Legal Analysis by Class Action Lawyer – George Mentz, Esq.
Rachel Maddow made an unusually ignorant statement concerning COVID-19 vaccination on the March 29, 2021 broadcast of The Rachel Maddow Show. MSNBC’s transcript confirms that Maddow said vaccines worked sufficiently that “the virus stops with every vaccinated person,” and that a vaccinated person exposed to the virus would not become infected or transmit it onward.
The statement ultimately proved dangerous. But that does not mean Maddow or MSNBC would automatically be liable in negligence, much less for billions of dollars. A plaintiff may face substantial obstacles involving duty, reasonable care based on information available in March 2021, reliance, causation, First Amendment protections, statutes of limitation, and proof of damages. However, a jury full of people whose friends lost parents, grandparents or loved ones may punish Maddow and MSNBC to make a point. The point is that you can’t just make stuff up that can get people hurt.
I. The Statement Was Confused and Ignorant, but Context Matters
The first important distinction is between proving that a statement was inaccurate and proving that making it was negligent when made.
On or about March 29, 2021—the same day as Maddow’s broadcast—the CDC reported real-world evidence that the Pfizer and Moderna vaccines reduced infection risk by approximately 90% among vaccinated frontline workers. However, to most educated folks, the word reduced does not mean eliminated. Maddow’s broadcast may have discussed those findings before making her pro-vaccine statement.
Later evidence established reductions but not proof. By June 2021, CDC dangerously described the vaccines as possibly reducing infection risk by approximately 91%, rather than eliminating infection, and expressly acknowledged infections among fully vaccinated persons. By July, CDC reported evidence that vaccinated persons infected with Delta could transmit the virus.
Therefore, a class action lawsuit or plaintiff lawsuit against Maddow or MSNBC could plausibly characterize Maddow’s wording as materially more absolute than the underlying evidence warranted. The defense, however, would have a weak but understandable response: she was reporting emerging scientific evidence and governmental public-health findings in real time rather than knowingly inventing medical information. They may also claim that the Maddow show is just hyperbole and viewers should rely on anything she says as being true which is a standard media legal claim. Plaintiffs and Wrongful Death Plaintiffs may say that Maddow paid for a PhD diploma from Oxford, and thus, her alleged higher education prevents her from any deniability or excuses.
II. Negligent Misrepresentation Is Not an Automatic Fit
The proposed theory under Restatement (Second) of Torts §552 is interesting. Section 552 traditionally concerns false information supplied for the guidance of others in business transactions, not every inaccurate factual statement broadcast to the general public. A plaintiff might instead pursue ordinary negligence or another applicable misrepresentation theory.
The essential questions would include:
Did Maddow or MSNBC owe this particular plaintiff a legal duty? Was that duty breached? Did the plaintiff actually and reasonably rely upon the statement? Did that reliance cause a specific injury?
The duty question may be the initial obstacle; however, a reasonable order-of-magnitude estimate is around 650,000–750,000 COVID-associated deaths from Maddow’s Statement around March 30, 2021 through the end of 2023. Thus, wrongful death class action lawsuits could prevail against Maddow for just making one stupid statement to the public. Thus, Maddow may have known or should have known that that type of statement was dangerous.
Courts have historically resisted imposing broad negligence liability upon publishers merely because published information proves inaccurate; but the Alex Jones case has changed everything and Maddow could be sued for various charges in various state and federal courts. A jury awarded over $1 Billion in damages against journalist Alex Jones, and he did not get anyone killed.
That precedent significantly strengthens the proposition that Maddow/MSNBC and its insurance companies may automatically become legally responsible whenever medical information broadcast on its network proves erroneous.
For a hypothetical complaint against a talk show host like Maddow and/or MSNBC, the potential lawsuit or class action claims against Maddow and the Media could be summarized as:
- Negligence — Making materially inaccurate public-health assertions without exercising reasonable care, allegedly causing foreseeable physical injury.
- Wrongful Death — Alleging that negligent misinformation and resulting reliance proximately caused a person’s COVID infection and death.
- Survival Action — Recovery by a decedent’s estate for injuries, medical expenses, lost earnings, and other damages suffered before death.
- Negligent Misrepresentation — Providing materially false factual information without reasonable care where plaintiffs allegedly relied upon it to their detriment, subject to important jurisdictional limitations on this tort.
