Edward Lewis Tobinick, MD et al v. Novella et al

Filing 193

ORDER granting #93 Special Motion to Strike (Anti-SLAPP Motion). Signed by Judge Robin L. Rosenberg on 6/4/2015. (cgn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 9:14-CV-80781-ROSENBERG/BRANNON
EDWARD LEWIS TOBINICK, MD, et al.,
Plaintiffs,
v.
M.D. STEVEN NOVELLA, et al.,
Defendants.
/

ORDER GRANTING DEFENDANT STEVEN NOVELLA’S SPECIAL
MOTION TO STRIKE (ANTI-SLAPP MOTION)
THIS CAUSE is before the Court upon Defendant Steven Novella’s Special Motion to
Strike (Anti-SLAPP Motion) [DE 93] (“the Motion”), filed herein on September 30, 2014. The
Motion has been fully briefed by both sides and the Court heard oral argument on the Motion on
November 20, 2014. The Court has reviewed the documents in the case file and is fully advised
in the premises.
Plaintiffs have sued Defendant Steven Novella for making allegedly false and/or
defamatory statements about Plaintiffs’ medical practice in two blog posts. Novella has moved to
strike Tobinick M.D.’s unfair competition, trade libel, and libel per se claims under California’s
“anti-SLAPP” statute, California Code of Civil Procedure section 425.16. 1 A “SLAPP” is a
strategic lawsuit against public participation, i.e. a lawsuit “brought primarily to chill the valid
exercise of the constitutional right[] of freedom of speech.” Cal. Civ. Proc. Code § 425.16(a).
1

After Novella filed the Motion, Plaintiffs’ tortious interference claim was dismissed. See DE 117. Count I, as a
false advertising claim brought pursuant to the Lanham Act, is a federal claim to which the California statute does
not apply. Although Plaintiffs’ unfair competition claim was brought pursuant to 28 U.S.C. § 1338(b), the Court
treats it as a state law claim for purposes of the Motion. See Donald Frederick Evans & Assocs., Inc. v. Cont’l
Homes, Inc., 785 F.2d 897, 900 (11th Cir. 1986). Plaintiffs, for their part, have not argued that it should be treated as
a federal claim.

1

Novella contends that this was the driving intent behind Plaintiffs’ suit, and argues that Tobinick
M.D.’s claims should be stricken. The Court agrees and grants the Motion.
I.

BACKGROUND

This case concerns two articles written by Dr. Steven Novella, the only defendant
remaining in the instant suit.2 Both articles address the practice of Plaintiff Edward Tobinick
(“Tobinick”), a doctor who provides medical treatment to patients with “unmet medical needs”
via two institutes—Edward Lewis Tobinick M.D., a California medical corporation (“Tobinick
M.D.”), and INR PLLC, a Florida professional limited liability company (“INR”)—both doing
business as the “Institute of Neurological Recovery” (collectively “Plaintiffs”). Am. Compl. ¶¶
2–4, 12. Novella published the first article, “Enbrel for Stroke and Alzheimer’s” (“the first
article”), on May 8, 2013 in response to a piece published in the Los Angeles Times. Am. Compl.
Ex. 1 at 1. As Novella described it,
The [Times] story revolves around Dr. Edward Tobinick and his practice of
perispinal etanercept (Enbrel) for a long and apparently growing list of conditions.
Enbrel is an FDA-approved drug for the treatment of severe rheumatoid arthritis.
It works by inhibiting tumor necrosis factor (TNF), which is a group of cytokines
that are part of the immune system and cause cell death. Enbrel, therefore, can be
a powerful anti-inflammatory drug. Tobinick is using Enbrel for many off-label
indications, one of which is Alzheimer’s disease (the focus of the LA Times
story).
Id. The allegedly false statements in the first article concern the viability of Dr. Tobinick’s
treatments, the scientific literature discussing those treatments, the size and locations of Dr.
Tobinick’s Institutes, and, by implication, the categorization of Dr. Tobinick’s practice as “health
fraud.” See Am. Compl. ¶¶ 54–56, 60–61, 63–64, 69–70, 71–72. Novella published the second
2

Plaintiffs also filed suit against the Society for Science-Based Medicine, Inc., SGU Productions, LLC, and Yale
University for providing links on the internet to the article or otherwise promoting it. Am. Compl. ¶ 26. In two
previous Orders, this Court dismissed Defendants SGU Productions, LLC and Defendant Yale University. DE 91,
92. Plaintiffs’ Motion for Reconsideration as to the Court’s dismissal of Defendant SGU Productions, LLC was
denied. DE 115. The Court later dismissed Defendant Society for Science-Based Medicine, Inc. from the suit. DE
157.

