Arthur v. Offit et al

Filing 29

MEMORANDUM OPINION re 9 and 13 , Defendants' Motions to Dismiss. Signed by District Judge Claude M. Hilton on 3/10/2010. (tche)

IN THE UNITED

STATES

DISTRICT

COURT

FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

F

L
mar i o 2oio
ALEXANDRIA. VIRGINIA

CLERK, U.S. DISTRICT COURT
BARBARA LOE ARTHUR,

Plaintiff,
v.

Civil Action No.

01:09-CV-1398

PAUL A.

OFFIT,

M.D.,

et

al..

Defendants.

MEMORANDUM OPINION

This matter comes before the Court on Defendants'

Motions to

Dismiss for Failure to State a Claim.

For the reasons set forth,

the Motions to Dismiss should be granted.

This action arises out of a brief passage in a lengthy magazine article profiling Defendant Paul Offit, M.D., a

Philadelphia pediatrician and infectious disease specialist.
Plaintiff Barbara Loe Arthur (also known as Barbara Loe

Fisher)

is the co-founder and acting president of the National
("NVIC"). NVIC is a non-profit

Vaccine Information Center

organization founded in 1982 and is dedicated to the prevention
of vaccine injuries and deaths through public education.

Plaintiff is a public interest advocate,

public speaker,

and

media source for information about mandatory vaccinations.
Defendant Conde Nast Publishing Inc. ("CNP") publishes a

number of nationally circulated magazines,
Yorker, Vanity Fair, Wired. Architectural Digest, Defendant Amy Wallace

including
GQ, and,

The New
as is

relevant here, who has arises

is a freelance writer 1989. This action

lived and worked in California since

from an article published in the November 2009

issue of

Wired and on its

Internet website,

Wired.com,

entitled

"An

Epidemic of Fear: Movement"

One Man's Battle Against the Anti-Vaccine by Ms. Wallace. The article

("the 2009 Wired article")

focuses on the public debate over mandatory vaccinations of
infants, children and adolescents.

Ms.

Arthur has

filed suit claiming that a two-word quotation

("She lies")
statement of

in the 2009 Wired article constitutes a false
fact about her that will cause people to conclude

she is not a person of honesty or integrity.

The article is a

profile of Defendant Offit,
for mandatory vaccination"

who is a "leading national advocate
and someone "to whom many in

government,

industry,

and the media turn for information."

Offit

is a physician employed by the Children's Hospital of

Philadelphia and is a Professor and Chief of Infectious Diseases
in the Department of Pediatrics at the University of Pennsylvania School of Medicine.
for rotavirus,

He is also the co-inventor of a vaccination
severe diarrhea and in

a disease which causes

dehydration in young children,

sometimes resulting

hospitalization and/or death.

-2-

The article's profile of Offit
context of the public

is placed in the

larger

debate over systematic vaccination of Centers for Disease Control and

children recommended by the

Prevention,

including Offit's advocacy in favor of the vaccine often sharp criticism both of Offit's
as of him personally. According

protocol and opponents'
position on this

issue as well

to the article,
movement that

"Offit has become
the

the main target of a grassroots
children and

opposes

systematic vaccination of

the

laws that require it,"

claiming that vaccines can cause

autism and/or otherwise injure children.
reports, Offit "boldly states

In response,

the article

- in speeches,

in journal articles,

and in his 2008 book Autism's False Prophets - that vaccines do
not cause autism or autoimmune disease or any of the other

chronic conditions that have been blamed on them,"
he "supports . . . with meticulous evidence." As

an assertion

Plaintiff

describes it in her Complaint,

the article

"depicts"

Offit

"as a

lone and heroic pediatrician/scientist who is the primary public voice in favor of mandatory vaccination,
rational and science-based."

a position described as

The article reviews in detail the history of how widespread

vaccinations have eradicated diseases like smallpox,
rubella, measles,

polio,

and the bacteria that causes Hib meningitis.

The article also describes several recent scientific studies concluding that parents' decisions to opt out of vaccination

-3-

programs have resulted in increased outbreaks of
including, for example, pertussis,

serious diseases

commonly known as whooping that causes the
to

cough -

"a highly contagious bacterial disease

violent coughing and is potentially lethal
incidence of which has increased from 1,000

to infants,"
cases in

1976

24,000 cases in 2004.

