IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT

IN AND FOR PALM BEACH COUNTY, FLORIDA

MICHAEL D. BLACK, MD, MBA, Case No. 2016CA001517XXXXMB

Plaintiff, Civil Division: AA

v.

CABLE NEWS NETWORK, INC.,

ELIZABETH COHEN,
JOHN BONIFIELD,
DANA FORD, and
ANDERSON COOPER,
Defendants.
_________________________________/

ORDER DENYING THE CNN DEFENDANTS

MOTION TO DISMISS PLAINTIFF MICHAEL D. BLACKS COMPLAINT

THIS MATTER came before the Court on Defendants, Cable News Network, Inc.,

Elizabeth Cohen, John Bonifield, Dana Ford, and Anderson Coopers (collectively CNN

Defendants), Motion to Dismiss (Motion) filed on August 4, 2016. On December 7, 2016,

Plaintiff, Michael D. Black, MD, MBA (Dr. Black), filed a Response in Opposition to

Defendants Motion (Response). The CNN Defendants filed a Reply on December 9, 2016.

On December 16, 2016, the Court held a hearing on Defendants Motion. Prior to this Courts

ruling on the Motion, on February 15, 2017, Dr. Black provided the Court and the CNN

Defendants with a Notice of Supplemental Authority.1 The Court has carefully considered the

1
The Notice of Supplemental Authority is a decision rendered by the Northern District of Georgia in the
case of Davide M. Carbone v. Cable News Network, Inc., No. 16-cv-1720 (N.D. Ga.) (the Carbone
case). In the Carbone case, Davide Carbone, a former CEO of St. Marys Medical Center, is suing CNN
for defamation based on some of the same statements that form the basis for the defamation claims
against CNN in the instant case. In the Carbone case, the Northern District of Georgia denied the CNN
Defendants Motion to Strike, or in the Alternative, to Dismiss, reasoning that Davide Carbones
Complaint adequately stated a claim for defamation. Although the Carbone case is not binding on this
Court, the Court finds it to be highly relevant and persuasive.
Motion, Plaintiffs Response, the arguments introduced at hearing, the Notice of Supplemental

Authority, and all relevant portions of the case file.

FACTUAL BACKGROUND

This case arises out of a defamation action filed against the CNN Defendants for a series

of articles and news reports detailing the infant mortality rate of the pediatric cardiac surgery

program at the St. Marys Medical Center at the Palm Beach Childrens Hospital (St. Marys).

Beginning in June 2015, the CNN Defendants published an article titled Secret Deaths: CNN

Finds High Surgical Death Rate for Children at a Florida Hospital and a video report titled The

Hospital with a Serious Heart Problem. (Compl. 1.) The article and video report, which were

published by the CNN Defendants on CNNs website and broadcast live on CNNs cable

television station, juxtaposed a photograph of Dr. Black with the headline [b]abies as sacrificial

lambs, and claimed that Dr. Black made [a] total mess with newborn babies. (Compl. 3.)

The video report also juxtaposed a photograph of Dr. Black with an interview of some of the

parents of the deceased infants, simultaneously posing the question of why St. Marys and Dr.

Black were continuing to perform heart surgery on children. (Compl. 3.) In response to this

rhetorical question, the video report stated that the answer may come down to one thing:

money. (Compl. 3.) The article and video report also claimed that [b]y the end of 2013, the

mortality rate for babies having heart surgery there [at St. Marys] was three times the national

average, and that the death rate for open heart surgeries [was] 12.5%, more than three times

the national average of 3.3% cited by the Society of Thoracic Surgeons.2 (Compl. 4.)

