Child of Zionsville fertility doctor wins case against Netflix for invasion of privacy

A child of Zionsville fertility doctor Donald Cline has prevailed in a lawsuit against Netflix and an associated production company after the defendants used her name in a Netflix documentary without her consent.

The lawsuit, filed in the Indiana Southern District Court, settles a more-than-two-year battle with the streaming service over its documentary, “Our Father.”

The documentary recounts one woman’s discovery of dozens of half-siblings who all share the same father, fertility specialist Cline, who inseminated several of his patients with his own semen without their knowing. Through his fertility fraud, Cline fathered at least 94 children, according to the lawsuit.

The federal court granted in part and denied in part the defendants’ motion for summary judgment, awarding plaintiff Lori Kennard $385,000 in compensation for invasion of privacy by disclosure of a private fact.

In May and June 2022, the three plaintiffs filed separate state court actions against Netflix LLC, Netflix Worldwide Entertainment LLC, and RealHouse Productions LLC on five counts:

• Public disclosure of private facts
• Deception under the Crime Victim’s Relief Act
• Intentional infliction of emotional distress
• Identity deception under the Crime Victim’s Relief Act
• Theft under the Crime Victim’s Relief Act
• The issue surrounds the showing of the plaintiffs’ names and relations as half-siblings in the documentary, which they did not consent to.

In the film, one of the half-siblings, Jacoba Ballard, can be seen scrolling through the list of matches she received on the ancestry website 23andMe.

The defendants removed the three plaintiffs’ actions to the federal court, where they were consolidated.

In December 2022, the defendants moved for judgment on the pleadings. The court granted the motion on two counts, but denied the motion for three other counts.

The following October, the defendants filed a motion for summary judgment on the plaintiffs’ remaining claims for public disclosure of private facts, deception under the CVRA, and intentional infliction of emotional distress.

Summary judgment was granted to defendants for public disclosure of private facts against one plaintiff because, while the court found plaintiff Laura DiSalvo did not fail to keep her connection to Cline private on 23andMe and a private Facebook group for the half-siblings, she willingly revealed her identity to a journalist and podcast host and gave RealHouse Productions a childhood photo of herself for use in the documentary.

The court granted summary judgment on the deception count to the defendants against plaintiffs Sarah Bowling and DiSalvo, because the plaintiffs failed to show the defendants obtained property from them by making false or misleading statements.

Summary judgment was also granted for the defendants on count three, intentional infliction of emotional distress, against all plaintiffs because the court did not find that the inclusion of plaintiffs’ names in the documentary was “sufficiently extreme or outrageous to support an IIED claim.”

“The only arguably ‘outrageous’ conduct by defendants was their depiction of Dr. Cline as a ‘white supremacist, a member of an Aryan Clan, and a cult member.’ But because Dr. Cline and his misconduct are matters of public concern, defendants’ depictions of him and his actions is entitled to First Amendment protection,” Chief Judge Tanya Walton Pratt wrote.

Summary judgment was denied for defendants regarding plaintiffs Bowling and Kennard’s claims for public disclosure of private facts.

The court also denied summary judgment as to punitive damages for plaintiffs Bowling and Kennard, as defendants did not take the appropriate steps to determine whether the plaintiffs’ names needed to be in the documentary. RealHouse Productions knew the half-siblings were promised anonymity, and Netflix failed to appropriately make that happen.

Because the plaintiffs’ names are not matters of public concern, they did not need to prove actual malice to receive punitive damages, Pratt wrote.

Pratt directed the court clerk to terminate plaintiff DiSalvo as a party in the motion for summary judgment action, and no final judgment was issued on her claims at the time.

A jury trial was held to try the count of public disclosure of private facts for Bowling and Kennard. On Dec. 6, the jury returned an unanimous verdict on all counts.

The jury returned a verdict in favor of defendants and against plaintiff Bowling, and returned a verdict in favor of Kennard, who was awarded compensatory damages.

Cline was criminally charged with obstruction of justice and handed a one-year suspended sentence in 2017 after pleading guilty to charges that he lied to investigators when he denied wrongdoing for inseminating the women.

After his expired license was eventually surrendered to the Indiana Medical Licensing Board, the panel voted to bar Cline from ever applying for a license in Indiana again.

In 2019, because of the Cline case, Indiana lawmakers passed a law allowing felony charges in cases of deception involving human sperm, eggs or embryos.