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BARRETT v. CATACOMBS PRESS

September 2, 1999

STEPHEN BARRETT, M.D., PLAINTIFF,
v.
THE CATACOMBS PRESS, JAMES R. PRIVITERA, M.D., ALAN STANG, M.A., DARLENE SHERRELL, AND CDS NETWORKS INC., DEFENDANTS.



The opinion of the court was delivered by: Van Antwerpen, District Judge.

OPINION AND ORDER

I. INTRODUCTION

Plaintiff Stephen Barrett filed this action under Pennsylvania's defamation law, against Defendants the Catacombs Press, James R. Privitera, Alan Stang, Darlene Sherrell and CDS Network, Inc. We have jurisdiction over this diversity action pursuant to 28 U.S.C. § 1332.

Defendants James R. Privitera, M.D., Alan Stang, M.A. and The Catacombs Press have moved collectively for Summary Judgment pursuant to Fed.R.Civ.P. 56(c) and dismissal of this suit due to the expiration of the statute of limitations on defamation actions. We have reviewed the record and conclude that for the following reasons, Defendants' Motion for Summary Judgment is GRANTED in its entirety.

II. FACTS

Plaintiff in this case is a resident and psychiatrist in Allentown, Pennsylvania. Barrett Decl. 3/5/99 at ¶¶ 1-2. Since 1969, he has been involved in investigating and dealing with many aspects of quackery, health frauds, misinformation and consumer strategy. Id. at ¶ 4. He has also been responsible for writing, co-authoring or editing over 200 publications relating to consumer health. Id. Since December 1996, Plaintiff has maintained a computer Web site called Quackwatch, which provides information about quackery, health frauds and consumer decisions. Id. at ¶ 6. Plaintiff's Web site has received international acclaim, with more than fifty awards and/or favorable mentions in newspapers, magazines and journals throughout the world.

Defendant Privitera and defendant Stang co-authored a book, published by defendant Catacombs Press, titled Silent Clots: Life's Biggest Killer ("Silent Clots" or "the Book"). Within its pages, Barrett alleges, are certain defamatory remarks regarding Mr. Barrett. A detailed chronology of the Book's creation, distribution and sale follows, infra.

The two authors, Privitera and Stang, and the publisher, Catacombs Press (a California-registered fictitious business name of Immunoscreen, Inc., a Nevada corporation controlled by Privitera) collaborated on the following schedule: completion of the writing and editing, December 1995; copyright in 1996; printing commenced around February 1, 1997; and printing completed and book ready for distribution and sale on April 24, 1997. Privitera Decl. at ¶¶ 2, 4.

The co-authors appeared on a cable television program on the Lifetime network titled "Rise and Shine", which is carried by cable television operators in Pennsylvania, including in the Lehigh Valley area. The program was first broadcast on April 4, 1997 and again on August 28, 1997. Id. at ¶ 5. The Book and the co-authors' availability to appear on radio or television talk shows were advertised in the April 20, 1997, May 10, 1997 and June 1, 1997 issues of Radio-TV Interview Report, a Pennsylvania publication of Bradley Communications Corp. Of Lansdowne, Pennsylvania. Id. at ¶ 6.

The first distribution of the Book occurred on April 25 and 26, 1997, at a national convention of the American College for Advancement in Medicine ("ACAM") held in Tampa, Florida and attended by Pennsylvania alternative healthcare practitioners. Id. at ¶ 7. On May 7, 1997, Defendants sold 108 copies of the Book to Paul Cosman, shipping them to Cosman at the Pittsburgh Airport Marriott in Coraopolis, Pennsylvania. Id. at ¶ 8. On May 10, 1997, Cosman displayed and sold copies of the Book at a seminar he organized in Coraopolis, whereupon Samuel Yareck of Monongahela, Pennsylvania, purchased 12 copies from Cosman. Id.; Yareck Decl. at ¶ 2. Subsequently, between May 1997 and December 1997, Yareck gave away a few copies to acquaintances and displayed the remainder at his store in Charleroi, Pennsylvania, for retail sale, of which he sold six or seven copies during this period. Id.

Between May 30, 1997, and June 2, 1997, the co-authors participated in BookExpo America in Chicago, Illinois, an event which is promoted as the "world's greatest book event", the largest author/publisher exhibition in the U.S., attracting more than 1,000 exhibitors, 25,000 publishing industry attendees and about 1,000 media types. Each Defendant attended, manned a booth, greeted visitors and displayed and promoted the Book. Privitera Decl. at ¶ 9.

Since June 11, 1997, the Book has been available for purchase on a website titled <nutriscreen.com> (controlled by Defendants) and since October 22, 1997, it has been available for purchase at <amazon.com> (the world's largest book seller). Id. at ¶ 10.

In the December 1997 issue of Townsend Letter for Doctors and Patients, mailed to its subscribers, which include 154 Pennsylvanians, on or about November 10, 1997, appeared a review of the Book. This review provided subscribers with information regarding where and how the Book could be purchased. Id. at ¶ 12.

In addition to the above activities, Defendants' Memorandum in Support of its Motion for Summary Judgment mentions other sales and promotions of the Book outside of Pennsylvania prior to December 18, 1997, the date one year before Plaintiff's Complaint was filed, which we shall not be required to review in order to reach our decision.

III. STANDARD OF REVIEW

Defendants have moved for Summary Judgment to dismiss Plaintiff's Complaint. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("Anderson I"). A factual dispute is "material" only if it might affect the outcome of the suit under governing law. Id. at 248, 106 S.Ct. 2505. All inferences must be drawn and all doubts resolved in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985).

On motion for summary judgment, the moving party bears the initial burden of identifying those portions of the record that it believes demonstrate the absence of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To defeat summary judgment, the non-moving party cannot rest on mere denials or allegations, but must respond with facts of record that contradict the facts identified by the movant. Id. at 321 n. 3, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(e)); see also First Nat. Bank of Pennsylvania v. Lincoln Nat. Life Ins. Co., 824 F.2d 277, 282 (3d Cir. 1987). The ...


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