Jury Awards $10 Million in Libel Suit against St. Petersburg Times

Massachusetts Jury Rejects Truthful Libel Claim

A Florida jury awarded the former chief of medicine at a Veterans Administration medical center more than $10 million in a libel suit against the St. Petersburg Times in an Aug. 28, 2009 verdict, despite the paper's insistence that its stories were true.

Dr. Harold L. Kennedy, the former chief of medicine at the Bay Pines VA Medical Center in Bay Pines, Fla., filed the suit in Pinellas-Pasco Circuit Court in 2005 in response to three Times stories from December 2003, reporting on Kennedy's reassignment from chief of medicine to cardiology, his subspecialty.

Kennedy's attorneys alleged that the stories damaged the doctor's reputation by implying that Kennedy engaged in corruption, theft, and malfeasance, according to an August 29 report in the Times announcing the verdict.

The Times argued truth as a defense. "What the Times published was true," said Times attorney Alison Steele, according to the August 29 story.

The stories that were the subject of Kennedy's suit ran under the byline of Times staff writer Paul de la Garza, who died of a heart attack in 2006 at age 44. The newspaper wanted to use de la Garza's notes as evidence in its defense, but a judge excluded them from the trial, the Times reported.

On August 28, following a five-day trial, the jury of four women and two men found in favor of Kennedy in Kennedy v. Times Publishing Co., No. 05-008034-CI (Fla. Cir. Ct. 2009) and awarded Kennedy $5.1 million in compensatory damages and $5 million in punitive damages.

The Times said it will appeal the jury's decision. "We are very disappointed by the verdict," Times Executive Editor and Vice President Neil Brown said in the newspaper report. "We believe our reporting and editing of these stories met the highest journalistic and ethical standards."

Some media law experts expressed doubt that the jury award will survive post-trial scrutiny. A Sept. 4, 2009, report in Missouri Lawyers Weekly referenced a Media Law Resource Center study that found appellate courts have reduced or overturned 48 percent of plaintiff libel verdicts against media entities since 1980.

"The standard to get punitives is so high that it will be very difficult for the plaintiffs to hold that part of the verdict," said Jean Maneke, a Kansas City media law attorney, according to Missouri Lawyers Weekly. "Freedom of speech in this country would rather we err on the side of more speech than speech that's so limited by a fear of damages that we limit the right to speak."

The first of de la Garza's articles detailing Kennedy's reassignment was published on Dec. 4, 2003. Two follow-up articles were published on December 9 and 10.

Under the headline, "Bay Pines Ousts Chief of Medicine," the December 4 report stated that Kennedy was under federal investigation on allegations of sexual harassment and misusing money, including that he accepted money from pharmaceutical companies to pay for private parties. According to the article, Kennedy also faced several Equal Employment Opportunity complaints, including one that alleged Kennedy routinely told staff members they were too old and should consider quitting.

The article quoted an official with the Office of Inspector General in Washington D.C., who confirmed the office was involved in an ongoing investigation of Kennedy. Smith Jenkins, the Bay Pines VA hospital director, said that none of the EEO complaints had been substantiated, according to the Times report.

Kennedy was interviewed in the December 4 story, and stated that the allegations against him were unfounded and that he had made enemies at Bay Pines by trying to establish an academic program and doing what he had been hired to do. "They don't want people to elevate the quality of care," Kennedy was quoted as saying. At the time, he was also a professor at the University of South Florida.

Kennedy said in the December 4 story that a sexual harassment complaint had been filed against him for giving a colleague an apron as a gift. He said another complaint was filed against him for asking somebody to turn on the coffee.

The Times report also revealed that Kennedy was fired in 1990 from his job as chief of cardiology at St. Louis University Medical Center. The report quoted a letter Kennedy wrote to the St. Louis Post-Dispatch in December 1990 in which he claimed that he had been "involuntarily terminated as chief of cardiology because of charges of 'disharmony' by a new chairman of the department of internal medicine."

