Case 2:09-cv-06785-MLCF-DEK Document 33 Filed 02/24/10 Page 1 of 17

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

WILLIAM ARMINGTON, M.D. CIVIL ACTION

VERSUS NO. 09-6785

SHERI FINK ET AL. SECTION “F”

ORDER AND REASONS

Before the Court are the defendants’ special motion to strike

and the plaintiff’s motion to conduct discovery and motion to

continue the special motion to strike. For the following reasons,

the defendants’ special motion to strike is GRANTED; the

plaintiff’s motions are DENIED.

Background

On August 25, 2009, nearly four years after Hurricane Katrina,

The New York Times Magazine published a 13,000 word online article

entitled “Strained by Katrina, a Hospital Faced Deadly Choices.”

The article was written by Dr. Sheri Fink and edited by ProPublica

and The New York Times. In this lawsuit, the plaintiff, Dr. William

Armington, contends that the article defamed him and placed him in

a false light.

The article describes the stressful events at Memorial Medical

Center in Uptown New Orleans in the days after Hurricane Katrina

and states that “[i]t is now evident that more medical

professionals were involved in the decision to inject patients –

and far more patients were injected – than was previously

1
 Case 2:09-cv-06785-MLCF-DEK Document 33 Filed 02/24/10 Page 2 of 17

understood.” While the article primarily discusses the intensively

scrutinized behavior of Dr. Anna Pou, one of the doctors arrested

and charged with the deaths of some patients, it does twice mention

Dr. Armington, a neuroradiologist and colleague of Dr. Pou; he was

working at Memorial during the evacuation. The Times piece asserts

that after a meeting with many of the (unidentified) doctors, it

was decided that patients with Do Not Resuscitate orders would be

evacuated last. The author explains that a D.N.R. order is an order

not to revive a patient whose heartbeat and breathing has stopped.

The author also writes that Dr. Armington told her “that patients

who did not wish their lives to be prolonged by extraordinary

measures wouldn’t want to be saved at the expense of others.”

Later, the article suggests that Dr. Pou (who was publicly

exonerated) had administered lethal doses of morphine to certain

patients, and continues:

Patients were hot and uncomfortable, and a few might be

terminally ill, but [Dr. King] didn’t think they were in
the kind of pain that calls for sedation, let alone mercy
killing. When he saw Pou with the syringes, he assumed
she was doing just that and said to anyone within
earshot: “I’m getting out of here. This is crazy!” King
grabbed his bag and stormed downstairs to get on a boat.
Bill Armington, the neuroradiologist, watched King
go and was upset at him for leaving. Armington suspected
that euthanasia might occur, in part, he told me, because
Cook told him earlier that there had been a discussion of
“things that only doctors talk about.” Armington headed
for the helipad, “stirred up,” as he recalls, “to
intensify my efforts to get people off the roof.” Neither
Armington nor King intervened directly, though King had
earlier sent out text messages to friends and family
asking them to tell the media that doctors were
discussing giving medication to dying patients to help

2
 Case 2:09-cv-06785-MLCF-DEK Document 33 Filed 02/24/10 Page 3 of 17

accelerate their deaths.

Dr. Armington submits that the article was sensational and

scandalous and resurrected an issue long after the state

investigation had been closed. He asserts that in Dr. Fink’s

interview with him, he stated he had no knowledge of any plans of

euthanasia and complains that the article’s statements and

inferences about him are false and misleading. But the plaintiff

overstates the effect of the two references to him in an otherwise

rather oddly-timed piece.

The defendants have filed a special motion to strike under

Article 971 of the Louisiana Code of Civil Procedure. Article 971

is Louisiana’s anti-SLAPP statute (Strategic Lawsuit Against Public

Participation), which requires a stay of discovery until resolution

of the motion and is available where a plaintiff has sued a person

exercising free speech. The plaintiff has responded by filing a

motion to conduct discovery prior to the resolution of the motion

to strike and adds a motion to continue the motion to strike so

that the discovery issue could be resolved.