- Recklessness / Gross Negligence — Alleging conduct substantially beyond ordinary negligence, such as conscious disregard of a known or obvious risk.
- Negligent Undertaking / Assumption of Duty — Alleging defendants undertook to provide or verify health-and-safety information but performed that undertaking negligently.
- Negligent Supervision — Claim against the employer for allegedly failing to supervise personnel making potentially dangerous medical or public-health assertions.
- Negligent Training — Alleging inadequate training or procedures governing how broadcasters communicated medical information.
- Negligent Retention — Potentially applicable if the employer knew of a pattern of dangerous conduct yet continued allowing the employee to engage in it.
- Corporate/Editorial Negligence — Alleging independent failures by MSNBC in fact-checking, editorial review, medical-source verification, corrections, or other safeguards, assuming applicable law recognizes the asserted duty.
- Fraudulent Misrepresentation — Potentially available only with evidence that a defendant knowingly or recklessly made a false material representation with the requisite intent and that the plaintiff justifiably relied upon it.
- Fraudulent Concealment / Nondisclosure — Potentially applicable if defendants subsequently possessed material contrary information, had a legal duty to disclose or correct it, and intentionally concealed or withheld it.
- Vicarious Liability / Respondeat Superior — Holding MSNBC/NBCUniversal responsible for an actionable tort committed by an employee within the scope of employment.
- Loss of Consortium — A derivative claim potentially available to a spouse or qualifying family member when the underlying tort caused serious injury or death.
- Punitive/Exemplary Damages — Not ordinarily an independent cause of action, but potentially requested if plaintiffs prove the heightened culpability required by the applicable state’s law.
Each state has different rules and laws. For example, some states may allow a case for Conspiracy to be filed against Maddow and MSNBC. ie Some states allow charges of civil conspiracy when two or more persons agree to accomplish an unlawful objective, or a lawful objective by unlawful means, commit an overt act in furtherance of that agreement, and thereby proximately cause damages to another person.
III. Broadcast Speech Can Nevertheless Produce Tort Liability
The First Amendment does not create absolute immunity for broadcasters.
Example: Weirum v. RKO General, Inc. provides an important counterexample. A radio station conducted a contest that foreseeably encouraged young listeners to race through Los Angeles to reach a mobile disc jockey. A resulting automobile accident killed a motorist. The California Supreme Court upheld liability, reasoning that the broadcast created a foreseeable and unreasonable risk of physical harm.
A plaintiff suing over Maddow’s statement would therefore attempt to move the caselaw toward Weirum: this was allegedly not merely erroneous journalism, the argument would run, but affirmative health-and-safety information foreseeably affecting viewers’ conduct. The defense may have difficulty disputing that analogy.
IV. Causation is a Central Problem for Plaintiff and Defendant
Even assuming duty and breach, obtaining billions of dollars would require extraordinary proof of causation.
Imagine a wrongful death plaintiff alleging:
- They watched Maddow’s March 29 broadcast or somebody told him/her about it.
- They specifically believed Maddow’s statement that vaccinated people could not transmit COVID;
- Because of that statement, he changed behavior he otherwise would have maintained;
- he encountered a vaccinated infected individual or transmitted COVID while vaccinated; Lets say he visited his grandma after being vaccinated.
- the relevant transmission resulted from that behavioral change;
- the infection produced identifiable injury; i.e. Grandma died after the visit and nobody else had ever visited.
- A judge and Jury now are looking at MSNBC and Maddow’s statement as a proximate legal cause of those damages.
- Lets say there are 30,000 plaintiffs with a similar story suing MSNBC for negligence and wrongful death etc….
A person who watched Maddow, visited a vaccinated relative, became infected, infected another person, who infected someone else who subsequently died presents a dramatically more expanded causation case where a plaintiff or their estate could feasibility document direct reliance and immediate injury.
The number of variables may be large, but the statement is like the Weirum v. RKO General, Inc. case where a statement got somebody killed and causation could be explained to a judge and jury.
V. Could a Jury Award Billions?
A jury theoretically can return an enormous multi billion verdict where legally recoverable injuries and punitive damages are shown to an empathetic judge and jury. See Alex Jones/Sandy Hook. Further, a billion-dollar verdict against Maddow personally based solely upon this broadcast may be easier today than ever as juries are angry about deaths in the neighborhood and about disgraced Dr. Fauci and his bizarre statements and taking the 5th etc.
