Last Thursday, U.S. District Judge Marcia Cooke denied ESPN and Adam Schefter’s motion to dismiss New York Giants defensive end Jason Pierre-Paul’s invasion of privacy lawsuit through a bench ruling. A bench ruling refers to an order that a judge reads aloud in court without providing, at that time, an accompanying written order. We analyzed the bench ruling, which centers on the legal fallout of Schefter tweeting a photo of a medical chart of Pierre-Paul losing a finger from a fireworks accident. We also detailed what the bench order could mean for investigative reporting in general.
On Monday, Judge Cooke released her written order, which contains several noteworthy passages.
As a starting point, the written order indicates that ESPN and Schefter scored a minor legal victory. Judge Cooke has dismissed Count I of Pierre-Paul’s lawsuit, which asserted that Schefter obtaining and tweeting Pierre-Paul’s medical chart violated Florida Statute § 456.057. This statute governs the duties and obligations of the physician-patient relationship. Pierre-Paul’s attorneys had highlighted that this statute prohibits third parties from disclosing confidential medical records. Judge Cooke, however, reasoned that the phrase “third parties” is intended to mean healthcare providers and Schefter, as a journalist, does not fall within that classification. As a consequence, Pierre-Paul cannot proceed with an argument that ESPN and Schefter interfered with his protections under the physician-patient relationship. To be clear, Count I was the most speculative of Pierre-Paul’s lawsuit and the least likely to prevail. Still, its dismissal counts as a win for ESPN, Schefter and their attorneys.
The rest of Judge Cooke’s order constitutes a win for Pierre-Paul and his legal team. Judge Cooke has denied ESPN and Schefter’s motion to dismiss Counts II and III of Pierre-Paul’s lawsuit. Count II asserts that Schefter unlawfully invaded Pierre-Paul’s privacy and Count III contends that ESPN, as Schefter’s employer, shares legal responsibility for Schefter’s actions. While Pierre-Paul is a public figure whose health is newsworthy, his attorneys have persuaded Judge Cooke of a crucial point: Pierre-Paul has a plausible argument that publication of his medical information constituted an unlawful disclosure of a private fact that would be highly offensive to a reasonable person.
Judge Cooke’s written order acknowledges that the public’s interest in an NFL player’s health is to some degree a public matter. Yet she stresses that media companies do not have “unlimited” authority to convert “private facts” into public commentaries. The 62-year-old judge, whom President George W. Bush nominated in 2004, quotes language from the Second Restatement of Torts to write,
“The limits on disclosing private are anchored to ‘common decency, having due regard to the freedom for the press and its reasonable leeway to choose what it will tell the public, but also due regard to the feelings of the individual and the harm that will be done to him by the exposure.’”
Put differently, Judge Cooke views the disclosure of private facts as requiring a balancing between the freedom of the press and the harm to the person who would be adversely impacted by that disclosure.
Building on that point, Judge Cooke’s written order agrees that Schefter’s tweet may have cause Pierre-Paul a type of harm the law ought to remedy. Pierre-Paul’s “medical records were not publically available,” Judge Cooke stresses, and “he did not consent to their use.” Further, Judge Cooke observes that “federal and state medical privacy laws, though not directly applicable to [ESPN and Schefter], signal that an individual’s medical records are generally considered private.” Judge Cooke also rejected a potential First Amendment defense “if Schefter secured [Pierre-Paul’s] records unlawfully.”
As noted in my column last Thursday, Judge Cooke’s ruling does not mean that she has ruled for Pierre-Paul in the case. She has only denied a motion dismiss, which signals that Pierre-Paul has offered enough facts to state a plausible claim. If Pierre-Paul’s lawsuit eventually goes to trial, it is possible that ESPN and Schefter will win, just as it is possible that they will lose—a ruling on a motion to dismiss does not forecast the eventual winner and loser. Further, whichever party loses could file a federal appeal to the U.S. Court of Appeals for the Eleventh Circuit. In other words, the winner of this litigation is undetermined and could remain undetermined for many months and possibly years.
On the other hand, ESPN and Schefter would be gambling by going to trial. They just saw a Florida jury award Hulk Hogan $140 million in an invasion of privacy against Gawker over publication of a sex tape. While Hogan’s case was tried in Florida state court (Pierre-Paul’s is in federal court) and while the two cases contain very different facts, it’s clear that some jurors, at least in Florida, regard media disclosures of certain types of personal information to be worthy of massive monetary damages. Further, ESPN and Schefter may want to avoid pretrial discovery where they would be required to answer questions under oath about their reporting strategies and other proprietary information.
The most likely outcome of the Pierre-Paul litigation is a settlement in which ESPN and Schefter agree to pay the 27-year-old former All-Pro a significant amount of money in exchange for Pierre-Paul dropping his lawsuit. But ESPN, which Forbes estimates is worth north of $50 billion, has the financial wherewithal to litigate a case for as long as it deems necessary. Stay tuned.
Michael McCann, SI’s legal analyst, is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law.