Now that the efforts of ESPN and Adam Schefter to dismiss the lawsuit filed against them by Giants defensive end Jason Pierre-Paul for publishing his medical records has failed, the litigation will proceed. It proceeds, as all litigation does following the failure of a motion to dismiss it, with a formal “answer” to the initial complaint filed by the plaintiff.
An answer consists of a paragraph-by-paragraph response to the allegations of the complaint, with the defendants admitting the allegations made against them, denying the allegations, or explaining that they currently lack the information necessary to admit or deny the allegations.
Rarely if ever does a defendant admit enough of the allegations to win (or as the case may be lose) the case. If the facts were that clear, the case would have settled before that point -- or it would have been dismissed based on legal arguments that point to a win for the defendants even if the facts as alleged are true.
Following the point-by-point admit/deny/don’t know portion of the answer comes what the legal system calls “affirmative defenses.” It’s typically a laundry list of all potential arguments that could arise during the course of preparing the case for trial that would support an effort by the defendants to say, basically, “What you’re claiming may be true, but we still should win because of ___________.”
In this case, ESPN and Schefter claim that Pierre-Paul “authorized” the publication of his medical records. Which means, technically, that he gave the green light to the disclosure of his medical records to Schefter, and that Pierre-Paul likewise agreed to allow Schefter to publish the medical records to his Twitter following. If true, it makes me wonder why the litigation even exists.
Chances are it’s not true, but that the lawyers have opted to include that potential defense in the event they trip over evidence that could support making this argument with a straight face. In order to prevent Pierre-Paul’s lawyers from later saying, “Because you didn’t raise that as an affirmative defense in your answer, you waived it,” ESPN and Schefter needed to raise it now.
ESPN and Schefter also claim that the “release of graphic images of his medical condition to Sports Illustrated” operates as a defense to the argument that ESPN and Schefter impermissibly obtained and published his medical records. But this case doesn’t seem to be about the fact that Pierre-Paul lost a finger (and more) as a result of a fireworks accident or that he chose to eventually share what his hand looked like following the incident and surgery. It’s about obtaining and publishing someone’s medical records, regardless of the condition they reflect or the subsequent decision of the plaintiff to later share information about the condition.
The case will now proceed with the discovery process, during which Pierre-Paul, Schefter, and others will be questioned under oath as the two sides gather all relevant evidence and prepare for, first, another effort by ESPN and Schefter to win the case without going to trial (via a “motion for summary judgment”) and, second, trial in August 2017.