Wednesday, September 15, 2010
C.A. Upholds Ruling That Environmental Activist Libeled Scientist
By a MetNews Staff Writer
The Fourth District Court of Appeal yesterday affirmed a judgment in favor of a scientist who claimed that an environmental activist committed libel by accusing him of altering under-oath testimony about a conservative think tank’s payment for a revision of a mold toxicity study.
A San Diego Superior Court jury awarded Bruce Kelman $1 in damages against Sharon Kramer, to which the court added more than $7,000 in costs, five years ago.
The issues raised in Kramer’s appeal from the final judgment, Div. One said yesterday, were largely resolved in 2006, when the court affirmed an order denying Kramer’s anti-SLAPP motion.
Justice Patricia Benke, in an unpublished opinion, explained that under the doctrine of the law of the case, the court is bound by its previous ruling absent a change in the law or a showing that the previous ruling was “manifestly incorrect” or that there are exceptional circumstances calling for a reevaluation of the prior holding.
Kramer failed to show that any of those exceptions applied, Benke said.
Kramer describes herself as being “active in mold support and the pressing issue of mold causation of physical injury” after having experienced indoor mold in her own home. Kelman, who heads a Washington-based environmental risk management firm called GlobalTox, sued after Kramer posted a release on the Internet in 2005 claiming he “altered his under oath statements on the witness stand.”
In June 2004, Kramer testified under deposition in an Arizona federal case about his involvement in a paper that he and his co-authors wrote for the American College of Occupational and Environmental Medicine. He later wrote a nontechnical version of the paper for the Manhattan Institute, for which his company received $40,000.
He was asked during the deposition whether he had included argumentative language in the Manhattan Institute version that had been rejected in the peer review process at ACOEM, and denied it, although he acknowledged that some sentences that were removed from the ACOEM version may have been included in what he wrote for the think tank.
In February 2005, Kelman testified in an Oregon state court on behalf of a builder who allegedly caused injury to the residents of a home by constructing it with defects that caused mold to grow in the house. When asked by the plaintiffs’ lawyer whether it was true that he was paid by the Manhattan Institute “to make revisions” in his peer-reviewed paper, he called the statement “ridiculous” and said it was “a complete lie” to insinuate that he changed his conclusions in exchange for cash.
He explained that when the Manhattan Institute approached him, he initially declined because of the time involved, but that he later agreed that $40,000 would reasonably compensate his company. He called the think-tank version a “lay translation” of the original work, rather than “a new version” as described by the plaintiffs’ lawyer.
Describing Kelman’s testimony in her release, Kramer said Kelman had, in the Oregon case, altered what he said in the Arizona deposition and admitted that he was paid by the Manhattan Institute to “to write a position paper” asserting, contrary to “much medical research,” that “it is not plausible the types of illnesses experienced by the [Oregon plaintiffs] and reported by thousands from across the U.S. could be caused by ‘toxic mold’ exposure in homes.”
Kramer’s anti-SLAPP motion was denied on the ground that Kelman’s evidence in opposition showed a likelihood that he would prevail on the libel claim. The Court of Appeal, affirming in an unpublished opinion, said Kelman had a prima facie case because a jury might determine that he did not alter his position and that the defendant acted with constitutional malice.
The court also rejected Kramer’s claim of statutory fair reportage privilege, saying the plaintiff had presented evidence that “the press release was neither a fair nor true report of Kelman’s testimony” in the Oregon case.
Benke wrote yesterday that the prior ruling disposes of Kramer’s lack of malice and fair reportage claims in the latest appeal, that Judge Lisa Schall did not err in excluding as irrelevant evidence that other scientists in the field disagree with Kelman and that Kramer is well-regarded as a whistleblower against toxic mold, and that Kramer could not object to the cost award on appeal because she failed to itemize her objections in the trial court as required by the Rules of Court.
The case is Kelman v. Kramer, D055496.
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