Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kostenko v. CBS Evening News

United States District Court, S.D. West Virginia, Beckley Division

September 13, 2017

CBS EVENING NEWS, et al., Defendants.



         The Court has reviewed the Motion by CBS Broadcasting Inc. and CBS Corporation for Summary Judgment (Document 17) and Memorandum of Law in Support (Document 18), the Motion in Opposition to Defendant's Motion for Summary Judgment (Document 20, 21), [1] the Memorandum in Support of Dr. Kostenko's Motion in Opposition to Defendant's Motion for Summary Judgment (Document 19, 22), the Reply Memorandum of Law in Support of Defendants' Motion for Summary Judgment (Document 23), as well as all attached exhibits. In addition, the Court has reviewed the Plaintiff's Complaint (Document 1-1). For the reasons stated herein, the Court finds that the motion for summary judgment should be granted.


         Plaintiff Michael Kostenko, a doctor of osteopathic medicine, initiated this action with a complaint filed in the Circuit Court of Raleigh County on May 20, 2016, naming the following Defendants: CBS Evening News, CBS Inc., CBS Broadcasting Inc., CBS Corporation, Jim Axelrod, and Ashley Velie. The Defendants[2] removed the matter to federal court on June 13, 2016. After this motion was fully briefed, the United States brought criminal charges against the Plaintiff in Criminal Action No. 5:16-cr-221. The Court granted the Plaintiff's request to stay this civil action pending resolution of the criminal charges to avoid any obligation to provide potentially self-incriminating testimony. The criminal case was closed on August 23, 2017, [3] and the Court lifted the stay on August 28, 2017. (Document 46.)

         In the complaint, the Plaintiff alleges defamation and intentional infliction of emotional distress related to two news reports about the opioid epidemic in West Virginia broadcast by the Defendants. The Plaintiff alleges that a January 6, 2016 news piece misrepresented his medical practice, the Coal Country Clinic, by “describing his medical facility as a pain clinic and us[ing] him as an example of a ‘drug trafficker.'” (Compl. at ¶ 8.) He complains of negative statements made about another pain clinic highlighted in the January 6 report, shortly before mention of Dr. Kostenko's clinic. He alleges that the statement providing the number of prescriptions he wrote was misleading because he uses short-term prescriptions. The January 6 report states that the Defendants tried to contact the Plaintiff, which he alleges is untrue. The Plaintiff further alleges that the Defendants relied upon misrepresentations by the West Virginia Department of Health and Human Resources (WVDHHR) and purposely published the January piece the evening before the Plaintiff had an administrative hearing with the WVDHHR.

         The Plaintiff agreed to an interview with Jim Axelrod, which formed the basis of a second news report broadcast on April 13, 2016. He alleges that he expected the interview to focus on “corruption that has led to poverty, disease and crime in West Virginia” and not “about three patients that died in 2014.” (Id. at ¶ 16.) The Plaintiff alleges that both the interview and footage of a class, which patients attend prior to receiving prescriptions, were edited to “connote Dr. Kostenko being a ‘drug trafficker' and …[make] it look like an employee was handing out signed prescriptions to anyone that would walk into his clinic.” (Id. at ¶ 18.) He alleges that the following statements in the April 13 broadcast[4] were defamatory: (a) a discussion about coordination of care with other physicians treating Dr. Kostenko's patients; (b) his response agreeing that he bore some responsibility for the death of Patient Three, followed by a voiceover stating “As he explains it, Kostenko wishes the hospital where his patient was being treated had reached out to him. He told us he didn't know how bad her condition was;” and (c) the number of prescriptions written by Dr. Kostenko. (Id. at ¶ 22.)

