Because the Court has stayed all discovery, this order does not weigh Metabolife's evidence to determine whether it has established a prima facie case of actual malice. Rather, the discussion that follows addresses the legal defenses of Defendants and whether Metabolife has established a prima facie case of falsity. [FN 3] The Court considers each statement and alleged implication in turn.

[FN 3] Unless otherwise indicated, the Court's analysis of each statement and alleged implication applies to all causes of action alleged by Metabolife. Metabolife is required to prove falsity in support of each cause of action either because it is an element of the plaintiff's proof in a "public concern" case (defamation, slander, and trade libel claims), or because the cause of action, as plead, requires that the Court first find defamation (interference with prospective economic advantage).

A. "You can die from taking this product."

Metabolife asserts all causes of action against all Defendants on the basis of Defendant Blackburn's televised statement, made during an interview with Susan Wornick, that "you can die" from taking Metabolife 356. The Court grants Defendants' anti-SLAPP motions as to this statement for two reasons: (1) Metabolife has not provided admissible prima facie evidence that this statement is false, and (2) Defendant Blackburn's statement is entitled to First Amendment protection as a "rational interpretation" of a conflicting and ambiguous source.

1. Metabolife's Evidence of Falsity is Inadmissible Under Daubert [FN 4]

[FN 4] The Court notes, initially, that the parties disagree about the precise meaning of the simple phrase uttered by Defendant Blackburn. Metabolife asserts that, when Dr. Blackburn said "you can die," he conveyed to listeners the message "you can die from taking Metabolife as directed." Thus, Metabolife claims that it must prove the falsity only of that message as conveyed to listeners. Defendants resist Metabolife's addition of the phrase "as directed," and seek to have Metabolife disprove the less controversial proposition that Metabolife 356 can kill when abused. The Court neglects to choose between the parties interpretations of Defendant Blackburn's statement because it holds that, even if the Court adds Metabolife's phrase "as directed," Metabolife has not provided any admissible prima facie evidence of falsity.

[FN 6] Metabolife insists that the Court must accept its scientific evidence as true because, under the anti-SLAPP statute, the Court cannot "weigh the evidence or determine questions of credibility, but accept[s] all evidence favorable to the plaintiff as true." See Wilcox, 27 Cal. App. 4th at 828. The Court disagrees. Metabolife must meet its burden of proving prima facie falsity with admissible evidence. See Wilcox v. Superior Court, 27 Cal. App. 4th 809, 830 (1994); Evans v. Unkow, 38 Cal. App. 4th 1490, 1497 (1995). In federal court, that means that Metabolife must produce scientific evidence that is admissible under Rule 702. Scrutinizing Metabolife's scientific evidence at this early stage is consistent with Ninth Circuit case law applying Rule 702 to exclude scientific evidence at the pretrial motion stage. See, e.g., Lust v. Merrell Dow Pharmaceuticals, Inc., 89 F.3d 594, 595 (9th Cir. 1996); Claar v. Burlington Northern Railroad Co., 29 F.3d 499, 500 (9th Cir. 1994). Moreover, ruling early on Metabolife's scientific evidence promotes the purpose of the Federal Rules of Evidence to "eliminate unjustified expense and delay," see Fed. R. Evid. 102 (1999), since it wastes time and resources to proceed on a claim based on evidence that would never be admissible at trial.

[FN 7] The district court exercises its discretion to determine the admissibility of scientific evidence. See United States v. Cordoba, 1999 Daily Journal D.A.R. 11478 (Nov. 15, 1999) ("'It is very much a matter of discretion with the [trial] court whether to receive or exclude the evidence' and appellate courts should 'not reverse in such a case unless the ruling is manifestly erroneous.'") (quoting General Electric Co. v. Joiner, 522 U.S. 136, 118 S. Ct. 512, 517, 139 L. Ed. 2d 508 (1997)).

if the proffered expert testimony is not based on independent research, the party proffering it must come forward with other objective, verifiable evidence that the testimony is based on "scientifically valid principles." One means of showing this is by proof that the research and analysis supporting the proffered conclusions have been subjected to normal scientific scrutiny through peer review and publication.

