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Date: 09-05-2001

Case Style: Metabolife International v. Susan Wornick, et al.

Case Number: 99-56814

Judge: Michael Daly Hawkins

Court: United States Court of Appeals for the Ninth Circuit

Plaintiff's Attorney: Stephen Mansfield (argued), Akin, Gump, Strauss, Hauer & Feld, Los Angeles, California, for the plaintiff-appellant.

Defendant's Attorney: Steven J. Comen (argued), and J. Anthony Downs, Goodwin, Procter & Hoar, Boston, Massachusetts, for defendants-appellees Hearst-Argyle Television, Inc. and Susan Wornick.

Robert O'Regan (argued), Burns & Levinson, Boston Massachusetts, and Gregory D. Roper, Luce, Forward, Hamilton & Scripps, San Diego, California, for defendant-appellee George Blackburn.

Description: The heart of this case lies at the difficult three-way intersection of the news media's desire to inform the public about the potential dangers of an over-the-counter herbal supplement, California's public policy interest in the prompt resolution of so-called "SLAPP suits," and the liberal policies underlying the discovery provisions of the Federal Rules of Civil Procedure. Metabolife appeals the dismissal with prejudice of state law claims against (1) an investigative reporter for local Boston television station WCVB-TV, (2) the station itself, (3) the station's parent corporation, and (4) a Harvard Medical School professor, Dr. George Blackburn. The complaint arises from a three-part "investigative report" that aired on WCVB in May 1999 detailing dangers allegedly associated with the use of Metabolife's main product, the herbal weight loss and energy supplement "Metabolife 356." Metabolife sought relief in the district court under California law.

FACTS AND PROCEDURAL HISTORY

The underlying facts are not in dispute. In May 1999, a local Boston television station (WCVB-TV) aired a three-part series of "investigative reports" prepared by its reporter Susan Wornick ("Wornick").1 These reports challenged the safety of Metabolife 3562 as well as the public policy influence of Metabolife founder Joseph Ellis, who a decade earlier sustained a felony conviction based on methamphetamine manufacturing.

When the station would not grant a retraction, Metabolife filed suit in district court based on diversity jurisdiction.3 Metabolife asserted claims under California state law for: (1) defamation; (2) slander; (3) trade libel; and (4) negligent and intentional interference with prospective economic advantage. Metabolife challenged eight discrete statements from the broadcast before the district court, only four of which are at issue on appeal:

1. A statement by Harvard Medical School professor Dr. George Blackburn, an obesity specialist, that "You can die from taking this product [Metabolife 356]."4

2. A statement by Wornick that, "Every expert we asked said Metabolife [356] is not safe because of its main ingredient, ma huang."

3. A statement by Wornick allegedly implying that Metabolife 356 had not been tested for safety.5

4. Statements by Wornick that Metabolife and methamphetamine share the same main ingredient, ephedrine.

* * *

The defendants -- Wornick, Dr. Blackburn, the station, and the station's parent corporation -- filed motions to strike Metabolife's complaint pursuant to California's"anti- SLAPP" statute, Cal. Civ. Proc. Code § 425.16.7 Defendants refused to engage in discovery pending the outcome of their motions pursuant to Cal. Civ. Proc. Code § 425.16(g).

Metabolife responded by moving to compel full responses to its written discovery requests. The district court temporarily stayed discovery and asked Metabolife to itemize the discovery it needed to respond to the anti-SLAPP motions, which Metabolife did. The district court then reversed its field, and ordered Metabolife to respond to the anti-SLAPP motions without discovery, itemized or otherwise.

Despite the lack of discovery, Metabolife's opposition to the anti-SLAPP motions included over twenty affidavits and more than 750 pages of exhibits, including the opinions of six experts on issues relating to Metabolife 356's safety. After receiving these materials and in preparation for its next hearing, scheduled to decide venue and perhaps the anti-SLAPP issues, the district court directed the parties to be prepared to address twenty-one questions at the hearing, some of which went to the reliability of the scientific evidence presented by Metabolife in its opposition to the anti-SLAPP motions.