Defendants submit that a special motion to strike is available

because the Times article is undisputedly an act in furtherance of

the defendants’ free speech rights. They argue that Dr. Armington

cannot satisfy his burden of showing a fair probability of success

on his defamation claim because he cannot show that the statements

about him are false or, even more notably, that the article is

3
 Case 2:09-cv-06785-MLCF-DEK Document 33 Filed 02/24/10 Page 4 of 17

capable of defamatory meaning. They insist that even if the

statements are false, Dr. Armington cannot show that the defendants

are at fault, noting that Dr. Fink recorded her interview, the

article is consistent with her notes, and a fact checker reviewed

the draft with Dr. Armington. The defendants add that Dr. Armington

will not be able to prove that the article was a substantial factor

in causing any injuries received. They submit that Dr. Armington’s

false light claim must also fail because the publicity is neither

false nor fiction, nor does it rise to a level that could be

objectionable to a reasonable person.

As to the plaintiff’s motion to conduct discovery, defendants

argue that under Rule 56(f) or Article 971(D), the plaintiff is not

entitled to a continuance to conduct discovery because he has not

explained what discoverable facts will enable him to rebut the

special motion to strike.

The plaintiff responds rather casually that Article 971 is

unconstitutional to the extent it is used to deny him meaningful

access to the courts;1 he adds that by staying discovery, Article

1
The issue of the constitutionality of Article 971
has only been summarily briefed. The parties seem to suggest that
the constitutionality of Article 971 is not the issue driving these
motions. Further, while the plaintiff has presented no cases
holding a similar anti-SLAPP statute unconstitutional, the
defendants have cited several cases, including a Louisiana court of
appeals decision, holding anti-SLAPP statutes constitutional. See
Lee v. Pennington, 830 So. 2d 1037, 1042-43 (La App. 4th Cir.
2002); see also Guam Greyhound, Inc. v. Brizill, No. CVA 07-021,
2008 WL 4206682, at & 5-7 (Guam Sept. 11, 2008); Lafayette
Morehouse, Inc. v. Chronicle Publishing Co., 37 Cal. App. 4th 855,

4
 Case 2:09-cv-06785-MLCF-DEK Document 33 Filed 02/24/10 Page 5 of 17

971 “directly collides” with Rule 56, and the Court must therefore

permit discovery before ruling in favor of the defendants. Even if

the Court considers the Article 971 claim, the plaintiff asserts,

the defendant has failed to establish that the article was

published in furtherance of the defendants free speech rights and

in relation to a public issue. He submits that simply asserting

that the article was of public interest is insufficient. (He

glosses over the current media culture, and how what is in the

“public interest” today has been rather stretched).

The plaintiff correctly urges that under Article 971, he must

only demonstrate a probability of success and that the statute is

intended to weed out only clearly meritless claims. He contends

that his claim survives this analysis because he has produced some

supporting evidence for each element of his claim in the form of

his affidavit which states that he did not know of or suspect

euthanasia and that he told Dr. Fink and the fact checker this. He

charges that the article clearly describes Dr. Armington as upset

at Dr. King for leaving because Dr. King suspected euthanasia and

as suspecting euthanasia but doing nothing to stop it and that

these statements are false. He adds that by accusing Dr. Pou and

her “colleagues” and “more medical professionals” of being

involved, the article implicated Dr. Armington as aiding or

865-66 (Cal Ct. App. 1995).

5
 Case 2:09-cv-06785-MLCF-DEK Document 33 Filed 02/24/10 Page 6 of 17

abetting euthanasia. Euthanasia is, of course, a crime in

Louisiana; thus, the plaintiff contends, the article is a per se

defamatory accusation of criminal conduct. He adds that accusing

Dr. Armington of doing nothing despite suspecting euthanasia is

also plainly susceptible to defamatory meaning.

The plaintiff points out that he is a private figure and that

under the negligence standard, he has submitted evidence of fault

by his affidavit, in which he asserts that Dr. Fink’s notes do not

accurately reflect their conversations. He adds that the draft of

the article contains statements the defendants admit are false,

which shows, the plaintiff contends, that the defendants had a

preconceived idea of what the investigation would conclude and,

because the final article is more subtle, supports Dr. Armington’s

assertion that he told the fact checker he did not suspect

euthanasia was occurring. Finally, the plaintiff argues that he can

further demonstrate fault because prior to initiation of the

lawsuit, his counsel informed the defendants that Dr. Armington was

not involved with the decision to inject patients, but the

defendants refused to issue a retraction.