2

article, entitled “Another Lawsuit To Suppress Legitimate Criticism – This Time SBM” (“the
second article”), on July 23, 2014, after Plaintiffs filed their suit. Am. Compl. Ex. 5 at 1. In large
part, the second article simply restates the content of the first, and Plaintiffs incorporated it into
an Amended Complaint. See generally id.; Am. Compl. ¶¶ 102–03. The only statement in the
second article which Plaintiffs allege is false and misleading is Novella’s statement, as
characterized by Plaintiffs, that “there have been no double-blind placebo-controlled clinical
trials of the treatment provided by the Plaintiffs.” 3 Id.
II.

CHOICE OF LAW

A genuine conflict of law exists, as Florida has no equivalent to California’s anti-SLAPP
statute. See Ranbaxy Labs., Inc. v. First Databank, Inc., No. 3:13–cv–859–J–32MCR, 2014 WL
982742, at *5 (M.D. Fla. Mar. 12, 2014). Because of this conflict, a choice of law analysis is
necessary. Novella contends that California law applies, at least as to the claims of the California
plaintiff, Tobinick M.D. Tobinick M.D. argues that California law does not apply, and that this
Court should apply Florida law instead.
A federal court sitting in diversity applies the conflict of law rules of the forum state.
Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). Florida’s conflict of law test
utilizes the “significant relationship” test for torts. See Bishop v. Fla Specialty Paint Co., 389 So.
2d 999, 1001 (Fla. 1980). The significant relationship test utilizes the following framework:
(1) A court, subject to constitutional restriction, will follow a statutory directive
of its own state on choice of law.
(2) When there is no such directive, the factors relevant to the choice of the
applicable rule of law include:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
3

In the second article, Novella actually states that “I [Novella] could not find a single double-blind placebocontrolled trial establishing the efficacy of [Tobinick’s] treatment for any of the conditions I listed above. (There are
small studies for disc herniation showing conflicting results.).” Am. Compl. Ex. 5 at 3 (emphasis added).

3

(c) the relevant policies of other interested states and the relative interests
of those states in the determination of the particular issue,
(d) the protection of justified expectation,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
Restatement (Second) of Conflict of Laws § 6 (1971). Many of the above-referenced factors do
not apply in the context of torts. A court applying these principles in the context of tort claims
therefore should consider the following:
(1) The rights and liabilities of the parties with respect to an issue in tort are
determined by the local law of the state which, with respect to that issue, has
the most significant relationship to the occurrence and the parties under the
principles stated in § 6.
(2) Contacts to be taken into account in applying the principles of § 6 to
determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of incorporation and place of
business of the parties, and
(d) the place where the relationship, if any, between the parties is
centered. These contacts are to be evaluated according to their relative
importance with respect to the particular issue.
Restatement (Second) of Conflict of Laws § 145 (1971). The presumption of the significant
relationship test is that generally, the law of the forum where the injury occurred determines the
substantive issues unless another state has a more compelling interest. See Bishop, 389 So. 2d at
1001.
Here, California has the most significant relationship to the California plaintiff’s claims.
Novella’s anti-SLAPP motion is brought solely against the California entity, Tobinick M.D.
Tobinick M.D. is a California corporation with its principal place of business in California. To
the extent that Tobinick M.D. was injured, most—if not all—of its injury undoubtedly occurred

4

in California, given that the corporation is based in that state. See § 145(2)(a), (c). Novella
published the allegedly false and/or defamatory statements online, from his domicile in
Connecticut. See § 145(2)(b); Am. Compl. ¶ 5. Any relationship that exists between the parties is
not centered in a particular state, given that the statements at issue were made on the internet. See
§ 145(2)(d) (listing the center of the parties’ relationship as a factor to be “evaluated according to
[its] relative importance with respect to the particular issue”). California’s interest in limiting
frivolous litigation filed by its residents outweighs any interest Florida has in the dispute, where
that dispute is between a California corporation and a Connecticut resident. See generally § 6(2).
Under the significant relationship test, then, the Court must apply the anti-SLAPP statute under
California law.
III.