2
These statements also form the basis of the defamation action against CNN in the Carbone case.

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 On February 16, 2016, Dr. Black, the former Director of the program at St. Marys, filed

a twenty-two (22) count Complaint against the CNN Defendants. Specifically, Dr. Blacks

Complaint alleges that the CNN Defendants articles and reports, which claim that the 12.5

percent mortality rate for children undergoing open-heart surgery during the years 2011-2013

was more than three times the national average, are defamatory and based on false and

misleading statistics. In addition to alleging statistical manipulation, the Complaint also asserts

claims for defamation based on alleged statements by the CNN Defendants that Dr. Black treated

babies as sacrificial lambs and made a total mess with newborn babies. Dr. Black also

alleges that he suffered severe reputational and significant economic harms as a result of St.

Marys closure of the program following the CNN Defendants news reports. On August 4,

2016, the CNN Defendants filed the present Motion.

In support of dismissal, the CNN Defendants raise six arguments in their Motion: (1) that

Dr. Black is a public figure, and, as such, must allege that the CNN Defendants published the

statements with actual malice; (2) that many of the alleged false and defamatory statements are

not of and concerning Dr. Black, but rather, are of and concerning St. Marys Medical

Center and/or its program; (3) that Dr. Black has failed to allege falsity; (4) that certain

statements are rhetorical hyperbole protected under the First Amendment and Florida law; (5)

that many of the CNN Defendants statements are protected by the fair report privilege; and (6)

that Dr. Blacks defamation-by-implication claims fail. Each of these claims is addressed

individually below. For the reasons set forth below, the Motion is denied.

LEGAL ANALYSIS AND RULING

The question to be answered on a motion to dismiss is whether, assuming all the

allegations in the complaint to be true, the plaintiff would be entitled to the relief requested.

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Cintron v. Osmose Wood Preserving, Inc., 681 So. 2d 859, 860-61 (Fla. 5th DCA 1996). In

conducting this analysis, all reasonable inferences must be drawn in favor of the plaintiff.

Republic Servs. of Fla. v. Workers Temp. Staffing, Inc., 123 So. 3d 650, 653 (Fla. 4th DCA

2013). [I]f a complaint, taken as a whole, states a cause of action, it should not be dismissed,

but . . . extraneous portions of the complaint should be treated as surplusage. Harrell v. Hess

Oil & Chem. Corp., 287 So. 2d 291, 294 (Fla. 1973).

Defamation (libel and slander) may generally be defined as the unprivileged publication

of false statements which naturally and proximately result in injury to another. Wolfson v. Kirk,

273 So. 2d 774, 776 (Fla. 4th DCA 1973). An adequately pleaded defamation action requires

five elements: (1) publication; (2) falsity; (3) the actor must act with knowledge or reckless

disregard as to the falsity on the matter concerning a public official, or at least negligently on a

matter concerning a private person; (4) actual damages; and (5) the statement must be

defamatory. See Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008). To determine

whether an actual malice standard of proof applies, the status of the plaintiff as a public official,

general public figure, limited public figure, or private figure must be established. Della-

Donna v. Gore Newspapers Co., 489 So. 2d 72, 73 (Fla. 4th DCA 1986).

1. Public Official or Limited-Purpose Public Figure

The CNN Defendants first argument seeks dismissal of the Complaint because Dr. Black

is a limited-purpose public figure, who is required to plead actual malice, but failed to do so. In

his Response, Dr. Black argues that the CNN Defendants cannot satisfy their burden of proving

that Dr. Black was a public figure at the time they made their defamatory statements.

Limited-purpose public figures are those persons who have thrust themselves to the

forefront of particular public controversies in order to influence the resolution of the issues

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involved. Mile Marker, Inc. v. Petersen Publg, L.L.C., 811 So. 2d 841, 845 (Fla. 4th DCA

2002) (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974)). Whether a plaintiff is a

public figure is a question of law to be determined by the court. Id. On a motion to dismiss, the

trial court [is] required to accept the plaintiffs allegations that he [is] not a public figure.

Dockery v. Fla. Democratic Party, 719 So. 2d 9, 11 (Fla. 2d DCA 1998).

