Cox Media Group, LLC v. Joselevitz

Citations: 524 S.W.3d 850; 45 Media L. Rep. (BNA) 1540; 2017 Tex. App. LEXIS 2365; 2017 WL 1086572Docket: NO. 14-16-00333-CV

Court: Court of Appeals of Texas; March 21, 2017; Texas; State Appellate Court

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Dr. Joel Joselevitz, a pain management physician, initiated a defamation lawsuit against Cox Media Group, LLC following a newspaper article featuring him. Cox Media moved to dismiss the case under the Texas Citizens Participation Act (TCPA), but the trial court did not issue a ruling, leading to an automatic denial of the motion. Cox Media appealed this denial, seeking attorney’s fees and costs. The court concluded that the motion to dismiss should have been granted and remanded for a determination of attorney’s fees.

Background: Joselevitz faced disciplinary actions from the Texas Medical Board due to serious allegations regarding his prescription practices. In August 2014, the Board restricted his ability to prescribe medications and permanently barred him from treating chronic pain patients. This action followed earlier disciplinary measures initiated after a patient’s death from an overdose linked to his prescriptions. Subsequent complaints detailed the deaths of two additional patients under his care, citing multiple violations including negligent prescribing, lack of documentation, and failure to address patients' aberrant drug-taking behaviors. The Board attributed these overdose deaths to medications prescribed by Joselevitz.

The Board and Joselevitz resolved a February 2014 complaint by entering an August 2014 agreed order that limited Joselevitz’s prescribing privileges and permanently barred him from treating chronic pain patients. The Board’s audit of Joselevitz’s clinic revealed that between August 1 and August 30, 2013, he treated 449 patients, with 98.2% receiving prescriptions for controlled substances. The findings indicated that he inadequately documented patient histories, conducted insufficient physical exams, and did not meet the standard of care. Joselevitz was found to have non-therapeutically prescribed controlled substances and failed to monitor patients for drug misuse. Although the panel identified multiple violations of the Medical Practice Act, it did not classify his practice as a pill mill. The specific patients involved in the February complaint were not mentioned in the August order, though the complaint remains public record. Separately, Joselevitz faced two wrongful death lawsuits: one from Joanne Tilley’s family, alleging he prescribed unnecessary medications without proper evaluation, and another from Carol Roane regarding her daughter Nicole Willens, who displayed signs of opioid dependency and was prescribed dangerous medications without adequate monitoring. Willens’s death was attributed to the toxic effects of the prescribed drugs. In December 2014, the Austin American-Statesman published an article highlighting Joselevitz's prominence in discussions about the prescription drug epidemic in Texas.

Many Texas doctors who violate prescription drug laws face minimal consequences, even in cases where patients die from overdoses. An investigation revealed that since 2010, fewer than one-third of the 83 doctors disciplined by the Texas Medical Board for drug law violations were criminally charged. Some doctors, including Dr. Joel Joselevitz from Houston, who had three patients die from overdoses between 2010 and 2012, either surrender their licenses to evade scrutiny or continue practicing. Despite the Board's findings against him, which included failing to justify medical needs for prescriptions and not monitoring patients for drug abuse, Joselevitz was merely restricted from treating chronic pain or prescribing controlled substances.

Family members of his former patients expressed disbelief that he retained his license. One family member likened Joselevitz's actions to those of a drug dealer, stating that he was protected by his medical license and insurance. The article also highlights broader issues with the prosecution of physicians, discussing other doctors under Board scrutiny and systemic problems like "pill mills" and "doctor shopping." 

Joselevitz was noted to have been the top prescriber of hydrocodone to Medicare patients in Texas in June 2011, with his patients receiving significantly more prescriptions than the average. A Board complaint alleged that he continued prescribing opioids to Nicole Willens, labeled as "Patient 1," despite her being identified as high risk for substance misuse; she overdosed at the age of 25.

