sentiment recognizing that, at least, we've come a long way from the bad ol' days of heck-no, everything's-a-trade-secret FOIA exemption.

Other conference topics include access to protected health information during the pandemic and virtual public meetings.  Look for more video replays on the NFOIC YouTube channel.

UMass Dartmouth settles Title IX suit to tune of $70k; tax liability momentarily muddles settlement

In a case that wrapped up in July, UMass Dartmouth (my employer) settled a pro se lawsuit by a former male student who challenged disciplinary action as improperly gender-motivated under Title IX.  UMass Dartmouth agreed to pay the plaintiff $70,000, but the settlement record was muddled by plaintiff's concern over tax liability.

This case intersects with academic freedom and the First Amendment.  Notwithstanding partisan politics, Department of Education Title IX regulations revised in May were meant to rein in universities running roughshod over the civil rights of accused persons, even if with the laudable purpose of protecting the civil rights of complainants.  The issue was brought to the fore recently with the suspension of a Yale law professor (disclosure: a well liked professor of mine in law school, when he was a visitor at Duke) amid a Title IX investigation.  Skeptical observers have wondered whether the professor's long-held position championing respondent rights under Title IX is an irony or impetus in the case.  We'll likely hear more about Title IX due process, or the lack thereof, in connection with the nomination of Judge Amy Coney Barrett to the U.S. Supreme Court.

Marine science school at UMass Dartmouth
(Ogandzyuk CC BY-SA 4.0)

I have potential conflicts going both ways in the UMass case.  I believe that the university's Title IX office has seriously abused the rights of accused persons on our campus (me included; I was cleared); the superseded regulations are to blame in part.  At the same time, at least one administrator named in this matter is someone with whom I have worked productively before, and I think well of her based on that unrelated experience.

So I'm going to step aside and let Connecticut law firm Pullman & Comley, via JD Supra, offer facts and commentary on this case.  I've reduced to initials the names of the plaintiff and one administrator here, as not to exacerbate any adverse reputational impact on either of them.  Appropriately in my opinion, the plaintiff lost a bid in trial court to proceed pseudonymously.  These names, and more names and details, including other implicated administrators at UMass Dartmouth, are readily available to the interested reader through links, court records, and news coverage.

One would be hard-pressed to find more egregious allegations than those in [JH]. The plaintiff, [JH], is a disabled veteran who enrolled at the University to pursue a doctorate in Oceanography. [JH] had a prior criminal conviction, which he disclosed, but he was assured that it would be kept confidential. [JH] maintained a 4.0 GPA during his first year of graduate studies and was recruited by Duke University’s Marine Lab for a summer internship. In May 2016, however, near the end of [JH's] first year, Assistant Vice Chancellor [CC] summoned him to a meeting, accused him of “‘fraudulently disclosing his [criminal] history in his application’” and claimed “that several individuals ‘had recently filed formal complaints regarding [his] misconduct, which created a hostile learning environment.’”

[CC] allegedly declined to provide specifics of these complaints other than that they had been received as early as December 2015—which, if true, would suggest a certain lack of investigatory alacrity on the University’s part—but told [JH] that if he withdrew from the school, he would not be subjected to a Title IX investigation and his criminal history would be kept confidential. [JH] declined to withdraw and, in what would prove a pivotal, albeit alleged, statement, [CC] “threated [sic] to ‘get his kind.’” He was immediately suspended, and [CC] subsequently ordered the Dean of [JH's] degree program “‘to hold an unprecedented all hands meeting with compulsory attendance” [end-quote, sic] regarding [JH]. Within a week, every faculty and staff member and student in his program was aware of his criminal record and the pending Title IX investigation. Furthermore, during the course of that inquiry, the University’s Title IX office allegedly approached two female students and asked them to file complaints against [JH], both of whom declined.

On August 30, 2016, the University informed [JH] that it could not substantiate any violations of either school policies or Title IX. Nonetheless, it issued him a written sanction, limited his interactions with other students, confined him to “a remote, supervised workspace,” removed his faculty thesis advisor, and changed his matriculation status to a non-thesis degree candidate, an outcome that would seem analogous to a criminal defendant being found not guilty but still being sentenced.

