Westchester entertainment lawyer on Ozzy’s doc hitting sour note in NY libel case against The Post

Back in the day when this nation’s standard for libel was set forth in N.Y. Times Co. v. Sullivan, 376 US 254 (1964), the U.S. Supreme Court held that in order for a plaintiff to prove that he was defamed, if he was a public figure, he had to prove actual malice or a reckless disregard for the truth by the alleged miscreant.   However, as more and more people are seeking and getting their 15 minutes of fame, courts have held more and more of us to the public figure standard when it comes to proving actual malice as set forth in the Times case.  (Thank reality TV for that!)

Just recently in Kipper v. NYP Holdings Co., 12 N.Y. 3d 348, —N.Y.S.2d — (April 30, 2009),  New York’s high court, the Court of Appeals, held in a 6 – to – 1 decision, that a Los Angeles doctor was not defamed by the N.Y. Post, which reprinted a wire service article from the L.A. Times, when it said the doctor’s license had been revoked for the alleged overdosing of entertainers, including Ozzy Osbourne.

The Los Angeles Times had reported back in 2003, according to Osbourne, that Dr. David Kipper had over-prescribed various meds to him to during the time that Osbourne starred in a television reality series.

Ozzy Osbourne by Martin Schoeller/Rolling Stone magazine

Ozzy Osbourne by Martin Schoeller/Rolling Stone magazine

In addition, the Times article accurately stated that the California Medical Board had “moved to revoke” Kipper’s license due to his alleged gross negligence in the treatment of other patients.   Well, a few days later the New York Post picked up the story and changed it up a bit, stating that the doc’s license had already been revoked.

Naturally, this drove Kipper into a tizzy and he demanded and received a retraction in a comparable placement within the Post to the original story but Kipper sued them anyway.  Shortly after discovery was completed, the Post moved for summary judgment and while it lost at the trial court level, the decision was reversed in the Appellate Division and finally affirmed by the Court of Appeals.

Now, you may be asking yourself did Dr. Kipper become a “public figure” by virtue of rubbing elbows with his celebrity clientele.  That answer would be a resounding “no.”

Physician or Public Figure?

Physician or Public Figure?

The Court held Kipper was a public figure in his own right, “due to the extensive media coverage of his detoxification practice, his more than 100 television appearances as a medical expert, and his roles as a doctor in several films,” and was therefore held to the actual malice standard for proving defamation.  The Court upheld the premise that the “actual malice” standard recognizes that public figures need to develop a thicker skin because the occasional falsehood is “inevitable in free debate” and publishers must have  sufficient “breathing space.”  So, if you want to step into the deep end of the pond for notoriety, be prepared to swim with the sharks.

By the way, the California Medical Board, in November 2007, ended a nine-year investigation of the doc with a public reprimand for bad record-keeping.