HOUSTON - The First Court of Appeals on Thursday reversed a ruling denying a motion to dismiss a defamation lawsuit brought by a renowned heart surgeon against several media defendants.
The opinion states that Dr. O. Howard “Bud” Frazier pioneered the Left Ventricular Assist Device, a surgically implanted medical device that assists a patient’s heart with circulating blood when it can no longer do so on its own.
In 2018, ProPublica and its journalist, Charles Ornstein, along with Hearst Newspapers (The Houston Chronicle) and its journalist, Michael Hixenbaugh, jointly published an article about Frazier’s work, titled “A Pioneering Heart Surgeon’s Secret History of Research Violations, Conflicts of Interest and Poor Outcomes.”
According to the opinion, Frazier sued the publishers for defamation, asserting that the article constituted “a vicious and utterly ill-founded libel” that “reduced his life-saving accomplishments to no more than a quest for personal glory at the expense of his patients’ health.”
Court records show this was the publishers’ second challenge.
The media defendants first moved to dismiss under the Texas Citizens Participation Act, and the trial court denied the motion.
The 14th Court reversed and remanded, concluding that the trial court erred in refusing to consider the publishers’ arguments and evidence in support of their defenses.
On remand, the publishers’ TCPA motion to dismiss was again denied, leading to another appeal.
On appeal, the media defendants contend that the trial court erred in denying their motion to dismiss the suit because Frazier did not meet his burden under the TCPA to establish the elements of his defamation claim and because the publishers established their defenses.
The 14th Court concluded that the publishers established by a preponderance of the evidence their defenses of substantial truth and non-actionable opinion, holding that the publishers are entitled to dismissal under the TCPA.
Appeals case No. 01-22-00281-CV