CALIFORNIA’S ANTI-SLAPP STATUTE

Although framed as a rule of state procedure, California’s anti-SLAPP statute protects
substantive rights and thus applies in federal court. United States ex rel. Newsham v. Lockheed
Missiles & Space Co., Inc., 190 F.3d 963, 973 (9th Cir. 1999). 4 The statute is designed to
discourage actions that “masquerade as ordinary lawsuits but are brought to deter common
citizens from exercising their political or legal rights or to punish them for doing so.” Batzel v.
Smith, 333 F.3d 1018, 1024 (9th Cir. 2003) (internal quotation marks omitted). The Legislature
declared “that it is in the public interest to encourage continued participation in matters of public
significance, and that this participation should not be chilled through abuse of the judicial

4

The Court recognizes that as of April 24, 2015, there exists a circuit split on whether or not states’ anti-SLAPP
acts’ pretrial dismissal provisions apply in federal court notwithstanding Federal Rules of Civil Procedure 12 and 56.
Compare Abbas v. Foreign Policy Grp., LLC, No. 13–7171, 2015 WL 1873140, at *6 (D.C. Cir. Apr. 24, 2015)
(finding that Rules 12 and 56, as opposed to the anti-SLAPP’s special motion to dismiss provision, apply in federal
courts exercising diversity jurisdiction), with Godin v. Schencks, 629 F.3d 79, 81 (1st Cir. 2010) (applying Maine
anti-SLAPP); Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 168 (5th Cir. 2009) (applying Louisiana antiSLAPP); Newsham, supra. Because the majority of circuit courts have found anti-SLAPP special motions to strike
permissible, and because the specific anti-SLAPP statute at issue has previously been allowed in federal court, the
Court follows Newsham and applies state law.

5

process.” Cal. Civ. Proc. Code § 425.16(a). The legislature amended the statute in 1997 to ensure
that it “shall be construed broadly.” Id.
Under the statute, “[a] cause of action against a person arising from any act . . . in
furtherance of the person’s right of petition or free speech . . . in connection with a public issue
shall be subject to a special motion to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will prevail on the claim.” Cal. Civ. Proc.
Code § 425.16(b)(1). The statute explicitly defines four categories of activities “in furtherance of
. . . free speech,” including “(3) any written or oral statement or writing made in a place open to
the public or a public forum in connection with an issue of public interest, or (4) any other
conduct in furtherance of the exercise of . . . free speech in connection with a public issue or an
issue of public interest.” Cal. Civ. Proc. Code § 425.16(e)(3)–(4).
In assessing motions to strike under the anti-SLAPP statute, the court takes a two-step
approach. Navellier v. Sletten, 52 P.3d 703, 708 (Cal. 2002). First, the court determines whether
the defendant has met his burden of proof that the challenged cause of action arises from
protected activity. Id. If the court is satisfied that the claim falls within the scope of the statute,
then the burden shifts to the plaintiff to establish “a probability that [he or she] will prevail on the
claim[s].” Cal. Civ. Proc. Code § 425.16(b)(1); see Navellier, 52 P.3d at 708. “Since an AntiSLAPP motion is brought at an early stage of proceedings, the plaintiff’s burden of establishing a
probability of success is not high.” Browne v. McCain, 611 F. Supp. 2d 1062, 1068 (C.D. Cal.
2009) (citing Overstock.com, Inc. v. Gradient Analytics, Inc., 61 Cal. Rptr. 3d 29, 38 (Cal. Ct.
App. 2007)). If the plaintiff cannot meet this burden, then the anti-SLAPP motion is granted and
the plaintiff’s lawsuit is dismissed.