[FN 8] The exception is Dr. Ruth Strauss, a researcher for the Columbia Study, who submits a declaration, based on her own research, stating that Metabolife 356 does not create "any significant risk of adverse cardiac event in otherwise healthy obese people." (Strauss Decl. P18.) While Dr. Strauss' opinion may have been formed independently of this litigation, the Columbia Study on which it relies suffers from other indices of unreliability discussed herein.

[FN 9] In this regard, the Court feels like Judge Kozinski in Daubert II, 43 F.3d at 1318, who wrote: "None of the plaintiff's experts has published his work . . . in a scientific journal or solicited formal review by his colleagues. . . . It's as if there were a tacit understanding . . . that what's going on here is not science at all, but litigation."

First, the Court follows numerous other decisions by holding that Chinese animal studies are inadmissible due to the uncertainties in extrapolating from effects on mice and rats to humans. See, e.g., Turpin v. Merrell Dow Pharm., Inc., 959 F.2d 1349, 1359 (6th Cir. 1992), cited with approval in Daubert, 509 U.S. at 596; In re "Agent Orange" Liability Litigation, 611 F. Supp. 1223, 1241 (E.D.N.Y. 1985); Lynch v. Merrell-National Laboratories, Division of Richardson-Merrell, Inc., 830 F.2d 1190, 1194 (1st Cir. 1987). The Chinese animal studies are short-term, high-toxicity studies of effects on animals that took place outside the United States government's regulatory supervision. First, the nature of the Chinese animal studies requires extrapolation from animals to humans, from high doses to low doses, and from short to long-term exposures. Difficulties in such extrapolation has lead to controversy concerning the admissibility of such studies. See Bernard Goldstein & Mary Sue Henifen, Reference Guide on Toxicology, in Federal Judicial Center Reference Manual on Scientific Evidence 182, 193 (1994). Further, because the research took place outside the United States and was not part of the FDA drug application process, it is not governed by federal codes setting the standards for good laboratory practice. See id. at 192-93 (noting the existence of government oversight for animal toxicity studies, including FDA good laboratory practice standards). [FN 10] Finally, Metabolife commissioned the Chinese animal studies itself and the research results have not been through the peer review and publication process. In short, the Chinese animal studies possess none of the indicia of reliability necessary for admissibility under Daubert.

[FN 10] Significantly, animal studies alone cannot justify FDA approval of a new drug, but only serve as a necessary first step to obtaining FDA permission to test in humans. See Jeffrey P. Cohn, U.S. Food and Drug Administration, The Beginnings: Laboratory and Animal Studies (visited Oct. 14, 1999) www.fda.gov/fdac/special/newdrug/begin.htm.

Aside from its unreliability, the Columbia Study is also of questionable relevancy to the falsity of the statement "you can die from taking Metabolife." Metabolife's experts have consulted a "draft" article by the Columbia Study team on the efficacy of ma huang as a weight loss supplement, but this short-term study can have little relevance to the safety of the substance. Moreover, Dr. Strauss' portion of the Columbia Study dealt only with particular cardiovascular effects. Because there are more ways to die than through "significant adverse cardiovascular events," Dr. Strauss' opinion and study, even if reliable, would be of limited relevance to the falsity of Dr. Blackburn's statement. Due to the minimal reliability and relevance of the Columbia Study, the Court finds that its results are inadmissible under Daubert.

