Monday, September 23, 2002
Ninth Circuit Rejects Suit Against ABC Over ‘Primetime’ Story
By KENNETH OFGANG, Staff Writer/Appellate Courts
The owner of a medical laboratory, featured on a 1994 “PrimeTime Live” segment about errors in Pap smear results allegedly caused by pressure being placed on technicians to process them too quickly, had his invasion-of-privacy claim rejected Friday by the Ninth U.S. Circuit Court of Appeals.
John Deveraj of Phoenix alleged that ABC, former “PrimeTime” host Diane Sawyer, and others who worked on the program tricked him into taking them on a tour of his facility and surreptitiously recorded his comments.
But the Ninth Circuit panel agreed with U.S. District Judge Roslyn Silver of the District of Arizona that Deveraj could not establish that being featured briefly on the “Rush to Read” segment violated any reasonable expectation of privacy.
Senior Judge Procter Hug Jr., writing for the Ninth Circuit, also concluded that Devaraj could not recover on a tortious interference with business relations theory. That claim was barred by the First Amendment because the broadcast involved a matter of public concern and the portion dealing with the plaintiff was substantially true, the judge said.
The 27-minute segment focused on four laboratories, including Consultants Medical Lab, owned by Devaraj and his wife. The portion of the segment dealing with the plaintiff’s laboratory lasted two minutes, including a 52-second videotape in which Devaraj is confronted with evidence that slides were read incorrectly and is seen and heard admitting that he had taken on too large a workload.
Neither Devaraj nor his business was identified by name. The narrator referred to the business as “a lab in Arizona” and to Devaraj as the lab’s manager.
To prepare the piece, “Primetime” staffers asked each of the four labs to analyze 623 pap smear slides over a weekend. When Consultants Medical Lab processed the slides, a van was parked outside the building to observe the arrival and departure times of the cytotechnologists—employees who read pap smears.
The purpose of the monitoring, the network explained, was to determine whether the lab was complying with a federal regulation limiting each cytotechnologist’s workload to 100 slide readings in an eight-hour day.
To gain access, ABC producer Robbie Gordon told Devaraj that she was a Georgia cytotechnologist planning to visit Phoenix for personal reasons and was interested in learning about the industry so that she could open her own lab. Devaraj, who said he thought he might get some business from her, agreed, and she showed up with two other ABC employees.
The two were identified to Devaraj as a computer expert and a business manager. In fact, the “computer expert” wore a wig that concealed small recording devices.
After the segment aired, Devaraj filed suit in Maricopa Superior Court, accusing the defendants of fraud, intrusion upon seclusion, tortuous interference with contract, and trespass. The case was removed to federal court on the basis of diversity.
Silver granted summary judgment to the defendants on all claims except for the one for fraud, as to which partial summary judgment was granted. Devaraj then dismissed the rest of the fraud claim without prejudice and final judgment was entered.
Hug, joined by Judge A. Wallace Tashima and visiting Senior Judge Richard D. Cudahy of the Seventh Circuit, said the district judge was correct on all counts. While Arizona courts have not ruled on the precise issues, he explained, it was the court’s “best judgment” that they would find for the defendants.
The appellate jurist noted that Arizona generally follows the Restatement of Torts, which permits recovery for an intentional intrusion into a private place, conversation, or matter only if the intrusion would be highly offensive to a reasonable person. Devaraj, he said, could not show that the intrusion was unreasonable.
Hug rejected the plaintiff’s claim that his conversation with the defendants should be considered confidential because it took place in a private conference room within the lab’s administrative offices.
“Devaraj’s willingness to invite these strangers into the administrative offices for a meeting and then on a tour of the premises indicates that Devaraj did not have an objectively reasonable expectation of solitude or seclusion in the parts of [the facility] that he showed the ABC representatives,” the judge said.
Hug noted, in contrast, that when Gordon walked toward the plaintiff’s private office, to which the door was slightly ajar, Devaraj asked her not to enter, and she didn’t. He also emphasized that the subject of the conversation was business-related, not personal.
The judge also rejected the argument that Devaraj could reasonably expect that his comments were not being taped for broadcast. While that was “undeniably” his subjective expectation, Hug explained, it is unlikely that an Arizona court would find the expectation reasonable given the state’s limited protection against electronic interception of oral communications.
Unlike California, he noted, Arizona permits a conversation to be recorded with the consent of a single party.
The trespass claim was properly rejected, Hug went on to say, because even if there was a trespass, the plaintiff suffered no damages as a result. If he lost business or had his reputation injured, the judge reasoned, it was because the lab was accused of failing to detect cervical cancer on the slides, not because of anything he said or showed to his visitors.
Los Angeles attorneys Neville L. Johnson and Brian A. Rishwain of Johnson & Rishwain, LLP represented Devaraj on appeal, while the Phoenix firm of Osborn Maledon, P.A. represented ABC.
The case is Medical Laboratory Management Consultants v. American Broadcasting Companies, Inc., 00-15594.
Copyright 2002, Metropolitan News Company