6

IV.

DISCUSSION

Subsection A addresses Tobinick M.D.’s argument that the anti-SLAPP statute does not
apply to its claims. For the reasons discussed therein, the Court finds that argument unavailing.
In Subsection B, the Court explains why Novella’s conduct constitutes protected activity under
section 425.16. In Subsection C, the Court concludes Tobinick M.D. has not established a
probability that it will prevail on its claims. Subsection D briefly addresses the issue of attorney’s
fees.
A.

Applicability of the Anti-SLAPP Statute

Tobinick M.D. argues that the anti-SLAPP statute should not apply to its claims for two
reasons. First, Tobinick M.D. argues that the Novella cannot move to strike its unfair
competition claim, Count II, because that Count contains a request for injunctive relief and the
anti-SLAPP statute applies to causes of action, not remedies. Second, Tobinick M.D. argues that
because the anti-SLAPP statute applies to causes of action, as opposed to parties, the Court
cannot strike the claims of a single plaintiff. Tobinick M.D. does not succeed on either ground.
Tobinick M.D.’s unfair competition claim is a cause of action subject to the anti-SLAPP
statute. The claim is undoubtedly a cause of action, one for which Tobinick M.D. has requested
damages as well as injunctive relief. See Am. Compl. at 21–23. Although some California courts
have held that remedies are not subject to the anti-SLAPP statute—see, e.g., Marlin v. Aimco
Venezia, LLC, 64 Cal. Rptr. 3d 488 (Cal. Ct. App. 2007) (holding that the anti-SLAPP statute did
not apply to a prayer for injunctive relief); Guessous v. Chrome Hearts, LLC, 102 Cal. Rptr. 3d
214 (Cal. Ct. App. 2009) (holding that a cause of action for prospective declaratory and
injunctive relief was not subject to the anti-SLAPP statute)—those cases are distinguishable,
because Tobinick M.D.’s unfair competition claim is not simply a request for a remedy. It is a

7

cause of action for which damages, too, are requested. If the Court were to accept Tobinick
M.D.’s argument, plaintiffs would be able to effectively exempt their claims for damages from
California’s anti-SLAPP statute simply by adding a request for injunctive relief. The Court
rejects Tobinick M.D.’s argument, concluding that Tobinick M.D.’s claim for injunctive relief, in
addition to damages, does not exempt it from the anti-SLAPP statute.
Tobinick M.D.’s second argument is based on the fact that each cause of action in the
Amended Complaint is pled jointly by the three Plaintiffs, and that Novella has moved to strike
the claims of only one plaintiff, Tobinick M.D. Tobinick M.D. argues that because the antiSLAPP statute applies only to causes of action, each cause of action must be stricken in its
entirety or not at all. Because Novella has moved to strike the claims of a single plaintiff,
Tobinick M.D. argues that the Court cannot apply the anti-SLAPP statute. Tobinick M.D. relies
on M.G. v. Time Warner, Inc., 107 Cal. Rptr. 2d 504 (Cal. Ct. App. 2001), which was a suit for
invasion of privacy, in support of this proposition. M.G. involved the use of a Little League team
photograph in a print publication and television program to illustrate stories about adult coaches
who sexually molest players on youth sports teams. Id. at 506. The plaintiffs, all of whom
appeared in the photograph, were formerly players or coaches on the Little League team. Id.
Time Warner moved to strike the complaint under California’s anti-SLAPP statute, and in the
court’s preface to its discussion of the motion, it stated in passing:
[W]hile the anti-SLAPP statute is meant to be interpreted broadly, its purpose is
to curb meritless lawsuits, not to prohibit bona fide claims. Although we
recognize that the two coach-plaintiffs probably have a weaker case than the
player-plaintiffs, the anti-SLAPP statute allows a motion to strike to be made
against only a cause of action, not a cause of action as it applies to an individual
plaintiff. For that reason, because we hold the cause of action for invasion of
privacy is valid as to some plaintiffs, for purposes of the anti-SLAPP motion, we
deem it sound as to all plaintiffs.

