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Texas Appeals Court (Probably) Ends Pain Doctor’s Long-Running Libel Litigation

By Jim Hemphill

The likely final chapter in a nearly six-year-long saga has been written by a Texas appellate court in a libel suit brought against Austin's daily newspaper by a disgraced pain management doctor.

The March 31, 2020 opinion in Joselevitz v. Roane, No. 14-18-00172-CV, 2020 WL 1528020 (Tex. App. – Houston [14th Dist.] March 31, 2020, n.p.h.)., affirmed an award of attorneys' fees for the former parent company of the Austin American-Statesman newspaper, and upheld summary judgment for one of the newspaper's sources. The case's tortured history involves an attempted prior restraint, invocation of the Texas reporter's shield law, and application of the state's anti-SLAPP statute.

The Beginning: Investigative Reporting and an Attempted Prior Restraint

Mary Ann Roser, then an investigative reporter specializing in health-care issues with the Statesman, was working on an article analyzing patient deaths while under the care of pain management doctors. As part of her reporting, she became aware of several lawsuits and Texas Medical Board sanctions against Dr. Joel Joselevitz, a Houston-area doctor.

The medical board had ultimately barred Joselevitz from prescribing pain medication, citing the death of patients from pain medication overdoses while in his care. The board, in two sanctions orders, found Joselevitz had violated 18 provisions of the Texas Medical Practice Act and board rules – including prescribing pain medications in violation of the law and for nontherapeutic purposes. The families of at least two of his deceased patients filed wrongful death lawsuits against him, as well.

Reporter Roser located Carol Roane, the mother of one of Joselevitz's deceased patients, through court records and contacted her for an interview. Roane provided some details of her daughter's care and death, while pointing out that the wrongful death case she filed against Joselevitz had been settled with a confidentiality provision that barred her from discussing the settlement.

Roser then reached out to Joselevitz for comment. Rather than returning the call, Joselevitz hired a lawyer to sue Roane and Cox Media Group, which was then the Statesman's ultimate parent company. The suit was filed in Houston on November 14, 2014 – before the Statesman published anything about Joselevitz – seeking a temporary restraining order and temporary injunction ordering that the newspaper be "restrained from publishing any accounts of the Roane lawsuit to any third party" and to preserve materials related to its journalistic work. Joselevitz's legal theory was that the Statesman was complicit in Roane's alleged breach of the settlement agreement's confidentiality provision. Notably, none of the pleadings in Roane's lawsuit were sealed; they remained available to the public.

Joselevitz's lawyer sent an email to the reporter, stating "If we can agree to refrain from publication so there will be no irreparable injury to my client, I am sure we can resolve this matter."

Joselevitz was successful in obtaining a temporary restraining order against Roane, barring her from discussing her case against Joselevitz. However, when presented ex parte with an argument that the Statesman should be restrained from publishing or even discussing a publicly filed lawsuit, the judge wisely denied that relief, apparently recognizing an attempted unconstitutional prior restraint when he saw one.

The request for a temporary injunction, however, remained pending.

The Statesman then moved for dismissal under the Texas Citizens Participation Act (TCPA), the state's anti-SLAPP statute, and filed opposition papers to the request for a temporary injunction. Three days later, on December 12, 2014, Joselevitz filed a voluntary nonsuit – a Texas procedure allowing a plaintiff to abandon claims, without prejudice, whenever the plaintiff so chooses – of his claims against the Statesman, while still pursing claims against Carol Roane. In light of this development, the Statesman chose to not pursue a potential recovery of fees and sanctions against Joselevitz.

But the litigation was just beginning.

The Statesman Publishes Article, Joselevitz Attempts to Depose Reporter

Mary Ann Roser's article was published by the Statesman on December 27, 2014. The article was a comprehensive investigation of regulatory action against, and the lack of criminal prosecution of, doctors who allegedly violate laws regarding prescription drugs. The article included many quotes from regulators, as well as multiple patients and doctors. Joselevitz was just one of three pain management doctors discussed in the article against whom lawsuits and Texas Medical Board actions were filed; he was mentioned or discussed in 31 of the article's 116 paragraphs, just more than one-quarter of the article. In addition to Joselevitz's treatment of Carole Roane's daughter Nicole Willens, the article addressed another Joselevitz patient who also suffered a fatal overdose and whose survivors sued for wrongful death.

Joselevitz sought to depose reporter Roser before taking any other deposition; he had not yet even deposed the remaining defendant, Carol Roane (sued for alleged breach of the settlement agreement's confidentiality provision, as well as defamation). The Statesman successfully invoked the Texas shield law and prevented the deposition.

Joselevitz thus deposed Roane, whose initial answers seemed to indicate some disagreement with quotes attributed to her in the article. However, her post-deposition errata sheet clarified any potential confusion: she did not dispute telling the reporter what she was quoted as saying in the article.

