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09/27/83 William C. Mcbride, v. Merrell Dow and

September 27, 1983

WILLIAM C. MCBRIDE, APPELLANT

v.

MERRELL DOW AND PHARMACEUTICALS INC., AN OHIO CORPORATION, ET AL. 1983.CDC.252



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 81-02639).

APPELLATE PANEL:

Wright and Bork, Circuit Judges, and MacKinnon, Senior Circuit Judge. Opinion for the Court filed by Circuit Judge Bork.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BORK

Appellant William G. McBride, an Australian expert in the field of teratology -- the study of agents that can cause developmental abnormalities in embryos -- challenges the dismissal of his defamation action for failure to state a claim on which relief can be granted. The alleged defamation was contained in a magazine article. Our jurisdiction rests entirely upon the parties' diverse citizenship and we must apply District of Columbia defamation law. That law suggests that the complaint states one claim upon which relief can be granted. Moreover, Herbert v. Lando, 441 U.S. 153, 60 L. Ed. 2d 115, 99 S. Ct. 1635 (1979), indicates that, despite first amendment concerns, the burdens of discovery do not justify reading stricter pleading requirements into the law of defamation. It follows that, though we affirm most of the district court's judgment, we must reverse in part. We are troubled by litigation such as this, however. The ability to frame a pleading that defeats, however narrowly, a motion to dismiss ought not to be converted into a license to harass. We suggest, therefore, that the district 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. I.

This defamation action arises from the publication of an article entitled "How Safe Is Bendectin?" that appeared in the October 31, 1980, issue of Science magazine. Bendectin is a prescription drug taken for nausea and vomiting during pregnancy. It has generated controversy in recent years because of its alleged capacity to cause birth defects similar to those attributed to thalidomide. Merrell Dow and Pharmaceuticals, Inc. *fn1 ("Merrell Dow"), which manufactured and marketed the drug for about 25 years, recently discontinued manufacture of the drug, due, it has been said, to the burden of litigating suits that challenged its safety. N.Y. Times, June 10, 1983, at A16, col. 1. *fn2

Dr. McBride, who filed the complaint for defamation, is a citizen of Australia and a research physician well-known for his work in the field of teratology. Among other accomplishments, he played a role in showing that thalidomide could cause birth defects. The article in Science, which was written by defendant Gina Bari Kolata, made the following statements about Dr. McBride:

The FDA panel had an opportunity to hear four of the expert witnesses who testified for the plaintiffs in the Florida trial. Their data, said scientists who attended the meeting, were hardly convincing. FDA panel member Gordon Avery, of the Children's Hospital in Washington, D.C., said that "As far as I'm concerned, the purpose of the hearing was to objectively view the scientific data. None of these people brought anything other than special pleading."

These expert witnesses included William McBride of the Women's Hospital in Sydney, Australia, who 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. McBride was one of the first to suspect that thalidomide caused birth defects. He contends that Bendectin, too, causes deformed arms and legs, and he said at the trial that, in his opinion, Bendectin caused David Mekdeci's malformations. For much of his talk at the FDA meeting, McBride dwelt on the effects of thalidomide, leading Avery to say, "Dr. McBride, you have convinced me that thalidomide is a teratogen but I must in my own mind focus on the drugs that are in Bendectin."

Another of Belli's witnesses was Beverly Paigen of Roswall Park Memorial Institute. *fn3

The complaint alleges that the article injures Dr. McBride's personal reputation (Complaint para. 16) and his standing as a medical scientist (Complaint para. 14). In particular, the complaint identifies as false and defamatory three kinds of statements: (1) statements linking Dr. McBride with attorney Melvin Belli (Complaint para. 13(a)); (2) statements juxtaposing the assertion that Dr. McBride was paid $5,000 a day to testify with the assertion that Richardson-Merrell pays its expert witnesses only $250 to $500 a day, and at most $1,000 (Complaint para. 13(b)); and (3) statements "indicating to the general public that Dr. McBride did not know what he was talking about" when he testified before a Food and Drug Administration panel (Complaint para. 13(c)). The complaint further claims that defendant Irvine "was a paid 'public relations' agent or employee of [Merrell Dow]" who "spread lies and deceit" at the instigation of Merrell Dow to the author of the article (Complaint para. 8), and that Merrell Dow widely disseminated the articles or portions thereof "as part of its scheme to silence plaintiff, indoctrinate the scientific community and avoid or stall access to the courts for maimed babies ("Complaint para. 12). The complaint alleges that all the defendants engaged in their actions "with actual malice" and without "a good faith belief in the truth of their publication" (Complaint para. 22).