8

Id. at 507–08 (footnotes omitted). 5 Novella does not squarely address Tobinick M.D.’s
argument, but argues instead that M.G. is a case about the single publication rule. Reply at 4. 6
M.G. does not preclude Novella from moving to strike Tobinick M.D.’s claims.
Subsequent decisions indicate that M.G.’s holding is limited to the first prong of the anti-SLAPP
analysis, which assesses whether the conduct was protected activity. City of Colton v. Singletary,
142 Cal. Rptr. 3d 74 (Cal. Ct. App. 2012), characterizes M.G. and another decision,
ComputerXpress, Inc. v. Jackson, 113 Cal. Rptr. 2d 625 (Cal. Ct. App. 2001), as decisions
pertaining to a specific situation: the instance where some of a plaintiff’s claims are based on
protected activity and others are not, what is referred to as a “mixed” cause of action. In M.G.,
the claims were not mixed—that is, they all involved the same underlying conduct. That was not
the case in ComputerXpress:
In M.G., this court concluded it was not necessary to consider “individual causes
of action” for an anti-SLAPP motion. However, the City does not reconcile this
legal principle with this court’s conclusion in ComputerXpress, . . . in which we
distinguished M.G., and concluded it was proper to consider individual causes of
action for purposes of an anti-SLAPP motion.
In ComputerXpress, we explained it was proper to consider individual causes of
action when the different causes of action are not based on the same underlying
conduct. We explained the individual causes of action in M.G. did not need to be
considered separately because they were all based on the same underlying
conduct, and four of the six causes of action were “in reality, the same two causes
of action, based on four different legal theories.”
City of Colton, 142 Cal. Rptr. 3d at 89–90 (citations omitted). As the quoted discussion occurred
in the section of the opinion entitled “Protected Activity,” the Court reads M.G. and its progeny
as standing for the following proposition: courts may determine that some claims—but not
others—are premised on protected activity, where those causes of action are based on different
5

Although Tobinick M.D. neither quoted the relevant language nor provided the Court with a page cite, the Court
believes this is the only portion of the M.G. opinion to which Tobinick M.D. can be referring.
6
There is support for this proposition. The quoted text above is the only part of the M.G. opinion that this Court
believes supports Tobinick M.D.’s position, and this text came from the preface to the discussion. The analysis of
the single publication rule is far more extensive.

9

underlying conduct. In this case, however, each of Tobinick M.D.’s claims is based on the same
underlying conduct, so the Court may assess whether Novella’s activities were protected for the
claims as a group.
Even if the Court were to read M.G. without the benefit of City of Colton and
ComputerXpress, the Court believes it is factually distinguishable from the instant case. As
California law applies to Tobinick M.D.’s claims and does not apply to the Florida plaintiffs’
claims, there is effectively only one plaintiff to whom the anti-SLAPP statute applies. As such,
the Court does not encounter the situation that arose in M.G. where multiple plaintiffs’ claims
were subject to the anti-SLAPP motion to strike, and the Court finds that the anti-SLAPP statute
applies to Tobinick M.D.’s claims.
B.

Protected Activity Under Section 425.16

For California’s anti-SLAPP statute to apply, the Court first must determine that
Novella’s allegedly false and/or defamatory statements were made in furtherance of free speech.
Novella’s statements undoubtedly qualify as protected activity under the statute, as they were
made on a public forum and in connection with an issue of public interest. Cal. Civ. Proc. Code §
425.16(e)(3). Novella’s two blog posts were published on the www.sciencebasedmedicine.org
website, and “[w]eb sites accessible to the public . . . are ‘public forums’ for purposes of the antiSLAPP statute.” Barrett v. Rosenthal, 146 P.3d 510, 514 n.4 (Cal. 2006). His posts clearly
concern an area of public interest: the efficacy of treatments for, inter alia, stroke and
Alzheimer’s disease. Even Tobinick M.D. does not appear to contest the point. The first prong of
the anti-SLAPP inquiry therefore is met.

10

C.

