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1 United States District Court Eastern District Of Case: 6:19-cv-00212-REW-EBA Doc #: 29 Filed: 02/06/20 Page: 1 of 21 - Page ID#: <pageID> UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION LONDON SATYABRATA CHATTERJEE, M.D. and ) ASHWINI ANAND, M.D., ) ) Plaintiffs, ) No. 6:19-CV-212-REW ) v. ) ) OPINION AND ORDER CBS CORPORATION and CBS NEWS, ) INC., ) Defendants. *** *** *** *** I. BACKGROUND The origins of this defamation and false-light lawsuit date back to 2011, when three Lexington cardiologists brought a qui tam suit against St. Joseph London Hospital; physicians Satyabrata Chatterjee, Ashwini Anand, and Sandesh Patil; and other entities associated with the hospital or the physicians. See DE 10-2 (Exhibit 3, First Amended Complaint) ¶¶ 1–7, 12–25. The Lexington cardiologists—relators, in the qui tam action—noticed a trend among some of their patients that appeared to have received unnecessary heart treatment at the hospital or one of the named clinics. Id. ¶¶ 68–108. In their whistleblower complaint, the relators alleged that all defendants had violated three provisions of the False Claims Act,1 as well as the Anti-Kickback 1 The False Claims Act protects public healthcare programs by prohibiting “knowingly present[ing], or caus[ing] to be presented, a false or fraudulent claim for payment or approval.” See 31 U.S.C. § 3729(a)(1)(A). The Act also criminalizes “knowingly mak[ing], us[ing], or caus[ing] to be made or used, a false record or statement material to a false or fraudulent claim,” § 3729(a)(1)(B), and conspiring to violate (A) or (B), among other subsections, § 3729(a)(1)(C). 1 Case: 6:19-cv-00212-REW-EBA Doc #: 29 Filed: 02/06/20 Page: 2 of 21 - Page ID#: <pageID> Statute2 and the Stark Law.3 DE 10-2 ¶¶ 113–43. The Department of Justice eventually intervened in parts of the suit. Id. (Exhibit 4, Notice of Election to Intervene) at 84–86. The action ended in 2014, when the government settled with the hospital and with Chatterjee and Anand. See id. (Exhibits 1 and 2, Department of Justice press releases discussing each settlement) at 6–7, 9–10. Years later, CBS planned an investigative story. By July 2018, correspondence reveals that CBS News and counsel for Chatterjee and Anand had discussed the possibility of an interview with the physicians. See id. (Exhibit 10) at 107. Those discussions stalled. See DE 1-1 at 28 (“Drs. Anand and Chatterjee declined CBS News’ request for an interview.”); DE 10-2 at 107. Later that month, Alex Ferrer, a reporter with CBS News, approached Chatterjee in the parking lot of St. Joseph London Hospital and posed several questions about the alleged conduct that had been the subject of the qui tam suit. See DE 1-1 at 28–29; DE 10-2 at 107. Chatterjee directed Ferrer to speak with Chatterjee’s attorney and responded in the negative when Ferrer asked if Chatterjee had prior knowledge about unnecessary cardiac procedures. DE 1-1 at 28; DE 10-2 (Exhibit 9). The physicians, through counsel, did provide a “statement and response” to CBS News on July 30, 2018. DE 10-2 at 107–12. In relevant part, the letter stated that “[t]he resolution of the Qui Tam case against the Physicians solely stems from a business arrangement in existence from 2008- 2012.” Id. at 109. The letter focused on “personal Integrity Agreements”—which arose from the settlement between the government and Chatterjee and Anand and required internal compliance reforms and third-party oversight, see id. (Exhibit 2) at 9–10—and characterized the settlement as 2 “The Anti-Kickback Statute prohibits offering, paying, soliciting or receiving remuneration to induce referrals of items or services covered by federal health care programs, including Medicare.” DE 10-2 at 9; see 42 U.S.C. § 1320a-7b. 3 “The Stark Law forbids a hospital from billing Medicare for certain services referred by physicians who have a financial relationship with the entity.” DE 10-2 at 9; see 42 U.S.C. § 1395nn. 2 Case: 6:19-cv-00212-REW-EBA Doc #: 29 Filed: 02/06/20 Page: 3 of 21 - Page ID#: <pageID> “based purely on alleged violations of the [Stark Law.]” See id. at 109. The statement concluded with the contention that “[t]he Physicians are innocent collateral victims of the conduct of Drs. Patil and Chalhoub.” See id. at 110. Patil and Chalhoub faced federal criminal charges and, ultimately, conviction for their involvement. See DE 1-1 at 27. On August 3, 2018, CBS News aired a segment entitled “Case Against the Cardiologists” as a part of its Whistleblower series. See DE 1-1 ¶ 8; DE 10-2 (Exhibit 9). The segment featured Dr. Robert Jones, one of the Lexington cardiologists behind the qui tam suit years earlier. See DE 1-1 at 10–23. In response to questions from Ferrer, Dr. Jones and