JPP lawsuit against ESPN/Schefter can proceed

that's over the cap.

In comment 13086329 Mad Mike said:

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In comment 13086222 SwirlingEddie said: Quote: Now, if the info turns out to be libelous and cannot be defended as newsworthy, then the publisher may be vulnerable to a civil claim for the libel, but the health care nature of the info does not give it any special status. There is no issue of libel here. Libel would be publishing false information - there has been no suggestion that Schefter posted a forged medical record, or anything false. It is purely a question of whether the record was newsworthy enough to warrant publication, or if it's a violation of JPP's privacy. (There may also be a question of if Schefter did anything illegal to get the record in the first place).

If it can be shown that Schefter/ESPN participated or colluded in the HIPAA violation then that could certainly change circumstances.

Absent that, my understanding of the situation remains that for newsworthy information about a public figure, the right of the press to publish trumps any right to privacy of the individual involved.

If he had pics of JPPs hand that's one thing, but actual medical records is entirely different. Don't see how it being newsworthy can even be proved, massive stretch when discussing private medical records.

Not sure what makes Schefter any different than a doctor posting his patients medical records, because one works for the media? I don't buy it.

protects a patients medical records from any entity that does not have consent to release them. That would include Schefter and obviate that Hogan analogy

In comment 13086144 FatMan in Charlotte said:

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Quote: How could Schefter obtain them legally? Someone in the hospital takes the files and then decides to give them to Schefter/ESPN. So long as Schefter didn't direct the hospital worker to take the records, he obtained them lawfully. I think if you take a gift or accept something from somebody else, you are still bound by the legality of it, right? If somebody hands me $10,000 from a bank robbery and I'm caught with it, I think I have some culpability in the eyes of the law. Maybe not, but that seems unlikely. I think once Schefter released the information, he became culpable because whether or not he obtained it fairly, it was still restricted information. I think the law standard is if it is reasonable to believe the information or item is yours to use. A different example - if somebody gives me a fake ID, even if I didn't request it, I may not be in trouble just by accepting it. But if I try to use it, I am liable.

FMIC, the analogy doesn't work because this isn't receipt of stolen property, but rather publishing private information that may have been obtained illegally.

This has to do with an almost unabridged freedom of the press. So long as they didn't participate or solicit the unlawful obtaining of the underlying material, they can print it. The other exceptions are military documents whose publication could cause grave danger, or private information that is not newsworthy.

Imagine a janitor at a bank found out that the bank was stealing its customers' money in a massive fraud scheme. If someone broke into the bank president's office and copied records proving that this scheme was going on, this person would be breaking the law.

However, if that person then took those records to the press, the press would be free to publish these records proving the massive fraud because the public has a right to know. The press would only be breaking the law if it helped or solicited the janitor to steal those records.

The issue when it comes to the ability of the press to publish private records, originally obtained legally or otherwise, is whether the private information is "newsworthy."

In comment 13086378 WideRight said:

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protects a patients medical records from any entity that does not have consent to release them. That would include Schefter and obviate that Hogan analogy

It wouldn't include Schefter. HIPAA applies to "covered entities", which includes health care providers, health plans, etc.... It wouldn't apply to Schefter or ESPN.

In comment 13086350 SwirlingEddie said:

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In comment 13086329 Mad Mike said: Quote: In comment 13086222 SwirlingEddie said: Quote: Now, if the info turns out to be libelous and cannot be defended as newsworthy, then the publisher may be vulnerable to a civil claim for the libel, but the health care nature of the info does not give it any special status. There is no issue of libel here. Libel would be publishing false information - there has been no suggestion that Schefter posted a forged medical record, or anything false. It is purely a question of whether the record was newsworthy enough to warrant publication, or if it's a violation of JPP's privacy. (There may also be a question of if Schefter did anything illegal to get the record in the first place). If it can be shown that Schefter/ESPN participated or colluded in the HIPAA violation then that could certainly change circumstances. Absent that, my understanding of the situation remains that for newsworthy information about a public figure, the right of the press to publish trumps any right to privacy of the individual involved.

you're wrong, but its ok.

In comment 13086373 UConn4523 said:

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If he had pics of JPPs hand that's one thing, but actual medical records is entirely different. Don't see how it being newsworthy can even be proved, massive stretch when discussing private medical records. Not sure what makes Schefter any different than a doctor posting his patients medical records, because one works for the media? I don't buy it.

Imagine someone found out that one of the Presidential nominees had Stage 4 cancer or had a serious case of dementia. If the press were handed those medical records, I think we could all agree that in the run-up to the election, that it would be newsworthy and that the public should know about it.