Joselevitz Again Seeks a Deposition, Again Sues the Statesman

Even so, Joselevitz again moved to compel reporter Roser's deposition, claiming that there was a fact issue as to what Roane told Roser. However, nothing in the article discussed the details of the confidential settlement, and Roane had clarified that she did not dispute the article's accuracy. Joselevitz sought not only to depose Roser, but also sought production of all of her newsgathering material for the article – whether it related to him or Roane at all.

While the motion to compel the deposition was pending, the one-year anniversary of the article's publication – and thus the running of limitations – was approaching. Joselevitz amended his lawsuit on December 21, 2015, again suing Cox Media Group, this time for defamation over the published article.

The Statesman again filed a motion to quash the deposition, and also filed a motion to dismiss under the anti-SLAPP statute. Under the TCPA, the filing of a motion to dismiss has the effect of staying discovery absent a court order, so the Statesman had two grounds – the stay and the shield law – for quashing the reporter's deposition.

While the motion to dismiss was pending, the trial court (with a different judge sitting than the one who denied the prior restraint) granted Joselevitz's motion to compel the reporter's deposition.

In response, the Statesman sought mandamus relief from the Court of Appeals on the order compelling Roser's deposition, while the motion to dismiss remained pending. The Court of Appeals essentially suspended the mandamus proceedings, pending a ruling on the Statesman's motion to dismiss.

Under the TCPA, a motion to dismiss is overruled by operation of law if the trial court does not rule within 30 days after the hearing. The trial court declined to issue a ruling, so the dismissal motion was denied on April 4, 2016. Two weeks later, the Statesman filed an interlocutory appeal of the denial of the anti-SLAPP motion, which essentially continued to suspend the mandamus proceedings regarding the reporter's deposition.

The Statesman Prevails in the Court of Appeals

Eleven months later – after full briefing, but no oral argument – the Fourteenth Court of Appeals out of Houston reversed the denial of the Statesman's anti-SLAPP motion and rendered judgment for the newspaper. Cox Media Group, LLC v. Joselevitz, 524 S.W.2d 850 (Tex. App. – Houston [14th Dist.] 2017, no pet.).

The appellate court agreed that the article accurately described the allegations against Joselevitz and the medical board's sanctions. It rejected his contention that the article falsely portrayed him as a "vitriolic doctor who harmed his patients." The court further noted:

When compared to Board proceedings and the lawsuits, however, we conclude that the article's report of the proceedings does not paint Joselevitz in a worse light than the proceedings themselves—i.e., that Willens died by overdosing on a cocktail of some of the medications that Joselevitz prescribed to her and other medications that Joselevitz was or should have been aware Willens was taking.

Cox Media Grp., LLC v. Joselevitz, 524 S.W.3d at 862. The court continued:

In sum, we conclude that the record reflects that the American–Statesman article is substantially true. Therefore, Joselevitz failed in establishing his prima facie case. The TCPA requires that his action be dismissed.

Id. at 862. But the case still was not over: in addition to leaving Joselevitz's claims against Carol Roane pending – she had not filed a motion to dismiss – the issue of attorneys' fees was remanded to the trial court. The TCPA at the time had mandatory provisions for attorneys' fees and sanctions. The Statesman had presented evidence of fees to the trial court, and Joselevitz had not introduced contradicting evidence. However, because Joselevitz had not agreed to the fee request, the Court of Appeals remanded rather than accepting the Statesman's invitation to award the requested fees.

The Fee Proceedings, and Yet Another Appeal

A hearing on the Statesman's fee request was held simultaneously with Roane's summary judgment motion on the merits of the claims against her. The trial court granted the summary judgment and granted the Statesman's request for fees, but awarded only two dollars in sanctions against Joselevitz.

Because the award of sanctions was mandatory (the statute has since been amended to make sanctions discretionary) but the amount was discretionary, the Statesman did not appeal. And it did not anticipate that Joselevitz would appeal the fee award against him, since the award was less than one-fourth the amount Joselevitz had claimed he had paid his own lawyer.

But appeal he did. Joselevitz even appealed the award of sanctions, without ever mentioning that the sanctions were only two dollars. The Statesman responded and sought additional sanctions for the filing of a frivolous appeal.

Joselevitz's appeal was docketed on March 20, 2018. Again, full briefing but no argument. The decision came down more than two years later, on March 31, 2020. Joselevitz v. Roane, No. 14-18-00172-CV, 2020 WL 1528020 (Tex. App. – Houston [14th Dist.] March 31, 2020, n.p.h.). The Court of Appeals upheld the summary judgment in favor of Carol Roane, and upheld the fee award to the Statesman – but declined to award sanctions for such a transparently frivolous appeal.

Is this case finally over? The deadline for Joselevitz to appeal to the Texas Supreme Court is May 15, 2020. Another appeal seems unlikely, but in this case, you can never tell....

Jim Hemphill is a shareholder at Graves Dougherty Hearon & Moody in Austin, Texas. He has represented Cox Media Group throughout the Joselevitz saga.

 
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