former U.S. Attorney Kerry Harvey related the events leading up to the suit and its resolution, including intervention by the Department of Justice and the settlements. See id. at 10–27. The segment also included a clip from Ferrer’s interaction with Chatterjee in the hospital parking lot and quoted part of the physicians’ July 30, 2018, written statement to CBS News. See id. at 28–29 (“In a statement, an attorney for Drs. Chatterjee and Anand said in part, the physicians are innocent collateral victims of the conduct of Drs. Patil and Chalhoub. Their dedication to providing the highest quality of cardiac care has remained steadfast and has been consistently vindicated by the legal system.”). CBS also posted Plaintiffs’ statement on the Whistleblower website. DE 10-1 at 15. On September 21, 2018, Plaintiffs’ counsel sent a letter, identified as a “demand for correction,” to CBS News. DE 1-1 at 33–40. The letter excerpted and bolded portions of the Whistleblower broadcast, which Plaintiffs identified as “specific false and defamatory statements.” Id. at 35–39. MR. FERRER: Almost a year after Dr. Jones began seeing those desperate patients, he, Dr. Hollingsworth, and another partner, filed a federal whistleblower lawsuit against Saint Joseph and three cardiologists, Sandesh Patil, Satyabrata Chatterjee, and Ashwini Anand. [DE 1-1 at 23] **** 3 Case: 6:19-cv-00212-REW-EBA Doc #: 29 Filed: 02/06/20 Page: 4 of 21 - Page ID#: <pageID> MR. FERRER: Federal investigators dug in and focused on the relationship between Saint Joseph London Hospital and heart clinic administrators, Drs. Chatterjee and Anand. MR. HARVEY: They essentially had an exclusive arrangement for cardiac services with this particular hospital. MR. FERRER: The feds found that at the core of it all was greed. A high profit item for hospitals and doctors, those tiny stents. [DE 1-1 at 24] **** MR. FERRER: Drs. Chatterjee and Anand were never charged with any crimes but agreed to pay the Government $380,000 for allegedly fraudulent contracts with the hospital. They admitted no wrong-doing. And as CBS News found, they’re back in London, Kentucky, seeing patients at their own heart clinics. MR. HARVEY: And I hope that the appropriate authorities are monitoring that very carefully. MR. FERRER: Drs. Anand and Chatterjee declined CBS News’ request for an interview. So we went to Kentucky. Let’s go. And found Dr. Chatterjee as he was entering of all places, Saint Joseph London Hospital. Dr. Chatterjee, hi, Alex Ferrer with CBS News. We’d like to talk to you about your involvement with the unnecessary heart procedures that were performed at Saint Joseph Hospital London. What do you say to the patients who received some unnecessary heart procedures? DR. CHATTERJEE: I prefer you just talk to my attorney. He has told me not to talk, so I would prefer you would do that. MR. FERRER: You’re still a cardiologist? DR..CHATTERJEE: Yes, sir. MR. FERRER: You think it’s fair for patients to wonder if they should put their life in your hands if you’re [sic] clinic was employing doctors who were performing unnecessary procedures? Did you know that these doctors were doing this? [DE 1-1 at 27–29] Plaintiffs demanded correction on two main points: the “suggest[ion] [that] the Physicians performed and profited from unnecessary cardiac procedures, specifically the placement of stents,” and the “state[ment] that the Physicians paid the federal government $380,000 for ‘allegedly fraudulent contracts with the hospital.’” See id. at 36. The demand incorporated the physicians’ earlier written statement, in which they had denied performing unnecessary cardiac procedures or profiting from unnecessary procedures performed by others, and pointed to the lack of criminal charges against Chatterjee and Anand and their apparent vindication in civil malpractice suits. See id. at 37. As far as the allegedly fraudulent contracts, the demand again referenced the physician’s 4 Case: 6:19-cv-00212-REW-EBA Doc #: 29 Filed: 02/06/20 Page: 5 of 21 - Page ID#: <pageID> earlier written statement, highlighting the outcomes of the criminal and civil proceedings against Chatterjee and Anand. See id. at 38–39. The statement emphasized the favorable termination of the criminal investigation and the limited scope of the personal integrity agreements. See id. CBS rejected the request. See DE 17-5 at 1–3. Based on these facts,4 Plaintiffs filed suit in Laurel Circuit Court against CBS Corporation and CBS News, Inc., claiming defamation, defamation per se, and false light invasion of privacy. Id. ¶¶ 17–19. Defendants5 timely removed the action, DE 1, and now pursue Rule 12 dismissal of all claims, DE 10 (Motion). The motion stands fully briefed and ripe for review.
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