Similarly, the short-term efficacy studies submitted by Metabolife are incapable of supporting the falsity of the statement "you can die from taking Metabolife." The only statement for which efficacy studies could possibly provide reliable and relevant evidence of falsity is "you cannot lose weight by taking Metabolife." Nonetheless, Metabolife seeks to employ its efficacy studies to demonstrate the safety of its product by pointing out that, over the course of the short-term studies, no test subjects suffered from detected adverse health effects. This is not reliable research methodology for testing the safety of a supplement intended for long-term use. Safety testing is not even the purpose of the study's research design. The Court therefore finds that the efficacy studies are inadmissible under Daubert for establishing the falsity of the Dr. Blackburn's statements.

Metabolife's experts also base their opinions on published scientific articles addressing issues related to the safety of ephedrine. While some of these articles are published and peer-reviewed, they are inadmissible as relied upon by Metabolife's experts. Because Metabolife relies on expert opinions formulated specifically for trial, its experts must "explain precisely how they went about reaching their conclusions and point to some objective source . . . to show that they have followed the scientific method." See Daubert II, 43 F.3d at 1319. Metabolife's experts do not explain precisely how they use the scientific literature to support their opinion. Rather, the experts list numerous articles in scientific journals and simply state that, after reviewing these articles, they are convinced that Metabolife 356 cannot cause serious health problems.

Despite the assurances of Metabolife's experts, a review of the listed scientific literature raises applicability questions that the experts do not address. For example, the list includes articles titled "Ephedrine as an Anoretic," "Ephedrine Therapy In Asthmatic Children," and "Contribution of Bat and Skeletal Muscle to Thermogenesis Induced by Ephedrine in Man." [FN 11] The missing explanation as to how articles such as these support the opinions of Metabolife's experts renders those opinions inadmissible under Daubert. [FN 12]

[FN 11] The one source that Metabolife repeatedly touts as substantial evidence of safety -- Dennis Jones, Safety of Ephedra Herbs; A Preliminary Report, File: HSE25JN5 1 (1995) ("Jones article") -- is by its own title, a "preliminary" result. Moreover, far from being published and peer reviewed, the Jones article is stamped "CONFIDENTIAL," which implies that it is not open for review and comment in the scientific community. Thus, while the applicability of this report is subject to less doubt than much of Metabolife's scientific literature, the Court finds that the Jones article lacks sufficient indicia of reliability to be admissible under Daubert.

[FN 12] Metabolife's submissions with regard to the scientific literature are very similar to those held inadmissible in Daubert II: "Plaintiff's experts have relied on animal studies, chemical structure analyses, and epidemiological data, [but] they neither explain the methodology . . . followed to reach their conclusions nor point to any external source to validate that methodology. We've been presented with only the experts' qualifications, their conclusions and their assurances of reliability. Under Daubert that's not enough." Daubert II, 43 F.3d at 1319.

2. Dr. Blackburn's Statement is Protected First Amendment Speech

Even if Metabolife had proved its prima facie case of falsity, the Court would still dismiss its claim because, in the context of the current debate surrounding the safety of ephedrine-based diet pills, Dr. Blackburn's statement that "you can die" from taking Metabolife 356 constitutes unactionable First Amendment speech. The Court holds that Dr. Blackburn's statement is protected as a "rational interpretation" of the ambiguous and unresolved state of scientific knowledge regarding the safety of products like Metabolife.

A line of Supreme Court cases establishes special protection for First Amendment speech that is a "rational interpretation" of an ambiguous source. See Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 80 L. Ed. 2d 502, 104 S. Ct. 1949 (1984); Time, Inc. v. Pape, 401 U.S. 279, 28 L. Ed. 2d 45, 91 S. Ct. 633 (1971). Confronting the difficulties to public commentators of offering original interpretation of ambiguous sources, the Court held, in those cases, that the defendant "did not publish a falsification sufficient to sustain a finding of actual malice." See Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 519, 115 L. Ed. 2d 447, 111 S. Ct. 2419 (1991). "The protection for rational interpretation serves First Amendment principles by allowing an author the interpretive license that is necessary when relying on an ambiguous source." Id.

