Judge Concludes NBC's Allegations of "Mass Hysterectomies" by Doctor at ICE Facility Were False, May Have Been Knowingly/Recklessly False

From Amin v. NBCUniversal Media, LLC, decided today by Judge Lisa Godbey Wood (S.D. Ga.):

NBC published multiple reports about allegations that Plaintiff, Dr. Mahendra Amin, performed mass hysterectomies on female detainees at an Immigration and Customs Enforcement ("ICE") facility in Georgia. NBC reported allegations that Dr. Amin performed hysterectomies that were unnecessary, unauthorized, or even botched. Dr. Amin then brought this case, asserting that NBC defamed him under Georgia law….

The controversy stemmed from allegations by "a former nurse at the facility named Dawn Wooten" (see the end of this post for more details on those allegations, but the excerpts below also incorporate some discussion of the Wooten claims). The letter led to a good deal of media coverage, including reports on NBC. (It also led, after the coverage, to a government investigation, which found evidence of various improprieties at the facility, but no evidence of mass hysterectomies performed by Amin.)

The judge granted summary judgment in favor of Amin as to the falsity of some of the statements that NBC had made:

Multiple statements are verifiably false. The undisputed evidence has established that: (1) there were no mass hysterectomies or high numbers of hysterectomies at the facility; (2) Dr. Amin performed only two hysterectomies on female detainees from the ICDC; and (3) Dr. Amin is not a "uterus collector." The Court must look to each of the statements in the context of the entire broadcast or social media post to assess the construction placed upon it by the average viewer. Doing so, the undisputed evidence establishes that multiple NBC statements are false.

Viewed in their entirety, the September 15, 2020 episodes of Deadline: White House, All In With Chris Hayes, and The Rachel Maddow Show accuse Plaintiff of performing mass hysterectomies on detainee women. It does not matter that NBC did not make these accusations directly, but only republished the whistleblower letter's allegations. If accusations against a plaintiff are "based entirely on hearsay," "[t]he fact that the charges made were based upon hearsay in no manner relieves the defendant of liability. Charges based upon hearsay are the equivalent in law to direct charges." NBC charged Plaintiff with performing high numbers of hysterectomies at the facility. NBC argues that the "gist" of these broadcasts was that Plaintiff was accused of conducting "unnecessary and unconsented-to medical procedures on detainees at ICDC, including large numbers of hysterectomies." But the focus of these three broadcasts was not on unnecessary or unconsented-to "medical procedures." The focus was on "mass hysterectomies" and "high numbers of hysterectomies," performed without necessity and consent, at the facility. This is reinforced by MSNBC's own headlines: "WHISTLEBLOWER: HIGH NUMBER OF HYSTERECTOMIES AT ICE DETENTION CTR." and "COMPLAINT: MASS HYSTERECTOMIES PERFORMED ON WOMEN AT ICE FACILITY." …

While opinions and hyperbole are typically non-actionable, they become actionable when they are capable of being proved false. Statements 5, 6, 9, 14, 15, 16, 23, 25, 26, 27, 28, and 34 meet this requirement.

Statements that Plaintiff is a "uterus collector," that people referred to him as a uterus collector, and that he was collecting the uteri of detained women "state or imply defamatory facts about the plaintiff that are capable of being proved false." Further, statements that nearly everyone Plaintiff treated had a hysterectomy or that Plaintiff's specialty was "taking everybody's stuff out" state facts that can be proved false. These statements are not mere subjective assessments of Plaintiff over which reasonable minds could differ. They are also not simply rhetorical hyperbole or obviously exaggerated statements that are unprovable….

The undisputed evidence proves that Statements 5, 6, 14, 15, 16, 23, 25, 26, 27, and 28 are materially false. The extensive medical reports, witness testimony, and Senate Report prove that Plaintiff did not perform hysterectomies on every detainee patient or nearly every patient he treated. And no evidence exists to support the assertion that Plaintiff collected uteri or had a reputation as a "uterus collector." The evidence shows that one detainee at the facility heard Plaintiff referred to as the "uterus collector," but that this began after news outlets covered the whistleblower letter. Other detainee witnesses never heard him described as such at the facility.