Now, JPP is not running for President and his health is nowhere near as important as a Presidential nominee's health. But he is a public figure, he is a public athlete whose health is very importantly related to his job and status as a public figure.

Now, does that mean that his private medical records should be considered newsworthy for the press to publish? I personally don't think so, but that is what would be decided in Court.

There is a massive difference between a doctor and Schefter. The doctor is bound by doctor-patient confidentiality and by HIPAA. Schefter is bound by neither of those things. He is the press which has great freedoms in what they can publish.

but he's still dealing with documents that should be protected under HIPPA. The press shouldn't be protected when breaking the law and if it's proven that's what Schefter did to obtain the records I'd hope the court does what's right.

As for a presidential candidate, id say that's one of the few scenarios where I can understand it. But athletes don't run this country and are civilians, they are subject to the same laws that I am.

between yours and Eddie's responses, that is probably right. I have to admit that I don't know the legalities of it.

My only sticking point would be calling Schefter "press":)

and when they start their careers they have carte blanche day 1 to basically do anything for a story? That can't be right.

In comment 13086423 UConn4523 said:

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but he's still dealing with documents that should be protected under HIPPA. The press shouldn't be protected when breaking the law and if it's proven that's what Schefter did to obtain the records I'd hope the court does what's right.

I think it's very unlikely there will be evidence which proves Schefter broke the law to get the medical record. A) I doubt Schefter is anywhere near that stupid (though I recognize that underestimating people's stupidity is a risky business), and b) if there was, the case would have been settled very fast.

I haven't read every port here but I recall JPP, at that time, refusing to share his medical condition with the Giants,even to the point of not meeting with Ronnie Barnes when he flew to Miami to see what was going on. And, his reluctance to do this was more related to the contract negotiations than anything else. I understand nobody wants their personal information revealed publicly but what Schefter did was part of a player team dance that happens all the time. People want to crush ESPN but JPP has a part in this too starting with how the accident happened

three things.

1) If Schefter obtained the records illegally, as in he broke the law to get them by paying a worker to steal them, or by stealing them himself, then that is a completely separate charge both criminally and for a civil suit. That is not what is being alleged here. The only thing that matters is whether it was newsworthy what Schefter published.

2) Medical records are only protected under HIPAA by those who are bound to HIPAA regulations. If an agent of the hospital gave those records to Schefter, that person would be in violation of HIPAA, but not Schefter. THe privacy element of HIPAA is to prevent covered entities (e.g. insurance companies, medical care providers) from disclosing the medical records they use.

3) JPP is not a President, but he's not like us. He is a public figure and they have a much different right to privacy than we have. Now, his private medical records will likely be deemed by the Court to not be newsworthy and therefore a violation of his privacy. But that is the debate going on.

just not the 3rd. I'd need to see the explicit language that puts a football players privacy on the line. Where is the line drawn? How famous do you have to be for your rights to be violated? Seems very convoluted.

It sounded like the suit was trying to differentiate the newsworthiness or protected status of the injury information from the medical document itself. I'm not sure that flies, but it would seem that's at least part of the argument the plaintiff is trying to make here.

This is one of those where I'd love to read the actual judicial opinion rather than the shorthand of a reporter's few paragraphs.

article linked in the OP the suit alleges that JPP's privacy was violated, not by reporting his injury, which may be relevant or newsworthy as his professional athlete status, but by publishing his medical chart and the images.

He also alleges the records were improperly obtained.

just saying again, i am no legal expert like some of you, but it's in the article.

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“The court correctly ruled that Jason properly stated an invasion-of-privacy claim against ESPN and Adam Schefter, who we allege improperly published Jason’s medical records. Today’s ruling is a recognition of Jason’s right, as a professional athlete, to oppose the publication of his medical records without his consent,” said the football player’s attorney, Mitchell Schuster of Meister Seelig & Fein. Pierre-Paul blew his finger off during a July 4 fireworks mishap last year and was treated at Jackson Memorial Hospital in Miami. The NFL star says Schefter “improperly obtained” Pierre-Paul’s medical chart, showing the defensive end had his right index finger amputated, and posted an image of the records on his Twitter page. The ESPN contributor had nearly 4 million Twitter followers at the time of the 2015 incident. ...... Pierre-Paul argues that while his injury may have been “a matter of legitimate public concern,” the “chart was not.” Cooke agreed in a ruling she issued from the bench Thursday morning after an hour of arguments. ...... “This just went beyond the pale,” sports law expert Daniel Wallach said of Schefter’s decision to post the private records. “If this is not where the line is, where would it be?” said Wallach, of the law firm Becker & Poliakoff. Wallach, who is not involved in the case, expects the decision will mean a quick settlement.