The December 9 story focused on concerns regarding the hospital's chief of staff. The article briefly referenced the allegations against Kennedy and the chief of surgery, who was also ousted. The allegations against Kennedy were summarized again in a December 10 story.

Before the Times stories were published, Kennedy had a job offer from the medical school at the University of Michigan, which was revoked after the school learned of the allegations, said Ira Berkowitz, a St. Louis-based attorney who helped represent Kennedy, according to Missouri Lawyers Weekly.

At closing arguments, Timothy Weber, one of Kennedy's attorneys, told the jury that the only way to restore the doctor's reputation was to rule against the publishing company and award punitive damages. "He was not given a fair shake by the defendant," Weber said, according to the August 29 Times report. "The defendant cared little for his reputation when it published the article."

At the time of the verdict, Weber told the Times that Kennedy was living in St. Louis as a consultant for the Cardiovascular Research Foundation in Europe. "He's extremely pleased to regain his good name," Weber said.
Update: Jury Finds for Defendant in Defamation Suit over Truthful E-mail

On Oct. 8, 2009, a Massachusetts jury found that a truthful mass e-mail an executive of the office supply company Staples sent to more than 1,500 of its employees was not libelous because it was not sent with actual malice.

The verdict represented the latest development in a case in which a previous 1st Circuit U.S. Court of Appeals ruling departed from the common principle that truth serves as an absolute defense to libel claims. On Feb. 13, 2009, the 1st Circuit in Boston focused on a 1902 Massachusetts state law that recognizes a narrow exception to truth as a defense against libel if the defendant acted with "actual malice" in publishing the libelous statement. Noonan v. Staples, Inc., 556 F.3d 20 (1st Cir. 2009).

The plaintiff in the case, Alan Noonan, a former Staples manager, was fired for violating the company's travel and expense policy. The day after Noonan was fired, Staples' Executive Vice-President Jay Baitler sent an e-mail to 1,500 employees telling them why Noonan was fired. Noonan sued the company for libel, but did not dispute the truth of the statements in the e-mail, instead alleging that the message was sent maliciously and therefore was libelous under Massachusetts law.

On March 18, 2009, the 1st Circuit permitted Noonan to continue with his suit when it denied a request by Staples to have the case heard before all of the judges in the 1st Circuit. Noonan v. Staples, Inc., 561 F.3d 4 (1st Cir. 2009). (See "1st Circuit Denies Rehearing in Libel Case Disallowing Truth as An Absolute Defense," in the Spring 2009 issue of the Silha Bulletin.)

Mass. Gen. Laws ch. 231 section 92 states that the defendant in an action for libel may introduce into evidence "the truth of the matter contained in the publication charged as libelous; and the truth shall be a justification unless actual malice is proved." (See "1st Circuit Rules Truth Not Always a Defense to Libel," in the Winter 2009 issue of the Silha Bulletin.)

The 1st Circuit ruling ran counter to the modern libel standard that the U.S. Supreme Court established in New York Times Co. v. Sullivan, 376 U.S. 254 (U.S. 1964), where the Court defined "actual malice" as a false statement made "with knowledge that it was false or with reckless disregard of whether it was false or not."

Richard Gelb, the attorney who represented Noonan, said he planned to appeal the jury verdict on the grounds that the judge's interpretation of actual malice was too narrow, according to an October 12 report in The National Law Journal. Gelb said that Staples had an ulterior motive to use Noonan as a "scapegoat" in sending the e-mail because many employees were not following the company's credit card and travel policies.

Robert Ambrogi, the executive director of the Massachusetts Newspaper Publishers Association and publisher of the Media Law Blog, described the jury verdict as good news for employers because it shows that they can continue to reveal truthful information about disciplinary issues to employees "and not necessarily end up in hot water," according to The National Law Journal.

- Cary Snyder
Silha Research Assistant



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