         The Defendants produced nearly thirty exhibits, including the videos and transcripts of the broadcasts and articles at issue. In addition, the Defendants supplied the orders and hearing transcripts of administrative and court decisions related to the classification of Dr. Kostenko's practice as a pain clinic under state law, proceedings to revoke Dr. Kostenko's medical license, and decisions related to Dr. Kostenko's public health scholarship and his prior practice in workers' compensation. Those early proceedings were not mentioned in the broadcasts. However, Dr. Kostenko brought up his history in the full, unedited interview to explain that he operated a cash-only practice from his home because of a decision barring him from receiving federal health payments due to an obligation to repay his scholarship, and a decision barring him from serving patients under the West Virginia Workers' Compensation system. He viewed both of those decisions as persecution based on his medical principles. The explanations of the decisions provided by the administrative bodies and courts rested on his failure to conform to applicable standards of care, unethical practices, and, as to the workers' compensation decision, improper billing.

         The proceedings related to the pain clinic classification and Dr. Kostenko's medical license were mentioned briefly in the broadcasts, and the Defendants assert that those materials supported the facts and opinions expressed in the broadcast. Beginning in 2014, the WVDHHR Office of Health Facility Licensure and Certification (OHFLAC) and the Plaintiff communicated regarding newly instituted state regulations requiring pain clinics[5] to register and follow certain guidelines. The Plaintiff was denied a license to operate a pain clinic because he did not meet the educational requirements. He instituted a “life partner” program, requiring his pain patients to bring a life partner, who would agree to be a “patient” but who would not receive medical care or prescriptions, on each visit, and argued that this program brought the number of patients receiving prescriptions under fifty percent, such that the clinic no longer qualified as a pain clinic. The WVDHHR/OHFLAC concluded that the life partners were not patients and that the Coal Country Clinic fell within the definition of a pain clinic, requiring it to be licensed as such. The Plaintiff also sought an exemption from the licensure requirement, asserting that his patients should be considered terminal because they are “individuals with pain associated with a process of disease that is life shortening.” (Letter, Michael Kostenko, D.O. to Sylvia Fields, Program Director of WVDHHR OHFLAC, dated October 31, 2014) (att'd as Def. Ex. 13) (Document 17-13.) The WVDHHR OHFLAC rejected that request, and ultimately ordered that the Coal Country Clinic cease operation as an unlicensed pain clinic on May 8, 2015. The Raleigh County Circuit Court upheld that decision, including an accompanying monetary penalty, on August 17, 2016, though there were intervening appeals, including a remand for an additional hearing. (Document 17-11.) Each of the orders and hearings included discussion of problems with Dr. Kostenko's medical practice, including the lack of medical examinations, insufficient medical records, failure to utilize controlled substance monitoring programs, and failure to diagnose, or support a diagnosis of, conditions justifying pain medication.

         In March 2016, the West Virginia Board of Osteopathic Medicine (WVBOM) instituted proceedings charging Dr. Kostenko with unprofessional and unethical conduct; deviation from accepted standards of practice; lack of care, skill, and proper treatment and dishonorable, unethical, or unprofessional conduct. The WVBOM based its charges on the deaths of three of Dr. Kostenko's patients and outlined the medical records and evidence regarding the care leading up to those deaths. The WVBOM summarily suspended Dr. Kostenko's medical license in its initial letter, dated March 4, 2016. The WVBOM held a hearing with expert testimony, as well as testimony from Dr. Kostenko regarding the patient deaths, Dr. Kostenko's methods of practice, and Dr. Kostenko's medical theories about pathologic adaptation, which he admitted were not accepted in the West Virginia medical community. The hearing examiner recommended a five- year suspension in her June 6, 2016 Amended Findings of Fact, Conclusions of law, and Recommendation of the Hearing Examiner (Document 17-22), but in an order dated June 15, 2016, the WVBOM modified the recommendation to permanently revoke Dr. Kostenko's medical license based on the severity of the charges. (Document 17-23.)