Compensatory damages must correspond to proven injuries attributable to the defendant. A plaintiff can simply calculate all American COVID deaths or infections after March 29, 2021 and attribute some percentage to Maddow using rudimentary comparative negligence principles 101.
Punitive damages present an additional kick in the stomach to media. Merely being wrong or even negligent ordinarily does not justify punitive damages; however, if a plaintiff can easily show evidence of substantially more culpable conduct under the governing state’s law—such as malice, fraud, recklessness, conspiracy, bribery, or conscious disregard, then the door is open to making Rachel Maddow the next Alex Jones but 10X worse as people a jury can be shown how many people died and try to attribute as much as possible to Maddow or the Media.
Overall, the statement by Maddow is a huge problem. While there are statutes of limitations, if new evidence is uncovered like the Fauci diary or other evidence, it may open the door for lawsuits for years to come.
VI. MSNBC, Executives, Shareholders and Insurers
If Maddow were found liable for conduct within the scope of her employment, corporate liability could potentially arise under respondeat superior, depending upon the governing law. A separate direct-negligence theory against the network might require proof of an independent duty and breach.
But the proposed chain should stop there absent unusual facts.
Corporate executives are not ordinarily personally liable simply because an employee commits a tort. Shareholders are even further removed: ordinary shareholders generally enjoy limited liability and would not personally pay tort judgments merely because they own stock.
Shareholders could potentially bring derivative or securities litigation if separate requirements were established, but that would constitute a different cause of action—not an automatic extension of the original negligence claim.
Insurance presents another separate question. Whether an insurer paid anything would depend upon the actual policy language, insured parties, exclusions, policy limits, notice provisions and whether the particular claim constituted a covered occurrence. However, nobody in their right mind would want to insure Maddow or Alex Jones if juries and judges can award billions for doing a talk show.
Conclusion
There is a legally significant distinction between saying Maddow made an inaccurate categorical medical assertion and saying a jury could hold her responsible for billions of dollars of pandemic damages.
The first proposition is supportable: her March 29 statement was categorical, while the underlying CDC evidence showed approximately 90% protection against infection—not literal impossibility of infection—and subsequent evidence conclusively demonstrated breakthrough infection and transmission.
The second proposition faces formidable barriers.
A viable plaintiff would need to establish duty, breach, actual reliance, factual causation, proximate causation and legally recoverable damages while overcoming substantial protections traditionally afforded publishers and broadcasters. Weirum demonstrates that broadcast speech can create negligence liability when it foreseeably creates physical danger, but Winter demonstrates courts’ reluctance to transform publishers into guarantors of factual accuracy.
Accordingly, a negligence lawsuit based on Maddow’s statement is conceptually impossible, particularly if a plaintiff or dead person’s estate could prove the victims direct reliance and physical injury. Thus, a multibillion-dollar verdict against someone who got caught such as Maddow or MSNBC based upon the March 29, 2021 statement would change the media forever based on the presently known facts, a case like this could survive the IQBAL, and duty, causation, damages, First Amendment, and appellate rules that would follow such a verdict. However, once a pleading gets past IQBAL rules, the federal courts can allow sweeping discovery which could expose all types of problems.
Legal NOTE: Alex Jones’s case demonstrates that freedom of speech does not provide immunity from civil liability for harmful speech. Jones used his radio and online platforms and may have falsely portrayed the Sandy Hook school shooting as not a real serial killing and attack its authenticity as it was a severally mentally disabled child who killed all of the victims. Families testified that the broadcasts contributed to years of harassment, threats, reputational injury, and severe emotional distress. Jones was ultimately held liable by default after repeated discovery violations, so the Connecticut jury primarily determined damages rather than liability. It awarded $965 million in compensatory damages, an award later upheld on appeal. Combined litigation produced judgments exceeding $1 billion.
Commissioner George Mentz, JD, MBA, CILS, is an international lawyer, law professor for a top 25 law school, award winning author, educator, and former White House Commissioner who has served as Chairman of the Civil Service Commission (Chief of the Tribunal) and Commissioner for the Airport Commissions and as a Judge for the American Bar Association. He has written extensively on economics, law, wealth management, international affairs, and public policy. George Mentz and The Mentz Law Firm has managed high level litigation against offenders for theft, conspiracy, IP infringement, defamation, fraud, and punitive damages.
