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MCBRIDE v. MERRELL DOW & PHARMS.

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 ...

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