These statements are materially false because they have a different effect on the mind of the viewer and are far more damaging to Plaintiff's reputation than "that which the truth would have produced." …

The court also concluded that other statements could be false, so the matter was for the jury, while other statements were true or opinion; see the opinion for more—since the opinion is 108 pages long, I've had to offer just an excerpt.

The court went on to say that, under Georgia law, plaintiff had to prove by clear and convincing evidence that these statements were said with "actual malice"—knowing or reckless falsehood—but that there was enough evidence introduced to allow the question to go to the jury:

Plaintiff has presented sufficient evidence supporting a finding of actual malice in that there were obvious reasons to doubt the accuracy of NBC's statements. "[E]vidence which shows that the statement was inherently implausible or that there were obvious reasons to doubt the veracity of the informant is relevant to establishing actual malice." "[A]n inference of actual malice can be drawn when a defendant publishes a defamatory statement that contradicts information known to him, even when the defendant testifies that he believed that the statement was not defamatory and was consistent with the facts within his knowledge."

Plaintiff has presented evidence that NBC's statements were inherently implausible. The allegations that there were "mass hysterectomies," Plaintiff was a "uterus collector" or collected uteri, Plaintiff performed hysterectomies "for which no medical indication existed," and that Plaintiff performed hysterectomies on all or nearly all his patients are so implausible that a jury could infer actual malice. The implausibility of these statements is clear, given that NBC found evidence of only two hysterectomies. NBC's investigation did not yield evidence of more than two hysterectomies. Wooten told NBC she did not know how many women had had hysterectomies.

An attorney source, Sarah Owings, told NBC that her team was not finding evidence of mass hysterectomies. Another attorney source, Ben Osorio, told NBC that one client had had a hysterectomy that medical records revealed was medically necessary and another client believed she had had a hysterectomy, but no evidence supported this claim. NBC's own reporter, Julia Ainsley, reinforced these facts when she texted her colleague: "But only two hysterectomies?" The attorney who told NBC that there were more than two hysterectomies, Andrew Free, also told NBC that those reports had not been confirmed and were still being vetted. Free even explicitly told NBC that he could confirm only one hysterectomy.

Nevertheless, NBC published statements that Plaintiff performed mass hysterectomies. Although NBC's own sources told it that there was evidence of only one hysterectomy, NBC stated as fact: "five different women … had a hysterectomy done"; "as many as 15 immigrant women were given full or partial hysterectomies"; and "[e]verybody this doctor sees has a hysterectomy, just about everybody." These statements contradict information known to NBC at the time of reporting. The same applies to the accusations that Plaintiff was a "uterus collector" or that detainees referred to him as such. Aside from Wooten's allegation, NBC lacked any evidence that could support the accusation that Plaintiff collected uteri or was known as the "uterus collector" at the ICDC. A jury could conclude that NBC knew these allegations were false.

Plaintiff has presented evidence that there were obvious reasons to doubt Wooten's reliability, credibility, and accuracy. In her interview with NBC, Wooten could not name Plaintiff, did not know what happened when detainees visited Plaintiff, and did not know how many women had received gynecological procedures. even acknowledged this herself. Wooten could not provide a number for how many women she had spoken to about gynecological care at the facility. She told NBC that she had spoken to "several women" in the eight years she worked at the ICDC. In essence, Wooten could provide only hearsay evidence to support her allegations. NBC's reporter, Jacob Soboroff, texted his colleague that one source had "heard mixed things about Wooten." NBC's deputy head of Standards was critical of Wooten because she "provide[d] no evidence to back up her claims," had "no direct knowledge of what she's claiming," and she could not "name the doctor involved."

MSNBC's hosts also voiced concerns over Wooten's reliability. Rachel Maddow believed Wooten's whistleblower letter jumped to conclusions and "didn't want to assume it's true." Chris Hayes also criticized Wooten's letter because it was based on secondhand information and Wooten had "no factual, firsthand knowledge." Not only did NBC have reasons to doubt Wooten, but NBC actually doubted her.

