44 F.3d 1345 (7th Cir.1995)
In March 1993, ABC producer Entine telephoned Dr. Desnick and stated that PrimeTime Live wanted to produce a segment on large cataract practices.1 The Desnick Eye Center, owned by Dr. Desnick and employing ophthalmic surgeons Glazer and Simon, maintains 25 offices in four midwestern states and performs more than 10,000 cataract operations each year, mostly on elderly Medicare patients.2 Entine told Desnick the segment would not focus on a single practice, would not use ambush interviews or undercover surveillance, and would be fair and balanced.3 Relying on those statements, Desnick permitted an ABC crew to videotape the main Chicago premises, film a live cataract operation, interview doctors, technicians, and patients, and provided Entine with an informational videotape about the Center's services.4
Unbeknownst to Desnick, Entine dispatched seven individuals equipped with concealed cameras to Desnick Eye Center offices in Wisconsin and Indiana.5 Posing as patients seeking eye examinations, these test patients were examined by Glazer, Simon, and other employees, all of whom were secretly videotaped during the encounters.6
The segment aired on June 10, 1993.7 Donaldson introduced it by describing Desnick as a so-called big cutter and big charger who performed unnecessary cataract surgery for money.8 The broadcast included patient interviews, reports on the test patients' experiences, commentary from an ophthalmology professor stating that surgery on the test patients who had been told they needed cataract surgery would be near malpractice, statements from a former marketing executive and a former employee alleging record alteration and exploitation of vulnerable patients, and an ambush interview in which Donaldson confronted Desnick at O'Hare Airport about changing medical records and rigging the glare machine.9
The plaintiffs sued ABC, Entine, and Donaldson for defamation limited to the glare-machine tampering allegation, trespass by the test patients, invasion of privacy, violations of federal and state electronic surveillance statutes, and fraud based on the false promises made to obtain access and materials.10 The district court dismissed the complaint for failure to state a claim.11
Whether the PrimeTime Live broadcast defamed the plaintiffs by alleging tampering with the glare machine?12
Under Illinois law the substantial truth doctrine defeats a defamation claim when the challenged statement causes no incremental reputational harm beyond the harm already inflicted by true or unchallenged statements that are closely related in subject matter.13
No. The glare-machine allegation stands apart from the broadcast's other charges.14 It describes deliberate alteration of diagnostic equipment to manufacture symptoms of cataract in a person with normal vision.15 This accusation cannot be explained away as an honest professional disagreement or a mere record-keeping correction.16 The remaining charges, such as performing unnecessary surgery or altering patient records, occupy a gray area where disappointment in outcome can merge with claims of malpractice.17
The machine-rigging charge is uniquely shocking and not subsumed by the others on the present record.18
The defamation count states a viable claim and the district court's dismissal on substantial-truth grounds must be reversed.19
Whether the defendants committed trespass by sending seven undercover test patients equipped with concealed cameras into Desnick Eye Center offices in Wisconsin and Indiana?20
Consent to entry onto commercial premises open to the public remains effective for trespass purposes even when obtained by misrepresentation, provided the entry does not invade the specific interests the tort protects, such as disruption of business operations or intrusion into private spaces.21
No. The test patients entered offices that were open to any person seeking eye examinations.22 They recorded only their own conversations with the physicians.23 They caused no disruption of the Center's activities or invasion of private areas.24 Their conduct parallels that of housing-discrimination testers and undercover law-enforcement agents, neither of which constitutes trespass under established doctrine.25
The trespass claim was properly dismissed for failure to state a claim.26
Whether the defendants invaded the plaintiffs' right of privacy by making secret recordings during the eye examinations?27
The right of privacy protects against publication of intimate personal facts and against intrusion into legitimately private activities.28 It does not extend to recordings of conversations that occur in commercial medical offices open to the public and that involve only the recorder and the recorded party.29
No. No intimate personal facts about Glazer or Simon were revealed.30 The only conversations recorded were those between the test patients and the physicians themselves.31 The examinations took place in offices open to the public rather than in any private space, so no protected privacy interest was invaded.32
The invasion-of-privacy claim was properly dismissed.33
Whether the defendants violated federal and state electronic surveillance statutes by recording conversations with the test patients?34
Federal and Wisconsin electronic-surveillance statutes permit one party to a conversation to record it unless the recorder's purpose is to commit a crime or tort or, under state law, to perform other injurious acts.35 Public exposure of possible Medicare fraud does not qualify as an injurious act within the meaning of the statutes.36
No. The defendants dispatched the test patients to determine whether the Center's physicians would recommend cataract surgery, not to commit defamation or any other tort.37 The purpose was to gather information about potential misconduct.38 Broadcasting truthful information about Medicare practices falls outside the statutory prohibition on injurious acts.39
The electronic-surveillance claims were properly dismissed.40
Whether the defendants committed fraud by obtaining access to the Chicago office, permission to film, and an informational videotape through false promises that the segment would be fair and balanced and would not involve ambush interviews or undercover surveillance?41
Under Illinois law promissory fraud is actionable only when the false promise is particularly egregious or embedded in a larger scheme of deception that reasonably induces reliance.42 Investigative journalists' broken promises of fair treatment do not constitute such a scheme when the subject is a sophisticated professional who could have protected himself by withholding consent.43
No. The false promises were the ordinary tactical statements of aggressive investigative journalism rather than stations on the way to an elaborate artifice designed to strip Desnick of property or rights.44 Desnick, an experienced physician and entrepreneur, could have guarded against the risk by refusing access.45 The promises caused no cognizable harm because none of the damaging broadcast content originated from the Chicago visit or the videotape.46
The fraud claim was properly dismissed.47