B. "Every expert...."

Due to the exclusion of the scientific evidence, the district court held that Metabolife did not present a prima facie case proving the safety of Metabolife 356 when used as directed. 72 F. Supp. 2d at 1172. The district court also ruled in the alternative that "Metabolife cannot proceed on the alleged defamatory implication" that there is some consensus in the scientific community as to its product's unsafe nature because" Wornick's 'every expert' statement is not capable of supporting" that implication. Id. at 1173.

In order to prevail on the alleged implication of scientific consensus as to Metabolife 356's unsafety, Metabolife must show "that the words ... uttered were reasonably capable of sustaining that meaning" and "that a jury could reasonably find by clear and convincing evidence that [the defendants] 'intended to convey the defamatory impression.'" [FN 18] Dodd v. Am. Broad. Co., 145 F.3d 1053, 1063-64 (9th Cir. 1998) (quoting Newton v. Nat'l Broad. Co., Inc., 930 F.2d 662, 681 (9th Cir. 1990)).

[FN 18] The second prong is the well known "actual malice" requirement dating back to New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964). See Newton v. Nat'l Broad. Co., Inc., 930 F.2d 662, 681-83 (9th Cir. 1990).

The identity of the experts consulted by Wornick is also critical to Metabolife's burden -- without the ability to depose the experts relied on, Metabolife will be faced with a moving target its attempt to disprove consensus. Therefore, limited discovery should be allowed on this issue, as discussed supra.

C. The Statement Regarding the Vanderbilt Study

Metabolife argues that by discounting the Vanderbilt University study, the broadcast implied that Metabolife 356 had not been tested for safety. The argument is largely based on the introductory comment: "Remember that ad calling Metabolife clinically tested for safety?" The logic goes that by then discounting the Vanderbilt study, [FN 19] without mentioning alternative studies of which Wornick was allegedly aware, the broadcast implied that no valid safety testing had been conducted.

[FN 19] As discussed, supra, the broadcast was correct in its assertion that the Vanderbilt efficacy study did not prove Metabolife 356's safety.

The remaining propositions, which focus on the alleged implication that no scientific studies support the safety of Metabolife 356, are protected as substantially true. At the time of the broadcasts, the Chinese animal studies were the only studies touting the safety of Metabolife 356. For the reasons that the court describes above, those studies are so insubstantial as to be essentially the same as "no studies "for purposes of the "gist" if Defendants' public concern speech.

D. The Statements that Metabolife 356 and Methamphetamine Share the Same Main Ingredient

Metabolife sought relief for statements that Metabolife 356 and methamphetamine share the same main ingredient," the controlled substance" ephedrine, "a powerful heart stimulant." To prove falsity, Metabolife offers expert testimony that synthetic ephedrine, the active ingredient in methamphetamine, is distinct from ma huang, or naturally-occurring ephedrine, the active ingredient in Metabolife 356. The expert declared that although synthetic and naturally-occurring ephedrine have similar effects, synthetic ephedrine is several times more potent than its naturally-occurring counterpart. The district court rejected Metabolife's argument because "the fact that Metabolife requires expert scientific opinion to describe the limited factual differences between ma huang and synthetic ephedrine convinces the court that such fine distinctions would have no effect on the state of minds [sic ]of the audience had they been raised by Defendant Wornick." 72 F. Supp. 2d at 1176.