The article also examines who first

the possibility see evidence of

that parents in the anti-vaccine camp,

autism at

the same age as many vaccines are administered

{18

to

24 months),

are

"ignor[ing]

the old dictum

'correlation does not
in associating

imply causation'

and stubbornly persist[ing]

proximate phenomena." And,

the article addresses several studies theories"
found any

in which "scientists have chased down some of th[e]
advanced by the anti-vaccine movement, link between vaccines and conditions but have not

like autism.

The article observes that

"[b]eing rational

takes work,

education,

and a sober determination to avoid making hasty

inferences,

even when they appear to make perfect sense."

The

article thus comes out "in favor of the general safety of vaccines and a presumed medical necessity for mandatory
vaccination."

In addition to an extended discussion of the merits of the

vaccination issue,

the article also describes the harsh personal
Its first sentence
is

attacks lodged against Offit by his opponents.
states, "To hear his enemies talk, you might

think Paul Offit

-4-

the most hated man in America."

As

the article goes on to

describe,

Offit's critics point to the royalty he

receives

for

having co-invented the rotavirus vaccine as
case against" him, supposedly "proving his

"Exhibit A in the
irredeemable bias and

his corrupted point of view."

The article

also describes how he

has been physically threatened by critics,
the subject of a hostile website

as well as how he

is

(pauloffit.com)

and how people

regularly tamper with the Wikipedia entry about him.

It is in this context that, profile,

as part of

the 7,500-plus word

a few paragraphs are devoted to one of his critics,

Plaintiff Barbara Loe Arthur.

The Complaint states that Ms.

Arthur "is the co-founder and acting president of the National

Vaccine Information Center,"
... to defending patients'

a "non-profit organization dedicated
rights to voluntary, fully informed Arthur's

consent to vaccination."

The Complaint also lists Ms.

accomplishment such as the three books she wrote on the subject of vaccinations, her service on a number of governmental advisory

committees,

her biweekly newsletter,

and her frequent appearances
including all major
as her prolific

on "national radio and television programs,
networks" to advocate her position as well

authorship of articles on the subject.
Arthur as the anti-vaccine organization as
watchdog groups

The article portrays Ms.
and describes her

"movement's brain" oldest,

"the largest,

and most influential of the
The article

that oppose universal vaccination."

-5-

characterizes Ms.

Arthur as a

"skilled debater,"

who

"has

long

been the media's go-to interview for what some in the autism
arena call
conference

'parents rights'"

and whose speech at an autism
"characteristic
frequently"

in Chicago was delivered with
Plaintiff

flair."
"cast

In that speech,

"mentioned Offit

and

him as a man who walks

in lockstep with the pharmaceutical

companies and demonizes caring parents."
As the . . the . Complaint puts it, "Offit disagrees adamantly with

positions

taken by Plaintiff Arthur and advocated by

her and by NVIC."
is

In response
as

to those positions,

Defendant Offit
make

quoted in the article

saying that

"xKaflooey theories'

him crazy"

and that

Plaintiff

"makes

him particularly nuts
lies."

as

in

'You just want

to scream'"

because

"She

He goes on to say

that Plaintiff
this for the

"inflames people against me.
is. I

And wrongly.
kids. Does

I'm in
she

same reason she

care about

think that Merck
the logic?"

is paying me

to speak about vaccines?

Is

that

In her Complaint,
statement "she lies,"

Plaintiff contends

that,

Defendant Offit's

is defamatory and that he and the Magazine
of fact and have

Defendants have published a false statement

committed defamation per se, infamous, and ridiculous."

causing her to appear However,

"odious,

several Fourth Circuit cases
the key participants

make clear that

including a remark by one of

in a heated public-health debate

stating that his adversary

-6-

"lies" of the

is not an actionable defamation. statement including that

Indeed,

both the nature

it was quoting an advocate with and policy position - and the
in a lengthy

a particular scientific viewpoint
statement's context -

a very brief passage

description of an ongoing,
confirms Rule that this is of

heated public health controversy opinion. Procedure

a protected expression of the Federal Rules of Civil

12(b)(6)

requires dismissal of a Complaint for failure to state a claim where, as here, a Plaintiff cannot obtain the relief she seeks

even if all well-pleaded factual allegations are accepted as true and the reasonable inferences derived therefrom are viewed in the
light most favorable to her. Nemet Chevrolet. Ltd. v.

