True or false with explanations:

Case 8: Kipper v. NYP Holdings Co., 912 N.E.2d 27 (N.Y. App. 2009) (Mallor 16th Ed. p. 221).

Dr. David Kipper filed a defamation lawsuit in a New York trial court against NYP Holdings Co. (NYP), the owner and publisher of the New York Post. Kipper based his case on an article in the December 7, 2003, edition of the Post. The article was an eight-paragraph rewrite of a 98-paragraph article taken from the wire service of the Los Angeles Times (LAT). The LAT article described rock musician Ozzy Osbourne's allegations that his former physician, Kipper, had overprescribed various medications to him during the time that Osbourne starred in a television reality series. In addition, the LAT article accurately stated that the California Medical Board had moved to revoke Kipper's license because of his alleged gross negligence in the treatment of other patients. However, the Post article, which appeared under the inaccurate headline Ozzy's Rx Doc's License Pulled, contained an error. Despite clearly indicating that it was based upon LAT reports, the Post rewrite incorrectly stated that the state medical board revoked Kipper's license. NYP later conceded that this statement was false and defamatory, and published a Correction in response to a retraction demand from Kipper's attorney.

The circumstances surrounding the Post's erroneous statement are not entirely clear. The record reveals that, sometime during the evening of December 6, a Post editor assigned the task of rewriting the wire service story to a then-part-time reporter, Lyle Hasani Gittens. According to Gittens, the Post rewrite was slated to appear in the second edition of the paper, the usual deadline for which was around 8:00 to 9 o'clock. Gittens swore in an affidavit and testified at his deposition that he did not recall writing and did not think he wrote that plaintiff's license was revoked, a statement that defendant concedes was both false and defamatory. He speculated that the error might have occurred during the editing process.

After Gittens prepared the rewrite on a personal computer, he transmitted it to an electronic basket where it was reviewed by an editor. Gittens was aware that editors sometimes altered the text of articles and, as typical of such editing, he cited stylistic changes to an article's lead, or first, paragraph. But he denied having any knowledge that Post editors deliberately changed the facts of stories.

The record sheds no light on the actual editing of Gittens's rewrite. The editor responsible for it, Todd Venezia, testified that he would never deliberately falsify information pertaining to a doctor's licensure, but he could not offer any specific details pertaining to his review of the December 7 rewrite. Moreover, the record does not contain the original draft that Gittens submitted to Venezia.

An affidavit submitted by the Post's metropolitan editor, Jesse Angelo, does, however, set forth the path that a rewrite generally travels after editorial review. At that point, it is sent to the copy desk for additional checking of grammar, punctuation and accuracy as well as any reduction in text necessary to fit the paper's layout requirements. The copy desk is also responsible for preparing headlines before the article is processed by the production department for page-setting and transmission to the printer. How these steps were accomplished prior to publication of the Ozzy rewrite is not revealed by the record.

Apparently, the sole source material for Gittens's rewrite was the Los Angeles Times wire service story. Gittens testified that he did not recall making any independent effort to verify the status of plaintiffs license prior to publication of the Post article. Additionally, Gittens remarked that Post editors would [n]ot necessarily engage in additional fact-checking after an article's submission unless something very conspicuous ... leap[t] out at them. Accepting the substance of a wire service story was not unusual, according to Angelo. He averred that the Post occasionally reprints stories disseminated on reputable wire services, such as that of the Los Angeles Times, verbatim and that additional research regarding the factual accuracy of such stories is not generally undertaken. With respect to the Los Angeles Times wire service dispatch relevant here, Angelo stated that this is not the kind of story that [the Post] would have expected a reporter to do additional research [on].

Nonetheless, Angelo explained that a reporter performing a rewrite may make minor editorial changes, including more interesting word selection, before publication in the Post. During his deposition, Gittens provided additional details about the rewriting process, stating that it essentially entailed shortening the length of a wire service dispatch and changing its lead paragraph to make it more Post-like, by which he meant less boring than the Los Angeles Times or [a] better read. The lead paragraph in the rewrite of which plaintiff complains, however, correctly stated that plaintiff was under investigation for over-prescribing drugs.

In answering the true/false statements, unless indicated to the contrary, assume Dr. Kipper, is a celebrity physician whose activities are frequently reported in the media.

1. The erroneous headline (Ozzy's Rx Doc's License Pulled) and statement (the state medical board revoked Kipper's license) constitute libel.
2. Because he is a public figure, Dr. Kipper cannot succeed in his defamation lawsuit, unless he establishes by clear and convincing evidence that the New York Post printed the erroneous report his medical license was revoked with malice.
3. If Dr. Kipper can prove that Gittens was careless in his rewriting of the Los Angeles wire service story, NYP Holdings Co. will be held vicariously liable for defamation under the doctrine of respondeat superior.
4. If Dr. Kipper were a private figure, he would be unsuccessful in his defamation lawsuit against NYP, unless he provides evidence of actual damages, such as reputational injury and other harm such as emotional distress.
5. If the Los Angeles Times article erroneously reported Dr. Kippers medical license was revoked, and the New York Post, in summarizing the article, repeated the erroneous report of his license suspension, the New York Post can avoid liability to Dr. Kipper by claiming either the fair report privilege or the qualified privilege of media to print articles important to the public interest.