Law and Analysis

I.

The Fifth Circuit has held that, in a diversity case like this

one, “Louisiana law, including the nominally-procedural Article

6
 Case 2:09-cv-06785-MLCF-DEK Document 33 Filed 02/24/10 Page 7 of 17

971” governs.2 See Henry v. Lake Charles Am. Press, L.L.C., 566

F.3d 164, 168-69 (5th Cir. 2009). Article 971 instructs that a

plaintiff who files suit “against a person arising from any act of

that person in furtherance of the person’s right of petition or

free speech . . . in connection with a public issue” is subject to

a special motion to strike. La. Code Civ. Proc. art. 971. Upon

2
The plaintiff submits that article 971 is procedural
and that it should not be applied in federal court because its
discovery staying procedure directly collides with the Federal
Rules of Civil Procedure on summary judgment. The Fifth Circuit did
not address this argument directly in making its pronouncement in
Henry.
In a diversity case where a state law may conflict with
a Federal Rule of Civil Procedure, the Court must determine whether
there is a “direct collision” between the federal rule and state
law. Walker v. Armco Steel Corp., 446 U.S. 740, 749 (1980).If so,
the federal rule trumps. Hanna v. Plumer, 380 U.S. 460, 473-74
(1965). If not, the usual Erie analysis applies. Walker, 466 U.S.
at 749. The Ninth Circuit has held that the provisions of
California’s similar anti-SLAPP law “can exist side by side” with
Federal Rules 8, 12, and 56. U.S. ex rel Newsham v. Lockheed
Missiles & Space Co., Inc., 190 F.3d 963, 972 (9th Cir. 1999); see
Thomas v. Fry’s Elecs., Inc., 400 F.3d 1206, 1206-07 (9th Cir.
2005) (per curium) (affirming Lockheed). Further, the Ninth Circuit
determined that the Erie interests in discouraging forum shopping
and avoiding inequitable administration of the law favored the
application of California’s anti-SLAPP provisions and held the
provisions to be available in federal court. Lockheed, 190 F.3d at
973.
This Court agrees. Article 971 does not directly collide
with Rule 56. Rule 56 summary judgment remains available to the
parties, and Article 971 permits the Court to order specified
discovery where necessary to the plaintiff’s opposition (similar to
the relief afforded by Rule 56(f)). Louisiana has important
interests in the application of its anti-SLAPP law, and its
application will ensure that defendants, whether in diversity or
not, will be protected from meritless defamation claims and the
resulting fishing expeditions that might chill the exercise of
their speech rights.

7
 Case 2:09-cv-06785-MLCF-DEK Document 33 Filed 02/24/10 Page 8 of 17

filing of a special motion to strike, all discovery proceedings are

stayed until a court determines whether the plaintiff has

established a probability of success on the merits. Id. art.

971(D). On noticed motion and “for good cause shown,” a court may

order that specified discovery be conducted before ruling on the

special motion to strike. Id. The prevailing party on a special

motion to strike is entitled to attorney fees and costs. Id. art.

971(B). If a court determines that the plaintiff has a probability

of success on the claim, this determination is admissible in later

stages of the proceedings. Id. art. 971(A)(3).

Article 971 is Louisiana’s anti-SLAPP procedure, enacted to

address a “strategic lawsuit against public participation.” See

Henry, 566 F.3d at 169. “The purpose of the special motion to

strike ‘is to encourage continued participation in matters of

public significance and to prevent this participation from being

chilled through an abuse of judicial process.’” Savoie v. Page, 23

So. 3d 1013, 1016 (La. App. 3rd Cir. 2009) (quoting Lamz v. Wells,

938 So. 2d 792, 796 (La. App. 1st Cir. 2006)). Thus, the device is

intended “to be used early in legal proceedings to screen meritless

claims.” Henry, 566 F.3d at 169 (quoting Lee v. Pennington, 830 So.

2d 1037, 1041 (La. App. 4th Cir. 2002)).

