Morley v. Oliver

District court dismisses doctor’s defamation claims against late-night television host John Oliver and his production company, finding statements in Last Week Tonight episode were substantially true, non-actionable opinions, protected by fair report privilege, or not “of and concerning” plaintiff.

Plaintiff Brian Morley, a doctor who worked for the managed care organization (MCO) that manages Iowa’s privatized Medicaid program, sued John Oliver and his production company Partially Important Productions LLC for defamation, claiming that Oliver’s coverage of state-run Medicaid programs during Last Week Tonight defamed Morley through nine purportedly defamatory statements made during the episode.

The Last Week Tonight episode was critical of the privatization of Medicaid and discussed what Oliver perceived to be problems associated with cost-cutting measures. With respect to Iowa’s Medicaid privatization, the episode focused on the cancellation of nursing services such as bathing and diaper-changing for a young man with cerebral palsy named Louis Facenda. During this segment, Oliver played a clip of Morley from a hearing involving the reduction of services for a different individual with cerebral palsy during which Morley said, “People have bowel movements every day where they don’t completely clean themselves . . . . People are allowed to be dirty . . . . You know, I would allow him to be a little dirty for a couple of days.” Oliver then criticized Morley and described Morley’s testimony as “think[ing] it’s okay if people have shit on them for days.” Morley claimed that these statements, and others during the segment, conveyed the defamatory message that he (1) illegally denied care to two cerebral palsy patients and (2) testified that it is OK for individuals who wear diapers or who cannot bathe themselves to “have shit on them for days.”

Defendants filed a motion to dismiss the action, arguing that the statements at issue were substantially true, were protected by the fair report privilege, constituted non-actionable opinions or were not “of and concerning” Morley. The court agreed and dismissed the action, finding that the statements, individually or as a whole, were not defamatory.

In explaining why some of the statements were not “of and concerning” Morley, the court noted that mention of one individual in one portion of a publication does not mean that all statements in the publication concern the plaintiff. For example, although portions of the segment discussed MCOs generally, Morley argued that because he was an employee of the sole MCO identified in the segment, the statement must have been “of and concerning” him. The court held otherwise, explaining that even though Oliver mentioned Morley later in the segment, those later statements were made after discussing CNBC’s coverage regarding an entirely different MCO. In another statement, Oliver discussed purported problems since Iowa had started using MCOs to run its Medicaid program, including Facenda’s loss of nursing services. Again, the court held that such statements were not “of and concerning” Morley because Oliver attributed the loss of care to the MCO AmeriHealth, not Morley personally.

In noting that some of the statements were subject to the fair report privilege, the court explained that statements are subject to this privilege when they constitute an accurate report of an official proceeding, which includes a government investigation. As the court noted, the fair report privilege does not require statements to be “dead-on accurate,” so long as they fairly characterize some aspect of the proceeding and focus on the proceeding itself. Here, the court held that statements regarding the increase in illegal denials of services or care were protected because the statements constituted an accurate report of the contents of the Iowa State Auditor’s Report, a summary of which was displayed on the screen during Oliver’s segment. The court concluded that a separate statement describing Facenda and another patient with cerebral palsy as “similar” was also protected by the fair report privilege because, after reviewing the hearing transcript, Facenda and the other patient were indeed “similar.” Moreover, even though the statement made by Oliver quoting Morley’s testimony at the hearing omitted some language, the court found that this statement was protected because it is sufficient to “focus on only one aspect” of a proceeding, so long as the report itself is “substantially accurate.”

The court further explained that truth is an absolute, unqualified defense to a defamation action, explaining that “substantial truth” is all that is required to defeat a defamation claim. Here, the court reasoned that Oliver’s statement that Morley testified it was “okay if people have shit on them for days” cannot be defamatory because it was substantially true. Morley did testify that “people have bowel movements every day where they don’t completely clean themselves and we don’t fuss over it too much” and that he would “allow [a patient with cerebral palsy] to be a little dirty for a couple days.”

In concluding that some of the statements were protected opinion, the court explained that a defamatory statement must be an assertion of fact, rather than an opinion, and that distinguishing between unprotected fact and protected opinion must be based on what the average person hearing or reading the statement would take it to mean. The court found several of the statements made by Oliver to be protected opinion. First, the court explained that Oliver’s statement describing the incentives of MCOs was protected opinion because Morley never alleged how the statement was false or why it was anything more than Oliver’s opinion of how and why the broader Medicaid system operates the way that it does. Second, the court found Oliver’s statement that in multiple states “there’ve been heartbreaking stories of MCOs denying care and prioritizing cost cutting over patients” to be protectable opinion because speculating about motivations or imputing a motive or state of mind to a person based on their conduct is not actionable but is instead an opinion. Third, the court found that Oliver’s reference to cost-cutting being “absolutely enraging” was a protected opinion because it reflected Oliver’s reaction to the denial of care to Facenda. Finally, the court found that Oliver’s expression of disbelief at Morley’s testimony and the suggestion that Morley “meant” what he said were similarly statements of opinion.

The court then analyzed whether the statements, or the broadcast as a whole, could state a claim for defamation by implication. Noting that a claim for defamation by implication requires a showing that a combination of statements, even if they are individually non-defamatory, gives rise to a defamatory meaning, the court found that an ordinary or average viewer would not draw a defamatory implication from the segment or the episode as a whole. Oliver did not impart the defamatory inference that Morley illegally denied care, but instead provided examples of the MCO’s prioritization of cost-cutting over patients, and an ordinary or average viewer of the episode would understand these to be examples.

Further, the court noted that Oliver did tell viewers that Morley “thinks it’s okay if people have shit on them for days,” but Morley did testify that he would allow an individual with cerebral palsy to have fecal matter on him for more than one day. The court concluded that this fact would have no materially worse effect on the average viewer than the implication that Morley claimed Oliver had made. On this basis, the court granted the motion to dismiss.

Although defendants moved for attorneys’ fees under the New York anti-SLAPP law, the court denied this request. As the court explained, New York’s anti-SLAPP law provides that a party can maintain an action, claim, cross-claim or counterclaim to recover damages, including attorneys’ fees, from any person who commenced or continued such an action. Here, however, defendants did not “maintain an action, claim, cross-claim or counterclaim” to recover fees but rather filed a motion for fees. On this basis, the court concluded the request was insufficient under the statute.

Summary prepared by Frank D’Angelo and Jennifer Kahn