Tag Archives: damages

Media Defamation by Misrepresentation and a Potential First Amendment Defense

“You’ve got the wrong person!”

A case of misrepresentation by the media occurs when an individual who has done nothing wrong, has no connection with any illegal or immoral activities, is identified by the media in an negative and untrue manner.  This harms the individual’s reputation.  Depending on how many media outlets misrepresent the individual and their reach, the individual may not be able to escape the defamed tarnished reputation by moving.

One man in Phoenix Arizona had the media misidentify him in perhaps one of the biggest national news stories of 2014 — the Fort Hood shooting. My Fox Phoenix explains the story:

“Media outlets across the globe are confusing a valley veteran named Ivan Lopez, for the Fort Hood shooter who shares the same name.

“Authorities identified the Fort Hood shooter, who left three dead before turning the gun on himself, as 34-year-old Ivan Lopez. The other Ivan Lopez, 32 and from Phoenix, shares many similarities to the suspected shooter. He also is an Army veteran who had been stationed at Fort Hood three years ago, and served in Iraq… What seemed like a harmless coincidence at first, now has the veteran fighting to save his reputation. Lopez says his phone has been ringing non-stop since authorities released the suspect’s name.”

First Amendment a Defense by the Media for Negligently Misrepresenting an Identity

This raises a pretty interesting issue: is the media protected by the First Amendment when negligently misrepresenting an individual’s identity that results in libel?

The First Amendment protects the freedom of the press. “Congress shall make no law… abridging the freedom of speech, or of the press.” U.S. Const. amend. I.

The First Amendment is not absolute and the media cannot say whatever it wants without repercussions. See New York Times Co. v. Sullivan, 376 U.S. 254, 292 (1964). A vast majority of the defamation case law centers on either a group of people or a specific person allegedly committing various acts.  In these cases, it is to be determined how much truth there is to the claims, which will make a claim of defamation.  When there is a case of misrepresented identity, defamation hinges on whether the person was truly misrepresented or not.  This case it is clear, Mr. Lopez of Arizona was tragically misrepresented by various media outlets world-wide to be associated with the Fort Hood shooting.

To be defamatory, a publication must be false and must bring the defamed person into disrepute, contempt, or ridicule, or must impeach plaintiff’s honesty, integrity, virtue, or reputation.

Godbehere v. Phoenix Newspapers, Inc., 783 P.2d 781, 787 (Ariz. 1989).

The media can be liable if they acted negligently to ascertain the facts about a private individual.  Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (holding that a newspaper or broadcaster publishing defamatory falsehoods about an individual who is neither a public official nor a public figure may not claim a constitutional privilege against liability, for injury inflicted, on the ground of a privilege protecting discussion of any public issue without regard to the status of a person defamed).  When the individual is a private citizen and not a public figure the necessary degree of fault which must be shown in a defamation action is negligence. Seegmiller v. KSL, Inc., 626 P.2d 968 (Utah 1981); see Gertz v. Robert Welch, Inc., 418 U.S. 323, 353 (1974) (Blackmun, J., concurring) (noting “[A] State is free to define for itself the appropriate standard of media liability so long as it does not impose liability without fault”).

This case does not deal with a public figure or a limited public figure (judicially created distinctions in First Amendment analysis).  Mr. Ivan Lopez, 32 of Arizona, was not running for or elected to a public position.  Furthermore, the only reason why Mr. Lopez is in the news is because he shared a name and had similar characteristics to another individual who was in the news.  Mr. Lopez who was a private citizen who was injected into the Fort Hood shooting coverage because of false media reports. It appears the only reason why Mr. Lopez of Arizona spoke to the media was to clear his good name and clear up the misrepresented identity.  For all intents and purposes Mr. Lopez was a private citizen who did not want or seek any attention.

By misrepresenting Mr. Lopez of Arizona as the shooter at Fort Hood, the media outlets who made the wrong report not only had members of society, but he even worried about his family’s thoughts.  “I had people Tweeting my picture, saying I was a ‘piece of crap,’ I was a ‘monster.’ … They don’t even know who I am”…. “Lopez was able to warn his wife, Ysabel, moments before she got a call from someone asking, ‘Do you know your husband just shot himself?'” AZ Family reported.   The damage to Mr. Lopez’s reputation was not limited to Arizona, or the United States; he was brought into disrepute world-wide via misrepresentation.

This is not the first time the media’s lack of due diligence and fact-checking has led to the wrong person to be associated with tragedies.  Misinformation by law enforcement in the Newtown school shooting led to many major media outlets identify Ryan Lanza as the shooter.  The real shooter turned out to be his brother Adam Lanza, who murdered many people including his mother.   In the Aurora theater shooting ABC News incorrectly suggested a link between the shooter James Holmes and the Tea Party and many private citizens identified the wrong James Holmes on social media.