As Pullman & Comley further observed, courts "routinely dismiss[] claims that the challenged discipline was driven by the student’s gender in violation of Title IX," so the court's refusal to do so in fall 2019 was remarkable.  JH's case appeared bound for trial, but the parties exchanged emails in settlement negotiation in the winter and spring.

That's where the case took an odd turn, worth note for the litigation student.  In an email exchange on February 3 and 4, 2020, the university accepted the plaintiff's offer to settle for $70,000.  Apparently, the plaintiff learned subsequently that the settlement sum would be taxable.  On March 4, 2020, he emailed university counsel to counteroffer a higher sum, $100,000, to help cover his tax liability, which he calculated at $33,250.

The university declined and moved the court to enforce the $70,000 agreement.  Finding no fraud, duress, or mistake, the court refused to cut the plaintiff a break for being pro se (docket no. 92, electronic order; I suspect the fellow might be or have been a lawyer, but can't confirm that).  The court entered judgment accordingly, but the final settlement agreement, exhibit 1 to the judgment, was not entered into the case file.

Even had JH been represented, I have heard many a story of clients not advised of the tax consequences of settlement.  I emphasize the point, and what should be the lawyer's obligation, every year to my 1L students in Torts.  There's no tax break, moreover, for attorneys' fees.  A plaintiff who has to pay a hefty contingency fee, and then costs, and then taxes, can end up winning a lawsuit and owing money.  Further complicating matters, the taxability of lawsuit winnings is not always clear and might require a tax lawyer to sort out.  Ain't America great?

Anyway, the settlement in JH v. UMass Dartmouth does not look good for the university, especially in a time when faculty and staff are being burdened with pay cuts to keep the university solvent.

The case is [JH] v. University of Massachusetts Dartmouth, No. 1:19-cv-10705 (D. Mass. July 23, 2020), Judge Richard G. Stearns presiding.

Mary Trump sues President, family, alleges three decades' fraud in oversight of her father's estate

Author of Too Much and Never Enough (2020), Mary L. Trump on Thursday sued her uncle, the President, and her aunt, retired federal judge Maryanne Trump Barry, for ongoing fraud and breach of fiduciary duty in oversight of the estate of Mary's father, Fred Trump, Jr., since his death in 1981.

The case comes just two months after a failed bid by presidential brother Robert S. Trump to enjoin publication of Mary's book, and one month after Mary's release of audio recordings in which her aunt condemned the President. Considering the First Amendment and the futility of last-minute injunction, the court in the earlier case refused to enforce the confidentiality provisions of a family agreement that settled litigation arising from the deaths of Robert, Maryanne, and the President's parents, Mary's grandparents, Fred and Mary Anne, in 1999 and 2000. Robert S. Trump died on August 15, 2020. Try to keep up.

To navigate the statute of limitations, Mary Trump alleges that she only became aware of the fraud upon the publication of investigative journalism by The New York Times in 2018 (pay wall; about).  Links to the dockets, the complaint in the latest Mary L. Trump case, and the court decision denying injunction in the Robert S. Trump case are now posted at the Trump Litigation Seminar blogsite, a project of The Savory Tort. HT @ TLS students Spencer K. Schneider and Richard Grace. 

Boston Bar panel surveys landscape of privacy law, data protection policy, class action litigation

Attorneys Melanie Conroy, Marjan Hajibandeh, and Matthew M.K. Stein

We had great fun yesterday, as lawyer fun goes, talking about privacy law in the United States, from the impact of the Privacy Shield collapse to the latest litigation under California's groundbreaking consumer privacy protection law.  I was privileged to appear in a Boston Bar Association program on privacy class action litigation, led by attorney Melanie A. Conroy, CIPP/US, of Pierce Atwood LLP, alongside practicing-attorney panelists Matthew M.K. Stein, of Manatt, Phelps & Phillips, LLP, and Marjan Hajibandeh of CarGurus, Inc. 

Our topical reach was a breathless sprint across a dramatic landscape.  We opened with our respective thoughts on developments in privacy law, Conroy observing that the fast-paced field has undergone seismic shifts again and again in recent years, from the implementation of the California Consumer Privacy Act (CCPA) to the $18m Equifax data breach settlement in Massachusetts.

