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MCBRIDE v. MERRELL DOW & PHARMS.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


June 13, 1985

WILLIAM G. McBRIDE, M.D., Plaintiff,
v.
MERRELL DOW AND PHARMACEUTICALS, INC., et al., Defendants.

Barrington D. Parker, United States District Judge

The opinion of the court was delivered by: PARKER

MEMORANDUM OPINION

Barrington D. Park, District Judge:

 This defamation action comes before the Court on the parties' cross-motions for summary judgment following remand from the Court of Appeals. The action arises from the publication of an article entitled "How Safe Is Benedectin?" in Science magazine on October 31, 1980. The Court of Appeals affirmed in part and reversed in part this Court's initial decision dismissing the plaintiff's complaint for failure to state a cause of action. McBride v. Merrell Dow and Pharmaceuticals, Inc., 230 U.S. App. D.C. 403, 717 F.2d 1460, 1467 (D.C. Cir. 1983). The text of the article is attached to this opinion as Appendix A. This Court had dismissed the complaint after holding that "nothing in the article is found capable of bearing a defamatory meaning." 540 F. Supp. 1252, 1255 (D.D.C. 1982). With respect to all but one of the allegedly defamatory statements, the Court of Appeals agreed. 717 F.2d at 1464-65. The Court of Appeals noted that it was "troubled" by improbability of this single remaining claim, id. at 1461, 1466 and suggested that this Court

 

proceed upon remand in a manner that will minimize, so far as practicable, the burden a possibly meritless claim is capable of imposing upon free and vigorous journalism.

 Id. at 1462. With these remarks in mind, the Court will briefly discuss the background of this litigation, *fn1" the Court of Appeals' holding in light of the questions which must be decided on remand, and the reasons supporting the conclusion that the plaintiff cannot as a matter of law prevail in this action.

 A.

 FACTUAL BACKGROUND

 The plaintiff in this action is Dr. William G. McBride, a world-renowned expert in the field of teratology, the study of birth defects. Complaint at PP 1, 13. Dr. McBride, an Australian, first acquired his reputation through research directed at the relationship between the drug thalidomide and certain birth defects. The Science article was published after Dr. McBride's trip to the United States to testify before the Food and Drug Administration ("FDA") about the safety of another drug, Benedectin, which has also been associated with certain birth defects. The hearing took place several months after Dr. McBride testified as an expert witness on behalf of the plaintiffs in an Orlando, Florida lawsuit which sought recovery for birth defects allegedly caused by the use of Benedectin. Mekdeci v. Merrell National Laboratories, No. 77-255 (M.D. Fla.). *fn2"

 In connection with a general discussion about the safety of Benedectin, the Science article made several assertions about the various experts who testified both for the plaintiffs at the Mekdeci trial and before the FDA panel. With respect to Dr. McBride, the article stated, among other things, that he

 

was paid $ 5,000 a day to testify in Orlando. In contrast, Richardson-Merrell, pays witnesses $ 250 to $ 500 a day, and the most it has ever paid is $ 1,000 a day.

 Although several statements about Dr. McBride were challenged as defamatory, the witness fee statement is the only assertion which survives the Court of Appeals' ruling.

 The defendants in this litigation are Gina Bari Kolata, the author of the article, the American Association for the Advancement of Science ("the Association"), the publisher of Science magazine, three Merrell Dow corporate entities, the manufacturer of Benedectin, Frederic Lamb, Merrell Dow's general counsel, and Robert Irvine, a public relations officer at Merrell Dow. *fn3" Ms. Kolata and the Association are charged with responsibility for the witness fee statement and its dissemination. The complaint against the individual and corporate Merrell Dow defendants rests on two grounds: statements made during alleged communications with Ms. Kolata and subsequent dissemination of the article. Specifically, the complaint alleges that defendant Irvine, at the behest of his employer and Lamb, "spread lies and deceit" to Ms. Kolata, Complaint P 8, and that Merrell Dow "plant[ed] [] false and scurrilous statements" in the article. Id., P 13. After remand, the only possibly actionable statement which can be attributed to Merrell Dow is their alleged statement that they generally paid their experts $ 250- $ 500 a day to testify, and had never paid an expert more than $ 1,000 per day. Id., P 13(b).

