INDEX NO. 152552/2013 FILED: NEW YORK COUNTY CLERK 07/19/2013 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 07/19/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------- x ANITA CHANKO, as Executor of the Estate of MARK S. CHANKO, deceased, ANITA CHANKO, Individually, KENNETH CHANKO, BARBARA CHANKO and PAMELA CHANKO, : : : : : : : : : : : : : Plaintiff, -againstAMERICAN BROADCASTING COMPANIES, INC., NEW YORK-PRESBYTERIAN HEALTHCARE SYSTEM INC., SEBASTIAN SCHUBL, M.D., ANIL S. RANAWAT, M.D., and TRAVIS MAAK, M.D., Defendants. ---------------------------------------- Index No. 152552/13 x MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT AMERICAN BROADCASTING COMPANIES, INC.’S MOTION TO DISMISS Nathan Siegel Nabiha Syed LEVINE SULLIVAN KOCH & SCHULZ, L.L.P. 321 West 44th Street, Suite 1000 New York, NY 10036 (212) 850-6100 Counsel for Defendant American Broadcasting Companies, Inc. Defendant American Broadcasting Companies, Inc. (“ABC”) respectfully submits this Memorandum of Law in support of its Motion to Dismiss the Second Amended Complaint (the “Complaint”) pursuant to CPLR 3211(a)(1) and 3211(a)(7). The Complaint fails to state a cause of action against ABC and should be dismissed. PRELIMINARY STATEMENT This case arises out of a medical documentary series produced by ABC News, NY Med, that follows the medical staff and patients of New York-Presbyterian Hospital in New York City while they meet the challenges of their daily shifts. NY Med sheds light on the inner workings of hospital life by educating viewers about how different medical conditions are treated, how doctors make decisions about medical options, and other features of a workplace that routinely confronts life-and-death situations. The series depicts real life, so there are successes and there are failures. One episode of this eight-part series portrayed the treatment of an unidentified pedestrian struck by a truck who doctors were, unfortunately, unable to save. The initial television broadcast of this episode of NY Med (the “Broadcast”) showed brief excerpts of the accident patient’s treatment. ABC never mentioned the patient’s name, the date or place of the accident, and entirely blurred out his face and upper body. The Broadcast showed how a trauma unit uses its skill and training to try to save lives, often successfully, but in the accident victim’s case, it was not. The Broadcast also included audio of about ten words that a doctor spoke to unseen, off-camera listeners, presumably the unidentified patient’s unidentified family (whose names, voices, and images were never depicted), to present this difficult aspect of a physician’s job. Shortly thereafter a second version of the episode was disseminated, with the story of the unidentified patient entirely deleted, in deference to the family’s complaints following the initial 1 broadcast. Plaintiffs seek monetary damages, alleging violations of both alleged common-law and statutory rights of privacy and intentional infliction of emotional distress. The Complaint fails to state a claim against ABC. It seeks redress for an alleged invasion of privacy, but Plaintiffs’ claims are foreclosed as a matter of law. New York recognizes no common-law rights of privacy, and the statutory claim for an invasion of privacy cannot be brought on behalf of a deceased person. Further, the statutory cause of action does not apply to news programs. The Complaint also alleges violation of state and federal medical privacy laws, but none of those laws apply to ABC. Finally, Plaintiffs try to re-plead the same privacy claims as a claim for intentional infliction of emotional distress (IIED), but again, as a matter of law they may not do so. New York courts have consistently dismissed claims for IIED based on the broadcast of a public affairs news program such as NY Med. The Complaint’s allegations thus do not state any cause of action against ABC, and the claims against ABC should be dismissed in their entirety and with prejudice. SUMMARY OF FACTS AND ALLEGATIONS A. The ABC News Program NY Med NY Med is an ABC News documentary program that premiered on ABC on July 10, 2012. The show follows the medical staff and patients of New York-Presbyterian Hospital in New York City (the “Hospital Defendants”), and chronicles the treatment of different medical conditions and the joyous and trying moments associated with providing care for those who are ill. NY Med is one of many similar, critically-acclaimed hospital documentary programs, such as “Boston Med” and “Hopkins 24/7,” that provide viewers a detailed glimpse into hospital life and advances in medical care. 2 The Broadcast that forms the basis of the Complaint aired on ABC on August 21, 2012. (Compl. ¶ 26).1 The Broadcast focused on the details of the treatment of about a half-dozen patients with different medical conditions, including a heart defect in a newborn, an arm injury suffered by a young athlete, and