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SPELSON v. CBS

March 8, 1984

JOHN G. SPELSON, D.C., PLAINTIFF,
v.
CBS, INC., A CALIFORNIA CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Bua, District Judge.

  MEMORANDUM ORDER

The instant case was brought by plaintiff John Spelson, a licensed chiropractor, against defendant CBS for defamation of plaintiff's character in connection with broadcasts produced and aired by WBBM-TV Channel 2, a CBS-owned television station in Chicago, Illinois. The series of broadcasts, titled "Cashing in on Cancer," aired from April 25, 1982 through May 5, 1982, and were accompanied by an editorial which was broadcast on April 30, 1982, May 1, 1982, and May 3, 1982. In the series, WBBM-TV reporter Pam Zekman and the Channel 2 investigative team sought to uncover the questionable practices of various individuals who were engaged in "cancer quackery." Plaintiff Spelson was one of the individuals whose conduct was investigated.

Jurisdiction over the instant case is based on diversity, 28 U.S.C. § 1332, as plaintiff is an Illinois resident and defendant, by virtue of being incorporated in California, is a resident of California. The amount in controversy exceeds $10,000. Venue is proper in this district under 28 U.S.C. § 1391(a).

Before the Court is the defendant's Motion for Summary Judgment.*fn1 The Court has viewed the videotapes of the broadcasts and has examined all other materials submitted. For the reasons stated herein, Summary Judgment is granted for defendant.

FACTS

Plaintiff is a licensed chiropractor with a practice in Oak Park, Illinois. He claims, in Count I, that various statements contained in the aforementioned broadcasts related to him and were defamatory. In Count II, plaintiff claims that an editorial which was broadcast at various times on WBBM-TV Channel 2 falsely accused him of criminal behavior and otherwise defamed him.

Later in the broadcast, Zekman reported that one of her investigators went to an unlicensed nutritionist. Following an examination, the investigator was told to take 134 pills per day. These pills contained vitamins, minerals, and extracts of raw animal organs and cost $365 for a 21-day supply. Zekman asked Dr. Robert Young of the Food and Drug Administration what he thought of the foregoing scenario. Young responded that it was essentially "consumer fraud."

The pills which the investigator bought are promoted by Dr. Harold Manner, an individual who travels the country pushing the products for his "discredited cancer therapy," Manner Metabolic Therapy,*fn3 which, according to Dr. Victor Herbert of the State University of New York, is the "purest form of quackery."

Zekman continued by explaining that medical standards have been ignored, for example, in the use of machines, one of which the FDA has declared grossly fraudulent. A federal judge once declared the machine a quack device because it couldn't tell a dead patient from a live one. Zekman reported that the machine is one of many worthless devices used by a west suburban chiropractor, presumably Spelson. A picture of Spelson was then flashed on the screen.

Zekman followed by asking a cancer patient if she thought she were the "victim of a fraud." The response was in the affirmative.

In the following broadcast, aired April 26, 1982, the anchorman introduced the segment by saying, "Untrained, unqualified and unscrupulous health practitioners" are exploiting desperate patients. Zekman then came on the air and led off the day's report by informing the audience that health practitioners had been found in Illinois who were using "illegal drugs" to treat cancer. One of these practitioners was the plaintiff, John Spelson, who was specifically referred to and pictured on the screen.

After explaining that Spelson treated patients through Metabolic Therapy, a treatment which utilizes megadoses of vitamins, purportedly to build up the immune system and break up tumors, Zekman reported that a cancer patient, whom Spelson told had a 50-percent chance of living, had had a blood test performed upon her for which Spelson required payment of $3,000 in advance. Zekman further reported that the patient had borrowed money to pay for the tests, assuming that her insurance company would cover it, but that the insurance company balked, claiming that its consultant on chiropractors said that "Spelson had overstepped the bounds of his training." In the opinion of another chiropractor, Dr. Charles DuVall, "such treatment as that is unethical, unprofessional, inhuman, and totally worthless." Zekman went on to ask a cancer patient, "Do you think he's exploiting cancer patients?" Laughing, the patient answered, "Do I think it; I know it."