At this stage of the proceedings, the Court is required to accept Dr. Blacks allegation

that he is not a public figure. See Dockery v. Fla. Democratic Party, 719 So. 2d 9, 11 (Fla. 2d

DCA 1998) (reversing the trial courts order dismissing the plaintiffs complaint for defamation

where there was no admission that the plaintiff was a public figure, reasoning that [o]n a motion

to dismiss, the trial court was required to accept the plaintiffs allegations that he was not a

public figure). Although the CNN Defendants rely on Mile Marker for the proposition that the

status of a plaintiff as a public figure is a question of law for the court, the CNN Defendants

reliance is misplaced because Mile Marker was decided during the summary judgment phase,

where the court was allowed to consider evidence outside the four corners of the Complaint. 811

So. 2d at 845.

Similarly, the Carbone court held that although Davide Carbone initially appeared to

plead that he is a private figure, he also appeared to plead that he should be considered a

limited purpose public figure because [h]e was the Chief Executive Officer of St. Marys and

responsible for its administration, [and] was well-known to the public in the West Palm

Beach area and in the medical community in the State of Florida and beyond. (Carbone slip op.

at 17.) Likewise, Dr. Blacks Complaint appears to plead that Dr. Black should be considered a

limited-purpose public figure because Dr. Black was the Medical Director of the pediatric

cardiac surgery program at St. Marys and was similarly well-known to the public in the West

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Palm Beach area and in the medical community in the State of Florida and beyond. (Compl.

43-59.)

Nevertheless, the Carbone court held that [t]he [c]ourt need not decide at this stage

whether [p]laintiff is a private or limited purpose public figure, however, because he has

sufficiently pled actual malice. (Carbone slip op. at 17.) In light of the courts holdings in

Dockery and Carbone, this Court agrees that it is not required to determine whether Dr. Black is

a private or limited-purpose public figure at the motion to dismiss stage of proceedings.

Furthermore, for the reasons stated below, this Court agrees with the holding of the Carbone

court that a determination of the plaintiffs status is unnecessary because the plaintiff has

sufficiently pled actual malice.

2. Actual Malice

A public official or limited-purpose public figure must prove by clear and convincing

evidence that the defendants acted with actual malice. New York Times Co. v. Sullivan, 376 U.S.

254, 279-80 (1964). Actual malice is defined as publication with knowledge that [the allegedly

defamatory statement] was false or with reckless disregard of whether it was false or not.

Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510 (1991) (quoting New York Times Co.

v. Sullivan, 376 U.S. 254, 279-80 (1964)). In the Carbone case, the court held that the plaintiff

sufficiently pled actual malice, reasoning that [p]laintiffs Complaint is replete with statements

that St. Marys and others were bringing to CNNs attention the fact that the very society from

which it was supposedly getting its data, the STS, was at the same time bestowing upon St.

Marys a two-star ranking given only to those programs with a mortality rate within the expected

range relative to the national average. (Carbone slip op. at 18.) In finding that the plaintiff

sufficiently pled that the CNN defendants acted with actual malice in publishing its statistics, the

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Carbone court stated that the discrepancy between the significance of the two-star ranking and

the statistics being provided to CNN by the STS should have raised doubts for CNN.

(Carbone slip op. at 18.)

Similarly, with respect to Dr. Black, this Court holds that the Complaint sufficiently

pleads actual malice to withstand dismissal. As pleaded in the Complaint, the CNN defendants

published their statements knowing that they were false or with reckless disregard for their truth

or falsity. For example, Dr. Blacks Complaint alleges that the CNN defendants were aware of

objective, independent assessments of Dr. Blacks pediatric cardiac surgical performance at St.

Marys that directly contradicted their claims. Specifically, Dr. Blacks Complaint, like

Carbones Complaint, alleges that CNN was aware that the STS gave the program a two-star

ranking, which is given to those programs that have a mortality rate that is statistically no

different than the natural average. (Compl. 225.) Therefore, Dr. Black has sufficiently pleaded

in his Complaint that the CNN defendants acted with actual malice.