complications from stomach cancer. It includes interviews with several doctors. Ex. B at 38:12, 41:43-43:23. These interviews both communicate substantive information about diseases and treatment, and illustrate the variety of stresses associated with the hospital as a workplace environment, including the unyielding barrage of life-and-death situations. Mark Chanko, the Plaintiffs’ relative, was one of the patients in the Broadcast. (Compl. ¶ 20). Mr. Chanko was brought to the hospital in critical condition after he was hit by a car. The trauma unit worked feverishly but was ultimately unable to save his life. The Broadcast never identifies Mr. Chanko by name or image in the program, his face is completely electronically blurred when it very briefly appears and no one in the Broadcast mentions any identifying details about him or the accident, such as its date or location. During the Broadcast, Dr. Schubl, who treated Mr. Chanko, expresses to the camera his sorrow over the difficult, emotional position of being unable to save a patient. A brief audio clip lasting ten seconds is interspersed with Dr. Schubl’s remarks in which the doctor can be heard informing an off-camera, unidentified family of their relative’s passing. Syed Aff. Ex. B at 43:05 – 43:15. None of Mr. Chanko’s family members is identified, by name, image or voice, no 1 Plaintiffs first served their initial summons and complaint on March 20, 2013, and subsequently filed their Summons and Second Verified Amended Complaint on April 18, 2013. A copy of the Second Verified Amended Complaint (“Complaint”) is attached to the Affidavit of Nabiha Syed, submitted herewith, as Exhibit A. A video copy of the Broadcast is attached as Exhibit B to the Affidavit of Nabiha Syed. Courts routinely consider broadcasts or articles referenced in a Complaint when ruling on motions to dismiss. See Howell v. N.Y. Post, 81 N.Y.2d 115, aff’d in part, 82 N.Y.2d 690 (1993); Arrington v. N.Y. Times Co., 55 N.Y.2d 433, 441 (1982); see also Ryan v. ABC, Inc., 9 Media L. Rep. (BNA) 2111, 2111-12 (Sup. Ct. N.Y. Cnty. 1983), aff’d, 101 A.D.2d 1036 (1st Dep’t 1984). 3 actual interaction between the doctor and family is ever shown, and no words or other reaction from anyone in the family are included. Syed Aff. at ¶ 5. Despite these efforts, and indeed to ABC’s regret, upon seeing the Broadcast on August 21, 2012, Plaintiffs evidently recognized that Mr. Chanko was the patient from the truck accident. (Compl. ¶ 29). In response, Defendants released a second version of the episode that deleted this segment, which has ever since been what is available to the public.. Syed Aff. at ¶ 6. Plaintiff’s Complaint is thus directed at the initial broadcast of the episode, which has not been disseminated since August 2012 . B. The Allegations of the Complaint The Complaint asserts claims against ABC, the hospital and some of the doctors involved in Mr. Chanko’s treatment. It alleges four categories of claims: 1. Statutory Privacy– Plaintiff Anita Chanko, as a representative of the deceased Mr. Chanko, brings a claim under Civil Rights Law §§ 50 and 51, alleging that ABC used the deceased Mr. Chanko’s image and voice without his consent “as part of an episode of a reality based television show.” (Compl. ¶ 33). 2. Common-Law Privacy– In Claim Two, Plaintiff Anita Chanko, as a representative of the deceased Mark Chanko, alleges a common-law privacy violation, asserting that ABC “entered [Mr. Chanko’s] room without his consent” and filmed him “in complete and direct invasion of his privacy.” (Compl. ¶¶ 41-42). Claim Three is similar, but includes Plaintiff Anita Chanko both on behalf of the deceased Mr. Chanko and in her individual capacity, as well as additional Plaintiffs Kenneth Chanko, Barbara Chanko, and Pamela Chanko (collectively, “Plaintiffs”) in their individual capacities. In Claim Three, Plaintiffs allege that ABC “intruded upon private conversations between them and physicians and related hospital professionals.” (Compl. ¶ 46). 4 3. Health Records– In Claim Four, Plaintiff Anita Chanko, on behalf of the deceased Mr. Chanko, alleges a “violation of physician-patient confidentiality and an invasion of his privacy and [] a violation of State and Federal statutes protecting the privacy of medical records and violated paragraph 13 of the New York State Patients’ Bill of Rights.” (Compl. ¶ 51). 