 In contrast, the complaint does not assign responsibility for the statement about Dr. McBride's remuneration to Merrell Dow. Although the source of this statement is not alleged in the complaint, id., it is apparently based on the remarks of Melvin Belli, an attorney of record in the Mekdeci case. The Court of Appeals referred to public statements made by Belli that "it cost me $ 5,000 a day to bring [Dr. McBride] to the Mekdeci case," and "we've got a guy, McBride, here from Australia, $ 5,000 a day." 717 F.2d at 1464 n.6 (citations omitted).

 The complaint further alleges that Merrell Dow subsequently disseminated the article "as part of its scheme to silence plaintiff, indoctrinate the scientific community and avoid or stall access to the courts for maimed babies." Complaint P 12. The activities of all the defendants were allegedly done "with actual malice." Id., P 22.

 B.

 THE COURT OF APPEALS OPINION

 As already noted, the Court of Appeals held that only the witness fee statement could possibly state a claim upon which relief can be granted. It opined that:

 

it is not possible for us to conclude, however, that the published statement that McBride was paid $ 5,000 a day to testify in the Florida trial, particularly when directly compared with the amounts Merrell Dow paid its expert witnesses, is incapable of bearing a defamatory meaning.

 717 F.2d at 1465. The Court cautioned that in the event the plaintiff is found to be a public figure, he must prove actual malice in order to prevail. *fn4" The Court gave its opinion that

 

though the district court did not rule upon the point and we do not foreclose any decision that court may make after briefing and argument, we think it highly likely, in the context in which this case arises, at least, that Dr. McBride is a [limited] public figure.

 Id. at 1466.

 Finally, the Court urged that if the plaintiff was determined to be a public figure, discovery after remand should, at least initially, be confined to issues which might support summary disposition of the case. This is because "suits -- particularly those bordering on the frivolous -- should be controlled so as to minimize their adverse impact upon press freedom." This Court construes these remarks to mean that if Dr. McBride is a public figure, the question of actual malice might be decided on summary judgment.

 This Court thus directed that discovery be limited initially to two issues which, taken together, might support summary judgment. First, the Court directed the parties to explore Dr. McBride's status as a public figure. Second, the Court permitted discovery on the question of the fee Dr. McBride earned in the Florida trial. It was anticipated that both of these inquiries would shed some light on the issue of whether Dr. McBride could ultimately prevail at trial on the question of actual malice.

 In limiting the scope of discovery on remand, the Court relied in part on the Court of Appeals' statement that "should the district court rule that McBride is a public figure, the sense in which the fee statement is true would make it extremely difficult, if not impossible, to prove actual malice." (Memorandum Order denying rehearing en banc, filed Feb. 22, 1984). Normally, the question of the truth of a statement should be decided by the jury, and the question of actual malice should only be resolved after conducting an inquiry into the state of mind of the author. Here, however, the resolution of the first question, coupled with the special circumstances of this case, makes discovery specifically directed to actual malice burdensome and unnecessary. Based on the proceedings conducted after remand, the Court concludes that summary judgment for the defendants is warranted.

 C.

 DETERMINATIONS AFTER REMAND

 Public Figure Status

 Defamation law recognizes two types of public figures: general and limited public figures. A general or all-purpose public figure is a person who enjoys "general fame or notoriety in the community." Gertz v. Robert Welch, Inc., 418 U.S. 323, 351-52, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974). In contrast, a limited-purpose public figure is "an individual [who] voluntarily injects himself or is drawn into a particular public controversy and therefore becomes a public figure for a limited range of issues." Id. at 351. After considering these standards, the Court rejects the defendants' suggestion that Dr. McBride may have acquired the status of a general public figure, but agrees that he is a limited public figure for purposes of this litigation.

 The decision in Waldbaum v. Fairchild Publications, Inc., 201 U.S. App. D.C. 301, 627 F.2d 1287 (D.C. Cir.), cert. denied, 449 U.S. 898, 66 L. Ed. 2d 128, 101 S. Ct. 266 (1980) sets out the appropriate framework for the limited public figure analysis. It directs the Court to determine whether a public controversy exists, examine the nature of the plaintiff's role in the controversy, and consider whether the alleged defamation was relevant to the controversy. Id. at 1296-98. Prototypical public figures are those individuals who have "thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved... they invite attention and comment." Gertz, 418 U.S. at 345.

