Federal appeals panel: ABC not reckless in exposť on eye clinic
By David Hudson
The Freedom Forum Online
An eye clinic chain headquartered in Illinois did not present
sufficient evidence that ABC News acted in reckless disregard for the truth
when it broadcast a program highly critical of the clinic, a federal appeals
court panel has ruled.
In 1993, the Desnick Eye Center sued ABC, a producer of "PrimeTime
Live" and reporter Sam Donaldson over a 15-minute program that alleged that
employees at several Desnick centers had altered equipment to give false
diagnoses of cataracts.
The clinic sued under a variety of legal claims, including trespass,
fraud, invasion of privacy and defamation. A lower court dismissed all of the
claims, but a three-judge panel of the 7th U.S. Circuit Court of Appeals later
reinstated the defamation claim and sent the case back to the district
While public figures in such cases must prove defamation under the
standard of actual malice a legal term that means reckless disregard
for the truth, private figures must only show negligence or fault.
Because both parties agreed that Desnick was a public figure, this
legal dispute centered on the actual malice standard.
In 1999, the district court again dismissed the defamation claim,
finding that the clinic had failed to present enough evidence that ABC had
acted with actual malice. On Oct. 27, the three-judge panel of the 7th Circuit
agreed in Desnick v. American Broadcasting
The appeals court panel noted that ABC had relied on the comments of
Paddy Kalish, a former optometrist who had worked at the Desnick Eye Center for
two years. Kalish claimed that technicians at the clinic had tampered with the
auto-refractor to produce false diagnoses of cataracts.
The appeals court noted that ABC corroborated Kalish's accusations
with further investigation showing that some patients had unneeded surgery.
The clinic argued that ABC was "reckless" in its investigation because
ABC did not follow up on information that the clinic had sued and prevailed
against Kalish in state court for defamation on the tampering charge.
The 7th Circuit panel called this "potentially the best fact for the
plaintiff" and noted that "the fact that Kalish had lost a defamation suit
based on the identical accusation should have set off warning bells at
However, the 7th Circuit said there was a "fatal flaw" in the eye
clinic's argument: the plaintiff's failure to indicate what would have been
revealed if ABC had investigated the state-court suit against Kalish.
The panel pointed out that a state court had awarded summary judgment
to Desnick after Kalish's lawyer failed to file a timely response to a request
The judges noted that the state-court record failed to show whether
the Desnick's victory was due to the fact that Kalish had indeed made false
statements about the clinic, or rather that "the clinic sued him not in the
hope of obtaining a collectible judgment but in the hope of silencing him and
destroying his credibility."
The appeals panel concluded that because the eye clinic failed to show
how an examination of the state-court lawsuit would have shown that Kalish's
statements were false, the clinic failed to meet its legal burden.
Michael M. Conway, attorney for ABC News, called the opinion "legally
significant" because it "adds a second level or requirement for defamation
plaintiffs in proving reckless disregard."
Sandra Baron, executive director of the Libel Defense Resource Center,
praised the 7th Circuit's opinion written by Judge Richard Posner. "Posner
showed a genuinely good feel for the actual malice standard," she said. "He
showed a tremendous sensitivity to the First Amendment values associated with
this kind of reporting."
A call to the attorney who argued the case on behalf of the eye clinic
was not returned.
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