4. IIED – Finally, Plaintiffs Anita Chanko, Kenneth Chanko, Barbara Chanko, Pamela Chanko, and Eric Chanko allege that the Broadcast caused them severe and continuing emotional distress. (Compl. ¶ 58). ARGUMENT I. NEW YORK COURTS REGULARLY GRANT MOTIONS TO DISMISS SUITS CHALLENGING THE PRODUCTION AND CONTENT OF NEWS PROGRAMS On a motion to dismiss under CPLR 3211(a)(7) for failure to state a cause of action, a court “must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.” Baron v. Galasso, 83 A.D.3d 626, 627 (2d Dep’t 2011) (citations and internal quotation marks omitted). But only factual allegations, and not bare legal conclusions or “factual claims either inherently incredible or flatly contradicted by documentary evidence,” will be presumed true. Roberts v. Pollack, 92 A.D.2d 440, 444 (1st Dep’t 1983); see also Sud v. Sud, 211 A.D.2d 423, 424 (1st Dep’t 1995) (court need not credit plaintiff’s “bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence” in ruling on a defendant’s motion to dismiss). Rather, dismissal is warranted where, as here, “[t]here are no factual allegations in the complaint sufficient to state a cause of action” and plaintiffs’ claims fail as a matter of law. Mayer v. Sanders, 264 A.D.2d 827, 828 (2d Dep’t 1999). 5 Reflecting New York’s longstanding policies favoring freedom of expression, dismissal is the norm – not the exception – in cases such as the one presented here, where a plaintiff has alleged that a news publication invaded his or her privacy. See, e.g., Howell, 81 N.Y.2d at 12326; Finger v. Omni Publn’s, 77 N.Y.2d 138, 140-43 (1990) (affirming Rule 3211 dismissal of such claims); Arrington, 55 N.Y.2d at 438-44 (same). II. AS A MATTER OF LAW, THE COMPLAINT FAILS TO STATE A CLAIM UNDER CIVIL RIGHTS LAW §§ 50 AND 51 The first cause of action is asserted by Plaintiff Anita Chanko, acting on behalf of the deceased Mr. Chanko. However, Sections 50 and 51 of the New York Civil Rights Law establish the sole basis for privacy protection in New York and provides a cause of action only for living persons. This law does not extend privacy rights to the situation here, where representatives sue on behalf of a deceased person. Further, it does not create any cause of action for any person for the use of a person’s name or likeness in a news program with editorial content involving a matter of public interest, such as NY Med. Because of the narrow scope of protection available in this state, there is no claim here – not under the law, and not for the plaintiff who has brought it. A. Plaintiff Anita Chanko has No Claim Under Section 51 The right of privacy under New York law exists exclusively under Civil Rights Law §§ 50 and 51. Messenger v. Gruner + Jahr Printing & Publ’g, 94 N.Y.2d 436, 441 (2000); Howell, 81 N.Y.2d at 122–123. The plain language of these statutes expressly limits its privacy protection to “any living person.” N.Y. Civ. Rights Law § 50. This is because the right of privacy belongs to the individual alone, and thus is “extinguished upon death.” Smith v. Long Island Jewish-Hillside Med. Ctr., 118 A.D.2d 553, 554-55 (2d Dep’t 1986) (preventing parents 6 from bringing a privacy claim on behalf of their deceased infant); see also Pirone v. MacMillan, Inc., 894 F.2d 579, 585 (2d Cir. 1990); Rosemont Enters. v. Random House, 58 Misc. 2d 1, 7 (Sup. Ct. N.Y. Cnty. 1968), aff’d, 32 A.D.2d 892 (1st Dep’t 1969); Rome Sentinel Co. v. Boustedt, 43 Misc. 2d 598, 599 (Sup. Ct. Oneida Cnty. 1964). New York law thus does not permit a plaintiff to bring a privacy claim on behalf of the deceased. Count One must be dismissed for this reason alone. B. Count One States No Claim Based on the Limited § 51 Right of Privacy Even if this were not so, no claim is stated because the privacy rights guaranteed by Section 51 apply only to nonconsensual uses of a person’s name or likeness for ‘advertising purposes or for purposes of trade’ only – nothing more. Arrington, 55 N.Y.2d at 438-42; Finger, 77 N.Y.2d at 141; see also Messenger, 94 N.Y.2d at 441(statute is to be “narrowly construed”). The statute contemplates a very specific sort of commercial exploitation, and does not extend to news or documentary-style programs like NY Med. As courts in this state have made clear, a person’s likeness is used for “advertising purposes” within the meaning of § 51 only when it is used in “an advertisement or solicitation for patronage of a particular product or service.” Kane v. Orange Cnty. Publ’ns, 232 A.D.2d 526, 527 (2d Dep’t 1996) (quoting Beverley v. Choices Women’s Med. Ctr., Inc., 78 N.Y.2d 745, 751 (1991)); see also Delan v. CBS, Inc., 91 A.D.2d 255, 258 (2nd Dep't 1983) (use of plaintiff's picture in documentary was not for advertising purposes). Trade purposes as used in §51 “involves use which would draw trade to the firm.” Kane, 232 A.D.2d at 527 (citing Flores v. Mosler Safe Co., 7 N.Y.2d 276, 284 (1959). Moreover, it is well-settled that the fact that a program carries advertising or seeks an audience is not a “trade use.” (Compl. ¶ 34). “It is the content of the article and not the 7 defendant's motive or primary motive to increase circulation which determines whether it is a newsworthy item, as opposed to a trade usage, under the Civil Rights Law.” Stephano v. News Grp. Publ'ns, Inc., 64 N.Y.2d at 184-185 (1984) (“article about a bomber jacket that used plaintiff model's photograph was newsworthy despite magazine's profit motive). See also Arrington, 55 N.Y.2d at 440 (Section 51 not violated notwithstanding that use was “carried on for a profit or that illustrations are added for the very purpose of encouraging sales of the publications”); Kane v. Comedy Partners, 2003 WL 22383387, at *9 (S.D.N.Y. Oct. 16, 2003) (privilege applied despite use of footage in actual advertisement for show), aff’d, 98 F. App’x 73 (2d Cir. 2004); Glickman v. Stern. 