Tobinick M.D.’s Claims 7

Under the second prong of the anti-SLAPP inquiry, the plaintiff bears the burden of
establishing “a probability that [he or she] will prevail on the claim[s].” Cal. Civ. Proc. Code §
425.16(b)(1); see Navellier, 52 P.3d at 708. Novella and Tobinick M.D. address the merits of
each claim individually. However, the Court finds that looking at the gravamen of the complaint,
as the California Supreme Court did in Blatty v. New York Times Co., 728 P.2d 1177 (Cal. 1986)
(en banc), is the more appropriate course of action.
In Blatty, William Peter Blatty sued the New York Times Company for failing to include
his novel, Legion, on its bestseller list. Id. at 1178–79. He asserted causes of action including
negligent interference with prospective economic advantage, intentional interference with
prospective economic advantage, negligence, and trade libel; a later complaint asserted
additional causes of action including unfair competition in violation of California’s Unfair
Competition Law (“UCL”) and false and misleading advertising under California law. Id. at
1178, 1180. Notably absent was a claim for defamation.
Although Blatty’s complaint did not allege defamation, the Court held that Blatty’s
claims were nonetheless subject to the same constitutional limitations:
Although the limitations that define the First Amendment’s zone of protection for
the press were established in defamation actions, they are not peculiar to such
actions but apply to all claims whose gravamen is the alleged injurious falsehood
of a statement: that constitutional protection does not depend on the label given
the stated cause of action, and no cause of action can claim talismanic immunity
from constitutional limitations . . . .
The fundamental reason that the various limitations rooted in the First
Amendment are applicable to all injurious falsehood claims and not solely to
those labeled “defamation” is plain: although such limitations happen to have
arisen in defamation actions, they do not concern matters peculiar to such actions
but broadly protect free-expression and free-press values.

7

The Court applies California law to each of the claims for the same reasons discussed supra in Part II.

11

Id. at 1182–83 (internal quotation marks and citations omitted) (citing, inter alia, Bose Corp. v.
Consumers Union of U.S., Inc., 466 U.S. 485 (1984); New York Times Co. v. Sullivan, 376 U.S.
254, 269 (1964)).
Blatty’s holding—that constitutional protection does not depend on the label given the
stated cause of action—governs the instant case. 8 The allegedly false and/or defamatory
statements made by Novella in his two blog posts constitute the gravamen of Tobinick M.D.’s
remaining state law claims against Novella, including the unfair competition claim. Thus, each of
these claims is subject to the First Amendment defamation rules. See id. at 1182; see also Vogel
v. Felice, 26 Cal. Rptr. 3d 350, 359 (Cal. Ct. App. 2005) (applying Blatty to the actual malice
requirement). The Court concludes that (1) Tobinick M.D. is a limited public figure subject to
the actual malice requirement, and (2) Tobinick M.D. has failed to establish a probability of
demonstrating, by clear and convincing evidence, that Novella made the statements at issue with
actual malice. Therefore, Tobinick M.D.’s unfair competition, trade libel, and libel per se claims
must be stricken.
i.

Tobinick M.D.’s Status as a Limited Public Figure

Public figures must prove by clear and convincing evidence that allegedly defamatory
statements were made with actual malice. The first issue for the Court’s determination is whether
Tobinick M.D. is a public figure. New York Times Co., 376 U.S. at 279–80; Curtis Pub. Co. v.
Butts, 388 U.S. 130, 133–34 (1967). Tobinick M.D. appears to have conceded that it is, at the
least, a limited purpose public figure—that is, one who has “voluntarily inject[ed] himself or is
drawn into a particular public controversy and thereby becomes a public figure for a limited
8

Some case law indicates that Blatty is only applicable to media defendants. See, e.g., A.H.D.C. v. City of Fresno,
Cal., No. CV-F-97-5498 OWW SMS, 2000 WL 35810722, at *6 (E.D. Cal. Aug. 31, 2000) (distinguishing Blatty on
this basis). However, it is unnecessary for Novella to be a member of the institutional press for the First Amendment
defamation rules to apply to him. See Obsidian Fin. Grp., LLC v. Cox, 740 F.3d 1284, 1290–91 (9th Cir. 2014)
(collecting cases).

