"One of the Side Effects of COVID-19 Is Litigation"; and in Litigation, as in Medicine, Delay Can Be Deadly

An appeal a day late (even if not a dollar short). [UPDATE: But there may be a lifesaving treatment!]

On Aug. 1, Chief Judge Lee Rosenthal (S.D. Tex.) handed down an opinion in Stella Immanuel v. CNN:

One of the side effects of COVID-19 is litigation. Some of that litigation has arisen from the national conversation, medical and lay, over what medication is effective to prevent and treat COVID-19. The plaintiff in this case, Dr. Stella Immanuel, sought to be a visible public part of that national conversation. On July 27, 2020, she stood with a group calling themselves "America's Frontline Doctors" in front of the United States Supreme Court to publicly advocate the use of hydroxychloroquine ("HCQ") to treat COVID-19. "America's Frontline Doctors" is a political group of physicians "committed to educating the American public and political leaders" about HCQ treatment, "as well as other issues related to the COVID-19 pandemic, from an unbiased medical perspective.". Dr. Immanuel, a member of this organization, was not only there; she gave a speech, presenting in this very public forum her views about treating COVID-19 with HCQ.

A video of Dr. Immanuel's speech quickly went viral on the Internet. Then-President Trump tweeted about it. In response to Dr. Immanuel's speech, Cable News Network, Inc. ("CNN") published tweets and news broadcasts about her speech. Dr. Immanuel alleges that CNN accused her of "'spreading conspiracy theories on COVID-19' and promot[ing] an 'unproven drug'" as an effective treatment option. According to Dr. Immanuel, CNN also disparaged her personal and religious beliefs by publicizing her words and writings that she had made in sermons she posted on her YouTube channel for her church. The statements included that Dr. Immanuel:

• "believes that women can be physically impregnated by witches in their dreams";
• "believes that lusting after movie stars can conjure demons that can make women physically pregnant with demon babies by impregnating them in their dreams";
• "has … claimed that sex with 'tormenting spirits' is responsible for gynecological problems, miscarriages, and impotence"; and
• "has claimed alien DNA was used in medical treatments."

"Dr. Immanuel contends that the clear [ ] gist of CNN's statements … is that [she] is unfit to be a medical doctor, that her medical judgments and advice are unsafe and/or unsound, and that she peddles disinformation, including harmful medical treatments, and therefore, endangers patients." In July 2021, Dr. Immanuel sued CNN in the Eastern District of Texas, alleging defamation. She sought $100 million in damages.

The court concluded that Immanuel hadn't adequately alleged falsehood:

The record does not support an inference that CNN's statements about what Dr. Immanuel said in her speech, or what she had said on her own website and social media platforms, were false. Nor is there a basis to infer that CNN falsely described government guidance against HCQ, studies showing HCQ to be ineffective in treating COVID, or the FDA's warnings against HCQ as a treatment for COVID. There is no basis to infer that CNN's coverage of Dr. Immanuel's speech was false. CNN accurately reported what she had said and the positions that government agencies and others had taken on medication for COVID.

Dr. Immanuel does not limit her defamation claim to the coverage of her speech. She also alleges that CNN defamed her by publishing statements she herself had made about her religious beliefs and their impact on her views about medical treatment. The alleged defamation consisted of CNN playing and reporting about statements from Dr. Immanuel's own sermons posted on her YouTube channel for the Fire Power Ministries Church. Dr. Immanuel alleges that CNN's coverage was defamatory. But there is no basis to infer that CNN was defamatory in its largely verbatim quotations about what Dr. Immanuel had said and published on her YouTube channel.

Some of CNN's descriptions slightly deviate from the precise wording of what Dr. Immanuel had said in her own sermons that she posted on her YouTube channel. But those deviations are slight and do not make the statements defamatory. Dr. Immanuel stated that "they're [medical science] using alien DNA to treat people." CNN quoted her as saying that "[A]lien DNA was used in medical treatments." (Id. at 12). Dr. Immanuel stated that "medical sciences have gotten to the fact that there are children being born that are transhuman[s]"; that "they are … mixing human beings with demons"; and that women can get pregnant through "astral sex" with a "human being that's a witch," or with "incubuses and succubuses" that steal sperm and "turn into a man and … sleep with another woman and deposit the sperm and produce more of themselves." CNN used the phrase "demon sperm," which Dr. Immanuel did not specifically say, but which she clearly described….

CNN fairly reported what Dr. Immanuel had said about medical treatment of COVID and more general statements about medical treatment and science. Those reports are not defamatory, as a matter of law….

