Defamation suit against ‘Afflicted’ producers advanced

LOS ANGELES (CN) — A California appeals court on Monday kept alive a defamation lawsuit against the producers of the Netflix documentary series "Afflicted," as well as the streaming service itself, brought by seven subjects of the series.

According to the Second Appellate District panel's unanimous decision, the series "included numerous statements from health care professionals and others that were reasonably susceptible to an interpretation that defendants were portraying plaintiffs’ illnesses, and accompanying physical symptoms, as not the result of any underlying, diagnosable medical condition, but rather as either the product of plaintiffs’ imaginations or some mental disorder."

The plaintiffs' attorney Randall Leff called the ruling "a significant win."

"There are a number of issues at stake in this, in terms of what’s going on in the industry," said Leff. "You see how people are taken advantage of. The court recognized that."

Once a niche genre, documentaries are now big business. Documentary series regularly appear on Netflix's top-10 most-watched list. In 2020, more than 15 billion Netflix subscribers watched "Tiger King," a docuseries about eccentric big-cat breeders and keepers of private zoos.

The seven-part series "Afflicted" explores the world of chronic diseases, highlighting the struggles of a number of patients and their loved ones and caregivers. One of the patients suffered from Lyme disease. Others struggled to cope with much less common maladies, like Hashimoto’s thyroiditis, an autoimmune disease. Another had myalgic encephalomyelitis, also known as chronic fatigue syndrome. The description of the show on the Netflix website reads, in part: "Baffling symptoms. Controversial diagnoses. Costly treatments." The show cast a somewhat skeptical eye on some, though not all, of the illnesses, with doctors wondering aloud how many stemmed from psychological problems.

The show was controversial from nearly the moment it began streaming in 2018. Dozens of doctors, scientists, artists and writers, including Lena Dunham and Monica Lewinsky, signed an open letter to Netflix in September 2018, accusing the producers of misrepresenting chronic diseases as "psychosomatic."

"Rather than authentically depict these participants’ experiences and the biomedical research that might explain their illnesses, 'Afflicted' used every creative tool and untenable journalistic practice to advance a narrative that suggests these patients’ problems are primarily psychological, a theory that is not supported by the evidence," reads the letter, which was also signed by most of the show's subjects. "Moreover, the 'Afflicted' team engaged in multiple unethical practices to create the docuseries  —  from misrepresenting their intentions to showing apparent diagnoses from doctors who had never examined the subjects."

Seven of the participants sued production company Doc Shop Productions and Netflix in 2019, about a year after the show's release, on defamation and fraud claims. The plaintiffs said they “were duped by defendants into participating in a salacious reality television program that questioned the existence of chronic illnesses and portrayed plaintiffs as lazy, crazy, hypochondriacs and/or malingerers who were deserving of scorn and who in fact have received scorn and abuse because of defendants’ cruel and duplicitous actions.”

Among other things, the plaintiffs claimed the show's producers lied to them about what the show's perspective would be, and edited the series deceptively.

Every subject in the series signed a release, which appeared to acknowledge that the show would take certain liberties with the truth. The forms read, in part, that the signer acknowledged that their "appearance, depiction, and/or portrayal... may be disparaging, defamatory, embarrassing, or of an otherwise unfavorable nature to [plaintiffs] and may expose [them] to public ridicule, humiliation, or condemnation, and that [Afflicted] may have a variety of natural or manufactured elements.”

But the plaintiffs say the releases were procured by "fraud and undue influence,” that they were pressured into signing them, and told they were mere formalities. Some were promised that their appearance would spread greater awareness of the disease. One patient said in a written declaration that she was "far too sick to understand, or even read the papers" the producers asked her to sign.

The producers of the series and Netflix filed an anti-SLAPP motion, a legal maneuver designed to quickly block lawsuits that might have the effect of tamping down free speech.

But an LA County judge rejected the motion, finding the plaintiff's claims deserved to be heard by a jury. The appeals court agreed.

The her opinion for the panel, Justice Dorothy Kim said the series "could be reasonably understood as falsely implying that (1) the four sick plaintiffs were imagining their illnesses due to some psychological or mental condition and (2) their caregivers were gullible pawns or enablers who had been duped into providing care for persons who did not need it."

The evidence the panel saw, Kim worte, "supported a reasonable inference" that the producers "knew or acted with reckless disregard as to the falsity of the suggestions in Afflicted that plaintiffs’ illnesses were not real, but imaginary, and that their caregivers were duped."

Justices Carl Moor and Lamar Baker joined Kim's unpublished opinion.

The suit goes back to LA County Superior Court Judge Susan Bryant-Deason's court for further proceedings.

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