Raleigh County physician accuses CBS of defamation

By Kyla Asbury | Jul 1, 2016

BECKLEY – A Beckley physician is suing CBS Inc. after he claims it aired a news piece without contacting him and then maliciously edited an interview to fit the perception that he was a drug trafficker who owned and operated a pill mill in a second news piece.

CBS Evening News, CBS Broadcasting Inc., CBS Corporation, Jim Axelrod and Ashley Velie were also named as defendants in the suit.

Dr. Michael Kostenko claims the defendants aired a news piece about his medical practice without contacting him before airing it to gather information and facts, resulting in a lack of due care, according to a complaint filed May 20 in Raleigh Circuit Court and removed to federal court on June 13.

Kostenko claims the news piece, which aired Jan. 6, was titled “West Virginia allows painkiller addicts to sue prescribing doctors” and the news piece aired a series of intentional misrepresentations about his medical practice, including describing his medical facility as a pain clinic and used him as an example of a “drug trafficker.”

The news piece made several statements about a pain clinic and CBS compare to Kostenko’s Self-Management Program, noting that cash-only operations allowed doctors to clear as much as $100,000 per week; that exam rooms were filled with piles of trash and files, loose prescription pads, syringes and starving birds stuck in roach-infected cages; stated that West Virginia Department of Health inspected 19 clinics and 12 were told to shut down; and alleged they had attempted to contact Kostenko for weeks before driving out to the clinic, according to the suit.

Kostenko claims he does not “clear” as much as $100,000 per week and that the exam rooms in his clinic are not filled with trash or files and there are not loose prescription pads, syringes or starving animals in roast-infected cages.

The plaintiff is not a drug trafficker, yet the defendants used him as an example of one, according to the suit.

Kostenko claims CBS never tried to contact him or the clinic and when his attorney contacted CBS about the defamatory news piece, they had the phone number of Kostenko’s son that lives in Colorado that they obtained after the news piece aired, but not before.

The defendants stated in their news piece that they drove up to Kostenko’s home for his comment and in the news piece, it did show a camera driving up to his home, with both of his vehicles in the driveway, yet they did not get out of their vehicles to talk to him and they did not use due care in trying to contact him for discussion, according to the suit.

Kostenko claims on April 1, he agreed to an interview with Axelrod, an employee of the defendants, to discuss corruption that had lead to poverty, disease and crime in West Virginia and the epidemiology and drug abuse problem in West Virginia.

The plaintiff did not agree to talk about three patients that died in 2014 and was under the impression through communications with the defendants that the interview would be about poverty, disease and crime, as outlined in his Social Justice Amendment to West Virginia Public Health Law.

Kostenko claims he was under the impression the defendants wanted to interview him about his whistle-blower lawsuit against state agencies for waste and wrongdoing that has lead to the drug abuse problem in West Virginia, however, the majority of the April news piece showed clips of Kostenko’s clinic and showed edited clips of patients receiving their prescriptions, which connoted Kostenko as being a drug trafficker.

“These maliciously edited clips connote Dr. Kostenko being a ‘drug trafficker’ and defendants made it look like an employee was handing out signed prescriptions to anyone that would walk into his clinic,” the lawsuit states.

Kostenko claims the defendants maliciously edited the interview and cut off certain statements he made to defame him.

The defendants made various statements with the specific intent to injure Kostenko and without any reasonable basis for believing them to be true, according to the suit.

Kostenko is seeking compensatory and punitive damages in an amount no less than $1 million with pre- and post-judgment interest. He is being represented by Christina Kostenko.

CBS is represented by Thomas V. Flaherty and Wesley P. Page of Flaherty Sensabaugh Bonasso PLLC; and Jay Ward Brown and Matthew L. Schafer of Levine Sullivan Koch & Schulz LLP.

Earlier this month, a man sued Kostenko and Cola Country Clinic because the January news piece showed clips from Kostenko’s lectures, one of which clearly showed the plaintiff in that lawsuit and caused him problems with family and friends.

In April, Kostenko sued the West Virginia Department of Health and Human Resources, alleging corruption was the cause of the drug problem in the state.

In November, the DHHR sued Kostenko for defying state orders to shut down his clinic.

U.S. District Court for the Southern District of West Virginia case number: 5:16-cv-05326

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