In comment 13086432 Samiam said:

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I haven't read every port here but I recall JPP, at that time, refusing to share his medical condition with the Giants,even to the point of not meeting with Ronnie Barnes when he flew to Miami to see what was going on. And, his reluctance to do this was more related to the contract negotiations than anything else. I understand nobody wants their personal information revealed publicly but what Schefter did was part of a player team dance that happens all the time. People want to crush ESPN but JPP has a part in this too starting with how the accident happened

Huh? JPP played a part in his records being leaked by not meeting with Giants doctors?

of course it's convoluted. You can see why we should have access to public disclosure of records indicating that a Presdiential nominee has dementia (private fact). So how far does that extend? What other private information can we know? Who else can we know private facts about?

I don't want to sound patronizing, but that is why we have court cases establishing precedence-- to try and create boundaries and to define our laws and rights.

Just as with cases of defamation, it is a different for public figures, including politicians, celebrities, athletes when it comes to disclosing private facts than with a person like you or me.

With public disclosure of private facts, the key issue is whether something is of legitimate public concern or "newsworthy." Private information about people in the public sphere are more likely to be newsworthy than that same information about you or me.

Posting the medical chart is far more invasive than merely reporting on his private medical condition, and that is likely going to be the reason that JPP is successful moving forward.

This is a good resource to get a better sense of what I'm talking about.
http://www.dmlp.org/legal-guide/publication-private-facts - ( New Window )

OK, JPP's privacy was violated. I get that. but what damages can he claim here? posting the images didn't change anything regarding his earnings.

In comment 13086464 Csonka said:

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OK, JPP's privacy was violated. I get that. but what damages can he claim here? posting the images didn't change anything regarding his earnings.

The injury in an of itself obviously impacted his earnings, but publicly releasing the medical chart and pictures when JPP was being very private about it very likely exacerbated the extent of it.

In comment 13086051 Joeguido said:

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In comment 13086042 mattlawson said: Quote: could work out well for the Giants if JPP makes a shit ton off this - maybe he'll stay for a hometown discount I was thinking the same thing....wouldn't that be great.

Wishful thinking. He will still want to be paid what he perceives his football worth

In comment 13086107 CT Charlie said:

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from the settlement with the hospital to fund the legal fees for the best possible representation against ESPN. I'm still shocked that someone at the hospital would give up (or sell) the photos in the first place. I'm wondering who paid whom, and how much, in that transaction.

or he has no legal fees but will give 1/3rd of his winnings to the attorneys

In comment 13086461 PaulBlakeTSU said:

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<snip> Posting the medical chart is far more invasive than merely reporting on his private medical condition, and that is likely going to be the reason that JPP is successful moving forward. <snip>

Paul, I'm not sure why a vivid oral description from a doctor or photograph of an injury is less invasive than a written description in the form of a chart of that same injury. What makes the chart itself more private than a doctor's description or a photograph? The chart may reveal more detail, but that more isn't necessarily any more protected than the rest. I don't see a meaningful difference here and I'd be interested to read how the attorney makes this argument.

The part that JPP played is first that public figures are always part of the news when they go something stupid like, for example, playing with fireworks as he did. It was a front page story he helped create. His camp then added interest to the story by refusing to publicly reveal what was going on and that was more related to the contract negotiations than anything else. You can substitute thousands of other celebrities or athletes or whatever and you'd have press or paparazzi trying to do what Schefter did

that if I blow my hand up, people should be able to report that I blew my hand up. But no one should be able to distribute copies of my medical records. shouldn't matter if I'm just a lowly worker, or a football star, or a presidential candidate.

likewise, the newsworthiness of something shouldn't matter. either my records, or gov't records, are protected, or they're not. stolen (or protected) records should not be able to be reproduced and distributed just because you aren't the one that originally obtained them. If you can establish that ESPN/Shefter reasonably knew they were distributing material that is held as private, they should be held accountable.

my opinion and technicalities of the law may not be one and the same.

that's my take as well. I get that it's a convoluted mess but it's ridiculous.

JPP's Opposition to the Motion to Dismiss here. Given that the Judge denied the motion, I would assume the Court found the arguments herein persuasive.

I could not find an actual order or decision, but the hearing was just held today, so it would seem that the Court ruled from the bench rather than write a memorandum opinion.
Link - ( New Window )

being sued for pretending to take phone calls during a show on the 1st day of free agency?

I love how Ian Rappaport scooped the shit out of him this year.

OK, carry on.