19 Media L. Rep. (BNA) 1769, 1774-76 (Sup. Ct. N.Y. Cnty. 1991) (privilege applied despite allegation that usage was for purpose of increasing show ratings). The Broadcast here plainly does not constitute “advertising” or a “trade use” under the statute. Arrington, 55 N.Y.2d at 439-40. It is a news program that gave the public insight into the inner workings of a hospital and patient treatment. The treatment of Mr. Chanko was intended as an example of one particularly difficult situation. The Complaint’s allegations that Defendants “collected fees, advertising revenue and advertising” is thus insufficient to state a claim against ABC under this statute and the statutory privacy claim must be dismissed for this additional reason. C. The Broadcast Squarely Falls Under the Newsworthiness Exception Moreover, courts have held that editorial content involving matters of public interest – as a matter of law – does not constitute “advertising” or “purposes of trade” under § 51. The Court of Appeals left no doubt in Messenger that § 51 does not apply to reports of newsworthy events or matters of public interest. Messenger, 94 N.Y.2d at 441-42; see also Freihofer v. Hearst 8 Corp., 65 N.Y.2d 135, 140 (1985) (“[T]he protection afforded by [the Act] to individuals does not apply to the publication of newsworthy matters or events.”) This newsworthiness exception enjoys a broad reach, including not only descriptions of actual events, “but also articles concerning political happenings, social trends or any subject of public interest.” Messenger, 94 N.Y.2d at 442. See also Lemerond v. Twentieth Century Fox Film Corp., 2008 WL 918579, at *2 (S.D.N.Y. Mar. 31, 2008) (under New York law “‘public interest’ and ‘newsworthy’ have been ‘defined in [the] most liberal and far reaching terms.’”) (citation omitted); Finger, 77 N.Y.2d at 141-43 (newsworthiness exception is “liberally applied”). New York courts have held that a wide variety of publications are “newsworthy” and therefore not actionable under § 51. See, e.g., Stephano, 64 N.Y.2d at 179-86 (picture of plaintiff wearing leather bomber jacket in column about “new and unusual products and services”); Walter v. NBC Television Network, Inc., 27 A.D.3d 1069, 1070-71 (4th Dep’t 2006) (use of plaintiff’s image in “Headlines” segment of Jay Leno show); Abdelrazig v. Essence Commc’ns, 225 A.D.2d 498, 498 (1st Dep’t 1996) (picture of plaintiff in “African garb” to illustrate “fashion trends in the Black community”); Frank v. NBC, 119 A.D.2d 252 (2d Dep’t 1986) (use of plaintiff’s name on a comedic skit on “Saturday Night Live”); Creel v. Crown Publ’rs, 115 A.D.2d 414, 415-16 (1st Dep’t 1985) (picture of plaintiffs used to illustrate guide to nude beaches); Alfano v. NGHT, Inc., 623 F. Supp. 2d 355 (E.D.N.Y. 2009) (use of plaintiff’s image in docudrama and about organized crime); Dominguez v. Vibe Magazine, 21 Misc. 3d 1122(A), 2008 WL 4725379, at *3-4 (Sup. Ct. N.Y. Cnty. Sept. 15, 2008) (topless picture of plaintiff in mermaid outfit at party for rap star); Stern v. Delphi Internet Servs. Corp., 165 Misc. 2d 21 (Sup. Ct. N.Y. Cnty. 1995) (lewd photograph of plaintiff used in connection with promotion for 9 Internet news service); Welch v. Group W. Prods., Inc., 138 Misc. 2d 856 (Sup. Ct. N.Y. Cnty. 1987) (use of plaintiff’s image in television commercial in connection with Clio awards).2 Further, it has long been established that television broadcasts are “entitled to the same [newsworthiness] privilege accorded other such media where the statutory right to privacy is drawn in issue.” Gautier v. Pro-Football, Inc., 304 N.Y. 354, 359 (1952) (use of recording of plaintiff on television broadcast of halftime show within privilege). A documentary, such as this Broadcast, that reveals the inner workings of a worldrenowned hospital falls under the umbrella of newsworthiness. “[O]nce it is determined ... that the published article is newsworthy, the only query at that point becomes whether the article is an advertisement in disguise or whether its use of plaintiff's name and/or image bears any real relationship to the article.” Bement v. N. Y.P. Holdings. Inc., 307 A.D.2d 86, 90-91 (1st Dep't 2003). Images of patients, published to illustrate issues of medical importance, are not considered advertisements in disguise. For example, in Howell v. New York Post Co., the Court of Appeals found that a newspaper’s publication of the picture of a patient when she was in a mental health hospital was not an advertising or trade use, even though the article was not about the plaintiff and the picture was used solely to illustrate the condition of another person shown in the photograph. 