Joselevitz filed a lawsuit against Cox Media, the parent company of the Austin American-Statesman, and Carol Roane, the mother of his former patient Nicole Willens, following an interview request from the newspaper, which was later dropped from the suit. Initially seeking injunctive relief based on a confidential settlement with Roane regarding Willens’s death, Joselevitz later amended his petition to claim defamation against Cox Media after the article was published. Cox Media moved to dismiss under the Texas Citizens Participation Act (TCPA), asserting that the article addressed matters of public concern, requiring Joselevitz to provide clear evidence of each element of his defamation claim. They argued that the statements made about him were true and thus privileged under Texas law. Cox Media contended that Joselevitz failed to meet the burden of proof regarding falsity, a critical component of his claim, and sought attorney’s fees and sanctions. In his response, Joselevitz claimed that Cox Media did not provide evidence showing TCPA's applicability and asserted that the article falsely implied he caused Willens’s overdose, mischaracterized him as running a 'pill mill,' and suggested he was responsible for Willens’s addiction, none of which was supported by the facts in the Board's complaint.

Joselevitz submitted an affidavit asserting that an article inaccurately assigned him sole responsibility for Willens’s death, despite multiple doctors prescribing the medications involved in her overdose. He claimed the article misrepresented him as a potential "pill mill doctor," which he refuted. He highlighted that the article's assertion of him being the "number 1 prescriber of hydrocodone" was misleading, as hydrocodone was not present in Willens's system and he did not prescribe it to her. Joselevitz argued that the article failed to clarify these points, thereby portraying him in a "false light." He also contested the article's claim that he "overloaded" Willens with prescriptions leading to her addiction, stating he did not engage in such practices. Furthermore, he noted that the article mischaracterized a Board disciplinary order regarding his prescribing habits, implying it compared his rates to peers, which it did not. 

The trial court heard Cox Media's motion to dismiss on March 4, 2016, but did not issue a ruling, resulting in a denial by operation of law. In the subsequent appeal, Cox Media challenged the denial on several grounds, focusing on whether the Texas Citizens Participation Act (TCPA) applied to Joselevitz’s defamation claim, whether he met the burden of proving falsity, and whether Cox Media was entitled to attorney's fees and sanctions. The TCPA, designed to protect free speech and participation in government, allows for the prompt dismissal of litigation that threatens these rights. The court reviews the trial's denial of Cox Media’s motion de novo, determining if the claims relate to Cox Media's free speech rights and whether Joselevitz can establish a prima facie case for his claims. Even if he does, the court may still dismiss if Cox Media proves a valid defense.

The TCPA mandates that a trial court must award successful parties court costs, reasonable attorney’s fees, and other expenses as deemed necessary for justice and equity, alongside potential sanctions to deter similar future claims. A "reasonable" attorney's fee is defined as moderate and fair, with its determination resting largely within the court's discretion.

In the appeal involving Joselevitz’s defamation claim against Cox Media, the latter argues that the TCPA applies since it demonstrated that Joselevitz’s legal action is based on Cox Media’s exercise of free speech regarding a matter of public concern. Joselevitz acknowledges the publication of the article by Cox Media but disputes that it pertains to a public concern. The article discusses allegations related to Joselevitz’s provision of medical services, specifically concerning accusations of overprescribing and wrongful death lawsuits. The court determined that these topics qualify as matters of public concern, thus confirming that the TCPA is applicable to Joselevitz’s suit.

Cox Media further contends that Joselevitz failed to establish a prima facie case, arguing that the statements in the article were substantially true. The burden shifted to Joselevitz to provide clear and specific evidence for each essential element of his claim after Cox Media established coverage under Chapter 27. For private figures suing media defendants over public concern statements, the plaintiff must demonstrate: 1) publication of a false statement to a third party; 2) that the statement is defamatory; 3) the requisite degree of fault; and 4) damages in certain circumstances.

In the defamation case involving the TCPA, the court emphasizes the importance of establishing the truthfulness of statements made in a media article, particularly regarding the burden on the plaintiff, Joselevitz, to present clear evidence that the article was false. Given that Cox Media is recognized as a media defendant and the article addresses a matter of public concern, the plaintiff must demonstrate that the article's claims are not only misleading but also more damaging to his reputation than a truthful report would have been. The determination of falsity hinges on the perception of a reasonable person regarding the entire publication rather than isolated statements.