The district court's holding was legally erroneous. A statement is not "substantially true" if it "would have a different effect on the mind of the reader [or viewer ]from that which the pleaded truth would have produced." Masson, 501 U.S. at 517 (quoting R. Sack, Libel, Slander, and Related Problems 139 (1980)). Here, Metabolife introduced evidence that the synthetic ephedrine used in methamphetamine has significantly different potency and absorption rates than naturally-occurring ephedrine. The district court rejected this argument out-of-hand, holding essentially that the argument was too technical for viewers to grasp. 72 F. Supp. 2d at 1176. This holding was in error. We do not agree with the district court that distinctions between natural and synthetic forms of substances are beyond a reasonable viewer's comprehension, especially when the distinction comes with substantial differences in potency and absorption rates. Anyone who knows the difference between a double espresso and a regular cup of coffee should understand that a reasonable jury could have found the differences in potency and absorption significant. The dissent may be correct that synthetic and naturally-occurring ephedrine are technically the same substance, but we are unprepared to make that holding on this record. [FN 20] Deciding only that which was decided below, we reverse and remand the district court's ruling that the statement that Metabolife 356 and methamphetamine share the same ingredient is "substantially true" as a matter of law. On remand, the district court should consider whether it is substantially true that, when considering Metabolife's proffered evidence on potency and absorption (so far as its reliability and relevance extends), synthetic and naturally-occurring ephedrine are the "same main ingredient."

[FN 20] We know that synthetic ephedrine is more potent and has a higher absorption rate than natural ephedrine. However, we do not know whether this comes from sheer concentration, or whether the two substances have subtle, but important, chemical differences.

The district court's exclusion of Metabolife's scientific evidence regarding the risk assessments, Asian animal studies, and Columbia study on the grounds explicated constituted an abuse of discretion and is REVERSED AND REMANDED. The risk assessments facially satisfy Daubert II's requirements by explaining their methodology and citation to published, peer-reviewed sources. The Asian animal studies are not unreliable simply because they involve the transposition of data across the species gap and were conducted in China and Taiwan. The Columbia study was completed, prepared independent of litigation, and its methodology appears to have been adequately explained. We do not override the district court's role as gatekeeper and hold that this evidence is admissible. Rather, we simply hold that it was an abuse of discretion to exclude it for the reasons cited. Additionally, the district court's exclusion of the efficacy studies is AFFIRMED.

The district court's decision not to allow Metabolife discovery on falsity issues under Federal Rule of Civil Procedure 56(f) is REVERSED because Metabolife identified and requested discovery of probative information solely available from the defendants.

The district court's alternative free speech rulings are REVERSED as to all defendants except Dr. Blackburn. The dismissal of the causes of action against Dr. Blackburn is AFFIRMED in light of his complete statement. The other defendants cannot use the rational interpretation doctrine to justify his statement because they materially altered it through editing. Wornick's "every expert" statement is at least legally susceptible to the defamatory implication of scientific consensus. Finally, a reasonable jury could find that it is not "substantially true" that Metabolife 356 and methamphetamine share the same main ingredient.

The district court's decision to grant Dr. Blackburn's anti-SLAPP motion is AFFIRMED. The district court's decision to grant the other defendants' anti-SLAPP motions is REVERSED. The case is REMANDED to the district court for further analysis of the admissibility of the proffered scientific evidence, discovery as specified, and subsequent reassessment of the other defendants' anti-SLAPP motions. Costs on appeal to appellant and Dr. Blackburn.

CONCUR BY: Pamela Ann Rymer (In Part)

DISSENT: RYMER, Circuit Judge, concurring in part and dissenting in part:

The issue in this case is whether Metabolife Int'l, Inc. established that there is a probability that it will prevail on a defamation claim against WCVB-TV and Susan Wornick (a WCVB reporter) for allegedly defamatory implications in four statements that she made in a telecast about the controversial presence of ma huang, a naturally occurring form of ephedrine (a precursor chemical used to manufacture methamphetamine), in a dietary supplement called Metabolife 356. If not, California's anti-SLAPP statute, Cal. Civ. Proc. Code § 425.16, requires striking the suit (as the district court did) in this diversity action. [FN 1]

[FN 1] Section 425.16 provides in pertinent part:

(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares 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 process. To this end, this section shall be construed broadly.

(b)(1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution 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.

(2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

(3) If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination.

• "You can die from taking this product."

• "Every expert we asked said Metabolife is not safe because of its main ingredient, ma huang."

• "Remember that ad calling Metabolife clinically tested for safety? Metabolife was tested at Vanderbilt University, but for only two weeks and according to their attorney -- not for safety."

• "[The founder of Metabolife] started a vitamin company that later became Metabolife -- makers of diet pills with ephedrine. Again, the same controlled substance found in methamphetamine."