3. Of and Concerning

Although the CNN Defendants seek dismissal of Dr. Blacks Complaint on the ground

that the articles and reports are not of and concerning Dr. Black, if the allegations in the

Complaint are taken as true, Dr. Black is adequately identified as the subject of the defamatory

comments. In their Motion, the CNN Defendants argue that the following statements referenced

in the Complaint are about St. Marys and do not reference Dr. Black at all: (1) [b]y the end of

2013, the mortality rate for babies having heart surgery there [at St. Marys] was three times the

national average; (2) [f]rom those numbers, CNN was able to calculate the death rate for open

heart surgeries at 12.5%, more than three times the national average of 3.3% cited by the Society

[of] Thoracic Surgeons; (3) Dr. Black treated [b]abies as sacrificial lambs; (4) Dr. Black

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made [a] total mess with newborn babies; (5) [t]hese parents want to know why St. Marys is

still doing heart surgeries on babies. The answer may come down to one thing: money; (6)

[t]he investigation came in response to a CNN story this week . . . .; (7) the CNN

investigation found mortality rate 3x higher than natl. [sic] average; and (8) [i]n its

investigation, CNN calculated that . . . . Regarding these statements, the CNN Defendants

argue for dismissal, reasoning that Dr. Blacks position as medical director of the program does

not automatically convert these statements into actionable statements about him. For the

following reasons, this Court rejects the CNN Defendants argument.

First, the Fourth District Court of Appeal has held that, when determining whether a

statement is of and concerning an individual:

It is not essential that the person defamed be named in the publication if, by
intrinsic reference, the allusion is apparent, or if the publication contains matters
of description or reference to facts and circumstances from which others may
understand that he is the person referred to, or if he is pointed out by extraneous
circumstances so that persons knowing him can and do understand that he is the
person referred to; and it is sufficient if those who know the plaintiff can make
out that he is the person meant.

Harwood v. Bush, 223 So. 2d 359, 362 (Fla. 4th DCA 1969). Based on the Fourth District Court

of Appeals holding in Harwood, this Court rejects the CNN Defendants argument that Dr.

Black has failed to allege that the statements are of and concerning him because his name does

not appear before many of the statements. Dr. Blacks Complaint sufficiently pleads that the

statements are of and concerning him because he alleges that he was the medical director of

the pediatric cardiac surgery program at St. Marys and the only pediatric surgeon performing

surgeries for the program. (Compl. 25.) See Horsley v. Feldt, 304 F.3d 1125, 1137 (applying

Florida law and holding that the fact that [defendants] comments . . . did not explicitly name

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[plaintiff] did not prevent them from being actionable because references in broadcast to

website plaintiff owned and ran made [plaintiffs] identity readily ascertainable).

Similarly, Dr. Blacks Complaint has sufficiently pleaded that his roles as medical

director and sole pediatric surgeon for St. Marys program are sufficient to make his identity

readily ascertainable regarding the allegedly defamatory statements. Moreover, Dr. Blacks

Complaint alleges that Dr. Black is well-known in the community and recently received a Heroes

in Medicine Award for Palm Beach County, Florida. (Compl. 23.) During the hearing on the

Motion, defense counsel even conceded that [t]he cardiac surgical programs chief surgeon was

Dr. Michael Black. (Tr. at 6.)

Additionally, Dr. Black alleges that several of the statements, including a photograph of

Dr. Black captioned Dr. Michael Black, pediatric heart surgeon, St. Marys Medical Center,

which appears in the CNN Defendants video, do mention Dr. Black by name. (Compl. 286.)

Dr. Blacks Complaint even alleges that people who read the CNN Defendants allegedly

defamatory statements actually understood the statements as being about Dr. Black, as evidenced

by threats of violence against him subsequent to publication of the articles and video reports.

(Compl. 203, 217-18.) Taking all allegations as true, Dr. Blacks Complaint sufficiently

pleads that his status at St. Marys and in the Palm Beach community could lead others to believe

that he is the person being referred to by the CNN Defendants statements, despite not being

named by each statement.