 After applying this test, the Court has little difficulty concluding that Dr. McBride was a limited-purpose public figure in the context of the Bendectin controversy. First, there was in fact a rather heated public controversy surrounding the safety of Bendectin and its role in causing birth defects. The highly-publicized Florida litigation and the controversial FDA hearings provide two of many examples of the turmoil following the manufacture of the drug. The hundreds of pages of exhibits accompanying the defendants' motion for summary judgment demonstrate the wide publicity afforded the controversy and the emotional nature of the issues which were aired. See Ex. A, filed Aug. 17, 1984. These submissions demonstrate that the manufacture of Benedectin provoked a far-ranging public controversy. *fn5"

 Second, Dr. McBride played a significant role in the Benedectin controversy, a role which was entirely voluntary. Moreover, the role he chose to play in the controversy was one designed to affect the outcome of the public debate. See Waldbaum, 627 F.2d at 1298. Dr. McBride could hardly have agreed to testify at the Orlando trial and the FDA hearing without intending that his testimony would, to a significant degree, color the public's perceptions about the safety of Bendectin.

 Nevertheless, McBride argues that he is not a public figure for purposes of the Benedectin controversy. He asserts that he has had no contact with the United States media, and that he has never sought to influence public opinion through the media. Affidavit, Plaintiff's Ex. (PX) A, filed Sept. 24, 1984. Even so, Dr. McBride should have been aware that both the media and the public would pay close attention to the Bendectin controversy, and that his role in that conflict might generate commentary "of a hurtful and perhaps unfair nature." 717 F.2d at 1466. Dr. McBride is no stranger to these risks. As one of the fathers of teratology, McBride Dep. at 370-71, filed June 7, 1984, he was one of the central figures in the thalidomide controversy, and over the years he has spoken out about drugs and other agents that cause birth defects, including Benedectin. See, e.g., Complaint P 13; McBride Dep. at 364-66, 400-01, 413-14, 416, 420-22. He cannot now be heard to complain about the prominence of the role that he has chosen for himself, and the risks that he has voluntarily assumed.

 Actual Malice: Ms. Kolata and the Association

 A public figure must prove actual malice in order to prevail against a media defendant. Actual malice means that the defendant had "knowledge of [the] falsity or showed reckless disregard for the truth," McBride, 717 F.2d at 1466 (citing New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1963)), or put differently "entertained serious doubts as to the truth of his publication." St. Amant v. Thompson, 390 U.S. 727, 731, 20 L. Ed. 2d 262, 88 S. Ct. 1323 (1968). Actual malice must be established by clear and convincing evidence. Bose Corp. v. Consumers Union of U.S. Inc., 466 U.S. 485, 104 S. Ct. 1949, 1965 n.30, 80 L. Ed. 2d 502 (1984).

 The touchstone for this analysis is the state of mind of the defendants, *fn6" bearing in mind that "there is a significant difference between proof of actual malice and mere proof of falsity." Id. at 1965. The Court is well-aware of the recent admonition that "proof of 'actual malice'...does not readily lend itself to summary disposition." Hutchinson v. Proxmire, 443 U.S. 111, 120 n.9, 61 L. Ed. 2d 411, 99 S. Ct. 2675 (1979). Nevertheless, several factors, highlighted by the record which has been developed in this case, justify the conclusion that a reasonable jury could only conclude that the media defendants lacked actual malice.

 First, the nature of the statement concerning Dr. McBride's remuneration, taken alone, is neither literally true nor literally false. This is due to the rather unusual method of compensation which Dr. McBride received in the Mekdeci case. Although the reference to his expert witness fee is ostensibly a statement of fact, the statement is inevitably influenced by subjective perceptions which, as the Court of Appeals remarked, make it both correct and incorrect.

 At oral argument, it was assumed that Dr. McBride received $ 5,000, including air fare, in return for his testimony. McBride, 717 F.2d at 1464. McBride believed this sum represented reimbursement for the 5 weekdays he was unable to attend to his Australian practice, at the rate of approximately $ 1,000 per day, excluding air fare, rather than compensation for one day of trial testimony. *fn7" As the Court of Appeals noted, however, an alternative interpretation of Dr. McBride's compensation makes the statement in a sense correct. Id. at 1465. This interpretation emphasizes what the Mekdeci plaintiffs received in return for their money: one day or less of trial testimony. It is for this reason that the statement is neither true nor false, and the defendants cannot be said to have acted with reckless disregard for the truth of a statement which was capable of such varying interpretations.

