Supreme Court of Canada upholds multimillion-dollar damage award to researcher libeled in TV documentary on CCBs

Shelley Wood

April 12, 2002

Ottawa, ON - A cardiovascular researcher at the Ottawa Heart Institute (Ontario, Canada) says he feels vindicated and relieved after a Supreme Court of Canada decision upheld an April 2000 lower court ruling that awarded him more than 1 million US dollars in damages, legal fees, and interest.

"For quite a few weeks, I didn't know how to walk around because I felt quite a bit lighter," Dr Frans Leenen (Ottawa Heart Institute) told heartwire . "It is such a relief for this to be all over and done with, finally."

Leenen and Dr Martin Myers (Sunnybrook and Women's College Health Sciences Centre, Toronto, ON) had brought a libel suit against the Canadian Broadcasting Corporation (CBC) after a 1996 documentary portrayed the two men as endangering the lives of heart patients by prescribing the short-acting calcium channel blocker (CCB), nifedipine (Procardia® - Pfizer). Last month, the Court denied the CBC leave to appeal a decision by the Ontario Court of Appeal of June 12, 2001, which upheld the original trial judgment by Judge Douglas Cunningham. In his ruling, Cunningham called the CBC's "The Fifth Estate" program in question, "sensational journalism of the worst sort" that "should serve as an embarrassment to this so-called 'flagship' investigative program."

Good news, bad news

Commenting on the Court's decision to heartwire , Dr Lionel Opie (Cape Heart Center, Cape Town, South Africa) had strong words. "Dr Leenen was maligned by the CBC and it cost them. Maybe that judgment should slow the flow of calcium channel blocker 'dangers' to the media."

Opie despaired that it is usually only the "bad news" about CCBs that makes it into the mainstream media. "It takes some disastrous or dramatic event, such as Dr Leenen's fight over 6 years to save his reputation, the early calumny, and the magnitude of the final award to get through to the media," Opie said. "For once, good news about CCBs has reached the public domain."

Opie referred to several studies that have emerged over the few years to help clarify some of the different harms and benefits of short- and long-acting CCBs. He hopes these will "put in perspective the 'CCB-danger-issue' that the CBC and other media have so exaggerated." Opie also cited his own recent meta-analysis - showing that an absolute total increase of in MI of about 0.1% per year with CCBs was offset by an absolute decrease in total stroke of 0.1%, as reported by heartwire - as helping to seal the issue. "Clinicians can make up their own minds whether such small absolute changes in are worthy of stirring worldwide concern about CCBs," he told heartwire .

Libelous innuendoes

The legal to-and-fro was sparked by the 1995 meta-analysis by Dr Curt Furberg (Wake Forest University, Wake Forest, NC) and colleagues in Circulation, which found that the use of nifedipine in moderate-to-high doses caused an increase in total mortality in patients with coronary disease. Canada's Health Protection Branch (HPB) reacted to the paper by commissioning an ad hoc advisory committee on CCBs with the aim of sending out a "Dear Doctor" letter to Canadian physicians, and asked Leenen to chair the committee, which he did.

Around the same time, said Leenen, "The CBC developed a program on this issue and asked me to be interviewed on the clinical and scientific aspects of calcium channel blockers without telling me what their real agenda was, which of course came out in the program."

"In their view," Leenen told heartwire , "we did not give strong-enough advice to patients against these calcium channel blockers."

In his subsequent libel suit, Leenen charged that the program had created innuendoes suggesting that he supported the prescribing of lethal drugs, was in a conflict of interest, received a kickback from nifedipine manufacturer Pfizer Inc, and acted negligently or dishonestly as the chairman of the ad hoc advisory committee of the HPB.

"As serious a libel as can be imagined"

On April 20, 2000, Cunningham ruled that the CBC had "maliciously defamed" Leenen. "I have concluded from my review of the cases that this is as serious a libel as can be imagined," he stated.

In his ruling, Cunningham noted that, following the "Fifth Estate" broadcast, Leenen "was devastated both personally and professionally."

Ottawa Heart Institute Director Dr Wilbert Keon circulated conflict-of-interest guidelines in his department and also approached Leenen, "in a manner never before witnessed by Dr Leenen," Cunningham observed. In addition, Leenen's research protocols were put on hold or given shorter renewal periods, and the number of new patient referrals to Leenen declined. A New England Journal of Medicine article questioned Leenen's "objectivity in assessing the safety of drugs." In light of his altered stature among his peers, Leenen felt obliged to withdraw from the Canadian Society for Clinical Pharmacology.

 
The amount of the award reflected not only the damage inflicted on Leenen's reputation, but also the difficulty in restoring that reputation particularly within a research environment where one's integrity is critical.
 

In awarding such a high sum to Leenen - the highest amount ever pinned to the media in a libel case in Canadian history - Cunningham stated that the amount reflected, "not only the damage inflicted on [Leenen's] reputation, but also the difficulty in restoring that reputation particularly within a research environment where one's integrity is critical."

In total, Leenen was awarded $589000 in punitive damages and $518430 in legal costs. In a separate ruling, Myers was awarded $217000, and $63000 in legal costs. Ironically, what the men had asked for initially was a public apology from the CBC and a nominal settlement of $10000 CDN.

Following the Supreme Court decision, the CBC released a formal statement to the media, saying the corporation was "disappointed" with the decision. "We felt that these cases raised crucial questions about freedom of expression, the law of defamation, and the media's ability to report on issues of public interest." The CBC also vowed to take the judgments "into account in our programming" and "discuss the profound implications of these judgments with our journalists, journalists in other media organizations, and members of the legal community."

Not so black-and-white

In an interview with heartwire , Leenen acknowledged the media has, in the past, picked up on the scientific debate over the safety and efficacy of CCBs relative to other agents, but he insists that his particular legal saga was an absolutely separate issue.

"These events and the recent court decision have no impact per se on the scientific issue. But the legal implications are that scientists can have different opinions, but that doesn't mean that they can be used maliciously against them. In science, you have to respect somebody's opinion."

Indeed, Cunningham observed in his ruling that the black-and-white "Fifth Estate" program misleadingly painted Leenen as "a hypocritical defender of CCBs" at odds with other physicians and scientists trying to protect the public. "Those involved in the production of this program knew or should have known that Dr Leenen's views on the long acting CCBs were essentially the same as of those individuals the program portrayed as 'good guys,'" Cunningham stated.

 
I testified as an expert witness that the use of CCBs was a hotly debated issue. I find the revelations in the court documents of the CBC's behavior troubling and indefensible.
 

One of the "good guys" featured on the CBC program was Furberg, well known in the cardiovascular community for his strong views on the risks associated with CCBs. He is also principal investigator for the NHLBI-sponsored Antihypertensive and Lipid-Lowering Treatment to Prevent Heart Attack Trial (ALLHAT) trial comparing an ACE inhibitor (lisinopril), a CCB (amlodipine), a diuretic (chlorthalidone) and an -blocker (doxazosin). This last arm was suspended in March 2000; full results of ALLHAT should be out later this year.

Originally a member of the ALLHAT steering committee, Leenen resigned after Furberg appeared in court as a witness for the CBC. "I haven't gotten any apology from Dr Furberg," Leenen said.

Contacted by heartwire , Furberg replied that he had appeared in the CBC documentary but emphasized that he had no role in its production. As for the trial, he stated, "Upon request, I testified as an expert witness that the use of CCBs was a hotly debated issue. I find the revelations in the court documents of the CBC's behavior troubling and indefensible."

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