I spoke to the impact of the European Court of Justice decision ("Schrems II" (ECJ July 16, 2020)) invalidating the U.S.-EU Privacy Shield as a motivator for U.S. reform.  Besides the significance of the case in Europe and our foreign relations, the decision signals that a quarter century after adoption of the first European Data Protection Directive, Europe's patience with American recalcitrance has finally run out.

Julie Brill (MS CC) and William Kovacic

Former Federal Trade Commissioner Julie Brill told the Senate Commerce Committee this week that in two years, 65% of the world will be living under data protection laws, most of them modeled after the EU General Data Protection Regulation (GDPR).  As former Federal Trade Commission (FTC) Chairman William Kovacic put it, if we don't pass legislation in the United States, "we will get a national privacy policy: the GDPR."  As I tweeted this week, hearing testimony drove the usually cool and collected Senator Maria Cantwell (D-Wash.) to exclaim, "My God, this is clear, we need a strong privacy law." And Americans are ready; Brill said that nine out of ten Americans now believe that privacy is a human right.

Sen. Cantwell

Our panel ran down the latest developments in class action privacy litigation, loosely divided on the fronts of biometric data class actions, mostly arising under Illinois's pioneering Biometric Information Privacy Act; CCPA-related class actions in California; and data breach litigation.  I ran down cases in the latter vein and talked some about the present circuit split over Article III standing.  Federal courts have divided over whether "theft alone" can constitute concrete injury for constitutionally minimal standing, or plaintiffs must show some subsequent misuse of their data.  This issue is not limited to the data breach area, but has implications across a wide range of statutory enforcement systems, including the Fair Credit Reporting Act.

For my part, I predict that our dawning, if belated, understanding of the monetary value of personally identifiable information (PII) will lead us to the inevitable conclusion that theft alone suffices.  This is evidenced, for example, in Hogan v. NBCUniversal (D.R.I. filed Aug. 27, 2020), over the sale of Golf Channel subscriber identities, which subsequently were associated with other PII and resold.  Though for the time being, my favored conclusion is arguably not the inclination evidenced in the U.S. Supreme Court in Spokeo, Inc. v. Robins, in 2016.  Senator Dick Blumenthal (D.-Conn.) mentioned this week, apropos of current events, that Justice Ginbsburg, joined by Justice Sotomayor, dissented in Spokeo on just this point.

The late Justice Ginsburg; Sen. Blumenthal

Our next panel focus was developments in the First Circuit and Massachusetts.  In Massachusetts Superior Court in Boston, data breach litigation, filed in May 2019, against Massachusetts General Hospital, Brigham & Women's Hospital, and the Dana-Farber Cancer Institute, over online patient-service communications occurring outside secure portals, raises the very question of concrete harm, which may be resolved differently at the state level than under the federal Constitution.  Meanwhile in federal court, the same issue in data breach litigation, filed in March 2020, in Hartigan v. Macy's, highlights the lack of First Circuit precedent on the question since Spokeo, while citing strong pre-Spokeo indications that the First Circuit would favor the misuse-required position.

In parting observations, I offered that we have a long road ahead.  Of all the bills pending in Congress (see EPIC's excellent April report), only some propose a private cause of action and none attacks the problem of government surveillance, both purported prerequisites to European restoration of authorized trans-Atlantic data flow.  Within the U.S Congress, there appears to be bipartisan support for some kind of nationwide privacy legislation.  But the questions of private or FTC enforcement, and whether preemption would mean a legislative floor or ceiling remain sticking points that could derail the process.

