Metropolitan News-Enterprise


Thursday, September 6, 2001


Page 1


Appeals Court Reinstates Herbal Supplement Maker’s Libel Lawsuit Against Television Station


By a MetNews Staff Writer


A suit by an herbal supplement manufacturer against a television station over a story questioning the safety of one of the plaintiff’s products, dismissed by a district judge in San Diego under the anti-SLAPP statute, was reinstated yesterday by the Ninth U.S. Circuit Court of Appeals.

A divided panel ruled that Judge John Rhoades of the U.S. District Court for the Southern District of California should have allowed Metabolife, Inc. to complete discovery regarding the falsity of WCVB-TV’s reporting before dismissing the suit.

The judge also erred in ruling that studies offered by Metabolife in defense of its products were inadmissible in evidence because they weren’t scientifically sound, Judge Michael Daly Hawkins said.

The panel did, however, uphold the judge’s ruling that the action was a strategic lawsuit against public participation with respect to a Dr. George Blackburn, a Harvard Medical School professor whose criticisms of Metabolife 356 were featured in the broadcast.

The report by WCVB, a Boston station owned by Hearst-Argyle Television, Inc., included references to a methamphetamine manufacturing conviction suffered by Joseph Ellis 10 years before he founded Metabolife. It also featured a statement by Blackburn, an obesity specialist, that “You can die from taking” Metabolife 356.

Hawkins, writing for the Ninth Circuit, said Rhoades erred in ruling that none of the scientific evidence proferred by Metabolife in opposition to the anti-SLAPP motion was admissible. The judge, he said, failed to correctly apply the Supreme Court’s sufficiency test under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579.

In particular, Hawkins said, it was error for the judge to hold that studies on animals are unreliable when the results are extrapolated to predict the effect of a product on humans, particularly when the work isn’t subject to U.S. government oversight. 

The appellate jurist said Rhoades went beyond the “gatekeeper” function to which the judge is limited under Daubert.

“Notwithstanding the moral and ethical problems often surrounding animal studies, in some circumstances they provide useful data about human health. The district court erred in rejecting the animal studies proffered by Metabolife merely because of the species gap,” Hawkins wrote.

The judge continued:

“Also wrong is the district court’s view that experimentation outside the United States is somehow presumptively unreliable. While regulation of experimentation in the United States may bolster the reliability of results generated domestically, there is no reason to assume that experimentation abroad either would not meet those regulations or is unreliable despite deviancies.”

Judge Ronald M. Gould concurred, but Judge Pamela Ann Rymer dissented.

Rymer said all of the statements made in the broadcast were literally or substantially true or without defamatory meaning. Given the obligation of the plaintiff to establish a probability of prevailing in order to defeat the anti-SLAPP motion, no error in the judge’s evidentiary rulings or in limiting discovery would make any difference, she said.

Stephen Mansfield of the Los Angeles office of Akin, Gump, Strauss, Hauer & Feld argued for Metabolife. Steven J. Comen of Boston’s Goodwin, Procter & Hoar argued for the television station and its reporter, Susan Wornick. Robert O’Regan of the Boston firm of Burns & Levinson argued for Blackburn, with Gregory D. Roper of the San Diego office of Luce, Forward, Hamilton & Scripps joining on the brief.

The case is Metabolife International, Inc. v. Wornick, 99-56814.


Copyright 2001, Metropolitan News Company