Reporter’s testimony wrongly excluded, Eighth Circuit rules

The court could have compelled a reporter to testify as a witness in a patient's lawsuit against her plastic surgeons who handed over her partially nude photographs to a Missouri newspaper, a federal court of appeals has ruled.

The lawyer of an unidentified plaintiff — known in the case only as "Jane Doe" in order to protect her privacy — should have been allowed to question reporter Kristen Hinman of the Riverfront Times about whether she was provided with confidential photographs only after agreeing not to publish them, and whether she had agreed to allow Doe's doctors the opportunity to approve her story prior to publication, ruled the U.S. Court of Appeals in St. Louis (Eighth Circuit).

The trial judge did not allow Hinman to testify, saying it would constitute an unfair surprise to the surgeons.

"This is not a privilege issue, it's a fairness issue," said attorney Jay Kanzler, who represented Doe.

Hinman's April 2006 story focused on the medical practice of Drs. Leroy Young, Robert Centeno, and C.B. Boswell. They operate a St. Louis plastic surgery practice called Body Aesthetic Plastic Surgery & Skin Care Center.

Jane Doe was a client of the surgeons. After losing roughly 150 pounds, Doe hired the doctors to remove the excess skin that resulted from her significant weight loss. Doe had the surgery in October 2004, and consented to having "before and after" photos taken — some of them nude — which she understood were for confidential medical use, according to the opinion.

When Hinman approached the doctors about a story on their practice, they were eager to participate in the story, and were cooperative with Hinman, according to Steve Suskin, legal counsel for Village Voice Media, which owns the Riverfront Times.

While Hinman was interviewing the surgeons, they gave her a copy of a PowerPoint presentation originally created for educational seminars. The presentation contained patient photographs, 14 of which were of Doe. Some of these images were used in the article, showing before and after "nude frontal images" of Doe. Suskin did not believe that her breasts or genitals were exposed, but the photographs are no longer available online. Neither her face nor her name were revealed in the story.

Kanzler believes that Doe's photographs may have been selected because of an earlier medical malpractice lawsuit that she had brought against the doctors.

When Dr. Centeno saw the article, he asked the Times to remove the photos. The newspaper removed them from the online version, but they remained in the print version, according to the opinion. Doe sued the surgeons in federal court in February 2008 for invasion of privacy, intrusion upon seclusion, and breach of a fiduciary duty. She did not sue Hinman or the newspaper.

"At the end of the day, we didn't see what the Riverfront Times did as improper," said Kanzler.

The surgeons subpoenaed the Riverfront Times and Hinman for notes regarding the story, but the district court initially ruled that they were protected by a qualified reporter's privilege. Later, after the parties had gone through discovery, Doe subpoenaed the newspaper, seeking testimony "concerning the receipt and publication of the image files," according to the opinion. This time, the court found that the privilege did not shield the Times, because it came after Doe had exhausted other sources for the information, and "did not invade the editorial process."

David Bub, who represents the surgeons, said that although he disagreed with the privilege ruling from the outset, he thought that the district court's refusal to allow Hinman to testify at trial was correct.

Hinman was eventually deposed, but was not asked by either side whether she agreed to the limitations on her use of the photos, or to giving the surgeons prepublication review, according to the opinion. Bub said that the scope of the deposition was "very clear, very pointed," and was limited to an alleged second set of photographs, which Hinman knew little about.

When Doe tried to question Hinman about an alleged agreement at trial, the district court did not allow it, ruling that it would be an unfair surprise to the defendants.

"When one asserts a privilege [early in a case], they can't later on at trial decide to waive [the privilege]," said Bub.

The court of appeals reversed, writing that because Hinman's testimony about the nature of any agreement she had with the surgeons did not invade the editorial process, it was not within the reporter's privilege. Moreover, because it was not privileged, Hinman could have been questioned on this at her deposition, and any surprise was therefore self-inflicted, the court wrote.

The case has been sent back to the district court for retrial, limited to the issue of punitive damages.