Reality for Dr. Phil


Dieu v. Phil McGraw (California)
(Participants recruited to participate in a Dr. Phil reality show sue for negligence and intentional tort claims; waiver and release agreements signed by the participants do not preclude liability for the claims beyond negligence.)

After posting comments on Dr. Phil’s website about their distrust for men, the plaintiffs were recruited by producers to participate in a reality-based television show where they would live in a house and receive therapy from Dr. Phil.  Prior to their participation in the show, the plaintiffs signed several copies of “Dr. Phil Program Appearance Release” forms, all of which were substantially the same (the “Releases”).  In addition to describing the nature of the show (including “heated discussions, commentary and remarks”), the Releases also provided that the plaintiffs agreed not to sue the defendants for failure to disclose the subject matter of the show or the identity of guests, or as a result of dislike of the questioning or outcome from the program.  Additionally, the Releases asserted that the plaintiffs would be not receive therapy from Dr. Phil (contrary to alleged prior representations) and that no representations had been made to (or would be relied upon by) plaintiffs.  Specifically, the Releases waived and released liability of the defendants for “any claims, demands and causes of action for invasion of privacy or publicity, defamation, infliction of emotional distress and any other tort in connection therewith.”

Plaintiffs had a bad experience in connection with the program, alleging that the “mock house” was on a sound stage, was cramped (they shared one bathroom), and was in a bad neighborhood.  Plaintiffs further alleged that they had their laptops and cell phones taken from them and they were not permitted access to the outside world.  The plaintiff assert that they were not provided counseling, and when a plaintiff asked to leave she was convinced to stay through unfulfilled representations by the defendants.  In one instance, the plaintiffs were intentionally exposed to a naked man and were apparently mocked as a result of their reactions (they were “shocked and horrified”).  Despite a lack of cooperation, the plaintiff indicated that there were eventually allowed to leave the house.  Thereafter, the plaintiffs filed a civil action against the defendants alleging various emotional and physical injuries from the experience, asserting claims for (1) fraud, (2) negligent misrepresentation, (3) negligence, (4) breach of fiduciary duty, (5) violations of the Business and Professions Code, (6) rescission, (7 intentional infliction of emotional distress, and (8) negligent infliction of emotional distress.

The defendants filed a motion to strike under the anti-SLAPP statute, claiming that their conduct was in furtherance of its right of petition or free speech. The trial court denied the motion to strike and the defendants appealed.  On appeal, the court determined that while the defendants did meet the anti-SLAPP threshold of establishing that the challenged cause of action was one arising from a protected activity (i.e., it involved free speech in connection with an issue of public interest), it concluded that the plaintiff had, for at least some of the claims, sufficiently demonstrated a probability of prevailing on the claims, thereby overcoming the anti-SLAPP protections.  The court noted that there was a reasonable inference that plaintiffs placed a trust and confidence in McGraw (as a physician) in order to support a claim of breach of fiduciary relationship.  The court also noted that the allegations regarding various misrepresentations made to the plaintiffs prior to their participation were sufficient to support a claim of misrepresentation, notwithstanding the Releases.  The court explained that “[a] general contractual provision that there were no promises, representations, verbal understandings, or agreements except those contained in the contract does not insulate a party from liability for his fraudulent conduct.”

The defendants argued that the Releases barred the plaintiffs’ claims as a matter of law.  However, the plaintiffs countered by contending that the Releases were “procured by fraud” and they sought to rescind them.  The plaintiffs claimed that they were fraudulently induced to sign the Releases that they were hurried through the process.  Additionally, the plaintiff asserted that pages were added to the Releases after the fact.  Furthermore, the plaintiffs argued that the Releases were unconscionable in that they violated Civil Code Section 1668.  Ultimately, the court ruled that the Releases were not unconscionable (they were largely one-sided in favor of defendants which made them substantively unconscionable to some extent, but there was no evidence that they were procedurally unconscionable, meaning beyond one’s reasonable expectation or oppressive), but that by virtue of Civil Code Section 1668, the Releases did not bar all of the plaintiffs claims.

As recited by the court, Section 1668 “made it clear a party could not contract away liability for his fraudulent or intentional acts or for his negligent violations of statutory law.”  Also referring to the recent California case of City of Santa Barbara v. Superior Court, the court noted that “liability for future gross negligence cannot be released.”  Thus, the court concluded that the plaintiffs’ claims for liability based on intentional wrongs, gross negligence, or violations of law were not barred by the Releases.  However, the court further concluded that the Releases did exempt the defendants from liability for the plaintiffs’ negligence claims (with the exception of negligent misrepresentation, which is deemed to be “fraud”).  Therefore, the Court of Appeal overturned the trial court’s denial of the motion to strike in part as it related to the non-released claims.

NOTE: Reality television programming has become increasing prevalent in the ever-expanding world of entertainment.  Producers of such programming continue to push the boundaries of acceptability as they vie for attention and impact in the marketplace.  The elements of shock and surprise are often important to the success of this type of programming.  Producers and broadcasters have sought to protect themselves from liabilities that they potentially face by exposing participants to outrageous and unexpected conduct or circumstances through the use of express assumption of the risk and waiver and release agreements.  A prevailing approach has been to make such agreements as broad and encompassing as possible.  Such efforts are contradictory to the existing statutory and case law, which precludes prospectively insulting oneself from liability for intentionally tortious conduct or conduct which violates the law, and this decision is an example of that contradiction.  California Civil Code Section 1668, and similar laws in other jurisdictions, provide the potential basis to find such agreements void as contrary to public policy.  In this circumstance, the defendants were fortunate in that the court decided to void only those portions of the releases which were contrary to public policy, as opposed to the entire document.  Other defendants in the future may not be so fortunate.  Other courts could potentially elect to void agreements in their entirety, refusing to enforce any severability clause that a defendant may seek to rely upon, thereby alleviating any legitimate protections that may be found in the agreements (i.e., a release of ordinary negligence).  In the end, producers and broadcasters cannot simply reply upon broad and over-inclusive release agreements as a means to immunize them from fraudulent and other intentionally wrongful conduct, and efforts to draft such documents can be a dangerous prospect.

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