On top of Wooten's lack of direct knowledge, her possible bias could also support a finding of actual malice. Bias alone does not support a finding of actual malice. If a source's bias causes a defendant to doubt the veracity of the information provided, however, bias becomes relevant to the actual malice analysis.

Here, there is evidence of just that. The deputy head of NBC's Standards, Chris Scholl, said that the whistleblower letter "boils down to a single source—with an agenda—telling us things we have no basis to believe are true." He also later said that Wooten "has a beef" and "a whole separate agenda." As detailed above, Scholl interspersed these observations of Wooten's bias with doubts about the truth of Wooten's story. While only a jury can determine whether Wooten was a credible or believable source, Plaintiff has submitted sufficient evidence that would enable a jury to find that she was not….

Plaintiff has [also] presented sufficient evidence supporting a finding of actual malice in that NBC's employees and decisionmakers expressed serious doubts regarding the truth of the statements.

Decisionmakers who approved NBC's publication of the statements expressed doubts as to the statements' truthfulness. Chris Scholl approved the initial news article written by Ainsley and Soboroff. He also worked on MSNBC's broadcasts of the statements. As detailed above, Scholl expressed concerns over the veracity of the statements. He pointed out the lack of evidence to support the accusations, doubted Wooten as a credible source, and said that NBC had been unable to verify the accusations. Scholl even explicitly stated: "We don't know the truth." A jury could determine that Scholl expressed serious doubts.

Maddow is responsible for the content of her show. She expressed what could amount to "serious doubt" when she criticized the whistleblower letter and said that she did not want to assume that the allegations against Plaintiff were true. While Maddow has since clarified what she meant, it is for the jury to determine what meaning to assign her statements. Hayes is also responsible for the content of his show. Hayes was the most critical of the statements' truth. He noted that the story went viral because it recalled Nazi Germany or the Jim Crow South, but, in reality, that was "not the case here." He also told his team that he had initially "discounted the whole thing." Scholl agreed with Hayes as to this point. While Hayes said that he had less skepticism now, a jury could conclude that Hayes seriously doubted the statements' truth. Thus, a jury could find that Plaintiff has shown malice….

[But a] jury could [also] conclude that Plaintiff has failed to prove the actual malice element…. NBC argues that it did not act with actual malice because: it investigated and found corroborating information for the statements; it relied on reporting from other reliable news organizations; and it provided its audience information that contradicted the allegations.

First, NBC argues that "when a news organization investigates and finds corroborating information for challenged statements—as is the case here—it is 'antithetical' to a finding of actual malice." "While a failure to investigate alone does not establish malice, the investigation which [a defendant undertakes] tends to corroborate his assertion of good faith and belief in the truth of the published statements." That said, where a plaintiff shows that a defendant's "investigation uncovered facts that created a high degree of awareness of probable falsity or caused him to entertain serious doubts as to the truth of his publication," there is evidence of actual malice. Id. (citation omitted). While the evidence certainly does not show that NBC avoided further investigation into the allegations against Plaintiff—quite the opposite, in fact—a jury could conclude that NBC's investigation provided no corroborating evidence or even disproved the accusations. NBC was not obligated to find "only pure, unimpeachable sources of information" or to definitely verify its published statements. But where NBC's investigation yielded evidence that seriously undermined the accusations and proved that only one hysterectomy could be confirmed, a jury might find actual malice. NBC found evidence that multiple women claimed to have received hysterectomies or other procedures. It also could not corroborate these claims, lacked medical records supporting the claims, and heard from multiple sources that only one hysterectomy could be confirmed. In the end, we are left with this: NBC investigated the whistleblower letter's accusations; that investigation did not corroborate the accusations and even undermined some; NBC republished the letter's accusations anyway. A jury could conclude that NBC did not act with actual malice because of its investigation. Or, it could conclude the opposite.