81 N.Y.2d at 123. Similarly, in Anderson v. Strong Memorial Hospital, 140 Misc. 2d 770 (Sup. Ct. Monroe Cnty. 1988), aff'd on other grounds, 151 A.D.2d 1033 (4th Dep't 1989), a plaintiff entered a hospital infectious disease unit to undergo treatment for AIDS. A 2 This same standard has been applied to bar claims against television programs in other jurisdictions that far more resemble “reality television.” See also Daly v. Viacom, 238 F. Supp. 2d 1118, 1123 (N.D. Cal. 2002) (no commercial misappropriation claim could arise from use of plaintiff’s image in MTV’s reality television program, “Bands on the Run,” because program was a constitutionally protected “expressive work”); Reeves v. Fox Television Network, 983 F. Supp. 703, 710 (N.D. Ohio 1997) (depiction of man arrested in the television reality program “COPS” did not give rise to misappropriation claim because filmmakers were “simply following a Cleveland Police officer and videotaped Plaintiff because he happened to be involved in a crime which was investigated by the police officer they were following”). 10 silhouette photograph of him was taken and subsequently published in the local newspaper to illustrate the disease unit’s research program. The Anderson court held that the use of the photograph was not a trade use or an advertisement “intended to promote the sale of some collateral commodity or service,” and dismissed the Section 51 claim, along with all other claims against the newspaper in that case. Id. at 774. Similarly, here, as in Anderson, there is clearly a real relationship between images of a patient’s ultimately unsuccessful medical treatment and a Broadcast about the treatment of patients in a hospital, indeed far more of a relationship than was presented by the facts in Howell. The segment involving Mr. Chanko showed the skill and extreme time pressure involved in trauma-related treatments, the urgency in attempting to resuscitate a patient’s heart, and ultimately, a doctor’s difficulty in delivering bad news to a patient’s family. Because the Broadcast focuses on a newsworthy topic, it is protected from liability under § 51 as a matter of law. III. THE COMMON LAW INVASION OF PRIVACY CLAIMS IN COUNTS TWO AND THREE MUST BE DISMISSED BECAUSE NEW YORK LAW RECOGNIZES NO SUCH CAUSE OF ACTION In Counts Two and Three, Plaintiffs – on behalf of the deceased Mr. Chanko and in their individual capacity, respectively – assert claims for “invasion of privacy.” But there is no cause of action in New York law for invasion of privacy beyond the statutory claim provided by Sections 50 and 51. Time and again, the New York State Court of Appeals has repeatedly and emphatically rejected any notion of a “‘so-called common-law right to privacy.’” Arrington, 449 N.Y.S.2d at 943 (quoting Cohen v. Hallmark Cards, 45 N.Y.2d 493, 497 n.2 (1978)); Wojtowicz v. Delacorte Press, 43 N.Y.2d 858, 859-60 (1978); Gautier, 304 N.Y. at 358. See also, 11 Freihofer, 65 N.Y.2d at 140 ("there is no common-law right of privacy and the only available remedy is that created by [the Act]"). Indeed, in Howell v. New York Post the Court of Appeals considered a similar claim for invasion of privacy, arising out a newspaper’s publication of a patient’s photo which revealed that the plaintiff was a patient in a mental health facility. The Court explained that: At least three other “privacy” torts have been recognized elsewhere (see, Prosser, Privacy, 48 Cal. L. Rev. 383; Restatement [Second] of Torts §§ 652A–652E): unreasonable publicity given to another's private life (Restatement [Second] of Torts § 652D); unreasonable intrusion upon seclusion (id., § 652B); and publicity that unreasonably places another in a false light (id., § 652E). While the courts of other jurisdictions have adopted some or all of these torts, in this State the right to privacy is governed exclusively by sections 50 and 51 of the Civil Rights Law; we have no common law of privacy (Stephano, 64 N.Y.2d at 182; Arrington, 55 N.Y.2d at 439–440); Cohen, 45 N.Y.2d at 497 n. 25; Flores, 7 N.Y.2d at 280). Balancing the competing policy concerns underlying tort recovery for invasion of privacy is best left to the Legislature, which in fact has rejected proposed bills to expand New York law to cover all four categories of privacy protection (see, Arrington, 55 N.Y.2d at 440; Savell, Right of Privacy–Appropriation, 48 Alb.L.Rev. at 3, n. 4). Howell, 81 N.Y.2d at 123-24 (emphasis added). See also Arrington, 55 N.Y.2d at 439-40 (“Nor has the Legislature chosen to enlarge the scope of sections 50 and 51 in the fourscore years since Roberson was handed down. This despite the court's consistent adherence to its position that, as such, in this State “‘there exists no so-called common-law right to privacy’”) (citation omitted). In short, Counts Two and Three must be dismissed because they allege