While Fox News prepares to defend itself against Dominion Voting’s $1.6 billion libel suit, its rival network, CNN, is facing a lesser-known but equally heart-stopping legal drama of its own. The allegations implicate not only CNN, which is in the middle of being downsized under new management, but also connect to star anchor Anderson Cooper and the entire fact-checking apparatus of the news operation, itself. I got my hands on Cooper’s sealed deposition, a transcript stretching several hundred pages that provides details about CNN’s newsgathering policies and its star anchor’s sensitivities. It’s no stretch to say that CNN could face a nine-figure damages verdict should it lose big at trial next spring.
The saga dates back to 2016, when a popular West Palm Beach heart surgeon named Dr. Michael Black sued CNN and star medical correspondent Elizabeth Cohen over the network’s reporting on infant deaths at St. Mary’s Medical Center, where Black worked. CNN had reported, both online and on Cooper’s show, that the mortality rate for open-heart surgery at the hospital was “three times the national average”—an eye-catching statistic that Black alleges is deeply flawed and dishonest. Black claims that experts had repeatedly warned CNN that its methodology effectively cherry-picked data by focusing only on the highest-risk procedures, and that CNN ignored these warnings. Indeed, according to Black, there was no statistically significant difference between St. Mary’s “secret deaths,” as CNN reported, and the national average. Nevertheless, St. Mary responded to the bad press by shutting down its pediatric cardiac surgery program. (CNN settled a separate lawsuit in Georgia brought by the hospital’s former chief executive, David Carbone, who was forced to resign after the exposé was published.)
The judge overseeing the case, Richard Oftedal, has made a string of decisions largely in favor of Black, prompting CNN to seek immediate appellate review, which is one of the reasons why this case has been dragging on for six years. For example, CNN unsuccessfully attempted to assert journalist privilege to shield conversations with one of its key sources. Most recently, Oftedal gave Black permission to amend his suit to seek punitive damages. By Florida law, such a penalty is only available when a defendant is guilty of intentional misconduct or gross negligence. CNN, represented by a half-dozen lawyers led by Ballard Spahr partner Charles Tobin, has argued that this means only the most extreme cases of wanton misbehavior.
Oftedal, though, saw overlap with the “actual malice” requirement for public figures—meaning, knowledge of falsity or reckless disregard for truth—and ruled that Black had met this threshold. “CNN Defendants had been aware that assessing a program’s performance solely based on raw data could be potentially misleading,” wrote the judge, adding that more than 240 CNN employees, including its then-president, Jeff Zucker, were involved in handling this particular story. (Zucker gave a declaration in this case, and Black has seized on his emails to show CNN’s leader was asking questions about the reporting including the characterization of the mortality rate, but the judge recently rejected a bid to have him deposed.) That should give Black’s attorneys plenty to work with if the case goes to trial, where they’ll argue that a veritable army of journalists sloppily portrayed the good doctor as a baby killer, fueled multiple threats to his life, and trashed his career.
In the meantime, the two sides are gearing up for a critical summary judgment. Judge Oftedal will also soon decide what a jury can hear about CNN’s process for how it reviews its most sensitive stories—a ruling that could conceivably reverberate among media lawyers and influence newsrooms elsewhere, and one that would be particularly important for an organization that brands itself as the most trusted name in cable news. Ironically, Black is represented by the same conservative husband-and-wife litigators that are leading Dominion’s defamation case against Fox, Tom Clare and Libby Locke.
Anderson’s Testimony and CNN’s “Triad”
Cooper, perhaps CNN’s biggest star anchor, spent multiple days being interrogated by Locke in a deposition earlier this year, during which he addressed everything from whether he ever attended Zucker’s morning editorial meetings (“No, I didn’t”) to authorship of his social media feeds (“I don’t look at social media that much”) to whether the infant death reports were biased (“Well, there are many forms of bias… Were they biased against white middle aged men?”). Some questions, including about his CNN contract, Cooper refused to answer on the advice of counsel. A magistrate judge is now ordering Cooper to respond to whether there are financial incentives or bonuses for him tied to Anderson Cooper 360 ratings. (A spokesperson for CNN didn’t immediately respond to an opportunity to comment.)
Perhaps the most consequential part of the deposition, though, pertained to what’s known as “The Triad” process—a special fact-checking system in place at CNN, one that’s even been profiled in The Times. The network’s most adventurous journalism is reviewed rigorously prior to publication by a triumvirate of senior editors, Standards & Practices employees, and company attorneys. Cooper testified that two of his prior employers, ABC and Channel One, didn’t have a system quite like this, and that it gave him confidence in CNN’s journalism.
So much confidence, in fact, that Cooper said he wouldn’t interfere or take liberties with reporting that had come to him pre-vetted. “My getting involved with [the review] will only gum up the works because so many eyes had looked at it,” he told Locke in January, adding on the second day of questioning that the system impacts how he interacts with those who appear on his show. “Normally, I would just ask the question that I’m interested in about something, and the reporter wouldn’t know in advance what I’m asking, and they would just answer it. The fact that there is an answer here [in this script,] I’m assuming that meant it had gone to the Triad process.”
Later in the deposition, Cooper grew defensive over the implication he’s just a pretty face: “I feel it makes it seem like I don’t do anything all day long and I’m just sitting around for the camera to turn on,” he said. “I’m deeply involved, you know, all day long every day, in learning and research and stuff. It’s just not for lengthy yearlong investigations.” When he was asked if CNN has any rules or policies for how hosts should conduct interviews, Cooper retorted: “Well, host isn’t a term I would use.”
Other CNN editorial staffers also nodded in their depositions to their reliance on this pre-publication review process, which prompted Black’s lawyers in March to make a push for access to “Triad” communications that the network has been insisting are shielded by attorney-client privilege. And if CNN won’t give up these sensitive conversations, Black’s team wants Judge Oftedal to prohibit CNN from pointing to the Triad as a demonstration of its care in vetting the hospital exposé. “This is a textbook use of attorney-client privilege as both a sword and shield,” Black’s lawyers argued.
CNN didn’t like the suggestion that it must choose between waiving attorney-client privilege and forgoing the presentation of evidence about its pre-publication process, and warned the judge about committing a “reversible error.” (Black then did the same.)
Judge Oftedal has attempted to steer both parties to some sort of middle ground where jurors might be instructed not to draw inferences about the Triad process, but this is still a hotly debated area, and it won’t be a shock if the outcome of this issue has an outsized impact on the trial (and an appeal).
That is, if the case actually makes it to trial. CNN, just like Fox News in its showdown against Dominion, will have to consult its insurers and take a measure of the state of play as the trial nears. It’s certainly possible that after six long years in court, this one ends in settlement. If not, though, we could see Anderson Cooper on the witness stand, references to the Zucker regime, and a parade of media reporters who thought they’d be in Wilmington to cover Fox’s landmark First Amendment case traveling to Palm Beach instead.