Later in the broadcast, Zekman said, "We've shown you how Spelson and Pfeiffer exploit the dying. We've also found they exploit those who have a chance to live." She went on to explain that individuals with curable forms of cancer were lured away from proven methods of treatment into Metabolic Therapy. Members of the Channel 2 investigative team posed as such patients. One was given 21-day therapy by a Dr. Pfeiffer, a chiropractor, which cost $2,500 and included blood and hair analysis and the prescription of 17 different kinds of pills, made up primarily of various processed animal organs. Zekman also reported that Pfeiffer sold the investigators laetrile in violation of state laws.

"State officials say chiropractors are not allowed to treat cancer with drugs," Zekman explained, "so Spelson and Pfeiffer say they are treating the body." According to Dr. Charles Moertrel of the Mayo Clinic, such behavior "really borders on the criminal." Zekman then reported that Spelson failed to respond to their repeated requests for an interview.

In the following report, aired on April 27, 1982, the anchorperson led off the report by saying that, "Phony medical machines" are being used by several Chicago area health practitioners to "defraud cancer patients." Zekman followed by naming three of the machines and by commenting that while the names sound impressive, they are really "tools of the quackery trade." She went on to report that Dr. Caecillia Winkler, who was shown on the screen, had used one of the machines, a Dermatron, to predict that one patient was going to get leukemia. After questioning one physician who disapproved of Winkler's actions, Zekman related the tests Winkler performed upon her and that she was charged $396 for 66 potions containing diluted toxins, germs, and other substances Winkler claimed would build up resistance to disease. Winkler once told the FDA that the powers of these serums was found in unknown energy.

After finishing the portion of the report on Winkler, Zekman stated, "John Manios and John Spelson . . .," whose pictures appeared on the screen, "have an office full of worthless equipment." She then went on to explain that the FDA had tested the various machines and had determined that one, the Dynameter, which its manufacturer claimed could diagnose cancer and 54 other conditions, merely measured moisture in the skin, and that another, which purported to listen to the heart, was determined to be so inaccurate that its use constitutes a danger to the patient. She noted that a Dynameter can be found on display at the National Museum of Medical Quackery in St. Louis.

The following night's report, broadcast on April 29, 1982, began with a statement by the anchorperson that while an ounce of prevention is normally worth a pound of cure, to "cancer con-artists" it's worth a lot more than that. These individuals are cashing in on "phony cancer prevention programs." No other statements are complained of from that date's broadcast. However, on May 2, 1982, Zekman, in discussing doctors who practice under the banner of Metabolic Therapy, mentioned and pictured "John Spelson and John Manios, chiropractors who use worthless medical machines."

An editorial concerning the series was aired on April 30, 1982, May 1, 1982, and May 3, 1982. In the editorial, Tim O'Donnell, WBBM-TV's editorial director, related that Channel 2's investigative team had uncovered dramatic abuses and had shown "unscrupulous charlatans victimizing cancer patients" with expensive treatments and "phony cures." They've even "fleeced healthy people — exploiting their fear" of a disease they don't have, said the editorial.

O'Donnell related that the Attorney General's Office and the Department of Registration and Education are investigating the "con-artists," but that it was a difficult task because these "cancer quacks" were adept at avoiding prosecution for their "fraudulent practices."

Later in the broadcast, when discussing the numerous individuals who had been investigated, O'Donnell pointed out and pictured plaintiff Spelson. The editorial concluded by saying, "If you . . . have been taken by these people," the Attorney General's Office would like to know. A phone number was provided for victims to call.

ANALYSIS

Plaintiff's complaint is a potpourri of charges, allegations, and vague contentions regarding how plaintiff was injured and exactly which statements caused such injury. Specificity is grossly lacking as is a clear legal theory upon which the complaint is based. Nevertheless, the Court is bound to construe the pleadings liberally and in the light ...


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