Some do it for strategic reasons. Others may just like the publicity. But it’s certainly not unusual today for lawyers involved in lawsuits to argue the merits of their cases on TV or radio, or to a newspaper reporter. What are the limits of these attempts to prevail in the court of public opinion?
A case just decided by the California Court of Appeal in Los Angeles gives attorneys – and their clients – clear guidance.
The salacious details of the case make the opinion more entertaining than the average appellate ruling.
Michael Drobot owned Healthsmart Pacific, which until 2013 operated a Long Beach hospital that specialized in spinal surgeries. It did a thriving business because, according to Drobot’s guilty plea to federal charges of racketeering and money laundering, he gave kickbacks to dozens of doctors to refer their patients to his hospital for spinal surgeries.
The hospital admitted to using surgical screws made by a local machine shop, for which it billed insurance companies $12,000 each.
Drobot admitted to making payoffs of between $20 million and $50 million over 15 years, as well as providing the services of prostitutes and “adult entertainers.”
He also testified to paying California State Senator Ronald S. Calderon to support legislation that helped his hospital collect high fees from insurance companies. (Calderon pled guilty to federal corruption charges and was sentenced to 42 months in prison.)
All of this understandably shocked patients who had undergone spinal surgery at the hospital. One of them, Mary Cavalieri, who had two spinal surgeries in 2010, sued Drobot and Healthsmart in 2014 for fraud, battery, negligence and numerous other causes of action.
Soon after her lawsuit was filed, one of her attorneys was interviewed on Fox 11 television about the allegations in her complaint, while her second attorney discussed them with a CBS radio reporter.
Drobot and Healthsmart Pacific then sued the two attorneys, saying their statements in the two broadcasts were false and defamatory, harmed their relationships with health insurers, and “created incredible hysteria” for former patients.
The attorneys responded by asking the court to dismiss the complaint against them under California’s “anti-SLAPP” statute. SLAPP stands for “Strategic Lawsuit Against Public Policy,” meaning a suit whose true goal is to discourage someone from exercising their rights of free speech under the U.S. or California constitutions.
Citing the anti-SLAPP statute, the two attorneys asked the trial court to throw out the complaint. It did so, and awarded them over $64,000 in legal fees.
Drobot and the company appealed, and again were unsuccessful. In denying their appeal, the higher court provided a tutorial about what attorneys can and cannot do when they plead their cases in the court of public opinion.
It noted that a statement made “in connection with a public issue or an issue of public interest” is protected under the anti-SLAPP law.
Drobot’s complaint argued that the allegations in the Cavalieri lawsuit were not “an issue of public interest.”
The appellate court acknowledged that the phrases “public interest” and “public issue” are amorphous. But it said that allegations of using counterfeit hardware in the surgeries of several thousand people, providing kickbacks and prostitutes to doctors, bribing a legislator and defrauding health insurance companies certainly qualify as issues that are of interest to the public.
To avoid having their case thrown out under anti-SLAPP rules, plaintiffs also have to satisfy the court that there is some “probability” they will prevail in their lawsuit – that their claims have at least “minimal merit.”
Here Drobot’s side failed again, the court said.
As a matter of law, the ruling pointed out, fair and accurate comments about a legal proceeding, including a complaint filed in court, are “privileged” or protected.
Drobot’s complaint did not say Cavalieri’s allegations of fraud and other misconduct were baseless; that would be up to a trial court to decide. Instead, it said her attorneys did not accurately state the allegations in her complaint, and thus their statements were not covered by the “fair report privilege.”
The appellate court reviewed the radio and TV interviews word by word. It found that the two attorneys did not say the allegations in her complaint were factual. They instead accurately stated her allegations, and thus were making a “fair and true communication” about the case.
That meant their comments were privileged and protected by law, so there was no probability that the Drobot lawsuit would prevail. Thus, the court ruled, it was a SLAPP, and the court dismissed it.
What this means for attorneys and their clients is that, when a lawsuit is of public interest, a lawyer can make a fair and accurate report on the allegations in the case without fear of retribution – as both common sense and the law dictates. If that exercise of free speech is challenged, as it was here, the challenger will not only lose, but will have to pay attorneys’ fees for the winning side.
By M. Laurie Murphy