 Although the plaintiff apparently concedes this point, he argues that the statement is false because it is juxtaposed with the assertion concerning the compensation paid the Merrell Dow experts. He argues that the statement conveys the impression that he was paid at least as much as five times for his services as the Merrell Dow experts ($ 5,000 versus $ 1,000), despite the fact that their actual compensation was nearly equal. He submits the deposition testimony of Olli Heinonen, an expert for the defendant in the Mekdeci case, to show that Heinonen received approximately $ 800- $ 1,000 per day for his trial testimony, PX-B at 7, PX-C at 8, computed on the basis of the number of days he devoted to the Mekdeci litigation. Since Dr. McBride was also paid $ 1,000 a day for the weekdays he spent away from his practice in Australia, he argues that the rates of the two experts were in fact commensurate, and the impression conveyed by the Science article was false.

 The Court agrees that the Heinonen testimony indicates that the compensation of the experts in the Mekdeci trial did not vary as much as the Science article implies. This implication, however, is not necessarily false. This is because the rates paid the two experts cannot be meaningfully compared. Dr. McBride was paid for the time he spent in the United States whether or not he spent that time working on the Mekdeci case; Dr. Heinonen was apparently paid based on the time he devoted to the case. Hindsight indicates that it would have been difficult to compare the two fee arrangements, and the comparison which Ms. Kolata attempted was not clearly false. Accordingly, the plaintiff's motion for summary judgment on the falsity of the witness fee statement is denied.

 In any event, the ultimate question is not the truth or falsity of this comparison, but whether the statement could have been made with actual malice. The following scenario, which has been drawn from the complaint and the discovery conducted thus far, is relevant to this inquiry.

 This scenario begins with the Science article, which compared the fees paid Dr. McBride in the Mekdeci case with the compensation received by experts who testified for Merrell Dow. The source for this statement was apparently twofold. Melvin Belli, one of the lawyers in the Mekdeci case, bragged that Dr. McBride was paid $ 5,000 per day. A representative of Merrell Dow allegedly told Ms. Kolata that it had never paid its experts more than $ 1,000 per day, Complaint P 13(b). The second half of this statement is openended, and presumably refers to the fees incurred in similar litigation involving birth defects.

 The portion of the statement referring to Dr. McBride was not clearly false because it was capable of at least two interpretations, neither of which is clearly false. See supra at 10-12. The portion of the statement about Merrell Dow's experts, whether or not it is true, is not defamatory of Dr. McBride because it makes no references to him. Taken together, the juxtaposition of the two halves of the statement may have created a misleading impression about Dr. McBride's fee schedule for the Mekdeci case. Nevertheless, an examination of the scenario described above, coupled with other relevant factors, demonstrates that neither Ms. Kolata nor the Association can be held liable for actual malice.

 First, the "sense in which the fee statement is correct," McBride, 717 F.2d at 1465, coupled with the obvious difficulty of drawing any relevant comparisons in this confusing and rather complex area of expert reimbursement, negates a finding of actual malice. Dr. McBride himself has exhibited considerable confusion about the amount of money he received for his Mekdeci testimony and the number of workdays which were actually expended during his Orlando trip. Initially, he argued that he was reimbursed for a 5-day absence from Australia. His subsequent deposition testimony demonstrates that he was actually reimbursed for a 13-day absence. To complicate the matter even further, the plaintiffs have a proffered some evidence that Dr. McBride received compensation for 17 days during the Mekdeci trial, relying on a document unearthed after his deposition. Defendants' Ex. D-36.

 These various estimates are at best confusing and conflicting. Four years after this litigation commenced, the truth about Dr. McBride's compensation is still unknown. This demonstrates the preposterousness of a finding that Ms. Kolata could have acted with actual malice, when Dr. McBride was himself unsure about his remuneration. *fn8"

 Second, other facets of the publication of the Science article show that no reasonable jury could find that the witness fee statement was a deliberate falsehood. The tenor of the article as a whole exhibits a commendable effort to present both sides of an extremely emotional controversy. While the article may have questioned the soundness of Dr. McBride's opinions about the safety of Benedectin, it cannot be characterized as an attack on Dr. McBride's reputation as a pioneer in the field of birth defect research. It is significant that Dr. McBride is referred to as "one of the first to suspect that Thalidomide caused birth defects." McBride, 717 F.2d at 1470. The article also notes Merrell Dow's responsibility for marketing the dangerous drug Thalidomide, id. at 1469, a statement which is hardly complimentary of the parties on the other side of the controversy. Thus, on balance, the article presents a fair picture of both sides of the Benedectin controversy and Dr. McBride's role in that controversy.

