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