Hulk Hogan got.. It can't hurt the negotiations with the Giants during re-signing.

In comment 13086464 Csonka said:

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OK, JPP's privacy was violated. I get that. but what damages can he claim here? posting the images didn't change anything regarding his earnings.

Not just JPP but Schefter actually posted an image of another patient info too. Schefter fucked up badly. He should have just confirmed that he has evidence of JPP's injury and he would have been covered. Instead the moron posted it to his twitter account.

That's like me saying posting Jennifer Lawrence nude photos are newsworthy because she is attractive, famous and there are nude photos of her.

I've been in medical sales for 13 years and every year I have to be certified to be in an operating room and have to agree to HIPPA rules and regulations. That being said...I don't see how Adam Schefter is guilty of anything unless he himself hacked into JPP's medical files and published the information. Even then he'd be guilty of hacking in to the computer...not HIPPA.

The guilty party here is whoever leaked the information from the Hospital. That's how I see it.

if someone likes the situation, and likes living in NY, they might take less to stay. Just like many of us don't go for a higher paying job if the situation is better where you are. Most professional athletes, if they have any leverage, which JPP is regaining as he proves he can still play, get the going rate.

JPP is NOT going to take less because he wins a lawsuit. he'll pocket that money, and then squeeze all he can out of his salary. If the bottom of the barrel NFL team offers him more, he'll consider whether NY is his scene, taking into consideration that NY has been closer to the bottom than the top as of late. Since he apparently lives (or lived) in Florida, count geography out.

JPP is a public figure. The case should be tossed out.

In comment 13086646 Doug in MA said:

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I've been in medical sales for 13 years and every year I have to be certified to be in an operating room and have to agree to HIPPA rules and regulations. That being said...I don't see how Adam Schefter is guilty of anything unless he himself hacked into JPP's medical files and published the information. Even then he'd be guilty of hacking in to the computer...not HIPPA. The guilty party here is whoever leaked the information from the Hospital. That's how I see it.

Doug

The Florida Statute expressly forbids a third party who receives a patient's medical record from sharing that patient's medical records without the consent of the patient -- whether they are a statutory record holder or not.

Also disturbing, in this case, is that Schefter "knowingly" received illegally obtained private medical records and that he may have conspired with that illegal act.


Many of you guys seem to think that Schefter is not culpable here -- that he has no culpability -- but in reviewing the arguments, the statutory language and the case law -- I'm telling you that there is a case here

If I'm ESPN, I wouldn't want this case to go all the way to the Supreme Court -- because a decision against them and Schefter would be more damaging than settling

also even Schefter has admitted that he may have gone too far in revealing JPPs actual medical records

In the Pentagon Papers case, the Times received information that had been illegally disclosed, and it held that it still had the right to publish. Different circumstances here, but the general principle is still the same.

In comment 13086957 jeff57 said:

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JPP is a public figure. The case should be tossed out.

You realize they tried to get it tossed out, and lost. That doesn't mean they will ultimately lose at trial, but it's clearly a more triable issue than you're suggesting.

he says it -- so it must be so

when the incident happened, JPP was a free agent currently in contract negotiations with the Giants. Ultimately Shefter may not be found to have done something outwardly illegal - but there's certainly a case that what he did was a civil violation of JPP, as the release of that medical document may have impacted JPP financially by influencing other NFL franchises that may have otherwise entered in to negotiations with him.

In comment 13086150 dpinzow said:

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In comment 13086037 Ten Ton Hammer said: Quote: . Yup, it's a pretty clear-cut case of HIPAA privacy violations and JPP's gonna get paid by both ESPN and the Giants

.


Indeed!

In comment 13086059 PaulBlakeTSU said:

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if Schefter obtained it lawfully, then "newsworthiness" is a legal defense to publishing it. If he obtained it unlawfully, that is a separate tort. From what I remembered, I thought the bigger suit was that the chart had medical information about a different patient who was not in the public sphere.

I don't see how he could have obtained it legally without a signed letter of consent from JPP himself. Even if the hospital personnel gave it to him, I would think he needed to make sure that JPP gave consent

In comment 13086506 fkap said:

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that if I blow my hand up, people should be able to report that I blew my hand up. But no one should be able to distribute copies of my medical records. shouldn't matter if I'm just a lowly worker, or a football star, or a presidential candidate. likewise, the newsworthiness of something shouldn't matter. either my records, or gov't records, are protected, or they're not. stolen (or protected) records should not be able to be reproduced and distributed just because you aren't the one that originally obtained them. If you can establish that ESPN/Shefter reasonably knew they were distributing material that is held as private, they should be held accountable. my opinion and technicalities of the law may not be one and the same.

