Cox Media Group, LLC v. Joselevitz
524 S.W.3d 850
Tex. App.2017Background
- Dr. Joel Joselevitz, a pain-management physician, was subject to Texas Medical Board disciplinary action (2011 and 2014 complaints) and an August 2014 agreed order restricting prescribing and banning treatment of chronic pain patients. Several patients treated by him died of drug overdoses; administrative records and two wrongful-death suits alleged prescribing problems.
- The Austin American-Statesman published an investigative article about doctors and prescription-drug enforcement that prominently featured Joselevitz and quoted family members who blamed his prescribing for a patient’s death.
- Joselevitz sued Cox Media Group (publisher) for defamation based on the article. Cox moved to dismiss under the Texas Citizens Participation Act (TCPA). The trial court heard argument but failed to rule within the statutory period, so the motion was deemed denied by operation of law, prompting an interlocutory appeal.
- Cox argued the TCPA applied because the article addressed matters of public concern, that the article was substantially true (so falsity element failed), and alternatively that Chapter 73/common-law privilege applied; Cox also sought fees, costs, and sanctions under the TCPA.
- The court of appeals reviewed de novo, found the article concerned a matter of public concern, held Joselevitz failed to produce clear and specific evidence of falsity because the article was substantially true as a whole, and reversed the trial court’s denial and remanded for determination of attorney’s fees, costs, and sanctions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the TCPA applies | Joselevitz conceded publication but argued the article was not a matter of public concern | Cox: article discussed public-health/governmental functions and regulatory enforcement, so TCPA applies | TCPA applies (article addressed provision of medical services/public concern) |
| Whether Joselevitz met prima facie falsity element | Article falsely implied Joselevitz solely caused patient overdose, suggested he ran a "pill mill," and overstated allegations | Cox: article substantially accurately reported Board proceedings and lawsuits; any minor inaccuracies do not change gist | Joselevitz failed to show falsity by clear and specific evidence; article substantially true; dismissal required |
| Whether statements were privileged | Joselevitz: not addressed as primary defense | Cox: publication was a fair, true, impartial account of official/judicial proceedings invoking statutory and common-law privileges | Court did not need to decide privilege after finding substantial truth, but noted privilege arguments as alternative grounds |
| Recovery of fees, costs, and sanctions under TCPA | Joselevitz did not contest amounts in trial court | Cox: entitled to mandatory award of costs and reasonable attorney’s fees and discretionary sanctions; requested court of appeals to award amounts | Court held Cox entitled to fees/costs/sanctions but remanded to trial court to determine amounts and sanctions (fact questions) |
Key Cases Cited
- Fawcett v. Grosu, 498 S.W.3d 650 (Tex. App. Houston [14th Dist.] 2016) (explains TCPA as anti-SLAPP and purpose of prompt dismissal)
- Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716 (Tex. App. Houston [14th Dist.] 2013) (TCPA construed liberally; standards for dismissal)
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (burden-shifting framework under TCPA and requirement to evaluate pleadings and affidavits)
- KBMT Operating Co. v. Toledo, 492 S.W.3d 710 (Tex. 2016) (substantial-truth doctrine in media defamation suits under TCPA)
- Lippincott v. Whisenhunt, 462 S.W.3d 507 (Tex. 2015) (provision of medical services by healthcare professional is a matter of public concern)
- Neely v. Wilson, 418 S.W.3d 52 (Tex. 2013) (public concern and media defamation principles)
- Exxon-Mobil Pipeline Co. v. Coleman, 512 S.W.3d 895 (Tex. 2017) (defense burden under TCPA to establish each element by preponderance)
- Sullivan v. Abraham, 488 S.W.3d 294 (Tex. 2016) (procedure and remand principles for award of attorney’s fees under TCPA)
- Bocquet v. Herring, 972 S.W.2d 19 (Tex. 1998) (reasonableness of attorney’s fees is typically a fact question)