causes of action which as a matter of law do not exist. IV. HIPAA AND OTHER MEDICAL PRIVACY LAWS DO NOT APPLY TO ABC In the Fourth Claim, Plaintiff, acting on behalf of the deceased Mr. Chanko, asserts that Defendants wrongfully “disclosed and discussed [Mr. Chanko’s] medical condition,” and that this disclosure violated “state and federal statutes protecting the privacy of medical records” as 12 well as Paragraph 13 of the New York State Patients’ Bill of Rights. (Compl. ¶¶ 49, 51). But whether or not that is so, these statutes bind only healthcare providers – not media entities such as ABC, or indeed any other third parties. Plaintiff does not enumerate the state and federal statutes under which she purports to have a claim on Mr. Chanko’s behalf. (Compl. ¶51). Presumably the federal statute referred to here is the Federal Health Insurance Portability and Accountability Act of 1996 (HIPAA). 45 C.F.R § 160.102. But HIPAA applies to health plans, health care clearinghouses, and health care providers who transmit health information in electronic form. Id. ABC is none of those, and HIPAA does not prevent third parties who may learn about health care information from transmitting it to others. Ava v. NYP Holdings, Inc., 20 Misc. 3d 1108(A), 2008 WL 2522631, at *6 (Sup. Ct. N.Y. Cnty. 2008) (HIPAA does not apply to a newspaper alleged to have published plaintiff’s medical information), aff’d as modified, 64 A.D.3d 407 (Ist Dep’t 2009). Plaintiff also refers to Paragraph 13 of the New York State Patients’ Bill of Rights, which provides “privacy while in the hospital and confidentiality. of all information and records regarding your care.” Bill of Rights, available at http://www.health.ny.gov/professionals/patients/patient_rights/docs/english.pdf. The Bill of Rights is a summary of statutory rights enumerated at 10 N.Y.C.R.R. § 405.7, which lists requirements that “the hospital shall ensure” to patients. (Emphasis added.) The statute details what the hospital’s responsibilities are – but does not make any mention of any third-party, nonhealthcare provider, such as ABC. The duties that bind healthcare and medical professionals cannot be extended to everyone, and indeed the statute is not written to do so. Nor does any theory of physician-patient privilege of confidentiality apply to ABC. As the Appellate Division 13 explained in Anderson, the presence of the news media in a hospital “does not amount to a breach of that privilege.” 542 N.Y.S.2d at 97. New York courts have confronted claims that a media entity allegedly violated state and federal laws protecting the confidentiality of medical information by obtaining and publishing such information. In Ava v. NYP Holdings, Inc., the court addressed allegations made against media defendants under HIPAA and various New York statutes: [Plaintiff] claims that Defendants have violated the New York State Public Health Law. However, Plaintiff does not state which provisions of the law were violated. In any event, the Public Health Law is inapplicable in this case since it governs the conduct of the Department of Health of New York State and the conduct of its officers and employees. Section 2135 of the Public Health law does provide for confidentiality with regard to positive HIV status, however it applies only to reports and information secured by the Health Department and Health Commissioner or District Health Officer and health care providers, not to the media Defendants (N.Y. Pub. Health Law § 2135) . HIPAA applies to health plans, health care clearinghouses and health care providers who transmit health information in electronic form. (45 CFR 160.102). The HIPAA laws do not apply to the Defendants in this case. Ava, 20 Misc. 3d 1108(A), 2008 WL 2522631, at *4 (emphasis added). Indeed, the First Department has expressly held that the disclosure of health records – for example, as they relate to HIV or AIDS – “apply to health care providers and certain others, not the news media.” Cruz v. Latin News Impacto Newspaper, 216 A.D.2d 50, 51 (1st Dep’t 1995). It also noted that the publication of such information does not give rise to any common-law invasion of privacy claim either. Id. Similarly, in Anderson v. Strong Memorial Hospital, 140 Misc. 2d 770 (Sup. Ct. Monroe Cnty. 1988), aff'd on other grounds, 151 A.D.2d 1033 (4th Dep't 1989), the plaintiff asserted claims identical to those asserted here, and all claims against the newspaper defendants were dismissed. Moreover, any statute that categorically restricted news media from disclosing medical information would certainly violate the First Amendment. It is well-settled that the state may not 14 proscribe the publication of accurate information related to matters of public concern, absent a compelling state interest. Bartnicki v. Vopper, 532 U.S. 514, 545 (2001); The Florida Star v. B.J.F., 491 U.S. 524, 524-45, 533 (1989); Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 