Ryan, '18, joins government practice at R.I./Mass. firm

Mike Ryan

The law firm of Pannone Lopes Devereaux & O'Gara LLC, with offices in Rhode Island, Massachusetts, and Florida, has hired Michael F. Ryan, Jr., J.D. '18, to practice in government and legislative affairs.  Mike is an alum of my Torts classes and was a TA for me in 2015-16.  He worked through law school part-time while already making a name for himself in Rhode Island state political circles.  Here is his biography from the firm's press release:

Attorney Ryan’s previous experience includes government relations, legislative affairs and business law matters. He has significant experience negotiating with municipal and state government agencies regarding economic incentives for Opportunity Zone real estate development and worked as Manager of Public Affairs and Government Relations for a lobbying and communications firm. Attorney Ryan earned his J.D. from the University of Massachusetts School of Law, summa cum laude, where he was Executive Notes Editor of the Law Review. He graduated from the University of Rhode Island, summa cum laude, with a B.A. in Political Science and is a member of the Phi Beta Kappa Honor Society. Attorney Ryan is admitted to practice in Rhode Island and is a member of the Rhode Island Bar Association Business Organizations Committee.

Head to Pannone Lopes for all your government practice needs!

Court rejects deep-brain-stimulation patient's contract, IIED claims against Boston nonprofit hospital

A patient dissatisfied with deep-brain stimulation (DBS) to treat her depression could not prevail against her nonprofit hospital, the Massachusetts Appeals Court ruled yesterday, in part because she sued in contract rather than medical malpractice.

The plaintiff-patient sued Brigham & Women's Hospital, Inc. (BWH), in Boston over her DBS treatment, which is experimental with respect to depression, but is approved to treat Parkinson's.  BWH paid for the $150,000+ treatment, which the plaintiff's insurance would not cover, with the design of expanding a program in psychosurgery.

CT scan of DBS implants
(Dr. Craig Hacking, A. Prof Frank Gaillard CC BY-SA 4.0)

The plaintiff initially reported favorable results.  But the relationship between patient and hospital "sour[ed]," the court explained.  The plaintiff became dissatisfied with the repeated interventions required to replace batteries and refine the DBS.  She believed that the hospital was short-changing her treatment because the psychosurgery program was not taking off as hoped.  The hospital pledged to do what was needed to support plaintiff's continued treatment, but the fulfillment of that pledge incorporated some cost-benefit analysis.  And the hospital would not accede to the plaintiff's demand that BWH pay for her treatment elsewhere.

The plaintiff sued BWH for breach of contract, promissory estoppel, and intentional infliction of emotional distress (IIED).  The trial court entered summary judgment for the hospital, and the Appeals Court affirmed.

BWH (Jim McIntosh)

The court's opinion spends most of its pages establishing that there was no broken promise to support the breach of contract and promissory estoppel claims.  The hospital promised to treat the plaintiff for free, and it never charged her.

Of salience here, the court also concluded that the plaintiff had misstated a medical malpractice claim as a breach of contract claim, possibly to get around the $100,000 state cap on medmal liability for charitable organizations (not to mention the claims-vetting process of the commonwealth's medical malpractice tribunal).  The plaintiff asserted medmal would not be the appropriate cause of action for an experimental treatment and a dispute over cost.  But the court pointed to the plaintiff's repeated claims of the defendant's failure to comply with "scientific and ethical standards."

Finally, the court's treatment of IIED was instructive, if routine:

To prevail on this claim, [plaintiff] must prove "(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was 'extreme and outrageous,' was 'beyond all possible bounds of decency' and was 'utterly intolerable in a civilized community'; (3) that the actions of the defendant were the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was 'severe' and of a nature 'that no reasonable man could be expected to endure it'" (citations omitted) [gendered references in original] ....

BWH's actions do not constitute the sort of extreme and outrageous conduct that would allow [plaintiff] to recover for intentional infliction of emotional distress. BWH's alleged wrongdoing arose in the context of its oral agreement to provide hundreds of thousands of dollars in free care to a patient who otherwise could not afford treatment. Even putting "as harsh a face on [BWH's] actions ... as the basic facts would reasonably allow" [citation omitted], no jury could find it utterly intolerable in a civilized society for BWH to discuss alternative treatment options with [plaintiff], to take cost into account in determining what treatment to provide, or to refuse to pay for her treatment at another hospital (without interfering with her ability to transfer her care at her own expense).

Thus, the court rejected IIED as a matter of law.

The case is Vacca v. The Brigham & Women's Hospital, Inc., No. 19-P-962 (Mass. App. Ct. Sept. 21, 2020) (oral argument).  Justice Eric Neyman wrote the unanimous opinion for a panel that also comprised Justices Englander and Hand.