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Every fall, I spend an evening in my investigative reporting class extolling the virtues of searching court records. Lawsuits can shine a light on allegations of misconduct, discrimination or liability against businesses, powerful individuals and government agencies.
Legal filings and court hearings often reveal closely guarded secrets that individuals and corporations would rather remain outside the public record. Citing court records, ProPublica and the Atlanta Journal-Constitution recently reported on how a powerful Atlanta movie executive who had been lauded for his diversity efforts had shared racist and antisemitic views in text messages. (After the article was published, the executive sent a statement that included an apology and noted that the texts were never intended to be shared publicly.) We also relied on court records last year for a story about a litigator’s battle against Blue Cross and Blue Shield of Louisiana to pay for the proton therapy his doctor recommended to fight his throat cancer.
Over the past few years, however, I’ve had a unique vantage point: as a defendant who prevailed in a lengthy libel case.
I have always been careful to emphasize to my students that, while legal documents can be valuable, they contain a string of unproven allegations that need to be verified. Of course, some lawsuits end in verdicts against the defendants. But many are ultimately dismissed by judges or appeals courts or are abandoned by plaintiffs. Sometimes cases are settled because the cost of defending against them would be higher than paying for them to go away. Sometimes they are settled because a defendant accepts some responsibility. I always tell my students to make sure they know the outcome of any lawsuit they cite in a story.
My experience left me acutely aware how even when you win a lawsuit, you can still lose, and also how court records rarely tell the whole story.
In May 2018, Mike Hixenbaugh, then of the Houston Chronicle, and I wrote a series of articles about the troubled heart transplant program at Baylor St. Luke’s Medical Center in Houston. One of those articles was about a pioneering surgeon, Dr. O.H. “Bud” Frazier. As we reported, Frazier contributed to many breakthroughs in his quest to develop a permanent mechanical replacement for the human heart, but he also was accused of violating federal research rules and skirting ethical guidelines.
Frazier sued us in July of that year, alleging that the articles included errors and misleading statements “calculated to falsely portray Dr. Frazier as an inhumane physician.”
The lawsuit was dismissed a few weeks ago, six years after it was filed, after a Texas appeals court ruled that our investigation provided a “fair, true, and impartial account” of accusations against him.
ProPublica and the Chronicle’s parent company, Hearst, supported us throughout the litigation, which was incredible, but the process still took a major toll. Cases like these cost news organizations like ProPublica hundreds of thousands of dollars to defend against. Journalist defendants have to spend dozens of hours gathering materials and working with lawyers. And, in my case, I was denied a mortgage because I truthfully checked the box indicating that I was a defendant in a lawsuit.
More than that, I realized that the way defendants are portrayed by plaintiffs in court papers — callous, sloppy, wrong — can bear little resemblance to reality. For our story on Frazier, we reviewed lawsuit records. But, as I teach my students, we didn’t stop there. We also relied on federal inspection reports, medical journal disclosures, a report to members of the hospital’s board of directors and an array of interviews. And we reached out to Frazier and his lawyer, engaging in conversations and emails to ensure they would have a chance to respond to everything we said about him. We had recordings and transcriptions of some of our interviews, and we included links to many of our primary sources in the article itself. (Note to other journalists: I would strongly recommend this.)
This case also was a lesson in how lower courts sometimes get it wrong. I had long taught that rulings from judges can be a powerful way to validate facts, but my experience challenged those views, or at least added a big caveat to them.
We thought we were fortunate that the case was filed in a state that has a law barring lawsuits brought to silence public criticism. The 2011 Texas Citizens Participation Act allows for speedy dismissals of what the Texas Supreme Court has defined as “retaliatory lawsuits that seek to intimidate or silence (citizens) on matters of public concern” or “chill First Amendment rights.”
Two months after Frazier filed suit against us, our lawyers filed a motion in Harris County District Court to dismiss the case. After a hearing, the judge denied our motion and adopted the plaintiff’s findings of fact saying that “Dr. Frazier has met his burden of proving by clear and specific evidence his prima facie case of defamation and intentional infliction of emotional distress.”
Our lawyers filed an appeal, saying the court had erred in its decision. In January 2020, we won. The appeals court cited errors by the district court judge (who lost his reelection bid in 2018) and sent the case back for further proceedings. Frazier appealed to the Texas Supreme Court, but it didn’t take the case.
The case returned to the lower court in 2021, and the following year, a new judge once again ruled against us. Our lawyers appealed again. And in April of this year, the appeals court ordered the lower court to dismiss the case. That’s what happened on July 29 after Frazier’s lawyers filed a “notice of non-suit,” meaning they would not appeal.
The litigation wore on me. Not only did I have to scramble to get a new mortgage lender, but I also lost sleep, had trouble focusing and felt a pit in my stomach any time I received a note from our lawyers.
ProPublica, too, paid a price. Though we reached a settlement with Frazier in which he paid a portion of our attorneys fees (in that settlement we agreed not to disclose how much), our insurer still covered the vast majority of the cost — after we met the deductible. Our insurance rates have skyrocketed. All of our new cases carry a much higher deductible.
I reached out to David Berg, Frazier’s lawyer in the case, to understand how the lawsuit affected his client. In a written statement, he noted that Frazier, who was 78 in 2018 when the initial story was published, had a rapid heart rate three days after the article appeared, which sent him to the hospital. He also noted that two different judges had sided with Frazier.
“Those findings were reversed in the court of appeals, but the media winning a defamation action is hardly news,” Berg wrote. “What is news is what Bud accomplished in the operating room, as opposed to the courtroom, just last month, with a device that may well save millions of lives of patients with failing hearts.”
He also said in response to my question: “Mr. Ornstein inquired about the effect of the litigation on Dr. Frazier. The article haunts him. One can only hope that the rest of Bud’s life will contain even more awards and honors by his peers, and they are already legion; that’s what a doctor who has done so much deserves. Not malicious articles.” (You can read his full statement.)
Including the Frazier case, ProPublica and its journalists have been sued at least six times for libel and defamation since our start 16 years ago. We have not lost or paid money to defendants in any of them. In 2010, a federal judge in Louisiana issued a ruling that effectively ended a libel suit filed by a doctor mentioned in “The Deadly Choices at Memorial.” In 2016, a federal district judge in Phoenix threw out a case accusing us and the Center for Investigative Reporting of defaming a government contractor. In 2018, a Brooklyn judge dismissed a libel suit against two reporters related to a 2015 investigation into a group of for-profit nursing homes.
In 2023, a New York appeals court sided with a freelance journalist in a defamation suit about an article we ran chronicling the downfall of a Fortune 500 CEO. And this May, a Texas appeals court sided with ProPublica and The Texas Tribune in a disparagement lawsuit filed by a health care services company that was the subject of a 2020 article. Those two cases are still ongoing, and we’ll continue to defend our journalism.
Defending these cases required time and money, and ProPublica’s experience isn’t unique. In a 2021 op-ed in Columbia Journalism Review, D. Victoria Baranetsky and Alexandra Gutierrez described the fallout of a lawsuit against Reveal, run by the Center for Investigative Reporting: “Reveal will never be able to recover the time that could have been spent on reporting, or forget the stress that a multi-million-dollar lawsuit inflicts on its employees,” they wrote.
As I prepare for my investigative class this fall, I will once again highlight the value of reviewing lawsuits when researching an article. But I’ll spend a few extra minutes on my experience and the caveats.
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