To achieve its purpose, “Article 971 establishes a burden-

shifting analysis.” Henry, 566 F.3d at 170. First, the defendants

must make a prima facie showing that the action against them arises

8
 Case 2:09-cv-06785-MLCF-DEK Document 33 Filed 02/24/10 Page 9 of 17

from an act in furtherance of their right of petition or free

speech in connection with a public issue. See id. For example,

Louisiana courts have found Article 971 available where a newspaper

publishes an article on the sudden removal of a radio station from

the airwaves, Starr v. Boudreaux, 978 So. 2d 384, 389 (La. App. 1st

Cir. 2007), or a news station broadcasts a story about a couple’s

murder, Johnson v. KTBS, Inc., 889 So. 2d 329, 332 (La. App. 2 Cir.

2004). In Henry, the Fifth Circuit found the defendants had met

their burden where they had published a series of news articles

about the loss of a government contract and the investigation of an

entity doing business with the federal and state governments. 566

F.3d at 181.

If the defendants succeed, “the burden then shifts to the

plaintiff to demonstrate a probability of success on the claim.”

Id. (quoting Starr v. Boudreaux, 978 So. 2d 384, 389 (La. App. 1st

Cir. 2007)). The plaintiff must produce “evidence of sufficient

quality and quantity to demonstrate that he will be able to meet

his burden of proof at trial.” Estiverne v. Times-Picayune, L.L.C.,

950 So. 2d 858, 860 (La. App. 4th Cir. 2006) (quoting Sassone v.

Elder, 626 So. 2d 345, 351 (La. 1993)). This has been described as

a difficult burden, justified by the importance of protecting free

speech rights. Henry, 566 F.3d at 182 (finding the plaintiff had

not met the burden by failing to present an affidavit that showed

the fault element of defamation, but remanding to permit the

9
 Case 2:09-cv-06785-MLCF-DEK Document 33 Filed 02/24/10 Page 10 of 17

district court to allow limited discovery).

II.

A. Defamation

To succeed on a defamation claim in Louisiana, the plaintiff

must establish “(1) a false and defamatory statement concerning

another; (2) an unprivileged publication to a third party; (3)

fault (negligence or greater on the part of the publisher; and (4)

resulting injury.” Henry, 566 F.3d at 182 (quoting Kennedy v.

Sheriff of East Baton Rouge, 935 So. 2d 669, 674 (La. 2006)). “By

definition, a statement is defamatory if it tends to harm the

reputation of another so as to lower the person in the estimation

of the community, deter others from associating or dealing with the

person, or otherwise expose the person to contempt or ridicule.”

Kennedy, 935 So. 2d at 675. A statement is defamatory per se if it

accuses another of criminal conduct or tends to injure one’s

reputation without considering extrinsic facts or circumstances.

Id. If not defamatory per se, the statement must be susceptible of

a defamatory meaning. Id. The parties seem to agree (at least for

the purpose of this motion) that the negligence standard applies as

the measure of fault of the defendants.3 In other words, the

3
The Louisiana Supreme Court has held that “the standard
of negligence set forth in the Restatement (Second) Of Torts § 580B
is to be applied in cases . . . involving a private individual
allegedly injured by a defamatory falsehood in a matter of public
concern.” Kennedy, 935 So.2d at 681 (considering a case of
allegedly false statements made by fast food chain employees to law
enforcement).

10
 Case 2:09-cv-06785-MLCF-DEK Document 33 Filed 02/24/10 Page 11 of 17

plaintiff must show that, at the least, the defendants acted

negligently in failing to ascertain the false and defamatory nature

of the statements. See Restatement 2d Torts § 580(B).

B. False Light

A false light invasion of privacy claim “arises from publicity

which unreasonably places the plaintiff in a false light before the

public.” Perere v. La. Television Broad. Corp., 721 So. 2d 1075,

1078 (La. App. 1st Cir. 1998). While the publicity need not be

defamatory, it must “be objectionable to a reasonable person under

the circumstances and must contain either falsity or fiction.” Id.

“The reasonableness of the defendant’s conduct is determined by

balancing . . . the plaintiff’s interest in protecting his privacy

from serious invasions, and the defendant’ interest in pursuing his

course of conduct.” Smith v. Ark. La. Gas Co., 645 So. 2d 785 (La.

App. 2nd Cir. 1994).

III.

