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" This was sensationalistic journalism of the worst sort and should serve as an embarrassment to this so-called 'flagship' investigative program," of fifth Estate the judge thundered .
On Feb. 27, 1996, Dr. Martin Myers, a respected cardiologist at Toronto's Sunnybrook hospital, sat down to watch TV. He thought he was going to see a program in which he had taken part about the pharmaceutical industry. As an expert in heart drugs, he had given an interview to explain a complicated medical debate over a drug used to treat high blood pressure.
What he saw was a sensational exposé about killer drugs, kickback schemes and secret files. The tease for the program was a voice clip that said, "People are dying, people who don't need to die are dying."
To his shock, the program went on to insinuate that he had helped Canada's Health Protection Branch cover up a major scandal involving tens of thousands of deaths. It implied that he was knowingly helping a drug manufacturer push a dangerous medication. Viewers surely would have concluded that Dr. Myers was an incompetent, dishonest bully who placed a drug company's interests ahead of human lives.
It appeared to be vintage fifth estate -- the kind of hard-hitting journalism that has made it Canada's leading investigative program for 25 years. It was the first time Dr. Myers was aware of the devastating allegations levelled against him.
"It was like something from Franz Kafka," he says today. "Suddenly your name is associated with a drug that kills tens of thousands of people." More than a million people had watched the show.
Dr. Frans Leenen, a top research scientist with Ottawa's famous Heart Institute, also had been interviewed for the program. He was out of the country on Feb. 27, and didn't see it until he returned. He sat down to watch a videotape and learned that he, too, was accused of covering up the killer drugs.
In less than an hour, Dr. Leenen saw his reputation torn to shreds. "I felt totally empty," he said later. "I felt that something very dear had been taken away from me. I was gone. I was like in a black hole. . . . That your reputation, your integrity that is so crucial for a scientist, is suddenly gone."
To clear their names, the doctors each sued for libel. Dr. Myers asked for an apology plus $25,000. Dr. Leenen asked for an apology plus $10,000. The CBC decided to fight.
A very expensive decision. Last November, a judge awarded Dr. Myers a hefty $200,000, plus interest and costs. Three weeks ago, Dr. Leenen won a breathtaking $950,000, plus interest and costs. His total settlement could amount to more than $2-million, a record for Canadian libel.
The corporation carries no libel insurance, and will have to pay every penny itself.
Worse still is the sting of the judgments. Both judges ruled that the journalists had twisted the facts and acted with malice. In the Leenen case, Mr. Justice Douglas Cunningham was scorching. "This was sensationalistic journalism of the worst sort and should serve as an embarrassment to this so-called 'flagship' investigative program," he thundered.
In a highly unusual measure, he slapped the host, the producer, the researcher and the executive producer with hefty punitive and aggravated damages. "Parasitic sensationalists should not be allowed to prey upon society's obsession with scandal and to reap personal benefit from their irresponsible actions," he wrote.
The timing could scarcely be worse. The beleaguered public broadcaster and its new president, Robert Rabinovitch, need all the friends they can get. Yet this legal debacle plays right into the hands of those critics who charge that too many of the CBC's journalists are irresponsible, arrogant, biased, left-wing, and unaccountable. The Heart of the Matter, as this program was called, is exactly the sort of piece that gives investigative journalism a bad name.
Mr. Rabinovitch may well weigh in on what to do next. He has read the Leenen judgment and has been advised by some friends to stop flogging a dead horse.
CBC brass have said they will appeal the Myers decision, and are reviewing the Leenen judgment. They cite the program's long history of groundbreaking journalism and executive producer David Studer's prestigious award for service to journalism received only a few months ago.
Staff members have been told not to discuss the libellous program. Off the record, their comments run the gamut from defensive to critical. A distinguished journalist no longer with the network says flatly: "I would have pulled the item. The fault was the lack of supervision of the program." The secret of good investigative journalism is to be daring and cautious at the same time. The same zeal that lands a great story can also get you into big trouble if you play down or ignore inconvenient evidence. As one canny old journalist used to say, if you're going to hang somebody, you need a very stout rope.The fifth estate had a slender thread.
Its full-length exposé was born in the fall of 1995 with a story pitch from freelance journalist Nicholas Regush, a former medical reporter with the Montreal Gazette who had published a couple of books highly critical of Canada's drug-approval process. He promised a good story and what's more, he had a whistle blower. Mr. Studer bought the proposal for $16,500.
Seasoned veterans say the red flag should have gone up from the start. Mr. Regush had never worked with the CBC before. But the fifth estate allowed him to produce the show himself, and teamed him with a relatively inexperienced researcher named Paul Webster. Trish Wood was the host.
His whistle blower was disaffected former HPB employee Dr. Michelle Brill-Edwards. What viewers were never told was that she had been passed over for promotion and had fought the agency repeatedly at the labour board. "She became the perfect vehicle through which Nicholas Regush could vent his long-held negative views," wrote Judge Cunningham.
The program told the story of nifedipine, a controversial heart medication whose dangers HPB supposedly had hushed up.