I agree with this take also, But Paul seems pretty well versed in regards to this. I just don't see how publishing someone's medical info can possibly be legal, and I would think the onus to make sure it was legally obtained would be on ESPN. But I am no lawyer

by lawful/unlawful, I'm speaking strictly about the act of obtaining the information. Schefter, as the press, was given a picture of JPP's chart. The person who took obtained that chart and gave it to Schefter did so in violation of HIPAA, some other statute, or under tort law.

So long as Schefter didn't pay, solicit, or help that person actually obtain the private information, then Schefter did not obtain the private information unlawfully. It does not matter that Schefter is not supposed to have it or that JPP didn't consent to him having it. If the information is considered "newsworthy," then Schefter can publish the information that someone else acquired illegally. However, if the information is not "newsworthy," then Schefter publishing it would be committing the tort of "public disclosure of private facts." The standard for public figures (politicians, celebrities, athletes, people in the news) is much different than for private individuals.

Think of the Donald Sterling racist audio tapes. Donald Sterling's mistress recorded her private conversations with him where he makes racist comments as well as other things. She then gave those recordings to TMZ who published them.

California wiretap statutes require two party consent, meaning that it was unlawful for the mistress to record a private conversation with Sterling without Sterling's consent. So these were unlawful recordings of private conversations, assuming he was unaware of them.

She then gave them to TMZ. TMZ did not have these audiotapes unlawfully and they were free to publish them because the subject matter of the conversations were "newsworthy"

That's why when Donald Sterling sued the mistress and TMZ, the Judge quickly dismissed TMZ from the suit saying that they had a First Amendment right to publish the information because they were not involved in the unlawful recording, whereas the mistress remained a defendant. I don't know the current status of the case.

That Shefter did nothing illegal but is also an unethical piece of shit human being.

set some sort of precedent. It seems absolutely crazy to me that something as protected as your medical records can just "fall into the lap of the press" and they can publish with no repercussions.

that Schefter did that has so many people hate him? He always seemed to be a very hard-working reporter who cultivated contacts to become a big name in breaking stories. I don't agree with some of the times he offers personal opinions, but I never had any vile hatred for him.

People were champing at the bit to find out what the deal was with JPP's hand. It was of legitimate public interest given JPP's status.

Now, did Schefter cross the line in publishing JPP's medical chart rather than merely reporting some general information from it? Perhaps and that is why JPP is suing.

But I don't think he was doing anything malicious. He thought he had the biggest scoop of the story that dominated the news at the time and it was a misstep.

I think this rush to post the scoop is more reflective of a society that needs to know everything immediately, dying to break and find out breaking knows. It's also reflective of a society that wants to know every detail of celebrity lives.

off tweeting, nothing he does is remotely interesting other than scooping stories first. He gets paid an insane amount of money to break news and ESPN glorifies his ability to text.

I'm down on journalism and reporting in general. That paparazzi are even worse, just a disgusting profession.

In comment 13088052 PaulBlakeTSU said:

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by lawful/unlawful, I'm speaking strictly about the act of obtaining the information. Schefter, as the press, was given a picture of JPP's chart. The person who took obtained that chart and gave it to Schefter did so in violation of HIPAA, some other statute, or under tort law. So long as Schefter didn't pay, solicit, or help that person actually obtain the private information, then Schefter did not obtain the private information unlawfully. It does not matter that Schefter is not supposed to have it or that JPP didn't consent to him having it. If the information is considered "newsworthy," then Schefter can publish the information that someone else acquired illegally. However, if the information is not "newsworthy," then Schefter publishing it would be committing the tort of "public disclosure of private facts." The standard for public figures (politicians, celebrities, athletes, people in the news) is much different than for private individuals. Think of the Donald Sterling racist audio tapes. Donald Sterling's mistress recorded her private conversations with him where he makes racist comments as well as other things. She then gave those recordings to TMZ who published them. California wiretap statutes require two party consent, meaning that it was unlawful for the mistress to record a private conversation with Sterling without Sterling's consent. So these were unlawful recordings of private conversations, assuming he was unaware of them. She then gave them to TMZ. TMZ did not have these audiotapes unlawfully and they were free to publish them because the subject matter of the conversations were "newsworthy" That's why when Donald Sterling sued the mistress and TMZ, the Judge quickly dismissed TMZ from the suit saying that they had a First Amendment right to publish the information because they were not involved in the unlawful recording, whereas the mistress remained a defendant. I don't know the current status of the case.

Thanks for the clarification Paul

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