From paper to punitive

The journalist scribbled his notes on page after page of a yellow legal pad.

The subsequent story was inked onto the front page of a newspaper, The St. Petersburg Times, and over the next five years popped up in Google searches of its subject, Dr. Harold “Hal” Kennedy, a St. Louis cardiologist.

The story and its allegations – “sexual harassment,” “federal investigation” -haunted Kennedy and stymied his attempts to find a teaching position after leaving a Florida veterans’ hospital.

Finally, with the help of St. Louis solo practitioner Ira Berkowitz, Kennedy sued the newspaper for libel. And on Aug. 28, a Florida jury that never saw those yellow pages of notes – or heard a word of testimony from the reporter – levied a $10.1 million libel verdict against The St. Petersburg Times.

If it stands, the verdict will rank among the top 10 largest defamation awards against media institutions over the last 30 years.

Some media law experts say it’s doubtful the award will survive post-trial and appellate scrutiny. Since 1980, appellate courts have reduced or overturned 48 percent of plaintiff libel verdicts against media entities, according to the Media Law Resource Center in New York.

“The standard to get punitives is so high that it will be very difficult for the plaintiff to hold that part of the verdict,” said Jean Maneke, a Kansas City media law attorney. “Freedom of speech in this country would rather we err on the side of more speech than speech that’s so limited by a fear of damages that we limit the right to speak.”

The publisher of the St. Petersburg Times insists the stories are true and has vowed it will appeal the verdict. Pinellas-Pasco County Circuit Judge Anthony Rondolino is mulling the paper’s motion for a directed verdict, which could banish the jury’s award of $5.14 million in compensatory damages and $5 million in punitive damages.

Berkowitz says he is convinced the award will stand.

At the egging of an ambitious reporter, the newspaper’s editors rushed a sketchy story to press and printed a front-page article that irrevocably damaged Kennedy’s career, he said.

“What sells papers? The lie sells papers as opposed to what really happened,” Berkowitz said.

Power of the press

The interview that gave birth to the story happened on a late December night in 2003.

Paul de la Garza, a longtime St. Petersburg Times reporter, had written a story about the alleged ouster three months earlier of Kennedy, the chief of medicine at the Bay Pines Veterans Affairs Medical Center. 

De la Garza, a hard-driving reporter with a special passion for investigating veterans’ issues, had worked for 22 years as a journalist in Florida, Chicago and Mexico City. While working as the Chicago Tribune’s bureau chief in Mexico City, he and his wife, Georgia, adopted two orphans.

De la Garza led his story on Kennedy by describing the doctor as “a cardiologist under federal investigation on charges of misusing money and sexual harassment.”

In the story, de la Garza wrote Kennedy said he did nothing wrong and commented on one employee’s complaint to the Equal Employment Opportunity Commission. The female employee complained because Kennedy had asked her to make coffee and had given her an apron as a gift, the doctor said, according to the story.

The article appeared the next day, Dec. 4, 2003, on the paper’s front page and included a small photo of Kennedy. De la Garza wrote two more articles over the next week that briefly mentioned Kennedy’s reassignment, the investigation into his use of funds and the EEOC complaints.

Meanwhile, the doctor went to work at the hospital and felt the stares of his co-workers, Berkowitz said.

“The anguish and embarrassment were pretty serious,” Berkowitz said.

The attorney said Kennedy is traveling in Europe for a cardiovascular foundation he has since founded and will not comment about the libel case.

Before The St. Petersburg Times article was published, the medical school at the University of Michigan sent Kennedy a letter of intent with a prospective salary offer and a mention of research opportunities. After the article, the offer dried up, as did possible jobs at other universities, Berkowitz said.

At the libel trial in August in Florida, university administrators testified about discovering The St. Petersburg Times article through a Google search or, in one case, an anonymous photocopy of the article mailed to the medical school.

“That is a deal killer for a professor,” Berkowitz said.

A defense win and then setbacks

On the road to trial, the newspaper pointed to Kenney’s leadership role at a government hospital and successfully petitioned for the doctor to be named a “public official.”

That legal determination forces libel plaintiffs to prove that editors or reporters published a false story while knowing it was untrue or with reckless disregard for whether the story was true or false. Relatively few libel suits survive the public official designation.

Then, the paper looked to de la Garza’s notes.

“Journalists who keep good notes are in a better position to defend themselves with respect to what someone said or didn’t say,” said Alison Steele, the St. Petersburg attorney for The St. Petersburg Times.

Notes also help to counter the testimony of “waffling sources,” sources for the original story who, plunked on a witness stand five years later, can’t recall what they said to a journalist.