 In addition, the Association complied with McBride's request that it publish a retraction of the witness fee statement. See Complaint, Exs. J, K. The retraction accurately reported Dr. McBride's interpretation of his reimbursement rate for the Mekdeci case. Interestingly, although Dr. McBride requested a wholesale retraction which essentially tracked the subsequent allegations of his complaint, the Association retracted only the witness fee statement. This statement, of course, is the only statement in the article which, in the opinion of the Court of Appeals, stated a claim upon which relief could be granted. Thus, the tenor of the article, coupled with the Association's entirely reasonable retraction, also lends support to the conclusion that the article is not defamatory under the applicable constitutional standards.

 Merrell Dow defendants

 Finally, the Court must consider the plaintiff's cause of action against the Merrell Dow defendants. Although the Court of Appeals did not specifically direct a separate inquiry into the status of these nonmedia defendants, such an inquiry is necessary because it is unclear whether the first amendment protections afforded media defendants apply to nonmedia defendants. See Waldbaum, 627 F.2d at 1291, 1293. In other words, if the complaint states a claim against the Merrell Dow defendants, a lack of actual malice on their part will not necessarily preclude liability for defamation. However, the question of the Merrell Dow defendants' state of mind need not be examined because the complaint, as written, fails to state a claim against them.

 As already noted, the sole basis for the liability of the Merrell Dow defendants is the dissemination of the allegedly defamatory article to the American Medical Association, Merrell Dow managers, and various pharmacists. They are not alleged to have themselves made any defamatory statements about Dr. McBride. Thus, their liability is premised on their alleged "republication" of the article.

 Liability for dissemination of defamatory material is not openended. The courts have required a showing of special circumstances imposing a duty on the distributor to ascertain the defamatory character of the publication. See Restatement (Second) of Torts ยง 581; Lerman v. Chuckleberry Publishing, Inc., 521 F. Supp. 228, 235 (S.D. N.Y. 1981), rev'd on other grounds, 745 F.2d 123 (2d Cir. 1984). This is to prevent the imposition of liability on an individual where he had no reason to know of any false statements. For instance, the owner of a newstand cannot be held liable for the sale of defamatory material for which he personally bore no responsibility, absent special circumstances.

 Here, the complaint does not allege any circumstances which would support a finding of liability against Merrell Dow. The complaint and accompanying exhibits allege only that various Merrell Dow employees were responsible for the dissemination of the Science article. As a corporation, Merrell Dow can act only through its agents and employees, and their knowledge thus provides the only basis for a finding of liability. Of these individuals, only defendant Lamb, as the general counsel for Merrell Dow, could conceivably have any reason to know of the fees charged by Dr. McBride. This tangential connection to the Mekdeci litigation provides too tenuous a link on which to premise a claim for defamation. Under these circumstances, summary judgment should also be entered in favor of the Merrell Dow defendants.

 CONCLUSION

 The Court determines that summary judgment should be entered in favor of all defendants, and dismisses the plaintiff's complaint with prejudice. The Court denies the defendants' request for an award of attorneys' fees as the prevailing parties. Although this lawsuit is indeed meritless, the Court of Appeals permitted the parties to explore certain issues on remand, and it would be inappropriate to punish the plaintiff for pursuing these opportunities. An appropriate Order accompanies this Memorandum Opinion.

 Entered : June 13th, 1985

 Barrington D. Parker

 United States District Judge

 ORDER

 It is this 13th day of June, 1985,

 ORDERED

 That the defendants' motion for summary judgment is granted, and the plaintiff's motion for summary judgment is denied. The complaint is hereby dismissed with prejudice, and judgment is entered in favor of the defendants.

 That the defendants' request for fees in connection with their motion for summary judgment is denied.

 That the defendants are awarded costs against the plaintiff.

 Barrington D. Parker

 United States District Judge

 ORDER

 It is this 13th day of June, 1985,

 ORDERED

 That the motion of the defendants the American Association for the Advancement of Science and Gina Bari Kolata for an award of attorneys' fees, filed May 24, 1984, is hereby denied.

 Barrington D. Parker

 United States District Judge


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