Consumeraffairs.com.

Inc..

591

F.3d 250,

255

(4th Cir.

2009).

Dismissal

is proper where such a conclusion is apparent from the "other sources courts

face of the pleading and from a review of

ordinarily examine when ruling on particular,
reference,

[such]

motions to dismiss,

in

documents

incorporated into the complaint by

and matters of which a court may take judicial

notice." 3 08, 322

Tellabs. (2007).

Inc.

v.

Makor Issues & Rights.

Ltd..

551 U.S.

In evaluating such motions,

courts do not credit

a plaintiff's

"legal conclusions,

[recitations of]

elements of a

cause of action, enhancement,"

and bare assertions devoid of "decline to consider

further factual

and must

%unwarranted

inferences,

unreasonable conclusions,

or arguments'"

contained in

-7-

the

complaint.

Nemet

Chevrolet,

Ltd.

v.

Consumeraffairs.com.

Inc.,

591 The

F.3d at

255(citation omitted). "evaluating] 12(b)(6) complaints early in the

importance of in response

process"

to Rule

motions has been emphasized in as a way to deal suits' and the 588

by the Supreme Court and the Fourth Circuit with "the recognized problems created by of 193 frivolous (4th Cir. litigation." 2009)

'strike

high costs F.3d 186,

Francis v.

Giacomelli.

(citing,

inter alia,

Ashcroft v.

Igbal.

129 S.

Ct.

1937,

1949

(2009)).

Moreover,

because the

defense of baseless defamation claims

imposes an additional cost,

in the form of potentially deterred speech,

federal courts have

historically given close scrutiny to pleadings in libel actions.
See 5B Charles A. 1357 Wright & Arthur R. Miller, Federal Practice &

Procedure 3d §

("When the claim alleged is a traditionally

disfavored
the courts

'cause of action,'
[tend]

such as

...

libel,

or slander,

to construe the complaint by a somewhat

stricter standard and 12(b)(6)

[are]

more inclined to grant a Rule As a result, courts in Virginia

motion to dismiss.").

and the Fourth Circuit routinely dismiss at the outset defamation
claims that are based on constitutionally
protected speech by media defendants.

Because of their effect on speech about important matters of
public concern, defamation claims are circumscribed by the

constitution and common law of Virginia,

as well as by the First

-8-

Amendment

to the U.S.

Constitution. Here,

the publication at

issue

indisputably involves a matter of the

substantial public and
the

concern - namely,
benefits of

safety of vaccines and the risks
immunization protocols. As

childhood

a result,

constitutional and common law protections Commonwealth and federal law here are at

under both their zenith. See

Chapin v. 1993)

Knight-Ridder.

Inc..

993

F.2d 1087,

1091-92

(4th Cir.

{"[T]he First Amendment's press the common law where

and speech clauses greatly is a member of the

restrict

the defendant

press,

the plaintiff

is a public

figure,

or the subject matter of Where,

the supposed libel
as here, all of

touches

on a matter of public concern.
are present, the

these

considerations

constitutional protection of the press

reaches

its apogee.")

(citation omitted);
S.E.2d 97, 102

Chaves v.

Johnson.
1,

230 Va.

112,

119,

335

(1985)

{"[A]rticle

section 12

of the

Constitution of Virginia protect[s] teach, preach, write,

the right of

the people to however

or speak any such opinion,

ill-founded,
slander.").

without

inhibition by actions

for libel and

To state a claim for defamation in Virginia,
must plead that the defendant (i) published (ii)

a plaintiff
an actionable

statement

(iii)

with the requisite degree of Corp.. 2009) No.

intent.

See,

e.g..

Marroquin v. at *8 (E.D.

ExxonMobil Va. May 27,

l:08-CV-391,

2009 WL 1529455, F.2d at 1092).

(citing Chapin.

993

-9-

Whether a statement
to be decided as

is

"actionable"

is

a threshold determination
Id. That legal

a matter of

law by the court.

determination requires the court
the statement can "reasonably be

to assess,

inter alia,

whether

interpreted as

stating actual

facts," factual

as well as whether connotation."

it

"contain[s]

a provably

false 293,

Yeagle v.