103 (1979). If the law were otherwise, the results would be absurd. For example, if health care confidentiality statutes applied broadly to the news media, if the press were to learn that the Governor was concealing from the public that he was gravely ill, it could not report that without the consent of the Governor. This is not the law. V. PLAINTIFF’S IIED CLAIM MUST BE DISMISSED Finally, Plaintiffs allege that they suffered severe emotional distress upon watching the Broadcast, which ABC intended to inflict on them. Although Plaintiffs may have suffered emotional distress upon seeing the Broadcast, they cannot state a claim against ABC as a matter of law. The intentional infliction of emotional distress (IIED) tort alleged by Plaintiffs requires that the harmful action be directed at Plaintiffs and that the action be “extreme and outrageous” – neither of which are requirements that are remotely satisfied here.3 A. The Conduct Was Not Extreme and Outrageous To state a claim for intentional infliction of emotional distress, Plaintiffs must allege facts that could establish that ABC acted in a manner that was so extreme and outrageous as to “transcend the bounds of decency as to be regarded as atrocious and intolerable in a civilized society.” Freihofer, 65 N.Y.2d 135, 143; Conboy v. AT & T Corp., 241 F.3d 242, 258 (2d Cir. 2001) (quoting Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999). Courts have consistently held that this is a very demanding standard, and the Complaint does not come close to meeting it. 3 Since the IIED claim focuses on the content of ABC News’ documentary as it was broadcast, it is unclear why it is also asserted against the other defendants who were merely filmed providing medical care and were not involved in decisions about what to broadcast in the program. 15 “[T]he standard for stating a valid claim of intentional infliction of emotional distress is ‘rigorous, and difficult to satisfy.’” Conboy, 241 F.3d at 258 (quoting Howell, 81 N.Y.2d at 122); Prosser and Keeton, Torts § 12, at 60–61 (5th ed)); see also Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, at 303 (1983) (describing the standard as “strict”). Courts routinely determine as a matter of law that the alleged behavior is not sufficiently outrageous to warrant the imposition of liability. Howell, 81 N.Y.2d at 126. To rise to the level of extreme and outrageous conduct, the defendant must have acted with extreme vindictiveness or have engaged in a continuing campaign of harassment against the plaintiff. See, e.g., Preston v. Martin Bregman Prods., Inc., 765 F. Supp. 116, 120 (S.D.N.Y. 1991) (a claim for intentional infliction of emotional distress “lies only where there has been severe mental pain inflicted through deliberate and malicious harassment or intimidation.”). The law is clear that “[m]erely publicizing private, personal facts [about a person] does not amount to such a claim” for intentional infliction of emotional distress. Id. at 120 (unauthorized depiction of plaintiff in scanty clothing in defendant’s motion picture is not actionable); Freihofer, 65 N.Y.2d at 143-44 (publication of three articles revealing private details of plaintiff’s divorce from confidential court records does not rise to the level of outrageousness); Sarwer, 237 A.D.2d at 192 (identification of plaintiff as victim of child abuse is not actionable); Eaton v. Beach, 11 Media L. Rep. (BNA) 1229, 1231 (Sup. Ct. Rensselaer Cnty. 1984) (publication of information from sealed grand jury report concerning plaintiff is not outrageous). In Howell, the Court of Appeals likewise held that the publication of a photograph which showed that plaintiff was a patient in a mental health facility, allegedly surreptitiously taken by trespassing on the hospital’s grounds, could not state a cause of action. It explained why the hurdles to satisfy an intentional infliction of emotional distress claim are so high: 16 Unlike other intentional torts, intentional infliction of emotional distress does not proscribe specific conduct, but imposes liability based on after-the-fact judgments about the actor's behavior. Accordingly, the broadly defined standard of liability is both a virtue and a vice. The tort is as limitless as the human capacity for cruelty. The price for this flexibility in redressing utterly reprehensible behavior, however, is a tort that, by its terms, may overlap other areas of the law, with potential liability for conduct that is otherwise lawful. Moreover, unlike other torts, the actor may not have notice of the precise conduct proscribed (see Givelber, Social Decency, 82 Colum. L. Rev. at 51–52). Consequently, the “requirements of the rule are rigorous, and difficult to satisfy” (Prosser and Keeton, Torts § 12, at 60–61 [5th ed]; see also, Murphy, 58 N.Y.2d, at 303, 461 N.Y.S.2d 232, 448 N.E.2d 86 [describing the standard as “strict”] ). Indeed, of the intentional infliction of emotional