Joselevitz's defamation claim is based on specific alleged false statements from the American-Statesman article, including implications that he caused Willens's overdose, operated a "pill mill," and was involved in misleading legal claims about his prescribing practices. The article's caption, which suggests that Willens died from drugs prescribed by a disciplined doctor (Joselevitz), is contested by him for allegedly creating a false impression of sole responsibility for her overdose. However, the court finds that claims made in the Board complaint and related lawsuits do not support a conclusion that the article misrepresents the circumstances. The court concludes that the statements regarding Willens's death and drug dependency are substantially true, reflecting the realities of the proceedings without causing greater harm to Joselevitz's reputation than the facts of the case would warrant.

Joselevitz argued that a published article led readers to mistakenly conclude he operated a "pill mill," despite the Board explicitly stating it did not find such evidence. The article discusses Texas's pill mill law but does not mention Joselevitz in that context or in the subsequent sections, which instead focus on another doctor. The article, when read objectively, does not imply or state that Joselevitz operated a pill mill, and reasonable readers would not draw that inference. Joselevitz's claim of implication is unsupported, as the article fairly and accurately reflected the Board's complaints and related wrongful death lawsuits, even if minor inaccuracies exist. Under the doctrine of substantial truth, these inaccuracies do not constitute falsity. The article is characterized as a comprehensive investigation into regulatory actions against doctors regarding prescription drug laws, without labeling Joselevitz negatively. Consequently, Joselevitz did not establish a prima facie case, leading to the requirement for dismissal under the TCPA. 

Cox Media, entitled to dismissal, also seeks recovery of court costs, reasonable attorney’s fees, and sanctions to deter similar future actions. The trial court must award these as mandated by statute, though the appellate court cannot grant the specific amounts requested by Cox Media, as determining reasonable attorney’s fees is typically a fact-finding task left to the trial court.

The statutory provision for sanctions grants the trial court the authority to set sanctions aimed at deterring parties from initiating similar legal actions. Cox Media did not reference any appellate case where reasonable attorney’s fees, costs, and sanctions were awarded under the Texas Citizens Participation Act (TCPA) after a trial court should have dismissed a claim. Instead, it recognized that appellate courts generally require a remand to the trial court to determine reasonable fees, expenses, and proper sanctions. The conclusion affirms that the TCPA applies to Joselevitz’s defamation claim, as he did not provide clear and specific evidence that the Austin American-Statesman article was substantially untrue. Consequently, he failed to establish a prima facie case for his claim, warranting the trial court’s dismissal of his action. The court reverses the trial court’s denial of Cox Media’s motion to dismiss and remands for further proceedings. References to statutory provisions highlight the requirement for timely rulings on motions to dismiss and the implications of such rulings for appeals. The excerpt also notes that under Texas law, a fair and true account of judicial proceedings is privileged and cannot constitute grounds for a libel action, reinforcing the legal protection for the publication in question. The concept of "gist" is discussed, emphasizing that the essence of an article is central to understanding its implications in a legal context.

Joselevitz's response to Cox Media’s motion to dismiss did not include arguments asserting that specific alleged inaccuracies were defamatory. These inaccuracies involved claims regarding his high prescribing rate of potentially addictive pain medications and implications of prescribing hydrocodone to an individual named Willens. Although Joselevitz acknowledged these inaccuracies in his affidavit, he failed to discuss them in the context of proving they were not substantially true within his response. Instead, he referenced them only in a sur-reply filed after the hearing, aiming to support his claim that the article's overall essence was defamatory. The court determined that, assuming he preserved these points, the inaccuracies were minor and did not alter the article's non-defamatory gist. It was emphasized that in evaluating substantial truth, the gist of the report is compared to the truthful report of official proceedings rather than to the specifics of the facts. The court also noted that defamatory statements must be factual rather than opinion-based. Additionally, other inaccuracies mentioned by Joselevitz were similarly characterized as minor details that did not impact the overall gist. Ultimately, the court concluded that a publication with minor factual errors that still accurately conveys the story's essence is considered substantially true. As a result, the court did not address additional issues raised by Cox Media regarding the trial court's denial of the motion to dismiss.