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Bailey v. Huggins Diagnostic & Rehabilitation Center Inc.6/26/1997
al reader, at least in those instances, as here, in which the published work implicates no illegal conduct. Cf. Braun v. Soldier of Fortune Magazine, Inc., 968 F.2d 1110 (11th Cir. 1992); Eimann v. Soldier of Fortune Magazine, Inc., 880 F.2d 830 (5th Cir. 1989).
The expression of opinions upon matters of public concern is the core value protected by the First Amendment. To subject authors of such opinions to the risk of multiple claims for personal injuries, at least in those instances, as here, in which the opinions do not address or impugn any specific individual, based solely upon the majoritarian view that the opinion is "false," would impose an intolerable burden upon the author of such opinions. And, the imposition of such a burden would have a ruinous and unjustifiable chilling effect upon free speech. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974).
There have been few cases in which readers have sought to recover based upon statements made by authors, and none has been discovered that has allowed recovery, except in those instances in which the publication was intended to be used as a "product." See, e.g., Saloomey v. Jeppesen & Co., 707 F.2d 671 (2d Cir. 1983) (aviation charts, designed to be used by aircraft pilots for navigational and other flight purposes, containing incorrect factual information with respect to an airport, was a "defective product").
In all other instances, in light of First Amendment implications, it has been concluded that no duty of due care is owed by an author to a reader. See Demuth Development Co. v. Merck & Co., 432 F. Supp. 990 (E.D.N.Y. 1977) (author of "index" to drugs owed no duty to medical appliance supplier for incorrect information respecting drug used in appliance); Jaillet v. Cashman, 235 N.Y. 511, 139 N.E. 714 (1923) (Dow Jones & Co. not liable to subscriber for misinformation as to stock sent out over its ticker).
Our Conclusion in this respect is not inconsistent with Bloskas v. Murray, 646 P.2d 907 (Colo. 1982). There, a physician, in recommending specific surgery to a patient, falsely represented that he had performed the same operation on three other patients and that all had had successful results. In addition, he assured the patient that, if the surgery were unsuccessful, amputation was not a result the patient should worry about. Contrary to his statement, the physician had never before personally performed this type of surgery. The patient consented to the surgery, in reliance upon these statements, but it proved unsuccessful, with the ultimate result that the patient's foot was amputated.
The court rejected plaintiff's assertion that the trial court's instructional error led to the jury's rejection of his claim of malpractice, based upon a lack of informed consent. However, a majority of the court concluded that a claim for negligent misrepresentation was not subsumed by plaintiff's malpractice claim and that the trial court erred in refusing to submit such a claim for jury consideration.
But, the representations in Bloskas were one of fact and one of a possible medical result about which there was no evidence of any controversy. Further, the representations were made to a specific patient in conjunction with recommending a specific surgical procedure. In noting these circumstances, the supreme court, while acknowledging that the tort of negligent misrepresentation does not depend upon the existence of a professional relationship, emphasized that the tort's underlying principles are particularly applicable if the representation is made as a part of a business or profession.
In short, none of the considerations that lea
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