A. Connection with a Public Issue

The defendants have the burden of showing that the article was

published in furtherance of their free speech rights and in

connection with a public issue. The parties do not seem to dispute

that the publication of an article in a news magazine can be an act

in furtherance of free speech rights, but the plaintiff contends

that the actions of Dr. Armington are not a matter of public

interest. According to its introduction, the article’s purpose in

11
 Case 2:09-cv-06785-MLCF-DEK Document 33 Filed 02/24/10 Page 12 of 17

describing and analyzing the events at Memorial Hospital in the

days following Hurricane Katrina is to consider questions raised by

disasters like how limited resources should be divided amongst

patients and what is the line between comfort care and mercy

killing. The article asserts the importance of these issues in

light of proposed legislation to alter the standard of medical care

in emergencies.

The Court finds the article’s stated purpose presents an issue

of public interest. Old news, yes, but that the article resurrects

old news does not diminish the public interest quotient. The

article mentions the existence of various triage procedures, some

of which do not ration care so as to cause the most ill receive

care last. In effect, the article presents a critique of the

procedures used in 2005 at Memorial Hospital, and, possibly, the

type of procedures that Dr. Pou and others seek to legislatively

sanction if used in future emergencies. While the motivation in

researching, writing, and publishing the article might seem

ghoulish, driven in part to sell a sensational topic like the use

of euthanasia in disasters, this does not, alone, cease to make the

issue of how doctors have acted in previous emergencies less

relevant to the discussion of what standard the public should hold

doctors to in future emergencies.

The Article 971 special motion to strike is, therefore,

available to the defendants here.

12
 Case 2:09-cv-06785-MLCF-DEK Document 33 Filed 02/24/10 Page 13 of 17

B. Probability of Success

To defeat this special motion to strike, the plaintiff must

submit evidence that establishes a probability of success on his

defamation and false light claims. The plaintiff enumerates the

following examples of defamation:

1. The articles’ statement that “more medical professions were

involved in the decision to inject patients” in the context of
an a discussion about several doctors and nurses at Memorial
Hospital in the days following Hurricane Katrina, including
Dr. Armington.
2. In a section about the decision to evacuate those patients
with D.N.R. orders last, the articles’ statement that “Bill
Armington, a neuroradiologist, told me he thought that
patients who did not wish their lives to be prolonged by
extraordinary measures wouldn’t want to be saved at the
expense of others – though there was nothing in the orders
that stated this. At the time, those attending the meeting
didn’t see it as a momentous decision, since rescuers were
expected to evacuate everyone in the hospital within a few
hours.”
3. The articles’ statement that “Bill Armington, the
neuroradiologist, watched King go and was upset at him for
leaving,” following a paragraph describing King as deciding to
leave because he did not want to participate in euthanasia.
4. The articles’ statement that “Armington suspected that
euthanasia might occur, in part, he told me, because Cook told
him earlier that there had been a discussion of ‘things that
only doctors talk about.’ Armington headed for the helipad,
‘stirred up,’ as he recalls, ‘to intensify my efforts to get
people off the roof.’”
5. The articles’ statement, following the above two statements
that “Neither Armington nor King intervened directly, though
King had earlier sent out text messages to friends and family
asking them to tell the media that doctors were discussing
giving medication to dying patients to help accelerate their
deaths.”

Dr. Armington emphasizes that these statements are false because he

did not know or suspect that euthanasia was occurring at the

hospital while he was there in the days following Hurricane

13
 Case 2:09-cv-06785-MLCF-DEK Document 33 Filed 02/24/10 Page 14 of 17

Katrina. He submits an affidavit attesting to this, and also

asserts that he told this to Dr. Fink and the fact checker on

numerous occasions. Dr. Fink has submitted an affidavit

authenticating what she submits are notes that she took during

three telephone interviews with Dr. Armington. Charles Wilson, the

fact checker, has submitted an affidavit and the working drafts he

used while verifying the statements in the article with Dr.

Armington. Both Dr. Fink and Wilson assert that the statements in

the article reflect their conversations with Dr. Armington. Dr.