The district court held its motions hearing, focusing solely on the anti-SLAPP motions. After the hearing, the court ordered limited discovery on two issues: (1) Wornick's and WCVB's editing of Dr. Blackburn's interview and (2) what experts Wornick had spoken with to back up her statement that "Every expert we spoke to said Metabolife[356] is not safe because of its main ingredient, ma huang." However, just six days later the court rescinded this order, halting all discovery under the anti-SLAPP statute. Metabolife filed an objection, and the court responded by ordering briefing on five final questions.

After receiving this post-hearing material, the district court issued its decision, granting the defendants' anti-SLAPP motions. Metabolife Int'l Inc. v. Wornick, 72 F. Supp. 2d 1160 (S.D. Cal. 1999). On the statement, "You can die from taking this product," the district court held that it did not matter whether the statement was construed literally or, as Metabolife argued it should be, as "You can die from taking this product as directed."9 Id. at 1167, n.4. The court held that the defendants prevailed either way because "Metabolife has not provided any admissible prima facie evidence of falsity." Id.

The district court arrived at this ruling because"Metabolife's scientific evidence [allegedly proving safety if taken as directed] is inadmissible under Daubert because it lacks sufficient indicia of reliability." 72 F. Supp. 2d at 1168. The district court also held, alternatively, that Dr. Blackburn's speech was protected by the First Amendment as a rational interpretation "of the ambiguous and unresolved state of scientific knowledge regarding the safety of products like Metabolife." Id. at 1166-67.

The district court dismissed the claim based on the statement that "Every expert we asked said Metabolife is not safe because of its main ingredient, ma huang," on the same Daubert concerns. Id. at 1172-73. The court also held that the statement "does not imply a `consensus' in the scientific community," and thus could not support the defamatory implication asserted by Metabolife. Id. at 1173.

* * *

This case presents three discrete, though related, issues, the district court's: (1) exclusion of Metabolife's scientific evidence; (2) decision under the California anti-SLAPP statute not to allow Metabolife discovery; and (3) conclusion that the challenged statements are alternatively protected by the first amendment. Each issue will be dealt with individually; the analysis begins with a description of the state statute under which this case was dismissed.

* * *

The anti-SLAPP statute was enacted to allow early dismissal of meritless first amendment cases aimed at chilling expression through costly, time-consuming litigation.11 Under the statute, a civil defendant may move to strike a cause of action based on an "act in furtherance of [the ] right to petition or free speech." Cal. Civ. Proc. Code § 425.16(b). An "act in furtherance" includes "any . . . oral statement . . . made in a . . . public forum in connection with an issue of public interest." § 425.16(e).

Metabolife concedes that "the safety of products intended for human consumption is a matter of public concern, " and agrees that the statements challenged were made in a public forum. Thus, Metabolife concedes that the anti-SLAPP statute's first step is satisfied in this case.

Once it is determined that an act in furtherance of protected expression is being challenged, the plaintiff must show a "reasonable probability" of prevailing in its claims for those claims to survive dismissal. § 425.16(b); Wilcox v. Superior Court, 33 Cal. Rptr. 2d 446, 455 (Cal. Ct. App. 1994). To do this, the plaintiff must demonstrate that "the complaint is legally sufficient and supported by a prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." Wilcox, 33 Cal. Rptr. 2d at 454. This burden is "much like that used in determining a motion for nonsuit or directed verdict," which mandates dismissal when "no reasonable jury" could find for the plaintiff. Id. at 455 (citing Rowe v. Superior Court , 19 Cal. Rptr. 625, 632 (Cal. Ct. App. 1993)). Thus, a defendant's anti-SLAPP motion should be granted when a plaintiff presents an insufficient legal basis for the claims or "when no evidence of sufficient substantiality exists to support a judgment for the plaintiff." Id. at 457 (citing Carson v. Facilities Dey, Co., 36 Cal.3d 830, 838-39 (1984)).

Because the defendants' speech addressed a matter of"public concern," Metabolife must show that the statements were false and made with "actual malice." Milkovich v. Lorain Journal Co., 497 U.S. 1, 14 (1990). As a consequence of staying all discovery, the district court held that it would "not weigh Metabolife's evidence to determine whether it has established a prima facie case of actual malice. Rather, the [court's analysis] address[ed] the legal defenses of [the] Defendants and whether Metabolife . . . established a prima facie case of falsity." 72 F. Supp. 2d at 1166. As noted above, the district court held that Metabolife could not establish its prima facie case as to the falsity of the three statements it challenges on appeal. Id. at 1166-76.