• "Metabolife as directed on the label can be deadly.

• "Knowledgeable experts are in agreement that Metabolife 356 is deadly.

• "Metabolife 356 has not been tested for safety.

• "Metabolife 356 and the illegal drug methamphetamine share the same main ingredient.

Regardless, given the anti-SLAPP lens through which the district court was obliged to view the issue, I cannot see how it got either the need for discovery or the Daubert [FN 2] threshold wrong. Metabolife's claims turn entirely on the falsity implied in the broadcasts, on which, as it conceded in the district court, it had plenty of evidence and needed none from Wornick. This means that we have no call to decide, let alone conclude (as the majority does) that the anti-SLAPP statute and the Federal Rules of Civil Procedure conflict, because discovery can be (and was) tailored by the district court to match the issues necessary to make a § 425.16(g) determination in this case. Had the determination turned on malice, rather than falsity, the outcome would have been different, as the district court recognized. But in this case, the court's role in managing discovery was not materially different from what it is in an ordinary diversity action under the Federal Rules.

[FN 2] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993).

[FN 3] General Electric Co. v. Joiner, 522 U.S. 136, 139 L. Ed. 2d 508, 118 S. Ct. 512 (1997).

As the district court pointed out, concerns about the safety of dietary supplements containing ephedrine animated public debate in Washington and various state capitols in the years before the telecast. In 1997, for example, the FDA proposed a rule establishing a dosage regimen and labeling requirements for dietary supplements containing ephedrine alkaloids such as ma huang. See 62 Fed. Reg. 30678 (1997). [FN 4] The FDA's proposed rule responded to over 800 Adverse Event Reports linking ingestion of ephedrine-based products to serious health effects, including stroke and death. A number of articles and broadcasts focused on the safety of such pills, including the WCVB-TV series on the safety of Metabolife 356 which aired February 9, 1999, May 11, 1999, and May 12-13, 1999.

[FN 4] In several states, bills were proposed to regulate the sale of products containing ephedrine. See, e.g., S.B. 1292, 1999-00 Leg., Reg. Sess. (Cal. 1999); H.B. 1068, 111th Gen. Assem., Reg. Sess. (Ind. 1999); A.B. 412, 220th Gen. Assem., Reg. Sess. (N.Y. 1997); H.B. 3549, 80th Leg., Reg. Sess. (Minn. 1997); see also Massachusetts Dept. of Public Health, DPH Issues Advisory on Herbal Dietary Supplements Containing Ephedra (Aug. 2, 1996).

The documents from the FDA hearings remained on the Internet in 1999, when we did this work years ago, and they know, even today as I know, there are people who are taking similar types of these products who are getting heart attacks, and of course the abuse can lead to death. But I mean, you can die from taking this product.

After the last broadcast on May 13, Metabolife ran a full-page advertisement May 15 in the Boston Globe. The copy states that "Metabolife 356 has been shown to be safe in two independent laboratory studies that were overseen by a former president of the American Board of Toxicology," and that Metabolife "will see Ms. Wornick and WCVB TV in court." Metabolife subsequently requested a retraction and filed suit May 27, 1999. The complaint alleges that nine statements made during the May 11-13 broadcasts have false and derogatory implications; only four remain in contention.

On June 21 WCVB and Blackburn filed a Special Motion to Strike pursuant to California's anti-SLAPP statute on the ground that Metabolife could not show that the challenged statements were false. The motion had the effect of staying discovery except for good cause. Cal. Civ. Proc. Code § 425.16(g). [FN 5] Metabolife moved to compel a response to its discovery requests, but indicated that it required discovery only with respect to evidence necessary to make out a prima facie case of malice, as well as to establish personal jurisdiction and venue.

[FN 5] Section 425.16(g) provides: All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.

On this basis it granted the anti-SLAPP motion, dismissing the complaint with prejudice. I agree that this is the correct result under California law.

