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Date: 05-11-2001

Case Style: Alpine Industries v. Feyk

Case Number: S-9169

Judge: Eastaugh

Court: Supreme Court of Alaska

Plaintiff's Attorney: Eric J. Brown, Jermain, Dunnagan & Owens, P.C., Anchorage

Defendant's Attorney: Gary M. Guarino, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, Alaska

Description: Alpine Industries, Inc. sued Dr. Lori Feyk, a public health official with the Alaska Department of Health and Social Services, for libel after she authored a public health bulletin critical of Alpine's air cleaning products.

Alpine Industries, Inc. sued Dr. Lori Feyk, a public health official with the Alaska Department of Health and Social Services, for libel after she authored a public health bulletin critical of Alpine's air cleaning products. Because we conclude that absolute official immunity protects the authors of state public health bulletins, we affirm the superior court's grant of summary judgment for Dr. Feyk.

II. FACTS AND PROCEEDINGS

A private citizen contacted the Alaska State Department of Health and Social Services (DHSS) in 1997 regarding the possible health effects of ozone-generating air cleaning devices. The Commissioner of Health and Social Services referred the inquiry to Dr. John Middaugh, Chief of the Section of Epidemiology. Dr. Middaugh asked a DHSS public health specialist, Dr. Lori Feyk, to investigate the matter and report back to him. Dr. Feyk researched the issue, speaking to health officials in other states, reading materials produced by the Environmental Protection Agency, and reviewing other scientific reports from private and public sources. Dr. Feyk met with Dr. Middaugh to present her conclusions; after considering her recommendations, Dr. Middaugh asked Dr. Feyk to prepare a public health bulletin to be issued by DHSS. Dr. Feyk drafted the public health bulletin based on the reports she had gathered. Dr. Middaugh made a few minor changes and authorized the bulletin's release to the public; it was published at his direction on September 8, 1997.

The bulletin, titled "Ozone Generators Warning Not For Occupied Spaces," stated that ozone "is a potent lung irritant that can cause respiratory distress, and levels of ozone that clean air effectively are unsafe to human health." The bulletin continued: "The Alaska Division of Public Health is warning Alaskans not to use ozone generating devices in occupied spaces such as vehicles or residential homes." The bulletin cited studies or reports from the U.S. Food & Drug Administration, the Environmental Protection Agency, the American Lung Association, Consumer Reports, and a private journal. It also stated that the State of Minnesota had prevailed in a lawsuit against "Alpine Air Products, Inc.," and that a Minnesota court had "found that the company had violated Minnesota consumer fraud and antitrust laws by making false and misleading claims about the efficacy and safety of ozone-generating Alpine purifiers."

Alpine Industries, Inc. (Alpine) manufactures ozone- generating air cleaning devices and sells them in Alaska through independent resellers. When Alpine learned of the public health bulletin, its president wrote the DHSS commissioner complaining that the bulletin was "false and misleading" and requesting a retraction. On September 19, 1997, an attorney for Alpine wrote an eleven-page letter to Dr. Feyk detailing alleged scientific and legal inaccuracies in the bulletin. Neither the commissioner nor Dr. Feyk responded to the two letters.

On October 1, 1997, Alpine sued Dr. Feyk for libel, tortious interference with business relationships, and unfair trade practices. On October 29, 1998, Dr. Feyk moved for summary judgment on the libel claim, and on November 2, she moved for summary judgment on the legal question of whether she was protected by "official immunity." The superior court granted both motions in May 1999. Alpine appeals both grants of summary judgment, as well as the superior court's award of attorney's fees to the state, which had incurred expense defending Dr. Feyk. * * *

Click here for the full text of this opinion.

Outcome: . Because we conclude that absolute official immunity protects the authors of state public health bulletins, we affirm the superior court's grant of summary judgment for Dr. Feyk.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None



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