12

range of issues.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 345, 351 (1974). Tobinick M.D.
does not make any argument relating to its status as a public figure, nor does it address the
negligence standard that would apply if it were not. Accordingly, the Court considers Tobinick
M.D. a public figure, at least for the limited purpose of treating, inter alia, stroke and
Alzheimer’s disease with perispinal etanercept/Enbrel.
ii.

Actual Malice

Public figures are required to prove actual malice to recover for defamation. A plaintiff
must demonstrate “actual malice” by clear and convincing evidence, a requirement that presents
“a heavy burden, far in excess of the preponderance sufficient for most civil litigation.” Hoffman
v. Capital Cities/ABC, Inc., 255 F.3d 1180, 1186–87 (9th Cir. 2001) (internal quotation marks
omitted). “The burden of proof by clear and convincing evidence requires a finding of high
probability. The evidence must be so clear as to leave no substantial doubt. It must be
sufficiently strong to command the unhesitating assent of every reasonable mind.” Copp v.
Paxton, 52 Cal. Rptr. 2d 831, 846 (Cal. Ct. App. 1996) (internal quotation marks omitted).
To show actual malice, a plaintiff must demonstrate that the defendant speaker either
knew his statement was false or subjectively entertained serious doubt that his statement was
truthful. Bose, 466 U.S. at 511 n.30. The question is not “whether a reasonably prudent man
would have published, or would have investigated before publishing. There must be sufficient
evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the
truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity
and demonstrates actual malice.” Reader’s Digest Assn. v. Superior Court, 690 P.2d 610, 617–18
(Cal. 1984) (emphasis added). Moreover, “[a] publisher does not have to investigate personally,
but may rely on the investigation and conclusions of reputable sources.” Id. at 619.

13

A defamation plaintiff may rely on inferences drawn from circumstantial evidence to
show actual malice. See id. at 618. “A failure to investigate, anger and hostility toward the
plaintiff, reliance upon sources known to be unreliable, or known to be biased against the
plaintiff—such factors may, in an appropriate case, indicate that the publisher himself had
serious doubts regarding the truth of his publication.” Id. at 618–19 (internal quotation marks,
citations, and footnote omitted). An inference of malice may be drawn “when the publisher’s
allegations are so inherently improbable that only a reckless man would have put them in
circulation,” or “where there are obvious reasons to doubt the veracity of the informant or the
accuracy of his reports.” St. Amant v. Thompson, 390 U.S. 727, 732 (1968). Conversely, “[t]he
failure to conduct a thorough and objective investigation, standing alone, does not prove actual
malice, nor even necessarily raise a triable issue of fact on that controversy. Similarly, mere
proof of ill will on the part of the publisher may likewise be insufficient.” Reader’s Digest, 690
P.2d at 619 (citations omitted).
Here, Tobinick M.D. has put forth insufficient evidence to establish a probability that he
will be able to demonstrate by clear and convincing evidence that Novella acted with actual
malice. 9 First, with respect to Novella’s investigation of Plaintiffs’ practice prior to publishing
the articles, nothing in Tobinick’s affidavit directly contradicts the pivotal statements made in
Novella’s: that he relied on the Los Angeles Times for some points in the articles, feeling that
extensive fact-checking of the Times, which is a reputable source, was not necessary; and that for
others he conducted his own research, consulting a number of Tobinick’s case studies, the
California Medical Board’s November 12, 2004 Accusation, and Tobinick’s own website. Mot.

9

The Court notes that many of the statements that Plaintiffs target as false and/or defamatory in their Amended
Complaint are statements of opinion. Rather than parse the statements one by one and separating fact statements
from opinion statements, however, the Court chooses a more targeted route that addresses the underlying problem—
Tobinick M.D.’s insufficient evidence of actual malice.