In the real world, the debate over nifedipine was a highly nuanced argument among experts -- one that everyone agreed could not be squarely resolved without a great deal more time and evidence. But on prime-time television, it morphed into a story of villains and victims, of "boxes holding files containing secrets" and "the tainted history of a drug that's been swallowed by thousands of Canadians, a drug that may have caused a huge number of deaths."
Dr. Myers and Dr. Leenen wore the black hats as men who pushed around the toothless government agency.
The program made much of the two doctors' ties to drug companies Bayer and Pfizer, without explaining that it is common for companies to finance drug studies and for doctors to consult them. It wildly exaggerated the differences of opinion between the two doctors and other scientists. It also dramatically misrepresented their real views, making it seem that they were not cautious about the drug.
The program characterized a Pfizer meeting in Egypt that Dr. Leenen was to attend as "a cruise down the Nile," and insinuated that the trip was a drug-company reward for his support. It accused Dr. Leenen of violating conflict-of-interest guidelines that he had never heard of. Other omissions included the fact that the U.S. Food and Drug Administration had recently conducted a full review of this class of drug, concluded that it was not unsafe and had guidelines for its use that were essentially identical to Canada's. Trish Wood, the program's host, is one participant who will speak for the record. She has a reputation as a tough, stubborn journalist. She parted ways with the CBC two years ago under not entirely happy circumstances. She was let go over a conflict-of-interest issue involving her personal relationship (now ended) with lawyer James Lockyer, a figure in stories she was working on for the program.
"The show said what it said for valid journalistic reasons," she maintains today. "I think Dr. Brill-Edwards has a lot of credibility. Most whistle blowers are disillusioned by something or they wouldn't risk so much by coming forward."
She is adamant that malice played no part in shaping the broadcast. "Our job is to get people in positions of power on the record on issues of public policy. We did it without malice."
Does she now second-guess any of the show's editorial decisions? "It's not an exact science and we did the best we could," she says. "Speaking for myself, I did the best I could with the information that we had."
To turn this esoteric subject into good TV, the fifth estate journalists faced one monumental narrative problem. There were no victims to put on camera. The toll was alleged to be huge, but no actual dead people could be linked directly to the drug. There were just epidemiological studies, which make for dull TV.Television, far more than print, must tell its stories through people. The medium demands that story lines be distilled, simplified and personalized. It is very likely that the fifth estate did not (despite the view of Judge Cunningham) set out from the start to pillory the two doctors.
What's more likely is that everyone all the way up the line developed an unshakable conviction that their story was so urgent and so important to the public interest that it didn't really matter who was sideswiped along the way. Where were the skeptics? Who asked the hard questions? How rigorously was Mr. Regush, the freelancer who worked only once for the CBC, held to account? Insiders aren't saying. Outsiders say that relying so heavily on one disaffected whistle blower was a fatal weakness. As well, only one week before the air date, no one had bothered to ask Dr. Myers to respond to the damning case against him. The researcher said he left messages requesting another interview; Dr. Myers said he never got them.
Outsiders wonder why Mr. Studer didn't keep a closer eye on the project. After all, it's the boss's job to make sure the rope is stout enough. The judge wondered too. "To say the least, David Studer failed in his duty as executive producer of the program." But the judge reserved his harshest words for Mr. Regush, who in his view "exhibited a significant disregard for the truth." Mr. Regush himself was ordered to pay Dr. Leenen $200,000 in aggravated and punitive damages.
The judge also was furious at the CBC's conduct of the case. He called it "a scorched-earth policy" from start to finish. Most important of all, he found that the program had actually harmed Canadians, not helped them. "I think it reasonably could be said that the program was contrary to the public interest because of its real potential for harm by inciting panic amongst patients suffering from high blood pressure," he wrote. The Monday after he saw the broadcast, a shaken Dr. Leenen reported back to work as director of the Heart Institute's hypertension unit. "I saw the program," said a colleague. "You have my sympathies." The next day a patient told him: "Dr. Leenen, you wrongly prescribed nifedipine for me and you did it for personal gain, to make money." He lost patients and fell under a professional cloud. Friends and neighbours avoided him and his wife, and he sank into a depression that lasted for months.
Dr. Myers also had a rough time. In a heartfelt piece written for the Canadian Medical Association Journal, Dr. Myers asked: "Should public affairs be portrayed as entertainment, with science and drama interwoven? . . . Is medicine becoming another form of mass entertainment, with physicians serving as actors in million-dollar productions?"
He might be surprised to learn that most people who work at programs like the fifth estate don't feel all that powerful. They feel like the embattled underdogs, crusading for the truth in a world that wants to keep it from them. "When you are the outsider, getting information is extremely difficult," says Trish Wood. "Sometimes people view us as the Goliath and the subject as the David. I think we see ourselves quite the other way around."
The doctors beg to differ. "The only commodity you have is your reputation and credibility," says Dr. Leenen, who mortgaged his house to pay for the lawsuit. "You are basically damaged goods for a long, long time."
"Dr. Leenen and I are not big-name millionaires or high-profile people," Dr. Myers says. " . . . I do believe in the CBC as an institution. I didn't really expect this from them. That hurt."
204 7944981 e-mail: lkyriak_at_shaw.ca
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