In these cases it is unclear if any litigation resulted because of the misidentifications.

It is likely that a court would find that the misrepresentation defamatory.

Possible Damages

It is unclear how this negative publicity currently affects the Mr. Lopez in Arizona, or if there will be any long-term ramifications.  If Mr. Lopez could show how the media coverage financially impacted his life, he may have a claim for compensatory damages.  Under Arizona law Mr. Lopez could only sue once for each instance of the defamatory publication. Ariz. Rev. Stat. § 12-651.  The suit however, would cover damages from all jurisdictions.

However, the Supreme Court indicated it is hesitant to award punitive damages in the cases of mere negligence by the media.

Consequently, juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the actual harm caused. And they remain free to use their discretion selectively to punish expressions of unpopular views. Like the doctrine of presumed damages, jury discretion to award punitive damages unnecessarily exacerbates the danger of media self-censorship, but, unlike the former rule, punitive damages are wholly irrelevant to the state interest that justifies a negligence standard for private defamation actions.

Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974).

Punitive damages are mean to to punish.  The Court is uneasy about punishing the media for mere negligent acts against private citizens.  With the media who failed to fact-check and perform its due diligence this is only a case of negligence.  With both names being similar, the men are about the same age, both served in the military at Fort Hood (although at different times), carelessness led to the wrongful reporting.  It certainly was not an intentional act aimed to harm Mr. Lopez of Arizona, like as in the standard of malice.  Thus, punitive damages most likely would not be an option.


It is an interesting case to consider.  Even though the First Amendment was designed to protect the press, the press does not do its job when it negligently misrepresents individuals.  This is a type of false speech with an injurious effect that is not protected under the First Amendment. United States v. Strandlof, 667 F.3d 1146, 1157 abrogated by United States v. Alvarez, 132 S. Ct. 2537 (U.S. 2012) and vacated, 684 F.3d 962 (10th Cir. 2012) (Holmes, J., dissenting) (theorizing it takes more than false speech to violate the First Amendment, arguing it takes injurious speech); see United States v. Alvarez, 132 S. Ct. 2537, 2545 (U.S. 2012) (recognizing “Even when considering some instances of defamation and fraud, moreover, the Court has been careful to instruct that falsity alone may not suffice to bring the speech outside the First Amendment. The statement must be a knowing or reckless falsehood.”)

Hopefully these sorts of cases will be avoided in the future by the media conducting some very simple fact-checking before publication.


Denial of New Trial Medical Malpractice

No one is perfect.  Even doctors, despite their best intentions can make mistakes.  The law is only involved when a doctor did not follow the common practice in the medical community, also known as a standard of care.

A recent Arizona Court of Appeals decision looks in-depth into what the standards are for a medical expert in the state of Arizona and how to evaluate expected future costs into a damages claim. Sandretto v. Payson Healthcare Management Inc., No. 2 CA-CV 2013-0044 (Ariz. Ct. App. 2014).

The facts are Lori Sandretto slipped on a wet floor and tore a miniscus in her knee.  The first doctor she saw, who is not a party to this lawsuit, performed a surgery on her knee.  This did not fix the problem and Sandretto continued to suffer from knee pain.  She sought medical advice from a second doctor about her knee pain, Dr. Charles Calkins, an orthopedic surgeon employed by Payson Healthcare Management (PHM).  Calkins determined that the meniscus was still torn and performed a second surgery.  During the second surgery Calkins took sample fluids from Sandretto’s knee and determined there was not an infection.

Within a week Sandretto’s knee was swollen and painful.

Over the course of the next month Sandretto saw Calkins twice, his Physician Assistant once (PA), and spoke to the PA over the phone once.  Calkins who believed it was a skin infection tried different treatments.  None of treatments seemingly worked.

Calkins went in and saw the PA for a second time.  This time the PA tested the fluid in Sandretto’s knee for a Methicillin-resistant Staphylococcus Auerus (MRSA) infection.  The results came back positive.

Calkins then performed an additional surgery to wash-out the MRSA infection (her third surgery).  This occurred approximately seven weeks after Sandretto initially saw Calkins for knee pain.  Sandretto’s knee required two more wash-out surgeries, which Calkins performed.  Calkins eventually decided Sandretto needed a knee replacement (bringing Calkin’s total surgeries on the knee up to five).

Sandretto’s knee pain continued.  She sought advice from a third doctor who diagnosed her with Chronic Regional Pain Syndrome (CRPS), pain caused by a nerve injury.