California's anti-SLAPP statute is designed to curtail lawsuits brought against speakers on issues of public concern "to obtain an economic advantage over the defendants, not to vindicate a legally cognizable right of the plaintiff." Wilcox v. Superior Court, 27 Cal. App. 4th 809, 33 Cal. Rptr. 2d 446, 450 (Cal. Ct. App. 1994).

There is no dispute that for purposes of § 425.16(b)(1), Wornick and WCVB-TV were speaking "in connection with a public issue" nominally protected by the First Amendment. To establish a probability of prevailing on its claim, Metabolife "must demonstrate the complaint is legally sufficient and supported by a sufficient prima facie showing of facts." 33 Cal. Rptr. 2d at 454. California recognizes the theory of defamation by implication, but a plaintiff may not construct an actionable statement by reading whatever implication it wishes into the defendants' words. "Whether published material is reasonably susceptible of an interpretation which implies a provably false assertion of fact -- the dispositive question in a defamation action -- is a question of law for the court." Couch v. San Juan Unified Sch. Dist., 33 Cal. App. 4th 1491, 39 Cal. Rptr. 2d 848, 854 (Cal. Ct. App. 1995). [FN 6] "Just as the court must refrain from a hair-splitting analysis of what is said in an article to find an innocent meaning, so must it refrain from scrutinizing what is not said to find a defamatory meaning which the article does not convey to a lay reader[,]" or here, a lay observer. Forsher v. Bugliosi, 26 Cal. 3d 792, 163 Cal. Rptr. 628, 634, 608 P.2d 716 (Cal. 1980) (quotations omitted); Church of Scientology v. Flynn, 744 F.2d 694, 696 (9th Cir. 1984) (quoting Forsher).

[FN 6] See also Dodds v. American Broadcasting Company, Inc., 145 F.3d 1053, 1065-66 (9th Cir. 1998) (affirming dismissal of several implied defamation claims as a question of law, because the statements were "not implications the [television] segment reasonably can be understood to convey").

Metabolife argues that the broadcasts falsely imply that you can die from taking Metabolife 356 as directed. This is not literally what the telecast reported, so the additional implication of "as directed" is critical to the survival of Metabolife's claim. The district court asked the parties to brief whether the "can kill you" statement established a prima facie case if it were not modified by "as directed," and Metabolife answered "No." In answering "No," Metabolife agreed that "the literal words ... cannot be proved false."

By "as directed," Metabolife means the directions for use on the product label. Likewise, each of Metabolife's experts predicated his or her opinion of the product's safety on use "as directed." [FN 7] These experts were only asked for their opinion on whether Metabolife 356 when taken as directed poses a risk of death or serious injury. Each understood, in answering the question, that:

"Ordinary use" of Metabolife 356 and "used as directed" are defined by the product label instructions, as follows: SUGGESTED USE: As a Dietary supplement, orally, adults, ONE to TWO caplets, two to three time [sic] per day, or every four hours, on an empty stomach one hour before meals. DO NOT EXCEED EIGHT CAPLETS PER DAY. CAUTION: As with any Dietary supplement, seek advice from a healthcare practitioner prior to use if you are pregnant or nursing or if you have high blood pressure, heart or thyroid disease, diabetes, difficulty in urination due to prostate enlargement, or if taking a MAO inhibitor or any other prescription drug, or intend on taking to reduce weight. Reduce if nervousness, tremor or nausea occur. Not intended for use of persons under the age of 18. Keep out of the reach of children.

[FN 7] Declarations of Cienki at P8, Farber at P7, Wurpel at P6, Meredith at P11, Bidanset at P6, and Strauss at P 19.

To me, it is not reasonable to read into Blackburn's statement "you can die from taking this product" the implication that "you can die from taking this product as directed." Even so, the label cautions that advice should be obtained from a healthcare practitioner prior to taking the product to lose weight. Most importantly, to adopt Metabolife's position requires scrutiny of what was not said to find a defamatory meaning in what was said, and this we may not do. Forsher, 163 Cal. Rptr. at 634. Accordingly, I believe that the cause of action as to the "you can die" statement was properly stricken. It is unreasonable to imply that you can die from taking the product as directed on the label, and it is admittedly true that you can die from taking the product.