14

Ex. 3, Declaration of Dr. Steven Novella (“Novella Decl.”), ¶¶ 5–12. In short, although
Novella’s investigation may not have amounted to the kind of rigorous inquiry in which one
would engage prior to publishing in a peer-reviewed scientific journal, it was not so deficient as
to constitute actual malice. See St. Amant, 390 U.S. at 732; Reader’s Digest, 690 P.2d at 618–19.
Second, the Court looks to the content of the articles themselves, which is at the heart of
the dispute. Tobinick M.D. highlights a number of statements that he believes support his cause,
while omitting statements more favorable to Novella. Tobinick M.D. characterizes the articles as
little more than targeted vitriol and a complete rejection of Plaintiffs’ methods and results.
However, this is a mischaracterization of the articles, which contain a more nuanced discussion
of the issues than Tobinick M.D.’s pleading admits. For example, the first article contains a
section entitled “Plausibility and Evidence” which allows that it “is entirely plausible” that
Enbrel, a TNF inhibit, would have a broad range of applications. Am. Compl. Ex. 1 at 3.
Novella clarifies that his dispute is not primarily with the underlying viability of the treatment,
but with Tobinick’s use of a treatment that Novella considers “leaps and bounds ahead of the
evidence.” Id. at 4. Novella explains why he believes the studies cited on Plaintiffs’ website and
Plaintiffs’ own case studies/series constitute “weak evidence.” Id. at 4–5. His conclusion is not
that Plaintiffs are wrong, or will never be proven right; it is that the current medical literature
does not support clinical treatment of Alzheimer’s and stroke with Enbrel. To the extent that
Novella uses words like “quack,” and “dubious,” or makes minor misstatements relating to the
size and location of Plaintiffs’ practice, this is insufficient to demonstrate actual malice.
Plaintiffs take particular umbrage with Novella’s statement that he (Novella) “could not
find a single double-blind placebo-controlled trial establishing the efficacy of his treatment for
any of the conditions” listed in the second article. Am. Compl. Ex. 5 at 3. These conditions

15

included Alzheimer’s disease, “neurological deficits following stroke, [and] traumatic brain
injury.” 10 Id. at 2–3. After reviewing Tobinick’s affidavit, it is clear that there is exactly one
clinical trial that is relevant: a trial run by the University of Southampton which began in
February of 2010. Resp. Ex. 1, Affidavit of Edward Lewis Tobinick, MD (“Tobinick Aff.”), ¶¶
30–34. That trial was not completed until July 16, 2014, however—over a year after the first
article was written, and only days before Novella posted the second article. The trial results were
not well-publicized in academic circles, as best the Court can discern; Tobinick points to a news
release by the University and a conference presentation. He also cites to a news story published
in the Daily Mail. The Court does not believe Novella’s failure to account for this study in the
second article constitutes the kind of investigatory failure that would support a prima facie case
for actual malice. 11
D.

Attorney’s Fees

As a prevailing defendant, Novella is entitled to recover his attorney’s fees and costs
under the anti-SLAPP statute. Cal. Civ. Proc. Code § 425.16(c)(1). He may seek to recover his
fees and costs by separate motion.
V.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that Steven
Novella’s Special Motion to Strike (Anti-SLAPP Motion) [DE 93] is GRANTED. Plaintiff

10

Novella did note that “[t]here are small studies for disc herniation showing conflicting results.” Am. Compl. Ex. 5
at 3. Accordingly, the Court does not consider the trials for disc herniation to be relevant, as Novella admitted these
trials had some success.
11
Declarations, affidavits, and evidence which were not available at the time the anti-SLAPP motion was filed have
since become available. Some of this evidence came before the Court in conjunction with other motions, while some
came from discovery associated with the motion for preliminary injunction filed by Plaintiffs. The Court has
discretion to consider this evidence. See, e.g., Slauson P’ship v. Ochoa, 5 Cal. Rptr. 3d 668, 679–80 (Cal. Ct. App.
2003) (“[N]othing in the statute or case law suggests that the factual analysis for ruling on the motion must be frozen
in time on the date the complaint is filed.”). The Court believes that whether or not it were to consider the additional
evidence, the result would be the same.

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Tobinick M.D.’s claims for unfair competition under 28 U.S.C. § 1338(b) (Count II), trade libel
(Count III), and libel per se (Count IV) are STRICKEN from the Amended Complaint.
DONE AND ORDERED in Chambers, Fort Pierce, Florida, this 4th day of June, 2015.

_______________________________
ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE

Copies furnished to:
Counsel of record

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