* * *

Metabolife could not meet its burden on falsity below after the district court excluded all of its scientific evidence regarding the safety of Metabolife 356 when used as directed. Under the anti-SLAPP statute, a plaintiff must meet its burden of proving prima facie falsity with admissible evidence. Wilcox, 33 Cal. Rptr. 2d at 459; Evans v. Unkow, 45 Cal. Rptr. 2d 624, 628 (Cal. Ct. App. 1995). The district court held that Metabolife's scientific evidence was not admissible under Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311 (9th Cir. 1995) ("Daubert II"). 72 F. Supp. 2d at 1167-70.

* * *

Scientific evidence is admitted pursuant to Federal Rule of Evidence 702. In Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 587-89 (1993) (Daubert I), the Supreme Court held that Rule 702 displaced the prior "general acceptance" test. Under Daubert II, the district court acts as a "gatekeeper," excluding "bad science" that does not carry sufficient indicia of reliability for admission under Rule 702. 43 F.3d at 1316. This is accomplished through a preliminary determination that the proffered evidence is both relevant and reliable.12 Daubert I, 509 U.S. at 589-92.

Scientific evidence is reliable if it is based on an assertion that is grounded in methods of science -- the focus is on principles and methodology, not conclusions. Id. at 595-96. The Supreme Court listed four non-exclusive factors for consideration in the reliability analysis: (1) whether the scientific theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether a particular technique has a known potential rate of error; and (4) whether the theory or technique is generally accepted in the relevant scientific community. Id. at 593-94.

In Daubert II we noted that a "very significant fact to be considered is whether the experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying." 43 F.3d at 1317. If the evidence is not based upon independent research, the district court must determine whether there exists any "other objective, verifiable evidence that the testimony is based on scientifically valid principles." Id. at 1317-18 (internal quotation marks omitted). Peer review is the chief way of satisfying this requirement, though it may also be met by

precisely [explaining] how [the experts ] went about reaching their conclusions and point[ing] to some objective source -- a learned treatise, the policy statement of a professional association, a published article in a reputable scientific journal or the like -- to show that they have followed the scientific method, as it is practiced by (at least) a recognized minority of scientists in their field.

Id. at 1318-19 (citing United States v. Rincon, 28 F.3d 921, 924 (9th Cir. 1994)).

* * *

Click the case caption above for the full text of the Court's opinion.

Outcome: The district court's exclusion of Metabolife's scientific evidence regarding the risk assessments, Asian animal studies, and Columbia study on the grounds explicated constituted an abuse of discretion and is REVERSED AND REMANDED. The risk assessments facially satisfy Daubert II 's requirements by explaining their methodology and citation to published, peer-reviewed sources. The Asian animal studies are not unreliable simply because they involve the transposition of data across the species gap and were conducted in China and Taiwan. The Columbia study was completed, prepared independent of litigation, and its methodology appears to have been adequately explained. We do not override the district court's role as gatekeeper and hold that this evidence is admissible. Rather, we simply hold that it was an abuse of discretion to exclude it for the reasons cited. Additionally, the district court's exclusion of the efficacy studies is AFFIRMED.

The district court's decision not to allow Metabolife discovery on falsity issues under Federal Rule of Civil Procedure 56(f) is REVERSED because Metabolife identified and requested discovery of probative information solely available from the defendants.

The district court's alternative free speech rulings are REVERSED as to all defendants except Dr. Blackburn. The dismissal of the causes of action against Dr. Blackburn is AFFIRMED in light of his complete statement. The other defendants cannot use the rational interpretation doctrine to justify his statement because they materially altered it through editing. Wornick's "every expert" statement is at least legally susceptible to the defamatory implication of scientific consensus. Finally, a reasonable jury could find that it is not "substantially true" that Metabolife 356 and methamphetamine share the same main ingredient.

The district court's decision to grant Dr. Blackburn's anti- SLAPP motion is AFFIRMED. The district court's decision to grant the other defendants' anti-SLAPP motions is REVERSED. The case is REMANDED to the district court for further analysis of the admissibility of the proffered scientific evidence, discovery as specified, and subsequent reassessment of the other defendants' anti-SLAPP motions. Costs on appeal to appellant and Dr. Blackburn.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments:

E-mail suggested corrections, comments and/or corrections to:
Kent Morlan


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