The court also concluded that CNN's other comments were nonactionable opinion:

Dr. Immanuel alleges that CNN defamed her by covering her statements advocating and promoting HCQ to treat COVID and by criticizing her views as disinformation supporting harmful medical treatments. Statements of different, even conflicting, opinions, about unsettled matters of scientific or medical treatment that are the subject of ongoing public debate and deep public interest, cannot give rise to defamation claims…. Dr. Immanuel cannot bring a defamation claim on the basis of CNN's statements of its opinion about Dr. Immanuel's public support of a COVID treatment that many scientists had rejected.

The court also ruled that CNN's statements were "fair comment on matters of public concern," which in context is closely related to the opinion holding, and that Immanuel in any event didn't "adequately or plausibly allege that CNN acted with actual malice," which is to say knowledge of falsehood or likely falsehood.

Though this strikes me as a sound result, I was looking forward to seeing the decision on appeal (especially since one of Immanuel's lawyers was Steven Biss, who has represented Devin Nunes in many of his lawsuits, as well as in other cases that I've noted here). I have been disappointed, however, because of this order, issued yesterday:

In this case, the district court entered final judgment dismissing the complaint on August 1, 2022. Therefore, the final day for filing a timely notice of appeal was August 31, 2022. Plaintiff's notice of appeal was filed on September 1, 2022. When set by statute, the time limitation for filing a notice of appeal in a civil case is jurisdictional. The lack of a timely notice mandates dismissal of the appeal. Accordingly, the appeal is DISMISSED for want of jurisdiction.

UPDATE 9/29/2022: Trent McCotter points out that the patient might be brought back from the dead, given FRAP 4(a)(5):

The district court may extend the time to file a notice of appeal if:

(i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) [which provides the initial 30-day clock] expires; and

(ii) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.

Now excusable neglect and good cause aren't always easy to show, but at least they offer some possibility of recovery.

FURTHER UPDATE 9/30/2022: A motion for extension of time was indeed just filed today. The argument as to excusable neglect is:

Plaintiff's lead counsel, Mr. Biss, started a multi-day jury trial in Richmond, Virginia, on August 29, 2022. Although the notice of appeal was prepared and ready to file, Mr. Biss was out of the office and in Court through September 1, 2022 while the jury deliberated, and was not able to forward the notice of appeal to local counsel in Texas for filing. Local counsel filed the notice of appeal and paid the $505 filing fee promptly upon receipt of the notice of appeal. Compare Roberts v. Yellen, 858 Fed.Appx. 744, 745-746 (Mem) (5th Cir. 2021) (where plaintiff filed a motion for extension of time pursuant to Rule 4(a)(5)(A) and provided a proposed notice of appeal one day after the deadline under Rule 4(a) to file a notice of appeal, the District Court granted the motion for extension of time, and Court of Appeals found that it had jurisdiction to hear the appeal). Plaintiff submits that (a) the length of delay in filing the notice of appeal was minimal (one day); (b) the delay had no impact on these proceedings; (c) the delay in filing the notice of appeal was due to Plaintiff's lead counsel's jury trial unavoidably continuing into a fourth day; (d) Plaintiff and her counsel acted in good faith. Compare Bates v. Director, TDCJ-CID, 2014 WL 3868011, at * (E.D. Tex. 2014) (the defendant was not prejudiced by granting the extension; plaintiff's delay was "brief"; "Finally, the Court presumes Petitioner's good faith. There is no reason not to grant the motion") (citing and quoting Salts v. Epps, 676 F.2d 468, 474 (5th Cir. 2012)); Davis v. Valdez, 2014 WL 684963, at * 2 (N.D. Tex. 2014) (plaintiff's notice of appeal was filed seven days late); Richardson v. Quarterman, 2008 WL 4017259, at * 2 (S.D. Tex. 2008) (there was no indication that defendant was prejudiced by the delay in letting plaintiff file a late appeal; Further, there was no indication that plaintiff did not act in good faith; Finally, the impact on the judicial proceedings was negligible).

And, as to good cause, the motion argues:

Additionally, there is good cause and it would be equitable to grant a brief extension of time. This case involves complex legal questions of first impression and significant import to both Plaintiff and the broader medical profession. The interests of justice would be well-served by a brief extension of time to file the notice of appeal, so that the Court of Appeals can review the matter on its merits. Cf. Maypole v. Acadian Ambulance Service, Inc., 647 S.W.3d 533, 551 (Tex.App. 2022) ("Affording plaintiffs a reasonable opportunity to have their claims heard on the merits is a bedrock principle of our judicial system."); Marino v. King, 355 S.W.3d 629, 634 (Tex. 2011) ("Constitutional imperatives favor the determination of cases on their merits"). The District Court's docket and the administration of justice will not be impacted in any way by an extension of time. Plaintiff has not previously sought an extension of any deadline in this action. No harm or prejudice would result to CNN by an extension.