As further support for denial of the CNN Defendants Motion, this Court finds the

opinion in Eramo v. Rolling Stone LLC, et al.3, to be persuasive. In Eramo, the United States

3
Eramo v. Rolling Stone LLC, Case No. 3:15-CV-00023, 2016 WL 5942328 (W.D. Va. Oct. 11, 2016).

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District Court for the Western District of Virginia held that there is no dispute that the

statements that specifically mention [the plaintiff] are of or concerning her, and the court

intends to so instruct the jury. However, while the court believes the remaining challenged

statements could be of or concerning the plaintiff, whether these statements actually are of or

concerning [the plaintiff] is a question for the factfinder. 2016 WL 5942328, at *1. (emphasis

in original); see also Fornshill v. Ruddy, 891 F. Supp. 1062, 1070 (D. Md. 1995) (holding that

the question of whether a publication is of and concerning a defamation plaintiff is a matter for

the jury to decide.) Based on the courts holdings in Eramo and Fornshill that the of and

concerning requirement is an issue for the jury to decide, Dr. Blacks Complaint has sufficiently

alleged that the statements are of and concerning him, and should withstand dismissal at this

stage of the proceedings.

4. Falsity

This Court rejects the argument that Dr. Blacks Complaint should be dismissed for

failure to allege that the statements relating to Dr. Blacks pediatric cardiac surgical mortality

rate are false. Specifically, the CNN Defendants claim that the following statements are not

false, but rather are either factual or constitute a choice of methodology that is opinion and

cannot serve as the basis for a defamation claim: (1) that [b]y the end of 2013, the mortality rate

for babies having heart surgery [at St. Marys] was three times the national average and (2) the

death rate for open heart surgeries was 12.5%, more than three times the national average cited

by the [STS]. As pleaded in the Complaint, Dr. Black has alleged that these statements are

false, and that he did not have a mortality rate of 12.5%. (Compl. 219.) Moreover, Dr. Black

alleges that the CNN Defendants manipulated the statistics by comparing a mortality rate for

Dr. Black and the program that only considered Dr. Blacks and the Programs open-heart

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surgeries to a STS national rate that included both open-heart and closed-heart surgeries.

(Compl. 134.) In its Motion, the CNN Defendants claim that their chosen statistical

methodology was transparently explained to the public, and that, nevertheless, academic

disagreements cannot support defamation claims.

The Carbone court addressed the same issue, and found that, drawing all inferences in

favor of the plaintiff, he has met his burden on the falsity of CNNs numbers for purposes of a

motion to dismiss. (Carbone slip op. at 14.) The Carbone court rejected the CNN Defendants

claim that the difference between using raw data and risk-adjusted data was simply an academic

disagreement over statistical methodology. (Carbone slip op. at 14.) In so holding, the

Carbone court reasoned that the plaintiff is not disputing how CNN did the math, but rather

whether it compared its own math to a non-comparable figure in a way that misled its viewers.

(Carbone slip op. at 14.) In his Complaint, Dr. Black similarly alleged that the CNN

Defendants knowingly and misleadingly compared a mortality rate for Dr. Black and the

Program that only considered Dr. Blacks and the Programs open-heart surgeries to an STS

national rate that includes both open-heart and closed-heart surgeries. (Compl. 134).

Therefore, Dr. Blacks Complaint has adequately alleged falsity.

5. Rhetorical Hyperbole

As pleaded in the Complaint, Dr. Black has alleged that the CNN Defendants statements

accusing Dr. Black of treating [b]abies as sacrificial lambs and making [a] total mess with

newborn babies are actionable, despite the CNN Defendants argument that these statements are

nonactionable rhetorical hyperbole. (Compl. 213-36.) Specifically, the CNN Defendants argue

that the statements are nonactionable because they were made by someone other than the CNN

Defendants. In response, Dr. Black alleges that the CNN Defendants adopted the statements

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about babies as sacrificial lambs and making a total mess with newborn babies by using

those quotes as headings for its articles and juxtaposing those headings with a picture of Dr.

