THE PROS AND CONS OF THE LITIGATION SOLUTION TO DESPERATE HOUSEWIVES’ GROUP DEFAMATION

By: Roman P. Mosqueda, Esq.

►    E-mails Received By Author:

►    Pro e-mail comments:

                        Sometimes we get concessions out of lawsuit that cannot be obtained outside of lawsuit.

                        We won’t be taken seriously if we don’t sue.

►    Con e-mail comments:

            A lawsuit would only force ABC to defend itself by degrading our medical professionals. With the public apology, we’re already ahead.

      We enjoy the freedom so many Americans have fought and died for.  And one of them is the freedom to choose to laugh, even when we may be the butt of an inadvertent joke.

►    Producers’ And ABC Studios’ Apology:

      The following apology was sent to ABS-CBN’s bureau in  United States and aired in the Philippines, not in the United States:  “The producers of Desperate Housewives and ABC Studios offer our sincere apologies for any offense caused by the brief reference in the season premier.  There was no intent to disparage the integrity of any aspect of the medical community in the Philippines.”

►    Demands Made To ABC:

(1)  ABC must hire qualified Filipino artists and scriptwriters within six (6) to twelve (12) months, and the hiring should be monitored by a committee of Fil-Am leaders and artists and ABC representatives;

(2)  Demand for correction or retraction in an episode or on air (TV broadcast);

(3)  ABC-produced historical documentary on Philippine-educated physicians in the United States for the past fifty (50) years;

(4)  Demand for apology to AMA members and the Philippine medical community by AMA’s President; and

(5)  Demand for apology to the international surgical community by American College of Surgeons’ President.   

►    Legal Issues On Defamation Suit vs. ABC etc.:

(1)    Nonactionable Group Defamation:

      (a)        California Supreme Court’s decision in Blatty v. New York Times Co. (1986) 42 Cal. 3d 1033, 232 Cal. Rptr. 542, through Mr. Justice Mosk:

                  “When, as in this case, the statement that is alleged to be injuriously false concerns a group -- here books currently in print and their authors -- the plaintiff  faces a ‘difficult and sometimes insurmountable task.  If the group is small and its members easily ascertainable, [the] plaintiff may succeed. But where the group is large -- in general, any group numbering over twenty-five (25) members -- the courts in California and other states have consistently held that plaintiffs cannot show that the statements were ‘of and concerning them.’”

      (b)        The rationale for the Blatty doctrine given by the    California  Supreme Court is as follows:

                  “It is far better for the public welfare that some occasional consequential injury to an individual arising from general censure of his profession, his party, or his sect should go without remedy than that free discussion on the great questions of politics, or morals, or faith should be checked by the dread of embittered and boundless litigation.” (Citing Michigan United Conservation Clubs v. CBS News (W.D. Mich. 1980) 485 F. Supp. 893, 900, affd. (6th Cir. 1981) 665 F. 2d 110).

(c)        The Blatty Court also said:  “The ‘of and concerning’ or specific reference requirement limits the right of action for injurious falsehood, granting it to those who are the direct object of criticism and denying it to those who merely complain of nonspecific statements that they believe cause them some hurt.  To allow a plaintiff who is not identified, either expressly or by clear implication, to institute such an action poses an unjustifiable threat to society.”

      (d)         In addition, the Blatty Court  observed:  “The ‘of and concerning’ requirement serves to immunize a kind of statement which, though it can cause hurt to an individual, is deemed too important to the vigor and openness of public discourse in a free society to be discouraged.”

►    The Oklahoma Supreme Court in McCullough v. Cities Service Company (1984) 676 P. 2d 833, 837, cited:

      (a)        The Restatement, Torts 2nd Edition, 564A (p.168), which states: “it is not possible to set definite limits as to the size of the group or class, but the cases in which recovery has been allowed usually involved numbers of twenty five (25) or fewer,” and found:

      (b)        “Generally, an impersonal reproach of an indeterminate class (such as 19,686 Doctors of Osteopathy) is not actionable. “…(T)he larger the collectivity named in the libel, the less likely it is that the reader would understand it to refer to a particular individual. The rule was designed to encourage frank discussions of matters of public concern under the First Amendment guarantees. Thus, the incidental and occasional injury to the individual resulting from the defamation of large groups is balanced against the public’s right to know.

►    Nonactionable Statements of Opinion:

      (a)        Citing the U.S. Supreme Court in Gertz v. Robert Welch, Inc., (1974) 418 U.S. 323, 339-348, the California Supreme Court in Blatty gave the following reason for nonactionability of statements of opinion: “Statements of opinion, ‘(h)owever pernicious’ are immunized by the First Amendment in order to insure that their ‘correction [depends] not on the conscience of judges and juries but on the competition of other ideas.’”

      (b)        In Weller v. American Broadcasting Companies, Inc. (1991) 232 Cal. App. 3d 991, the California Court of Appeal ruled that: “…(T)he courts are still willing to protect statements that are clearly satirical, hyperbolic, imaginative or rhetorical statements of fact that are not provably false also continue to be protected.”

      (c)        In Michael Jackson v. Paramount Pictures Corp. (1998) 68 Cal. App. 4th 10, the California Court of Appeal noted that: “The Supreme Court has sanctioned the use of ‘rhetorical hyperbole’, exaggeration, and other colorful language to make a point.”