Metabolife contends that the statement "every expert we asked said that Metabolife is not safe because of its main ingredient, ma huang" impliedly communicates that "there is a consensus in the medical community that taking Metabolife 356 is deadly." However, there is nothing defamatory about the "every expert" portion of the statement. In any event, as the district court found, "every expert we asked" cannot reasonably imply "a consensus in the medical community."

Metabolife argues that even if the district court were correct in this view, the statement is literally false. We should not consider this argument, because Metabolife's complaint nowhere states a claim based on the literal falsity of this statement. Regardless, it fails for the same reasons as the "you can die" statement: its falsity unreasonably depends on reading "as directed" into "not safe." In sum, it is unreasonable to impute to the statement "every expert we asked said Metabolife is not safe because of its main ingredient, ma huang," the meaning that "there is a consensus that its use is deadly," as Metabolife would have us do. Not safe to experts consulted by Wornick is one thing; deadly from a consensus of all experts is another. The statement as broadcast was expressly limited to experts with whom Wornick talked, and it would be unreasonable to expand her qualified statement by implication to the entire medical community.

Metabolife maintains that the broadcasts falsely stated that Metabolife 356 and methamphemine share the same main ingredient. Wornick made several statements to the effect:

... Every expert we asked said that Metabolife is not safe because of its main ingredient Ma Huang -- drug experts know it as ephedrine, a powerful heart stimulant.... The substance ephedrine has long had the attention of law enforcement, because it's also the main ingredient in the illegal drug methamphetamine. On the streets they call it meth, or speed.

By definition a true statement cannot be defamatory, and "a statement on maters of public concern must be provable as false before there can be liability under state defamation law, at least in situations, like the present, where a media defendant is involved." Milkovich v. Lorain Journal Co., 497 U.S. 1, 19-20, 111 L. Ed. 2d 1, 110 S. Ct. 2695 (1990). Metabolife argues that falsity is a question for the jury, but "whether a statement contains provably false factual assertions is a question of law for the trial court to decide." Eisenberg v. Alameda Newspapers, Inc., 74 Cal. App. 4th 1359, 88 Cal. Rptr. 2d 802, 821 (Cal. Ct. App. 2000). As the Supreme Court has observed:

California law permits the defense of substantial truth and would absolve a defendant even if she cannot 'justify every word of the alleged defamatory matter; it is sufficient if the substance of the charge be proved true, irrespective of slight inaccuracy in the details.... Minor inaccuracies do not amount to falsity so long as 'the substance, the gist, the sting, of the libelous charge be justified.'

Metabolife (and the majority) rely on Dr. Farber's declaration, which indicates that ma huang is weaker and less apt to cause any adverse effects than the synthetic ephedrine because synthetic ephedrine is eight times more potent as an acute intoxicant than ma huang. However, Farber's observation is based on the Chinese toxicity studies and on ephedrine as an acute intoxicant in mice, which the studies themselves show are different from the toxicity level in rats and beagles, and presumably, though the studies do not say so one way or the other, in humans. It is not surprising that ephedrine made in a laboratory is more potent than the naturally occurring ephedrine found in a plant, but this has nothing to do whether Wornick's statement is substantially true or false. Metabolife does not dispute that the main ingredient of methamphetamine is ephedrine or that ma huang is a naturally occurring ephedrine. [FN 8] Metabolife's label itself describes "Ma Huang Concentrate" as "naturally-occurring ephedrine." Metabolife's experts indicate that Metabolife 356 uses a concentration of ma huang to obtain its dosage of ephedrine, and that "ephedrine can be considered the major ingredient (approximately 77% composition of Ma Huang) in Metabolife 356." Wurpel Declaration at P16; see Bidanset Declaration at P15.

[FN 8] For example, Wornick stated in the February 9, 1999 broadcast that "ma huang ... according to the FDA, is another name for the controversial substance ephedrine." Metabolife makes no contention that this is false. Metabolife also submitted the ma huang entry from the Physician's Desk Reference for Herbal Medicines, which lists "ephedrine" as one of ma huang's "other names."