Black. (Compl. 43.) (Tr. at 52-53.) Dr. Blacks Complaint has sufficiently alleged that the

CNN Defendants statements are actionable.

6. Fair Report Privilege

In support of dismissal, the CNN Defendants assert that the fair report privilege shields

them from liability for some of their defamatory statements. This Court rejects the CNN

Defendants argument because, as stated above, Dr. Blacks Complaint has sufficiently pled

actual malice, which Florida courts have held override the fair report privilege. See Schreidell v.

Shoter, 500 So. 2d 228 (Fla. 3d DCA 1986); see also Axelrod v. Califano, 357 So. 2d 1048 (Fla.

4th DCA 1978) (holding that actual malice, or malice in fact, constitutes an abuse of qualified

privilege, leaving the defendant liable). Similarly, the Carbone court held that the fair report

privilege did not apply to shield the CNN Defendants from liability against Davide Carbones

defamation complaint because Carbone pled actual malice. (Carbone slip op. at 15) For these

reasons, this Court rejects the CNN Defendants claim that the fair report privilege shields them

from liability at the motion to dismiss stage where Dr. Black has sufficiently pled actual malice.

7. Defamation-by-Implication Claims

Taking all facts as true, Dr. Black has adequately pleaded his defamation-by-implication

claims. Defamation-by-implication occurs from what is implied when a defendant (1)

juxtaposes a series of facts so as to imply a defamatory connection between them, or (2) creates a

defamatory implication by omitting facts, such that he may be held responsible for the

defamatory implication. Jews for Jesus, 997 So. 2d at 1106. In his Complaint, Dr. Black

alleges that the CNN Defendants falsely implied and suggested that Dr. Black is an

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incompetent, dishonest, and inexperienced doctor leading a surgical program in crisis and

recklessly operating on young children to profit at the expense of childrens lives by

juxtaposing photographs and out-of-context statements so as to link them and convey false

messages about Dr. Black. (Compl. 239.) In their Motion, the CNN Defendants claim that

these statements do not constitute defamation-by-implication because they are just opinions. Dr.

Black has adequately pleaded his defamation-by-implication claims in his Complaint by

incorporating the articles containing the allegedly defamatory statements with juxtaposed

photographs of Dr. Black.

Therefore, drawing all inferences in favor of Dr. Black, he has met the pleading standard

to maintain a claim for defamation under Florida law. Accordingly, it is hereby ORDERED that

Defendants Motion to Dismiss Plaintiffs Complaint is DENIED. Defendants shall file an

Answer within 20 days.

DONE and SIGNED in Chambers at West Palm Beach, Palm Beach County, Florida,

this 28th day of April, 2017.

_______________________
RICHARD OFTEDAL
Circuit Judge
COPIES FURNISHED:

John F. Mariani, Esq.

Christopher W. Kammerer, Esq.
1601 Forum Place, Suite 500
West Palm Beach, FL 33401
jmariani@kammerermariani.com
ckammerer@kammerermariani.com

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Thomas A. Clare, Esq.
Elizabeth M. Locke, Esq.
Joseph R. Oliveri, Esq.
Dustin A. Pusch, Esq.
10 Prince Street
Alexandria, VA 22314
tom@clarelocke.com
libby@clarelocke.com
joe@clarelocke.com
dustin@clarelocke.com

Charles D. Tobin, Esq.

Judith M. Mercier, Esq.
Brian W. Toth, Esq.
800 17th Street, NW, Suite 1100
Washington, D.C. 20006
charles.tobin@hklaw.com
judy.mercier@hklaw.com
brian.toth@hklaw.com

Deanna K. Shullman, Esq.

Allison S. Lovelady, Esq.
Rachel E. Fugate, Esq.
401 SE 12th Street, Suite 300
Fort Lauderdale, FL 33316
dshullman@tlowlawfirm.com
alovelady@tlolawfirm.com
rfugate@tlolawfirm.com

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