         The Defendants aired a broadcast on January 6, 2016, with a related news article entitled “West Virginia allows painkiller addicts to sue prescribing doctors.” (Document 17-12, Ex. 1-2.) Both the article and the broadcast begin with an interview with a coal miner who developed an addiction to the prescription painkillers prescribed after a workplace injury. The article and broadcast included a description and footage of the clinic, since shut down, that the miner used, with cluttered, dirty exam rooms, and “starving birds stuck in roach-infested cages.” (Id.) A DEA agent interviewed for the piece states “We are talking in a certain sense drug traffickers. They are doing nothing but writing and cranking out prescription after prescription after prescription.” (Id.) There is general information about the scope of the opioid epidemic in West Virginia, and the piece discusses Dr. Kostenko and the Coal Country Clinic as one of twelve clinics in West Virginia told to shut down following inspections by the WVDHHR. The piece states that Dr. Kostenko has written more than 40, 000 prescriptions in the last two years, and describes an attempt to visit the clinic, located “at the end of a two-mile logging road.” (Id.) It notes that it is legal for doctors to write prescriptions, and the DEA agent states that “You have to be able to prove in court that their prescribing was for a non-medical necessity, or in such an egregious amount that it was negligent.” (Id.)

         The April 13 broadcast and article, entitled “West Virginia doctor investigated for deaths in opioid epidemic, ” focus on Dr. Kostenko specifically. Both begin with a general overview of the opioid crisis in West Virginia, then introduce Dr. Kostenko by noting that he has written more than 40, 000 prescriptions in the last two years. The broadcast uses portions of an interview with Dr. Kostenko. Dr. Kostenko agrees that he “may” have written 325 prescriptions for more than 19, 000 oxycodone pills in the first week of January 2016. (Document 17-12, Ex. 6-7.) The broadcast includes videos of portions of a class session that Dr. Kostenko posted on YouTube, including a few seconds of the class lecture, followed by a patient receiving a prescription from a staff member. Dr. Kostenko states that there is rarely a need for private consultations because “Everyone is on the same pain medication.” (Id.) Mr. Axelrod states in a voiceover that in the last two years, “three of Dr. Kostenko's patients have died after overdosing on a cocktail of pills- including oxycodone-prescribed by Kostenko along with pills prescribed by other physicians.” (Id.) Dr. Kostenko admits that he is not in contact with other doctors treating his patients because the conversations would not be productive, and notes that there is not good communication between physicians generally. A voiceover explains that Dr. Kostenko's medical license has been suspended and may be revoked, and the director of the state Board of Medicine states that it is legal for doctors to prescribe prescription drugs.

         Finally, a voiceover states that “Dr. Kostenko didn't seem to help his case when discussing one of the deaths with us, ” and says that the patient received medication from another physician, as well as Dr. Kostenko, but Dr. Kostenko did not consult with that doctor. (Id.) Mr. Axelrod asks “Do you bear any responsibility for that death?” and Dr. Kostenko replies, “Yes, I do.” (Id.) Mr. Axelrod states, “As he explains it, Dr. Kostenko wishes the hospital where his patient was being treated had reached out to him. He tells us he didn't know how bad her condition was.” (Id.) In the full interview, [6] Dr. Kostenko explained that he gave the patient post-dated one-week prescriptions. Mr. Axelrod asks if he bore any responsibility for her death, and Dr. Kostenko responds:

Yes, I do. We should have been able to do everything we needed to complete her evaluation and put her in an environment where we could, at least for a temporary time, control the stressors and get to her what she needed biologically for survival. Instead, she goes to Raleigh General Hospital two days before her death, and what did they do? They gave her some catheters and sent her home. The standards of care is negligent. It's not based on proper life sciences, pathologic adaptation. We call integrative medicine. It's just not properly applied. We don't understand standard of care. Why the hormones like testosterone are dropping in relationship to this process. What a warning sign this is to potential catastrophe. And - and I should be fighting a whole lot longer, so that we can establish what needs to be done for these folks, so that they have much better alternatives of good medicine. Is that standard of care? No. But it should be.

(Interview Transcript at p. 20, Document 17-12, ex. 5.)


         The well-established standard in consideration of a motion for summary judgment is that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a)-(c); see also Hunt v. Cromartie, 526 U.S. 541, 549 (1999); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Hoschar v. Appalachian Power Co., 739 F.3d 163, 169 (4th Cir. 2014). A “material fact” is a fact that could affect the outcome of the case. Anderson, 477 U.S. at 248; News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010). A “genuine issue” concerning a material fact ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.