By: Joe Strupp
On the surface, a doctor’s allegation that The Boston Globe incorrectly blamed her for the 1995 overdose death of a cancer patient would seem like a routine libel case: prove the paper knowingly defamed you and show the effects were detrimental.
But unusual circumstances — including conflict-of-interest charges and the protection of confidential news sources — made this case far from simple.
The cancer patient who died at Boston’s Dana-Farber Cancer Institute (from an overdose of chemotherapy drugs) was no ordinary victim. She was former Globe health columnist Betsy Lehman. And the reporter who covered her death, and eventually was named in the libel suit, was Richard Knox, who worked with Lehman and often filled in for her when she became ill.
“Having him cover this story was not appropriate,” Joan Lukey, attorney for Dr. Lois Ayash, the plaintiff, told E&P last week. But Mary Jane Wilkinson, the Globe‘s managing editor for administration, countered that Knox was the most experienced person for the job and denied any conflict.
When the case first went to court last year, things got sticky after a judge ordered Knox to reveal the identities of four confidential sources. Knox eventually turned over notes from interviews with two sources, who gave permission to have their identities revealed, but withheld the names of the remaining two.
Massachusetts Superior Court Judge Peter Lauriat punished the reporter by issuing a contempt sanction against the Globe, essentially finding the paper liable for damages against Ayash because it refused to comply with his order. The contempt sanction even denied the paper the right to enter evidence in its defense.
But a trial still had to consider defamation charges against the hospital (for disclosing details about the incident), as well as determine what damages, if any, should be assessed against the Globe and reporter Knox. That trial began Jan. 7 and ended last week when a Suffolk County jury awarded Ayash $4.2 million — half coming from the Globe and Knox, the other half from the hospital. Damages will actually amount to more than $7 million with interest dating back to 1996 when the suit was filed.
Globe executives, who plan to appeal the award, say it is improper because they were never allowed to defend themselves against the libel claim after Lauriat issued the contempt sanction. “We are hopeful that we will prevail and that we will finally be able to fully present our case,” Globe Publisher Richard H. Gilman said in a statement. Wilkinson said the prior judge’s ruling of liability by the paper likely prejudiced the jury. “It was tough to defend against that,” she said.
Lukey, however, said the paper entered plenty of evidence during the trial. She said the jury could have awarded no damages if jurors believed the Globe was not at fault. “It is so disingenuous as to be dishonest,” Lukey said of the Globe‘s claims of feeling defenseless.
As the case headed toward appeals, it was clear that the outcome could impact future libel cases by discouraging confidential sourcing. “If this is allowed to stand and it spreads to other jurisdictions, it will have a negative effect on journalism,” said Amy Ginensky, a libel attorney in Philadelphia. “Sources will be reluctant to speak off the record.”
Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, agreed. “We’re going to see more of it,” she predicted, referring to future confidential source crackdowns.
Bruce Sanford, a Washington-based attorney, said the size of the award “reminds people of the draconian results that can happen when newspapers try to preserve the confidentiality of sources. News organizations will become more cautious.”
Knox, now a reporter for NPR in Boston, told E&P the judge’s decision to punish him “sets a very bad precedent.”
But Lukey pointed out that Massachusetts is one of only 19 states with no shield law. The case, she said, “is probably not going to be universally applicable.”