Collegiate Times.

255 Va.

295,

497

S.E.2d 136,

137

(1998).
265 Va.

See also Fuste v.
127, 132-33, 575

Riverside
858,

Healthcare Ass'n.

Inc..

S.E.2d

861-62

(2003)

(statements must be

"capable of being proven true
Inc. v. McLean.
Dec. 6,

or false"

to be actionable);

SRA Int'l.
at *1

No.
2007)

l:07-CV-0935,

2007 WL 4766697,

(E.D.

Va.

("'[Slpeech which does not contain a provably false
connotation,

factual

or a statement which cannot reasonably be

interpreted as stating actual facts about a person cannot form
the basis of a common law defamation action.'") omitted); Marroquin. opinion are 2009 WL 1529455, at *8 (citations

("Statements of

'relative in nature and depend largely upon whereas statements of fact are those

the speaker's viewpoint,'

which are
omitted).

'capable of being proven true or false.'")

(citation

As a result,

these two complementary requirements

for

actionable defamation (2)

(1)

a statement of actual fact that is

capable of being proven true or false - operate together to "opinion."

immunize speakers against liability for expressions of

-10-

Indeed, the U.S.

both the Virginia constitution and Constitution compel the

the

First Amendment these twin

to

imposition of of
40,

requirements protecting expressions
Raytheon Tech. Servs. Co., 277 Va.

opinion.
47, 670

See Hyland v.
S.E.2d 746, 750

(2009)

(Virginia Constitution);

Milkovich v.

Lorain Journal

Co.,

497 U.S.

1,

20

(1990)

(U.S.

Constitution);

Fuste.

265 Va.

at 132,

575 S.E.2d at 861

(expressions of opinion

"are protected by the

First Amendment of the Constitution of the United States and Article 1,
Tech.. Inc.

§ 12 of the Constitution of Virginia");
v. Rhodes. 536 F.3d 280, 293-94

CACI Premier
2008) ("The

{4th Cir.

First Amendment['s]

.

.

.

safeguard includes protection for
and * loose,

'rhetorical hyperbole,

a vigorous epithet'

figurative, 'provide[ ]

or hyperbolic

language,'"

which

"is necessary to

assurance that public debate will not suffer for lack

of imaginative expression
at 20-21).

.

.

.

.'")

(quoting Milkovich.

497 U.S.

In analyzing this

issue,

courts must

focus on both

"the

plain language of the statement"

and "the context and general "'verifiability

tenor of its message," keeping in mind that the
of the statement'" is a touchstone

"because a statement not

subject to objective verification is not likely to assert actual
facts." Snvder v. Phelps. 580 F.3d 206, 219 (4th Cir. 2009)

(citations omitted).
matter of

A statement is therefore nonactionable as a
language, context, and tenor

law when - considering its

-11-

-

the

speaker is
a

"plainly express[ing]
theory, conjecture

*a subjective view,

an
. . . .

interpretation, . claim[ing]

or surmise,

rather than . 186

to be

in possession of Inc. v.

objectively verifiable Inc., 151 F.3d 180,

facts.'" (4th Cir.

Biospherics, 1998)

Forbes.

{citation omitted)

(affirming order granting

motion to dismiss).

In this case,

the article's

quotation of Defendant Offit's

comment that Plaintiff
suggest, as the

"lies"

cannot reasonably be understood to
that Plaintiff is "a person

Complaint alleges,

lacking honesty and integrity

.

.

.

[who should be]

shunned or

excluded by those who seek information and opinion upon which to
rely." Rather, the context of the remark in a lengthy article

describing an emotional and highly charged debate about an important public issue over which Defendant Offit and Plaintiff - plainly signals to readers

have diametrically opposed views
that they should expect emphatic

language on both sides and

should accordingly understand that

the magazine

is merely Arthur's

reporting Defendant Offit's personal opinion of Ms.
views.

In particular,

the

language

immediately surrounding the "Kaflooey

challenged statement, theories"
of "loose,

in which Defendant Offit decries to scream,"
that tends

that make him "want
figurative"

is precisely the kind
to "negate! ] any

language

impression that the

speaker is asserting actual

facts."