One witness in Kennedy’s trial, hospital administrator Smith Jenkins, did just that. He confirmed he spoke to de la Garza for the story but testified he didn’t remember if he discussed the EEOC complaints with the reporter, according to a trial transcript quoted in the newspaper’s post trial motion.

Rondolino, the judge, rebuffed the paper’s efforts to submit the notes. He ruled the notes failed to clearly identify when de la Garza spoke to sources and what information they provided.

“The best available evidence … was not available to us here,” Steele said.

Berkowitz said the handwritten notes were difficult to read. De la Garza also scrawled arrows and parenthesis on the notes, symbols known only to him, the lawyer said.

Parsing phrases

The newspaper built its defense on one assertion: De la Garza got it right.

At the time it published the articles, Kennedy was in fact under investigation by the VA’s Inspector General for misusing money to pay for hospital parties, the newspaper said.

Steele pointed to a February 2004 report issued by the Inspector General that concludes Kennedy violated ethical rules in soliciting donations from pharmaceutical companies to pay for a cardiology symposium he hosted. Missouri Lawyers Weekly requested and was sent a redacted copy of the same report from the VA. The report concludes the Bay Pines VA hospital complied with the Inspector General’s recommendations in various ways, including stopping staff lunches sponsored by drug companies.

At trial, Berkowitz said he argued the article created a false connection between the Inspector General investigation and Kennedy’s reassignment within the hospital. Kennedy’s former boss at the VA hospital, P.K. Mohanty, testified the investigation had nothing to do with Kennedy stepping down as chief of medicine, Berkowitz said.

Kennedy’s libel case also centered on de la Garza’s characterization of the EEOC complaints as “sexual harassment” complaints. The preferred term would be “gender discrimination,” Berkowitz said, not “sexual harassment,” which implies improper sexual advances or conduct.

In its motion for a directed verdict, the newspaper argues “sexual harassment” is an appropriate term to describe workplace discrimination based on gender.

‘Non-denial denial’

To clear the hurdle of actual malice, Berkowitz examined de la Garza’s reporting methods.

He said during the reporter’s late-night telephone interview with Kennedy, de la Garza floated the EEOC complaints to the doctor. When Kennedy incredulously asked if de la Garza was talking about the employee who complained about his request to make coffee, de la Garza jumped on the statement and used it as a confirmation, Berkowitz said.

“He was baiting Hal to confirm it so he’d have something,” Berkowitz said. “And when Hal denied it, he ended up putting in the paper that Hal confirmed it. That’s malice.”

In its motion for directed verdict, The St. Petersburg Times describes Kennedy’s statement as a “non-denial denial” that shouldn’t amount to evidence of actual malice in a news report.

It’s common for public officials to deny they’re under investigation, the paper argues in its motion. If media can’t publish a story about an investigation when faced with such a denial, “then constitutional protections for reporting about government officials are a complete nullity.”

In another effort to prove actual malice, Berkowitz emphasized the newspaper’s response to the aftermath of the story.

In the months after it was published, Berkowitz said Kennedy demanded a retraction and met with de la Garza to discuss alleged mistakes in the story. But the paper never printed a retraction, and de la Garza didn’t tell his editors about Kennedy’s attempts to correct the story, Berkowitz said.

“The reporter knew he had printed false accusations against Hal,” Berkowitz said. “He knew, otherwise, why wouldn’t he go to his editors and say, ‘This guy’s looking for a retraction. Back me up.’?”

Steele said de la Garza did inform his editors about Kennedy’s demand for a correction.

Missing testimony

The St. Petersburg Times also struggled to wage its defense despite the striking absence of a key witness: de la Garza. In 2006, the reporter died of a heart attack. He was 44.

The libel lawsuit was filed before de la Garza’s sudden death, but Steele wouldn’t say how the reporter felt about accusations that his stories contained false statements.

With no testimony from de la Garza about his methods, the Florida jury was left to wonder during the five-day trial.

Was de la Garza an honorable and skilled reporter with no history of mistakes? Or was he an overly aggressive reporter who craved the front page and pumped Kennedy for new information – even as he met with the doctor and the doctor’s lawyer about alleged mistakes in the story?

“In the end, the Times’ reporting will be vindicated,” said Andrew Corty, vice president of the Times Publishing Co., which owns The St. Petersburg Times. He noted the paper picked up two Pulitzer Prizes in 2009 in the national reporting and feature reporting categories.

Berkowitz said when his Florida co-counsel Timothy W. Weber questioned de la Garza’s editors, he posed one important question:

“Do you make any considerations when you’re doing an article like this that, in case it’s wrong, you’re going to ruin a professional’s life?”

Berkowitz said Weber asked the question three times and never got a straight answer.