The complaint also notes that Science magazine published a correction in its July 24, 1981 issue, in response to a request from the plaintiff identifying the allegedly libelous statements, but the complaint claims that the correction is "inadequate" and "does not amount to a retraction as demanded." *fn4 Complaint paras. 19, 20. The complaint seeks general damages, special damages, and punitive and exemplary damages of many millions of dollars (Complaint paras. 26-28, 32). Exhibits detailing Merrell Dow's distribution of the article accompany the complaint. II.

The district court in a Memorandum Opinion and Order dismissed the complaint with prejudice, holding that "nothing in the article is found capable of bearing a defamatory meaning." 540 F. Supp. 1252, 1255 (D.D.C. 1982). In construing the allegedly defamatory nature of the article, the court relied on the standard that a publication is defamatory "if it tends to injure plaintiff in his trade, profession or community standing, or lower him in the estimation of the community" and if it is "more than merely unpleasant or offensive" but "make[s] the plaintiff appear 'odious, infamous, or ridiculous. '" Id. at 1254 (citations omitted). Whether a publication is capable of being interpreted as defamatory under such a standard, the court held, is a legal issue to be decided by the court, id. at 1254-55, citing Harrison v. Washington Post Co., 391 A.2d 781 (D.C.1978), and Restatement (Second) of Torts ยง 614 (1977).

An identical lawsuit against the same parties was filed in the Superior Court for the District of Columbia on August 28, 1981, some two months before the present action was filed in the district court. On August 10, 1982, while the present appeal was pending, the Honorable Carlisle E. Pratt filed an order dismissing that case with prejudice and stating that "but for Judge Parker's opinion having issued first, this Court would have dismissed Plaintiff's claim on the merits." McBride v. Merrell Dow and Pharmaceuticals, Inc., Civ. Action No. 12664-81 (Aug. 10, 1982).

The district court analyzed separately each of the three ways in which the article was allegedly defamatory. It accepted as true, as it had to under Fed. R. Civ. P. 12(c), Dr. McBride's contention that he does not know and had never met Melvin Belli (Complaint para. 13(a)), and it agreed that the article contained the "erroneous implication that Dr. McBride was called as a witness for Belli in the Florida trial." 540 F. Supp. at 1255. *fn5 The article called Belli "flamboyant" and the court noted that Belli "is a controversial figure in the legal profession." Id. It concluded, however, that there was no suggestion in the article that Belli had engaged in any improper conduct and that "an expert witness' mere association with such a person cannot be construed as defamatory." Id.

The district court provided a lengthier analysis of the complaint's claim that the article's treatment of the $5,000 a day paid to Dr. McBride for his testimony implied that Dr. McBride "is willing to prostitute his professional expertise and testify on behalf of the highest bidder." (Complaint para. 21). It reasoned that the $5,000 figure standing alone was not defamatory and observed that "[a] high level of remuneration suggests, if anything, a high degree of professional accomplishment." 540 F. Supp. at 1255. Suggesting that if the discussion of the fees were defamatory, it had to be because of the inference of the lack of professional integrity to be drawn from the juxtaposition of McBride's higher fees with the lower fees paid by Merrell Dow, the district court concluded:

The inference is improbable. The article clearly indicates that Dr. McBride is an expert in this area and not a "prostitute." The article recognizes that McBride made an important scientific contribution as "one of the first to suspect that thalidomide caused birth defects." Moreover, the innuendo drawn by the plaintiff is undermined by his own admission that although he was not paid $5,000 per day, he was, in fact, paid $1,116 per day. No other expert witness, according to the article, was paid more than $1,000 per day. Thus, even the plaintiff concedes that he received a higher rate of remuneration than any other expert witness in the Orlando trial. *fn6

Id.

Id.

With respect to the third allegation -- that the article gave the impression that "Dr. McBride did not know what he was talking about" -- the district court relied on two alternate grounds to reach its conclusion. First, it noted that Avery's comments, which seem to form the principal basis for this claim, must be read as meaning that "McBride's scientific analysis was unconvincing" and not that "Dr. McBride is 'ignorant' of his subject matter." 540 F. Supp. at 1255. So interpreted, the assertion could not be considered defamatory. Secondly, the court noted that "even if Avery had directly stated that the plaintiff is ignorant of his subject matter, such a statement would properly be considered a non-defamatory statement of opinion." Id., citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 339, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974), and Ollman v. Evans, 479 F. Supp. 292, 293 (D.D.C.1979). *fn7

The court concluded that none of the allegedly defamatory elements of the article involved "disgrace" or could subject Dr. McBride to "public ridicule and contempt." 540 F. Supp. at 1255-56. III.

We agree with the district court that two of McBride's three instances of alleged defamation do not rise ...


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