Second, NBC argues that it did not act with actual malice because it relied on reporting done by other reliable, reputable news organizations. "The law is clear that individuals are entitled to rely on 'previously published reports' from 'reputable sources.'" Aside from bare assertions that NBC relied on previous reporting from other news sources, NBC has not provided sufficient evidence to warrant judgment as a matter of law on this issue. To succeed here, NBC must show that its statements were based on reports "which were not believed to be false." NBC's reporting on the whistleblower letter consisted of reading verbatim portions of the letter on air, discussing NBC's own investigation with NBC reporters, and interviewing Wooten or replaying her interview with NBC. NBC has not shown what portions of its reporting came from previous reports by other news outlets. Further, the reports by other outlets simply republished identical portions of the whistleblower letter. NBC does not have safe harbor from actual malice because it republished identical portions of the same whistleblower letter which other news outlets were also republishing. Finally, Plaintiff has submitted evidence that NBC believed the whistleblower letter's accusations—the same accusations republished by other outlets—to be false.

Third, NBC argues that it did not act with actual malice because it provided information contrary to the republished allegations. "Where the publisher includes information contrary to the general conclusions reached in an article, that showing tends to undermine the claims of malice." Put differently, "[w]here a publisher gives readers sufficient information to weigh for themselves the likelihood of an article's veracity, it reduces the risk that readers will reach unfair (or simply incorrect) conclusions, even if the publisher itself has." NBC included statements refuting the whistleblower letter's allegations in its reporting. NBC used portions of Plaintiff, ICE, and LaSalle Corrections's statements that countered the accusations. NBC was not required to provide information contradicting every allegation it published. Reporting a contrarian perspective helps rebut the presence of actual malice. Determining whether actual malice existed here, however, is a job for the jury….

Plaintiff has presented sufficient evidence that could enable a jury to find actual malice. A jury could also conclude that NBC did not act with actual malice given the evidence that it published opposing information. This duel of conflicting evidence must be resolved by a jury….

Here's more from the opinion on the Wooten allegations:

On September 14, 2020, Project South, an advocacy organization, released a letter titled: "Re: Lack of Medical Care, Unsafe Work Practices, and Absence of Adequate Protection Against COVID-19 for Detained Immigrants and Employees Alike at the Irwin County Detention Center." This letter was addressed to the Inspector General of the Department of Homeland Security ("DHS"), the Officer for Civil Rights and Civil Liberties at DHS, the Acting Director of the Atlanta ICE Field Office, and the Warden of the ICDC. Project South also released this whistleblower letter to the media.

The whistleblower featured in the letter was a former nurse at the facility named Dawn Wooten. Wooten served as the main source of information for the letter. Most of the whistleblower letter discusses a lack of COVID-19 precautions at the ICDC. Relevant here, the letter also "raise[d] red flags regarding the rate at which hysterectomies [were] performed on immigrant women under ICE custody at ICDC." Citing unnamed detained women and Wooten, the letter contained shocking allegations about "high rates of hysterectomies done to immigrant women." The letter stated that the facility sent "many women to see a particular gynecologist outside the facility." The letter did not name Dr. Amin.

Regarding the improper treatment allegations, the letter mentioned that "a detained immigrant told Project South that she talked to five different women detained at ICDC between October and December 2019 who had a hysterectomy done." This detainee further stated: "'When I met all these women who had had surgeries, I thought this was like an experimental concentration camp. It was like they're experimenting with our bodies." The letter then quoted Wooten as saying: "Everybody he sees has a hysterectomy—just about everybody." Wooten then described an incident of a faulty hysterectomy. Speaking on behalf of the other nurses at the ICDC, Wooten explained:

We've questioned among ourselves like goodness he's taking everybody's stuff out …. That's his specialty, he's the uterus collector. I know that's ugly … is he collecting these things or something[?] … Everybody he sees, he's taking all their uteruses out or he's taken their tubes out.

The whistleblower letter also raised concerns over informed consent for hysterectomies. The letter quoted Wooten as saying, "'[t]hese immigrant women, I don't think they really, totally, all the way understand this is what's going to happen depending on who explains it to them.'"

Stacey G. Evans, Tiffany N. Watkins, and J. Amble Johnson (of Stacey Evans Law) and Scott R. Grubman (Chilivis Grubman Dalbey & Warner LLP) represent plaintiff.