## Facts

- J.H. Desnick, M.D. and his ophthalmology clinic network (with employed surgeons) were the subject of an investigative news segment on ABC’s “PrimeTime Live” that was highly critical of the clinic’s cataract-surgery practices.
- An ABC producer contacted Desnick stating the program wanted to cover large cataract practices and allegedly assured Desnick the segment would not use ambush interviews or undercover surveillance and would be fair.
- Relying on those assurances, Desnick permitted ABC to film at the Chicago premises, record a cataract operation, and interview personnel and patients; he also provided a promotional video.
- Without Desnick’s knowledge, ABC sent seven “test patients” equipped with concealed cameras to clinic offices in Wisconsin and Indiana; the testers obtained eye exams and secretly recorded interactions with physicians, including two plaintiff surgeons.
- The broadcast introduced Desnick as a “big cutter” and suggested the investigation found evidence he performed unnecessary cataract surgeries for money; it also reported results from the test-patient visits.
- Plaintiffs sued asserting trespass, defamation, invasion of privacy, illegal wiretapping/electronic surveillance, and fraud/misrepresentation based on the alleged assurances and the segment’s content.
- The federal district court dismissed the complaint for failure to state a claim; the court of appeals reviewed the dismissal de novo on the complaint and an accurate transcript of the broadcast.

## Issues

1. Whether undercover “test patients” who entered clinic offices open to the public for eye exams, while concealing their journalistic purpose and using hidden cameras, committed actionable trespass.
2. Whether secret recording in exam areas and use of the footage constituted intrusion upon seclusion or other invasion of privacy.
3. Whether hidden-camera audio/video recording violated federal or state eavesdropping or wiretapping statutes when a participant to the conversation consented to the recording.
4. Whether alleged assurances about no undercover work and a “fair and balanced” segment supported a fraud or misrepresentation claim for resulting harms.
5. Whether the broadcast contained actionable defamation, and if so, whether any discrete statement was sufficiently factual and injurious to survive dismissal.

## Decision

- The Seventh Circuit largely affirmed dismissal of the complaint.
- The court held the undercover entries were not actionable trespass because the clinics were open to the public for exams, the testers requested the offered services, remained in areas open to patients, and did not interfere with possession or operations.
- The court affirmed dismissal of privacy claims because recording occurred in a professional setting open to patients and did not involve an invasion of a private space or seclusion.
- The court affirmed dismissal of statutory eavesdropping/wiretapping claims because the recordings involved conversations with the undercover testers, who consented as participants.
- The court affirmed dismissal of fraud-based theories, treating key assurances as nonactionable opinion/editorial judgment and declining to permit fraud to substitute for defamation-based recovery.
- The court remanded a limited aspect of the defamation claim concerning an assertion implying tampering with medical equipment, concluding that narrow theory could be actionable and should proceed.

## Legal Principles

- Consent to enter business premises open to the public for their ordinary purpose is not negated for trespass purposes merely because the entrant concealed a separate motive, where entry is confined to public areas and does not disrupt operations or interfere with possession.
- Trespass protects interests in exclusive possession and physical use; deception about purpose, without interference of the sort trespass addresses, is insufficient on these facts.
- Intrusion upon seclusion generally requires an invasion into a private place or private affairs; recording professional interactions in areas open to patients, involving communications with the recorder, may fail to state such a claim.
- Participant consent to recording can defeat eavesdropping/wiretapping claims premised on nonconsensual interception, at least where the communications recorded are those in which the consenting participant took part.
- Plaintiffs cannot recharacterize reputational injury from a broadcast as fraud to avoid the substantive and constitutional limits governing defamation; vague assurances of “fairness” are typically not actionable misrepresentations of fact.
- A specific, verifiable accusation implying professional dishonesty or misconduct (such as tampering with equipment) may constitute actionable defamation if pleaded as a false statement of fact that harms professional reputation.

## Conclusion

The court held that ABC’s undercover test-patient visits and recordings in public-facing clinic settings did not support trespass, privacy, wiretapping, or fraud claims, but allowed a narrow defamation theory based on an alleged factual accusation of equipment tampering to proceed on remand.


Desnick v. Am. Broad. Cos., 44 F.3d 1345 (7th Cir. 1995)