      (d)        The Weller Court, supra, pointed out that the United States Supreme Court had said in Milkovich v. Lorain Journal Co., (1990) 497 U.S. 1, 12-21, that: “… (E)xpressions of ‘opinion’ may often imply an assertion of objective fact. For example, ‘(i)f a speaker says, ‘In my opinion John Jones is a liar’, he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact.’”

►    Consultation with Prof. Michael J. Polelle of The John Marshall Law School and co-counsel for the American Italian Defense Association (AIDA) vs. Time Warner Entertainment Company, L.P. AIDA claimed that Time Warner’s distribution through HBO of The Sopranos, depicting depraved character of the Mafia underworld as the dominant motif of Italian-American culture violated the Illinois Constitution.

      (a)        Prof. Polelle agreed that, since group defamation is nonactionable nationwide, suing for a subset of twenty-five (25) or less Caucasian Philippine med school-educated physicians practicing OB-GYN in California or in the United States is the right approach, if their group is twenty-five (25) or less in number. He allowed mention of his name in this Summit, and asked Mr. Mosqueda to keep him posted.

(b)        Prof. Polelle’s article entitled “Racial And Ethnic Group Defamation:  A Speech-Friendly Proposal “was published by the Boston College Third World Law Journal (2003) Vol. 23, No. 2, page 213-274, concludes that:  “Generally, defamation of a large group is almost never actionable, either by the group or by any individual within the group.”  The basis for this conclusion is that:  “… a member of … (a) large group that has been defamed will not be able to establish the individual identification necessary for personal defamation.”  He qualifies that:  “The only hope for a member of an obviously large group is to claim that he or she is a member of an identifiable small subset within the large group.”

►    Consultation with Prof. Michael J. Polelle of The John Marshall Law School (continued…)

      (c) Prof. Polelle proposes the enactment of a declaratory judgment statute at the state level to remedy group racial and ethnic defamation.

Prof. Michael J. Polelle

Professor, The John Marshall Law School

Chicago, Illinois

(312) 987-1440

►          Motives of Producers/Creators/Scriptwriters (Marc Cherry et. al.) For Defamatory Statements:

      (a)           Sumi Sevilla Haru, a mainstream, veteran Fil-Am actress, received an audition call for the 09/30/07 Desperate Housewives’ episode.  The part was for an older Asian woman with her daughter, to assure Susan Mayer that the doctor was competent.  As she was about to drive into the Universal Studios’ gate, her agent called her that the part was cut out.

   (b)  Was it a last minute change to avoid paying two (2) actors?  Or to write in the defamatory statements on the physician’s credentials?

(c)  Alec Mapa, another mainstream Fil-Am actor who has a recurring role in the series, was not consulted on the change in script.  After the airing of the contested statements, he said “It’s unfortunate that the Philippines was used as a punch line.  My family is filled with doctors and medical professionals.  I know first hand from them, that the medical schools in the Philippines are top notch.”

►          Report of  The Medical Board of the State of California dated April 20, 1999, submitted to the California Legislature, which basically found, after on the spot surveys, that the quality of Philippine medical schools are equivalent to California medical schools.  Portions of the Report were attached to this Author’s Demand For Correction to ABC dated October 18, 2007, courtesy of Dr. Noli R. Zosa, UST College of Medicine alumnus.

►    SLAPP Suits And California Anti-SLAPP Statutes:

(a)  SLAPP is an acronym for Strategic Lawsuit Against Public Participation, per Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal. App. 4th 855, 858).  SLAPP suits are normally filed to intimidate and silence critics or opponents with the cost of legal defense so that they would abandon their criticism or opposition.

(b)  In 1992, California enacted its Anti-SLAPP Statute:  Section 425.16 of the Code of Civil Procedure, designed to nip SLAPP litigation in the bud by striking offending actions which chill the valid exercise of the constitutional rights of freedom of speech and petition, by providing a special motion to strike the complaint to be filed within sixty (60) days from service of the complaint and recovery of attorney’s fees and costs  for the prevailing defendant, if the plaintiff cannot establish probability of prevailing on the complaint.

(c)    In 2004, California enacted Section 425.17 of the Code of Civil Procedure to curb the abuse of the use of the Anti-SLAPP Statute (Section 425.16, CCP)  by providing for certain exceptions thereto, as well as exceptions to the exceptions.  One of the exceptions to the exceptions is: any action against any person or entity based upon the creation, dissemination, exhibition of any dramatic, literary or artistic work, including motion picture or television program or article  in a newspaper or magazine, under Section 425.17(d)(2), CCP.

(d) In 2005, California enacted Section 425.18 (SLAPPbacks), CCP, to provide for malicious prosecution or abuse of process arising from the filing or maintenance of a prior SLAPP suit that has been dismissed by a special motion to strike under Section 425.16, CCP.

(e)  Are Philippine med school-educated physicians willing to risk payment of attorney’s fees and costs, if a motion to strike complaint is filed by ABC and granted, and payment of damages, if a SLAPPback malicious prosecution or abuse of process complaint is filed and judgment entered for ABC?

(f)  Or is filing suit already winning, although the suit is eventually dismissed?  The decision is in your hands!