Subscriber Benefit
As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe Now
Children who were fathered by disgraced Indianapolis fertility specialist Donald Cline can proceed with three of their claims against Netflix and a production company, but a federal judge dismissed identity deception and theft claims.
The order granting in part and denying in part the defendants’ motion for judgment on the pleadings came Tuesday from Southern District of Indiana Chief Judge Tanya Walton Pratt.
The plaintiffs — three unnamed children who allege the Netflix documentary “Our Father” disclosed without their consent their identities as Cline’s children — can proceed with their claims of invasion of privacy, deception and intentional infliction of emotional distress.
In dismissing the claim of identity deception, the court had to consider Indiana Code § 35-43-5-3.5, which previously provided that someone who “knowingly or intentionally obtains, possesses, transfers, or uses the identifying information of another person” without consent is committing identity deception. However, the law was recently amended to remove the consent requirement.
The court said the children didn’t plead sufficient facts to make the claim plausible, ruling the statute as amended governs the claim because the documentary was released after the amendment.
The court also ruled the plaintiffs didn’t allege that the defendants “professed to be another person,” as required by the statute.
In dismissing the theft claim, the court agreed with the defendants’ argument that they never “exerted control” over the children’s identity, name, image, likeness and story — a required element for criminal conversion under I.C. 35–43–4–3(a).
Because the plaintiffs couldn’t establish conversion, a lesser-included offense to theft, the court ruled the theft claim “is not plausible on its face.”
The two dismissed causes were alleged under the Crime Victim’s Relief Act, as was the claim of deception, which the court allowed to proceed.
The defendants argued the repeal of I.C. 35-43-5-3 undercut the deception claim, but the children pointed to a savings clause passed by the Indiana Legislature that they argued safeguards the claim.
The deception statute was repealed effective July 1, 2021, and the court said the alleged deception occurred in April 2021, before the repeal.
The defendants argued the plaintiffs didn’t allege that Netflix or the production company intended to “obtain anything from them, through a writing or otherwise,” but the children argued their “identity, name, image, likeness, and story” were the purported property to be obtained through their participation in the documentary.
The court agreed with the children, ruling the question of whether the claim can survive summary judgment “is a matter for another day.”
The court also allowed an invasion of privacy claim to survive, ruling the defendants failed to show Indiana law currently recognizes an incidental-use exemption to the claim. The incidental use doctrine falls under the public disclosure of private facts, one of four injuries encompassed by invasion of privacy.
The court disagreed with the defendants’ argument that incidental use of the children’s names was not sufficient to allow their publicity claims.
Finally, the court allowed a claim of intentional infliction of emotional distress to move forward, ruling the children’s allegations are legally sufficient.
The defendants argued that claim should be dismissed because, in part, it fails to allege facts sufficient to show the conduct was “extreme and dangerous.”
But the court disagreed, noting the children’s allegation that Netflix and the production company pledged to not disclose their identities but later did anyway. That conduct, the court ruled, “perhaps suggests that Defendants are dishonest and acted with selfish economic motivation.”
“It also permits a plausible inference that Defendants’ intention was to harm Plaintiffs emotionally,” the order says.
The children filed the lawsuit in 2022. The Southern District of Indiana Court previously ruled the children had to permit DNA testing websites to share information about the privacy settings they used on the websites and how they used the websites to discover and communicate with each other.
Cline surrendered his medical license in 2018 but didn’t serve jail time after pleading guilty to charges that he lied to investigators, according to The Associated Press.
The case is JANE DOE, et al., v. NETFLIX, INC., et al., 1:22-cv-01281.
Please enable JavaScript to view this content.