Texas Appeals Court Throws Out Defamation Lawsuit Against ProPublica, Houston Chronicle

by Jeremy Schwartz

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

A Texas state appeals court on Thursday ordered the dismissal of a 2018 defamation lawsuit against ProPublica and the Houston Chronicle brought by famed Houston heart surgeon Dr. O.H. “Bud” Frazier, ruling that a 2018 investigation into the doctor was a “fair, true, and impartial account” of accusations against him.

Frazier was also ordered to pay the publications’ attorneys fees related to the appeal.

Frazier filed the suit in Harris County District Court, challenging a 2018 story and subsequent reporting that examined concerns with the doctor’s conduct, including that a hospital investigation had found that Frazier and his team implanted experimental heart pumps in patients who did not meet medical criteria to be included in clinical trials.

Frazier, a high profile heart transplant surgeon at Baylor St. Luke’s Medical Center and the Texas Heart Institute, claimed that the articles included errors and misleading statements “calculated to falsely portray Dr. Frazier as an inhumane physician.”

The suit also named the stories’ authors, Charles Ornstein of ProPublica and Mike Hixenbaugh, then of the Chronicle, as defendants.

The news outlets sought to dismiss the lawsuit under the 2011 Texas Citizens Participation Act, which allows for speedy dismissals of what the Texas Supreme Court has defined as “retaliatory lawsuits that seek to intimidate or silence (citizens) on matters of public concern” or “chill First Amendment rights.”

The appeals court decision potentially signals the close of a nearly six-year legal battle.

In 2018, Harris County District Judge Wesley Ward first denied the news outlets’ motion to dismiss under the TCPA, ruling that Frazier had shown enough evidence to establish his defamation claim. The news outlets appealed the ruling to the First District Court of Appeals in Houston, which determined in January 2020 that the trial court had failed to consider the news outlets’ evidence and arguments and sent the case back to the trial court. Frazier appealed the appeals court ruling to the Supreme Court of Texas, which denied his petition.

In March 2022, the district court once again denied the news outlets’ motion to dismiss under the TCPA. The publications filed a second appeal two months later, arguing Frazier had failed to establish the elements of his defamation claim.

This time, the appeals court definitively reversed the lower court’s decision and on Thursday ordered the trial court to dismiss the case, concluding that the news outlets “established by a preponderance of the evidence their defenses of substantial truth and nonactionable opinion.”

“This is a huge victory for journalism and the truth on an issue of immense public importance,” said Jeremy Kutner, ProPublica’s general counsel. “After six long years, the court found what was clear to every reader of this story. It was fair, accurate and backed up by a mountain of documentation and evidence. However important their contributions to society, pioneering leaders are not above scrutiny.”

Neither Frazier nor his attorneys immediately responded to a request for comment.

ProPublica was represented by Laura Prather and Catherine Robb of Haynes and Boone LLP.

Do You Have a Tip for ProPublica? Help Us Do Journalism.

This content originally appeared on Articles and Investigations - ProPublica and was authored by by Jeremy Schwartz.