Finally, Metabolife argues that the broadcasts implied that Metabolife 356 has not been tested for safety whereas, in fact, it had been (the Chinese animal studies). In Metabolife's complaint, the following statements from the broadcast are identified as the source of the alleged implication:

At nearly every major mall in the area, they sell it as safe and effective.... They even claim to have scientific proof. (Clip from Metabolife TV commercial): "Metabolife is the herbal dietary supplement clinically tested for safety." ... Remember that ad calling Metabolife clinically tested for safety? Metabolife was tested at Vanderbilt University, but only for two weeks and, according to their attorney, not for safety. Vanderbilt officials have ordered Metabolife to stop making that claim. ... (Wornick interviewing Blackburn): Does this company have any credibility at all, doctor? (Blackburn): None.

I do not believe that Wornick's statements reasonably imply that the Vanderbilt study was the only one. Rather, she was simply (and legitimately) exposing the fallacy in a specific claim about clinical testing being made to the public about Metabolife 356.

But even if the implication is considered, it is limited to the Shanghai/Taiwan University study conducted on animals. As Metabolife's Medical Director acknowledges, that is the only study upon which its claim of testing for safety was based. See Decl. of Randy V. Smith, M.D., at PP 3,4. The Chinese studies (there was actually only one study but two universities were involved) did not purport to express any opinion about the safety of Metabolife 356 in humans. Nor did ST&T's report indicate that they had. [FN 9] The Chinese studies were on mice, rats, and beagles. They lasted just fourteen days, were conducted outside United States protocols, were paid for by Metabolife, and were not peer reviewed in the several years since completion. At a dose level of 3270 mg/kg/day all four beagles had convulsions and two died. For them, at least, "the present results showed that product 356 produced severe nervous toxicity." I cannot imagine that hearing all this would have had a different effect on viewers. [FN 10] A "statement is not considered false unless it would have a different effect on the mind of the reader from that which the pleaded truth would have produced." Masson, 501 U.S. at 517 (quotation omitted). As the district court concluded, even if Metabolife's alleged implication were reasonable that the Vanderbilt study was the only one, the Chinese studies are so insubstantial as to be "no studies" for purposes of establishing the gist of WCVB's speech and its substantial truth.

[FN 9] The ST&T summary report concludes: "Based upon the results of the laboratory study performed on product # 356, the scientific literature reviewed, the package warnings and labeling, and the research of the ST&T associates, it is our conclusion that the product # 356 is safe when used as directed, (see package warnings and dose recommendations - 5/95 product label.)."

[FN 10] The Strauss Columbia study was not finished or publically available at the time of the broadcasts, and still isn't. Thus, even were it otherwise reliable or relevant, the Columbia study cannot support Metabolife's pre-broadcast claims or show that the implication for which it now contends is false.

Metabolife argues that the district court based its dismissal on the erroneous exclusion of all of its expert evidence. This is not entirely correct, as the court's ruling on admissibility was alternative except in connection with Blackburn's statement "you can die from taking this product." In any event, I see no need to reach the issue of admissibility because I do not believe that Metabolife's implications are reasonable and there is no question that WCVB's statements are literally or substantially true. In my view, Metabolife's claims were properly stricken under the anti-SLAPP statute because it is not probable that Metabolife will prevail whether or not its experts' opinions are considered. Put differently, this case is about speech, not Daubert. However, I part company with the majority's view of Daubert as well.

Under Daubert, the court's gate-keeping function is a "two-part analysis," Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1315 (9th Cir. 1995) (Daubert II ), requiring both reliability -- "whether the experts' testimony reflects scientific knowledge, whether their findings are derived by the scientific method, and whether their work product amounts to good science" -- and relevance -- to "ensure that the proposed expert testimony is relevant to the task at hand, i.e., that it logically advances a material aspect of the proposing party's case." Id. (quotations and citations omitted). The majority starts and stops with reliability, and even so, fails to accord the district court the deference that is owed. As the Court explained in Kumho Tire:

The trial court must have the same kind of latitude in deciding how to test an expert's reliability, and to decide whether or when special briefing or other proceedings are needed to investigate reliability, as it enjoys when it decides whether or not that expert's relevant testimony is reliable.... Thus, whether Daubert's specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine.

