Federal judge dismisses Kostenko’s CBS defamation lawsuit

By Kyla Asbury | Oct 19, 2017

BECKLEY – U.S. District Judge Irene C. Berger has dismissed a lawsuit filed by former doctor Michael Kostenko against CBS Evening News for defamation.

Berger dismissed the lawsuit from the U.S. District Court for the Southern District of West Virginia.

Berger wrote that the content on the CBS broadcasts was protected by fair report privilege, accurately reported on a matter of public concern and/or fairly reflected the statements and views expressed by Kostenko.

“Viewed independently of the defamation and First Amendment considerations, the intentional infliction of emotion distress claim would still fail,” Berger wrote. “The news pieces included Dr. Kostenko as an example of a doctor being investigated for improper prescription practices, and the April 2016 piece discussed patients who died of drug overdoses under his care.”

Berger wrote that substantially accurate reports on those matters do not constitute extreme and outrageous conduct under West Virginia law.

“In addition, many of the plaintiff’s arguments regarding his distress and damages cannot fairly be attributed to the defendants’ reporting,” she wrote. “The official cause of death for some patients was listed as drug overdose. He published videos of the group classes to which he lectured, before providing patients with oxycodone prescriptions, on YouTube. He described his prescribing practices to various administrative bodies in detail, before and after the news reports.”

The FBI’s application for a search warrant includes several pages of factual support for a probable cause finding, which was accepted by a magistrate judge, without once mentioning the CBS broadcasts, according to Berger’s memorandum.

“For the most part, those facts were not detailed in the broadcasts,” Berger wrote. “Likewise, the WVBOM’s statement of charges, findings of fact and decision revoking Dr. Kostenko’s medical license include extensive factual findings without reference to the CBS broadcasts. Thus, many of the incidents that distressed Dr. Kostenko bear little connection to the defendants’ actions. The court therefore finds that the defendants have demonstrated that there are no genuine disputes of material fact and they are entitled to summary judgment on the claim of intentional infliction of emotional distress.”

Berger granted the defendants’ motion for summary judgment and dismissed the suit.

Kostenko claimed 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, 2016, in Raleigh Circuit Court and removed to federal court on June 13, 2016.

Kostenko claimed 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.”

Kostenko claimed 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 claimed on April 1, 2016, 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 claimed 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.

Kostenko, 61, appeared in front of U.S. District Judge Irene Berger on Aug. 23 and was sentenced to 20 years in prison. In April, he pleaded guilty to one of the 22 criminal drug counts.

He faced one count of maintaining a drug-involved premises; 19 counts of distributing oxycodone not for legitimate medical purposes; and two counts of distribution not for medical purposes resulting in the death of two patients. He pleaded guilty to one count of distribution not for legitimate medical purposes.

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

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