The Bose case is particularly useful in the present analysis because it involved critical statements about Plaintiff's product, a stereo speaker system. The defendant in Bose published an article in its magazine stating that the sound from the Bose speaker system tended to "wander around the room." See Bose, 466 U.S. at 488. In a bench trial, the district court held that the statement was false because, in fact, the reporter had heard sound wandering only between the speakers and along the wall, not around the entire room. See id. at 490. On that basis, the district court entered judgment against the defendant. The court of appeals reversed and the Supreme Court affirmed that reversal, stating that adoption of the "around the room" language was "'one of a number of possible rational interpretations' of an event 'that bristled with ambiguities'." See id. at 512 (quoting Pape, 401 U.S. at 290). Thus, though the statement "reflected a misconception, [this] does not place the speech beyond the outer limits of the First Amendment's broad protective umbrella." Id. Rather, "erroneous statement is inevitable in free debate, and . . . must be protected if the freedoms of expression are to have the 'breathing space' that they 'need . . . to survive.'" Id. (quoting New York Times v. Sullivan, 376 U.S. 254, 271-72, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964)).

Given the controversy surrounding the safety of Metabolife 356, Defendant Blackburn's statement is incapable of supporting a finding of actual malice. [FN 13] Dr. Blackburn's statement presents an even stronger case for protection than in Bose because, unlike in Bose, the source of the statement is so complex and "ambiguous" that this Court cannot find that the statement is false. Rather, the Court has previously found that Metabolife's evidence of falsity is inadmissible because it is scientifically unreliable. Moreover, while controversy surrounds the interpretation of the FDA's Adverse Event Reports, Defendant Blackburn could easily support his statement with the reported deaths that motivated the FDA's proposed rule. See 62 Fed. Reg. 30678 (1997). Given the controversial and ambiguous nature of Defendant Blackburn's source material, the Court holds that he "did not publish a falsification sufficient to sustain a finding of actual malice." [FN 14] See Masson, 501 U.S. at 519.

[FN 13] The Court stresses that, because it has stayed all discovery, it does not rule on the basis that Metabolife has not proven a prima facie case of actual malice. Rather, the Court holds as a matter of law that, given the controversy surrounding the safety of ephedrine-based diet pills, the character of Dr. Blackburn's statement -- namely, public comment on the scientific controversy -- is non-actionable First Amendment speech.

[FN 14] Metabolife's evidence of Dr. Blackburn's affiliation with competing companies is irrelevant to the actual malice determination. "Actual malice" turns exclusively on the extent of Defendant's knowledge regarding the truth of the statements uttered. It cannot be supported by evidence of hostility or "intention to harm." See Greenbelt Cooperative Publ'g Ass'n v. Bresler, 398 U.S. 6, 10-11, 26 L. Ed. 2d 6, 90 S. Ct. 1537 (1970); Beckley Newspapers Corp. V. Hanks, 389 U.S. 81, 82, 19 L. Ed. 2d 248, 88 S. Ct. 197 (1967); see also Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 664-65, 105 L. Ed. 2d 562, 109 S. Ct. 2678 (1989) (holding that newspaper's motive to increase profits cannot support a finding of actual malice). Thus, Metabolife's bias evidence does not affect the Court holding that, given the ambiguous state of knowledge concerning the safety of ephedrine-based diet pills, Dr. Blackburn's statement is incapable of supporting a finding of actual malice.

[FN 15] The Court recognizes the novelty its application of the "rational interpretation" standard to public scientific comment. Nonetheless, particularly in the context of scientific contribution to public health debates, the Court believes itself justified in applying the doctrine in this context. If the First Amendment provides heightened protection for rational comment on stereo speakers, it should also protect scientific comment on issues as important as public health. See Michael Kent Curtis, Monkey Trials: Science, Defamation, and the Suppression of Dissent, 4 Wm. & Mary Bill Rts. J. 507, 582 (1995) (arguing for a application of the "rational interpretation" doctrine to scientific comment against public figures).