Metabolife International v. Susan Wornick, et al.

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.

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.

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