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8th Circuit Sides With Patient Over Doctors

ST. LOUIS (CN) - A woman who was awarded $100,000 after a picture of her nude torso appeared in a newspaper article will get a chance to seek more money, the 8th Circuit ruled.

Jane Doe sued three doctors and their plastic surgery business - but not the newspaper - after an April 2006 article in the Riverfront Times about lead defendant Dr. V. Leroy Young and his Body Aesthetic Plastic Surgery & Skin Care Center.

The doctors acknowledged that they cooperated with the St. Louis-based Riverfront Times, claiming they believed the article would focus on weight-loss surgery, not Body Aesthetics' practice. The doctors acknowledged giving Riverfront Times and its reporter Kristen Hinman a computer disk that included patient pictures, including 14 of plaintiff Doe.

Doe claimed the trial court improperly excluded testimony regarding the use of the picture, which could have increased her award.

Primarily, Doe argued that key testimony from Hinman was excluded, including the fact that no one at Body Aesthetics told her she could not use the pictures with the article, and that Hinman did not promise the defendants the right to review and approve the article before publication.

Hinman was not a defendant.

The defendants argued that the evidence was properly excluded because Hinman was shielded from discussing those topics due to qualified journalist's privilege.

In a split decision this week, a three-judge panel of the 8th Circuit agreed with Doe.

"First, the consistent theme of the district court's discovery orders concerning the Riverfront Times was for the parties to avoid topics involving the editorial process and by extension an alleged qualified journalist's privilege," Judge William Jay Riley wrote for the majority. "However, the proffered testimony from Hinman did not implicate the editorial process. To the extent the district court's pretrial orders prevented the parties from asking about conversations and agreements between Hinman and the appellees regarding use of Doe's photographs or pre-publication review of the article, such discovery did not seek confidential communications - only communications between Hinman and the appellees - and the orders clearly would be an abuse of discretion and harmful error."

The decision opens up the possibility of Doe's receiving punitive damages. But the judges did not completely side with Doe, who requested a new trial concerning liability on her invasion of privacy claim. The majority said the new jury should hear only whether punitive damages should be awarded on the breach of fiduciary duty claim.

"The wrongly excluded testimony from Hinman was not likely to change the jury's verdict on the privacy claim," Riley wrote. "Whether the surgeons gave Hinman the photographs with instructions not to use them or with the promise of pre-publication review is only marginally relevant, if at all, to the shame and humiliation determination, and does not support reversal."

Judge Raymond W. Gruender joined Riley in the majority, but Judge Steven M. Colloton disagreed. Colloton agreed that the evidence was wrongfully excluded, but said a new trial should cover only Doe's invasion of privacy claim.

"Doe should receive a new trial on her claim of invasion of privacy," Colloton wrote. "The jury was instructed to rule for Doe on this claim if 'the defendants' giving of plaintiff's photographs to the Riverfront Times Newspaper brought her shame and humiliation and as a result thereof she was damaged.' Doe's theory was that the doctors' giving of the photographs to the newspaper brought her shame and humiliation because the disclosure led directly to the publication of the photographs in a metropolitan newspaper. The erroneous exclusion of Hinman's testimony, however, left the jury with a record indicating that the doctors should not be blamed for the publication of the photographs and the resulting shame and humiliation, because they were misled by a reporter from the Riverfront Times. The error thus affected Doe's substantial rights."

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