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Case 1:16-cv-21156-MGC Document 30 Entered on FLSD Docket 08/29/2016 Page 1 of 2


Case No. 16-21156-Civ-COOKE/TORRES
ESPN INC., a foreign corporation, and
ADAM SCHEFTER, an individual,
THIS MATTER is before me on Defendant ESPN, Inc.s Motion to Dismiss (ECF No.
4). I have reviewed Defendants Motion to Dismiss, the record, the relevant legal authorities,
and the arguments made by the parties at the Motion Hearing on August 25, 2016. For the
reasons fully discussed at the Motion Hearing, it is hereby ORDERED and ADJUDGED that
Defendants Motion to Dismiss (ECF No. 4) is GRANTED in part and DENIED in part.
Plaintiff Jason Pierre-Pauls Count I against Defendants ESPN, Inc. and Adam Schefter
for violations under Floridas medical privacy law, Fla. Stat. 456.057, is DISMISSED with
prejudice. I do not believe Schefter is considered a third party under the relevant portion of the
statute. See Fla. Stat. 456.057(11). Reading the statute altogether, the constraints on thirdparty dissemination of medical information mainly curb the actions of health providers and the
parties outlined under the statute in Sections 456.607(7)(a) and 456.607(7)(d). The statute may
also cover other Florida state actors, see Daw v. Cowan, 2013 WL 5838683, at *9 (N.D. Fla. Oct.
30, 2013), but that addition would still not encompass a journalist like Schefter.
But Plaintiffs Counts II and III against Defendants for invasion of privacy and
respondeat superior remain. I find Plaintiff has properly pled facts, accepted as true at this
point, that allow me to reasonably infer Defendants improperly disclosed private facts to the
public. See Cape Publns., Inc. v. Hitchner, 549 So. 2d 1374, 1377 (Fla. 1989) (The elements [of
the tort of invasion of privacy by public disclosure of private facts] can be summarized as 1) the
publication, 2) of private facts, 3) that are offensive, and 4) are not of public concern.).
Defendants contend Plaintiffs medical records were newsworthy since they were connected to

Case 1:16-cv-21156-MGC Document 30 Entered on FLSD Docket 08/29/2016 Page 2 of 2

reports on Plaintiffs medical condition, which all parties agree was a legitimate public concern.
Though items of genuine public interest in a public figures life may legitimately extend, to
some reasonable degree, to further information concerning the individual and to facts about
him, which are not public . . .[t]he extent of the authority to make public private facts is not . . .
unlimited. RESTATEMENT (SECOND) OF TORTS 652D cmt. h (1977). The limits on disclosing
private facts are anchored to common decency, having due regard to the freedom of the press
and its reasonable leeway to choose what it will tell the public, but also due regard to the
feelings of the individual and the harm that will be done to him by the exposure. Id.
Here, Plaintiff has shown the publication of his private medical records may breach
these limits and, thus, are not a matter of public concern. Plaintiffs medical records were not
publically available; he did not consent to their use; and federal and state medical privacy laws,
though not directly applicable to Defendants, signal that an individuals medical records are
generally considered private. Separately, the circumstances surrounding the obtainment of
these medical records are in dispute. If Schefter secured Plaintiffs records unlawfully,
Defendants may not be afforded First Amendment protections that could otherwise apply in
publishing these records. See Bartnicki v. Vopper, 532 U.S. 514, 515 (2001) ([T]his Court upheld
the press right to publish information of great public concern obtained from documents stolen
by a third party. . . . It also left open the question whether, in cases where information has been
acquired unlawfully by a newspaper or by a source, government may punish not only the
unlawful acquisition, but also the ensuing publication.). Taken together, it is unwise to
dismiss these counts at this stage of the litigation.
Finally, Defendants request for attorneys fees under Floridas Anti-SLAPP statute, see
Fla. Stat. 768.295, is denied. Assuming the statute applies, this suit plainly has merit since
two of its original three counts remain.
DONE and ORDERED in Chambers, at Miami, Florida, on this 29th day of August

Copies furnished to:

Edwin G. Torres, U.S. Magistrate Judge
Counsel of Record