Written by Cody Lundin, former co-host of ‘Dual Survival,’ alleges that producers edited footage to falsely portray him in the final episode as mentally unstable.
Discovery Communications may be moving its headquarters from Maryland to New York, but it can’t escape a defamation case being adjudicated in Arizona federal court. On Thursday, the owner of cable networks like TLC, Animal Planet and Discovery Channel found out that a reality TV star’s contract can’t bar a defamation lawsuit when intentional harms occur. In a summary judgment ruling, the judge rejects Discovery’s proposition that there exists a special exception for reality shows and documentaries.
The plaintiff in the case is Cody Lundin, who was one of the original co-hosts on Discovery Channel’s Dual Survival. That series about survival experts in challenging environments has become fodder for all sorts of interesting defamation decisions. For example, last July, another judge ruled that Discovery wasn’t responsible for the social media posts of Joseph Teti, a survivalist featured on seasons three through six of the program.
In Lundin’s lawsuit, he alleges that Teti made threats of violence against him, Dual Survival crew members and Discovery executives. Lundin says Discovery wouldn’t address his concerns about Teti and instead terminated him as lead co-host of the show. He then accuses Discovery of purposely manipulating “behind the scenes” footage from previous episodes of the series to create the false impression to viewers in his final episode that he was mentally impaired and thus responsible for leaving the show.
Discovery, in response to the lawsuit, did what many reality television producers do when confronted with a claim from a castmember. The defendant pointed to the waiver that Lundin signed. Given that the show was about survivalists in dangerous situations, it makes sense that Lundin’s “Talent Agreement” included a section titled “Assumption of Risk,” which relinquished any claims for personal injury.
Under Maryland law, applied because that’s what the Talent Agreement specified, exculpatory clauses are generally valid, but courts in the state have concluded that parties aren’t permitted to excuse liability for intentional harms or for extreme forms of negligence.
Discovery conceded as much, according to a decision from U.S. District Court Judge Roslyn Silver, but nevertheless argued for a reality television exception. The company’s lawyers cited cases from other jurisdictions including a defamation action in New York (Klapper v. Graziano) involving a participant’s statement about a “plastic surgery nightmare” on the show, Mob Wives.
But Silver concludes that in the Mob Wives case, the holding was limited.
“The appellate court agreed the exculpatory clause barred the suit,” notes Silver. “In reaching that conclusion, the appellate court made clear exculpatory clauses apply only to claims involving negligence… [T]he court seemed to believe that had the plaintiff’s claim actually involved intentional conduct, the exculpatory clause would not apply.”
“Based on the appellate decision in Klapper, it does not appear there is any special exception similar to what Defendants propose,” Silver adds. “None of the other cases Defendants cite provide any basis to question that conclusion. In fact, the other decisions do not appear to grapple with the application of exculpatory clauses to intentional torts at all. Because there is no special rule to apply in the reality TV context, the exculpatory clause does not bar Lundin’s claims and Defendants’ motion for summary judgment will be denied.”
Often, denial of a defendant’s summary judgment motion primes the way for a trial, but in this instance, there’s a bit of a quirk. When Lundin filed his complaint, his attorney selected “no” when stating whether Lundin was seeking a jury trial. Nevertheless, the complaint sought punitive damages “in an amount to be determined by a jury.”
As such, Silver decides that Lundin has disclaimed a demand for a jury trial on all but the issue of punitive damages. She rejects Lundin’s arguments why he should be entitled to more. Here’s the full decision:
