The Health Law Ticker

On May 7, 2019, the California Supreme Court heard oral arguments in Wilson v. Cable News Network, Inc., et al., where plaintiff was a producer at CNN who sued the media giant for employment discrimination, retaliation, wrongful termination, and defamation after he was terminated for alleged plagiarism.  Wilson is of particular importance to the healthcare community, including hospitals, medical staffs, peer review committees, and practitioners, because it will impact the application of anti-SLAPP Special Motions to Strike under Civil Procedure Code Section 425.16 in suits alleging that peer review action had discriminatory or retaliatory motives.

Anti-SLAPP history in the peer review context began with Kibler v. Northern Inyo County Hospital District.¹  The Supreme Court in Kibler held that peer review proceedings initiated pursuant to California Business & Professions Code Section 809 et seq. were official proceedings under Prong 1 of California’s anti-SLAPP statute, Civil Procedure Code Section 425.16(e)(1), which states that an act in furtherance of a person’s right of petition or free speech is protected by the statute if it occurs in any written or oral statement or writing made before…any other official proceeding authorized by law.  Kibler thus made the Special Motion to Strike procedure available to hospitals, peer review bodies, and individuals, pursuant to Prong 1 of the anti-SLAPP analysis, to combat damage actions brought by disciplined physicians.  Kibler was extended by the Fourth District Court of Appeals in Nesson v. Northern Inyo County Hospital District,² which permitted an anti-SLAPP Motion to Strike in an action brought by a hospital-based physician whose contract was terminated based on his summary suspension because the action of terminating the contract was inextricably intertwined with peer review.³

However, thereafter, the applicability of anti-SLAPP to peer review was limited when Health & Safety Code Section 1278.5 was amended, effective in 2008, to add physicians as whistleblowers, and subsequently in 2014 when Fahlen v. Sutter Central Valley Hospitals⁴ held that such physician whistleblowers were not required to exhaust their administrative remedies.  In February and July 2017, respectively, the Courts of Appeal in Melamed v. Cedars-Sinai Medical Center⁵ and Bonni v. St. Joseph Hospital System⁶ further narrowed anti-SLAPP motions in peer review by opining that a defendant’s retaliatory motive in undertaking peer review corrective action should further exempt such action from constituting protected activity.  In connection with Bonni, which is a peer review case, and Park v. Board of Trustees of California State University,⁷ which is not a peer review case, the California Supreme Court rejected an overture made on behalf of the California Hospital Association to separately address the applicability of the anti-SLAPP statute to peer review matters due to the unique issues that pervade healthcare.  In Park, the plaintiff sued the Board of Trustees of California State University for discrimination in denying him tenure.  The Court concluded the anti-SLAPP statute did not apply because of the distinction between activities that form the basis for a claim and those that merely lead to the liability-creating activity or provide evidentiary support for the claim.⁸  Thus, under Park, the anti-SLAPP statute protects statements made during the process but not decisions reached or actions taken when the process concludes.  The Court went on, arguably in dicta, to disapprove two Courts of Appeal opinions applying Kibler, to the extent those opinions concluded that every claim arising out of any part of the peer review process was necessarily based on protected activity as a categorical matter.⁹  After deciding Park in May 2017, the California Supreme Court accepted petitions for review of both Melamed and Bonni, in June 2017 and November 2017, respectively, but has placed them on a grant and hold pending the Court’s decision in Wilson v. CNN.

Now, the issue that the Court is addressing in Wilson is as follows:

Is an employer’s motive relevant to determining whether a claim arises from protected activity for purposes of deciding whether it passes the first part of the anti-SLAPP test under California Civil Procedure Code Section 425.16?

Depending on how the Court answers this question, it may pose a new challenge to defendants’ Special Motions to Strike discrimination and retaliation lawsuits as Strategic Lawsuits Against Public Participation under Prong 1 of the anti-SLAPP analysis.  The Wilson court will not address Prong 2, which requires a plaintiff to show a probability of prevailing on the merits of the claim.

At the May 7, 2019 oral arguments, counsel for CNN, Adam Levin, argued that the employer’s motive as alleged by plaintiff is irrelevant to deciding whether the claim arose from protected activity.  Rather, defendant’s actions are determinative.  CNN’s position is that Wilson’s claims are based on its editorial decisions, including its publishing, authorship, and employment decisions, which are protected because they are in furtherance of free speech and connected to the public interest in news reporting.  The Justices questioned Mr. Levin on whether employment practices of major news organizations were exempt by virtue of their free speech nature.  Mr. Levin responded that for staffing decisions, there must be a close connection between the employee’s position and the free speech published, as here.

In opposition, counsel for Wilson, Jill McDonell argued that defendant’s discriminatory motive alleged in the complaint is relevant because the focus of the anti-SLAPP inquiry is on the specific activity that forms the basis of the claim.  Ms. McDonell argued that Wilson’s claim is not an attack on the content of free speech, yet CNN attempts to connect its actions to free speech to exempt it from examination.  In closing, Ms. McDonell cautioned that if the statute is interpreted so broadly that the court considers relevant even speechy peripheral conduct which a defendant argues to be its motive, despite what is alleged in the complaint, plaintiffs will be prevented from asserting their civil rights.

The Supreme Court has indicated that it will issue its opinion on Monday, July 22, 2019 at 10:00 a.m.

¹39 Cal.4th 192 (2006) (Kibler).

²204 Cal.App.4th 65 (2012) (Nesson).

³Nesson at 81.

⁴58 Cal.4th 655 (2014) (Fahlen).

⁵8 Cal.App.5th 1271 (2017) (Melamed).

⁶13 Cal.App.5th 851 (2017) (Bonni).

⁷2 Cal.5th 1057 (2017) (Park).

⁸Park at 1064.

⁹Park at 1069-1070.