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
-15-
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