The Columbia study was a safety and efficacy project that involved a substance similar to the active ingredients of Metabolife 356 (naturally occurring caffeine and naturally occurring ephedrine), but its safety component focused on the undue risk of serious cardiac problems. The Columbia study was not the basis for Metabolife's safety claims, and aside from the fact that there are more ways to die than from significant adverse cardiovascular events, the data from the study was still being prepared and the study cannot, therefore, be reliable in its proffered form. Metabolife submits that there should have been a notice and hearing with respect to admissibility of its evidence, but I see no reason why the district court should have provided more opportunity to be heard than it did. Metabolife had the chance to produce all the evidence it wanted to produce as well as to brief and argue whatever points it wanted to raise. Nor do I see any purpose to be served by remanding for the court to plumb more depths, as the majority does, because there's nothing more to be plumbed. There is no conflict that an evidentiary hearing is required to resolve. [FN 11] Fully crediting Metabolife's proffer, the question is whether its evidence is relevant and reliable for purposes of proving falsity under the anti-SLAPP statute. The district court has "broad latitude" in making admissibility determinations with respect to scientific evidence pursuant to the Daubert trilogy and Fed. R. Evid. 104, and I cannot say that the court here lacked discretion to rule as it did in deciding whether Metabolife established a probability of prevailing on its defamation claims.

[FN 11] It is clear that no evidentiary hearing is required; none was held in Kumho Tire, for example.

I also see no reason to reach whether Cal. Civ. Proc. Code § 425.16(g) directly collides with Fed. R. Civ. P. 56 or to reverse on this basis even if it does. So far as I can tell, Metabolife never made a Rule 56(f) request (for a continuance to permit discovery necessary for opposing the motion) to the district court and it is unclear to me that it should be able to make any argument based on Rule 56 to us. Further, both § 425.16(g) and Rule 56(f) allow for discovery that is needed to rule on the respective motions. They are not inconsistent on this account.

As a practical matter, evidence of actual malice is the only information I can think of that could be germane to an anti-SLAPP motion but that was not under Metabolife's control. The district court recognized this, and explicitly cabined malice off from its ruling. Accordingly, Metabolife's claims did not fail at this stage for the lack of evidence" essential to [its] opposition." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 5, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Nevertheless, the majority orders the district court to allow discovery as to which experts Wornick consulted because "the district court reached the issue of falsity regarding the statement 'Every expert we asked said Metabolife is not safe because of its main ingredient, ma huang. '"I do not understand how anything that could be discovered on this point would make it more probable that Metabolife could prevail. Metabolife does not claim that there is anything defamatory about the "every expert we asked" part of Wornick's statement that "every expert we asked said Metabolife is not safe ...." Indeed, Metabolife acknowledges that its implied assertion of consensus or unanimity, even if false, is not derogatory. Discovering that Wornick lied about talking to experts or misrepresented what their opinions were would certainly tend to show malice, but could not possibly show that Metabolife 356 is in fact safe or that no one can die from using it. Because the falsity of Metabolife's claims can be decided as a matter of law for purposes of the anti-SLAPP statute, and discovery on malice is irrelevant whether we invoke Rule 56(f) or § 425.16(g), it is unnecessary to decide that the two conflict in this case even if they could in some other case.

Finally, assuming there is a conflict, the district court still has discretion to refuse discovery for purposes of Rule 56. The moving party has to "proffer sufficient facts to show that the evidence sought exists, and that it would prevent summary judgment." Chance v. Pac-Tel Teletrac Inc., 242 F.3d 1151, 1161 n.6 (9th Cir. 2001). Metabolife failed to make any such showing, so there is no basis for reversal under Rule 56(f), let alone for ordering the district court to allow discovery.

I would affirm.