Armington’s affidavit merely counters that Dr. Fink’s notes

inaccurately record the interviews, and that when Wilson called to

verify statements, Dr. Armington felt he was being pushed to state

that he believed euthanasia was occurring while he was at

Memorial.4

Statement 1 is simply not capable of defamatory meaning. While

accusation of criminal conduct is defamatory per se and euthanasia

is a crime in Louisiana, the article does not directly accuse Dr.

Armington of engaging in euthanasia. The only parts of the article

that reference Dr. Armington by name do not rationally lead to an

accusation that Dr. Armington is among the unnamed “more medical

professionals” involved in euthanasia. Instead, the article

mentions another doctor by name as helping Dr. Pou and stating that

4
However, there is no hint that the plaintiff refuted
what he felt Wilson was engaged in.

14
 Case 2:09-cv-06785-MLCF-DEK Document 33 Filed 02/24/10 Page 15 of 17

“the goal was death; our goal was to let these people die.” It

describes a nurse who recounted giving an unconscious woman with

labored breathing a syringe of morphine and midazolam, shortly

after which the woman died. The article quotes the nurse as stating

that “even if it had been euthanasia, it’s not something we don’t

really do every day.” It quotes another doctor as telling Dr. Pou

how to administer a combination of morphine and a sedative with the

effect that patients would “go to sleep and die.” Surely a reader

would understand those doctors and nurses to be amongst the “more

medical professionals” referred to in the article, not Dr.

Armington.

Despite conflicting affidavits, it is also clear that

statement 2 is not false. Further, Dr. Armington does not dispute

the truth of statements 3 and 5. As to statement 4, Armington

insists that he did not believe euthanasia was occurring, and only

in hindsight did he think that Cook had been talking about

euthanasia. The Court notes that statement 4 asserts that Dr.

Armington believed euthanasia “might occur,” not that he thought it

might be occurring.

Further, the Court finds these statements are incapable of

defamatory meaning. In the context of the article as a whole (which

primarily focuses on other doctors and nurses), Dr. Armington is

portrayed as a doctor who, while suspecting euthanasia might occur,

renewed his efforts to evacuate all of the patients. The only

15
 Case 2:09-cv-06785-MLCF-DEK Document 33 Filed 02/24/10 Page 16 of 17

statements that could possibly be inferred to have a defamatory

connotation are the statements that Dr. Armington was upset when

Dr. King decided to leave and that Dr. Armington did not intervene

directly. These simply do not stand out as being of the nature to

harm Dr. Armington’s reputation any more than the simple fact that

he was working at a hospital at the time that other doctors were,

according to the article, involved in euthanasia.

Because the statements seem less than rationally capable of

defamatory meaning, Dr. Armington has failed to show a probability

of success on his defamation claim. Similarly, Dr. Armington’s

claim for false light invasion of privacy must fail because he

cannot demonstrate a probability of successfully showing that the

publicity placed him in a false light. Furthermore, it is not

clear Dr. Armington could show a serious invasion of his privacy

because he interviewed with Dr. Fink for the purpose of providing

his experiences for the article, and while Dr. Armington asserts

that he was misled about the focus of the article, the Court finds

the article was, as he was told, about the reactions of physicians

in a crisis situation. Finally, nothing suggests that permitting

discovery would allow Dr. Armington to establish anything that

might help him successfully oppose the plaintiff’s motion.

Accordingly, IT IS ORDERED: that the defendants’ special motion to

strike is GRANTED.

IT IS FURTHER ORDERED: that the plaintiff’s motion to conduct

16
 Case 2:09-cv-06785-MLCF-DEK Document 33 Filed 02/24/10 Page 17 of 17

discovery and motion to continue are DENIED.

IT IS FURTHER ORDERED: that the defendants’ be awarded

reasonable attorney fees and costs, in accordance with Louisiana

Code of Civil Procedure Article 971(C).5 This issue will be

referred to the magistrate judge for resolution.

New Orleans, Louisiana, February 24, 2010.

____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

5
The Court is acutely aware of the grief Hurricane
Katrina visited upon everyone at Memorial in the summer of 2005,
and the ugly accusations that provoked a storm of difficult
rhetoric and recriminations. But this Court believes Justice ought
not be bullied by tragic stories; it must be impartial at all
costs. The Times piece selfishly resurrects melodrama to an old and
sad story. But it cannot be said it defames Dr. Armington.

17