Sandretto  sued Calkins and his employer PMH for not acting quick enough to diagnose the MRSA infection, which likely worsened her condition and caused permanent damage.

PMH moved for a new trial partly upon expert testimony and the calculation of damages.

Admissibility of Expert Testimony

PMH questioned the diagnosis of CRPS and questioned the trial expert’s methodology.

To make its determination the Arizona Court of Appeals relied mainly upon Arizona Rules of Evidence 702, and the court case Daubert v. Merrell Dow Pharmaceuticals Inc.  Rule 702 specifically provides guidance on expert testimony.  In 2012, Arizona amended Ariz. R. Evid. 702 to bring it inline with the corresponding federal rule.  The rule gives courts some guidance on how to determine if an expert is qualified in a certain area or not:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

— Ariz. R. Evid. 702

The Daubert Standard

The case Daubert v. Merrell Dow Pharmaceuticals Inc, 509 U.S. 579 (1993) set the modern standard for expert testimony.  Two families sued Merell Dow Pharmaceuticals (Merrell) claiming the drug Bendectin cause birth defects in their children.  Merrell provided the expert Dr. Steven H. Lamm who testified he reviewed all of the available literature on Bendectin and human birth defects, which included more than thirty published reports focusing on humans.  Not a single study linked birth defects to Bendectin.

The families produced eight experts of their own (the United States Supreme court gushed over the credentials of the experts in a footnote to the opinion).  These experts concluded that Bendectin did in fact cause birth defects, basing their opinions off of Bendectin studies in animal and pharmacological analysis of the chemical structure.

The district court did not accept the families experts because their evidence did not have general acceptance “in the field which it belonged.”  Since the families’ experts based their opinions off of animal tests and not human tests, then the court concluded it did not have general acceptance in the field.

The Court held there is no such litmus test whether scientific evidence will assist the trier of fact (either a judge or a jury).  The Court does give some general principles in addition to Fed. R. Evid. 702.  A judge should consider: if it can be tested, if it is subject to peer review, what the rate of error is (if it is a study), and if there is a “general acceptance” within the scientific community. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593-94 (1993).

Back to the Sandretto case.

Although grounded in science, medicine is a profession that requires physicians to rely on their previous experiences and sound judgements.

Sandretto’s expert said that MRSA was the “unifying factor” because the surgeries that followed the infection diagnosis would not have been required if not for the MRSA infection.  PMH said there was no way to create that causal chain and wanted to throw out Sandretto’s expert.  The Court did not agree PMH.  PMH did not provide the court any scientific literature in its Rule 702 objection that would undermine the causation argument.  In lieu of scientific literature, PMH used two documents from the internet that contained disclaimers that they were not to be used for medical treatment.  Moreover, the sheets were unsigned and not attributable to any person.  Reliance on general, unsigned medical advice found on the internet is typically not permitted under Rule 702.

Sufficiency of the Evidence / Damages

PMH argued the 7+ million dollar verdict shocked the conscious and was not supported by the evidence.

What PMH is asking is for the judge to overrule the jury’s verdict through the legal maneuver called a remiittitur.  A remittitur is based in fairness or equity, and is typically used as a check by judges on civil judgements of juries.  Alires v. Southern Pac. Co., 409 P.2d 714, 720 (Ariz. 1966).

The amount of a damages award is ‘a question of peculiarly within the province of the jury, and such award will not be overturned or tampered with unless the verdict was the result of passion or prejudice.’

Sandretto v. Payson Healthcare Management Inc., No. 2 CA-CV 2013-0044 (Ariz. Ct. App. 2014) (quoting In re Estate of Hanscome, 254 P.3d 397, 401 (Ariz Ct. App. 2011)).

As I was saying earlier, it is the juries’ job in order to determine damages.  However, a court can intervene if there is some kind of fundamental unfairness with the amount of the award.  A judge can either make this determination on her own, or the verdict can be appealed as in the present case with Sandretto.

PMH argues that since Sandretto’s causation expert should not have been allowed it resulted in skewed judgements.  Because of the improper testimony the jury was improperly influenced the jury, it likely would have been less or nothing at all if the correct decision about the expert was made in the first place.

In the court’s analysis it looked at how many direct past, present and future costs Sandretto would have to endure because of the flawed medical treatment.  Sandretto said the knee injury would cost her about $3.5 million during the course of her lifetime.

In addition to direct costs that Sandretto incurs, she is also entitled for intangibles like pain and suffering.  The Court determined that Sandretto’s pain was real and compensation for pain and suffering is a very individual determination.  Reasonable people may differ on how much one should receive for pain and suffering, so the Court said it would not interfere with the jury’s assessment.