distress claims considered by this Court, every one has failed because the alleged conduct was not sufficiently outrageous (see Freihofer v. Hearst Corp., 65 N.Y.2d, at 143–144; Burlew v. Am. Mut. Ins. Co., 63 N.Y.2d 412, 417– 418; Murphy, 58 N.Y.2d, at 303; Fischer v. Maloney, 43 N.Y.2d, at 557). Howell, 81 N.Y.2d at 122 (emphasis added). Moreover, as Howell makes clear, courts are especially loath to find intentional infliction of emotional distress claim where the claim is predicated on a publication or broadcast by news media, as it is here. In Howell, the court held that “newspaper's publication of a newsworthy photograph is an act within the contemplation of the ‘privileged-conduct’ exception”, which fully applies here. Id. at 705 See also Fleischer v. NYP Holdings, Inc., 104 A.D.3d 536, 539 (2013); Gorilla Coffee, Inc. v. N.Y. Times Co., 32 Misc. 3d 1230(A), 2011 WL 3502777, at *6 (Sup. Ct. Kings Cnty. Aug. 8, 2011); Rakofsky v. Wash. Post, 39 Misc. 3d 1226(A), 2013 WL 1975654, at *13 (Sup. Ct. N.Y. Cnty. 2013). Plaintiffs do not allege any conduct that occurred that in any way makes this case an extraordinary exception to this consistent line of authority, nor can the Broadcast support such a conclusion. The segment about which Plaintiffs complain and the episode in which it appears had a newsworthy, public-interest purpose. Moreover, ABC carefully took a whole series of privacy-protection measures. In express contemplation of the “bounds of decency,” the Broadcast, among other things, blurred out the face of Mr. Chanko, never aired his name or any 17 other identifying details, and never aired the names, faces or the voices of the remaining Plaintiffs. And when the family complained, ABC immediately removed the material that was upsetting to them so that it would never be shown again. Such action is hardly “utterly intolerable in a civilized society” as courts have required for a showing of IIED. Howell, 81 N.Y.2d at 121-22; Freihofer, 65 N.Y.2d at 143; Rall v. Hellman, 284 A.D.2d 113, 115 (1st Dep’t 2001). B. The Broadcast was Not Directed at Plaintiffs To sustain an IIED claim, New York law also requires that “conduct must also be intentionally directed at the plaintiff and lack any reasonable justification.” Martin v. Citibank, N.A., 762 F.2d 212, 220 (2d Cir. 1985) (emphasis added); Smukler v. 12 Lofts Realty, Inc., 156 A.D.2d 161, 163 (1st Dep’t 1989) (same); see also Green v. Leibowitz, 118 A.D.2d 756, 757 (2d Dep’t 1986) (“gravamen of a cause of action for intentional infliction of emotional distress is that the conduct complained of ‘is especially calculated to cause, and does cause, mental distress of a very serious kind’”). An individual may recover “only where severe mental pain or anguish is inflicted through a deliberate and malicious campaign of harassment or intimidation.” Owen v. Leventritt, 174 A.D.2d 471, 472 (1st Dep’t 1991) (statements made in a public meeting during discussion were not “made directly” to plaintiff, thus intentional infliction of emotional distress could not be found). This is simply not the case here. The Broadcast is directed at a general audience that is interested in learning more about how hospitals operate. None of this is directed at the Plaintiffs specifically: quite the opposite, this newsworthy coverage is directed broadly, and designed to be informative to the general public. That the Plaintiffs’ identities are obscured only further underscores that point. See Preston, 765 F. Supp. at 120 (where a “defendant’s primary purpose 18 was to advance its own business interests, and any conduct that harmed plaintiff was incidental, defendant has not committed the New York tort of intentional infliction of emotional distress.”); Marich v. QRZ Media, Inc., 86 Cal. Rptr. 2d 406, 419 (1999) (news station’s broadcast of conversation in which law enforcement official informed plaintiffs about the death of their child was not directed at plaintiffs and failed to state a claim for intentional infliction of emotional distress). Where a complaint does not plead facts indicating that the defendants’ alleged acts were purposefully directed at the plaintiffs, as required by an IIED claim, that claim must be dismissed. Semper v. N.Y. Methodist Hosp., 786 F. Supp. 2d 566 (E.D.N.Y. 2011). Here, as in Semper, “it strains credulity to think, even had Plaintiff so alleged, that Defendants purposefully engineered” this circumstance “in order to intentionally cause the Plaintiff mental distress.” Id. at 588. Thus the Plaintiffs have failed to state a claim for IIED. CONCLUSION For all the foregoing reasons, the Complaint should be dismissed in its entirety, with prejudice, as to ABC. Dated: July 19, 2013 Respectfully submitted, LEVINE SULLIVAN KOCH & SCHULZ, L.L.P. By: _ /s/ Nathan Siegel Nathan Siegel Nabiha Syed 321 West 44th Street, Suite 1000 New York, NY 10036 (212) 850-6100 Counsel for Defendant American Broadcasting Companies, Inc. 19