Snyder.

-12-

580

F.3d at

220.

Against

this

contextual backdrop,

the

declaration

"she

lies"

is plainly understood as an outpouring of
Plaintiff's believes ability to are

exasperation and gain traction for

intellectual outrage over ideas

that Defendant Offit

seriously misguided,
Schnare v. Ziessow.

and not as a literal assertion of
104 Fed. App'x 847, 851-52

fact.

("A reasonable

reader would an

.

.

.

recognize

this

'accusation'

of

lying as

just

'expression of outrage.'").

In other words,

the remark by

Defendant Offit is, expression of
852-53

on its

face, felt'

merely an

"'imaginative Id.
"an

the contempt

toward his adversary,"

at

(citation omitted),

which can only be viewed as taken by

impassioned response and nothing more."
648 (D.S.C. 1996)

to the positions

[that adversary], 928 F. Supp. 637,

Faltas v.
aff'd. 155

State Newspaper.
F.3d 557

(4th Cir.

1998).

From the perspective of Defendants

CNP and Ms.

Wallace,

this

impassioned response by Defendant Offit toward Plaintiff was

itself illustrative of the rough-and-tumble nature of

the

controversy over childhood inoculations and therefore worthy of

mention in the other things, that context,
Plaintiff much like

Wired article,

which sought

to highlight,

among Given that
is

the intense nature of

the vaccine debate.

publishing the quotation from Defendant Offit
is simply not actionable. of commercial Such a statement the

"lies"

the assertions

inferiority that

Virginia Supreme Court considered in Chaves and dismissed as

-13-

nonactionable because

the

remarks

-

that

the plaintiff had

"no

past experience and
fee"
upon

[charged customers]

an unjustifiably high
of opinion,
at 116-19,

- were merely
the speaker's

"relative statement[s]
obvious bias." 230 Va.

grounded
335 S.E.2d

at

100-01.

So,
that,

too,
in

here
the

is

the

comment by Defendant Offit
of a heated and very public

the

very sort

context

scientific debate,
repetitive

would

"fall on
at 119,

[listeners']
335

ears

like
It plainly

drumbeats."

Id.

S.E.2d at

101.

is

no more

than a relative

charge based upon Defendant Offit's

evident viewpoint
could not

(avowedly antithetical
interpreted as of the

to Plaintiff's)
actual

and thus

reasonably be

stating

facts.

Moreover,

in the context

Wired article,

the statement

"she

lies"

lacks

the provably false

content

that

is

required to claim of

support a defamation action. the statement's

Not only does

Plaintiff's

falsity invite an open-ended inquiry into but it also threatens to ensnare the Court

Plaintiff's veracity, in the

thorny and extremely contentious debate over the perceived certain vaccines, their theoretical association with and, at bottom, which side of

risks of

particular diseases

or syndromes,

this debate has
issue

"truth"

on their side.

That

is hardly the

sort of
"core of

that would be

subject to verification based upon a
See Milkovich.
of

objective evidence."
The

4 97

U.S.

at

21.
and

same prospect

litigation over unresolved -

perhaps

unresolvable

-

scientific

arguments was

among

the

reasons

-14-

that

the accusations
See

of

lying in Faltas were
F. Supp. at 649

deemed to be
issue

nonactionable. was not one

928

("[T]he underlying to vproof'

easily susceptible

(if at all)

one way or

the other."). into the

Courts have a justifiable reticence about venturing scientific debate, especially in the

thicket of

defamation context.

Plaintiff may wish to defend in Court
conclusions about the dangers evidence she offers that of vaccines, those

the credibility of her
the validity of and the as her own however, courts the

in support of

theories, -

policy choices

flow from those views

as well

credibility for having advanced those positions. are academic questions resolve that are not the sort of

These, thing

that

or juries an actual or false

in the

context of a defamation action. that is

Rather,

statement of is required as

fact

capable of being proven true law. In this context, therefore

a matter of

Plaintiff has not alleged such a statement

and has

failed to state a claim upon which relief may be granted.
appropriate Order shall issue.

An

/s/

Claude M. Hilton United States District Judge
Alexandria, March /0 , Virginia 2010

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