California Anti-SLAPP Project

Metabolife v. Wornick (concluded)


B. "Every expert we asked said Metabolife is not safe because of its main ingredient, Ma Huang."

Metabolife seeks to impose liability on Defendants Wornick and WCVB on the basis of Wornick's "every expert" statement and the alleged implication therefrom that "the consensus in the medical community is that taking Metabolife is deadly." The Court strikes Metabolife's claims on these basis because (1) Metabolife cannot prove the falsity of the alleged defamatory statement, and (2) the statement is not capable of supporting the implication that Metabolife ascribes to it.

Wornick's statement derives its allegedly defamatory nature from the portion which calls Metabolife 356 "not safe," not the portion which notes that "every expert" reached this conclusion. [FN 16] As the Court discusses above, Metabolife cannot prove a prima facie case of the falsity of that defamatory portion because it offers only inadmissible scientific evidence of safety. Thus, the Court strikes Metabolife's claims based on the "every expert" statement under the anti-SLAPP statute.

[FN 16] For example, Metabolife would clearly have no claim if Wornick had stated that "every expert declined to comment on the safety of Metabolife 356."
Metabolife also cannot proceed on the basis of the alleged defamatory implication. The Court should not imply defamatory meaning to a defendant's statements unless the words uttered are "reasonably capable of sustaining" the implication. See Dodds v. American Broad. Co., 145 F.3d 1053, 1063 (9th Cir.), cert. denied, 119 S. Ct. 866 (1998); Eastwood v. National Enquirer, Inc., 123 F.3d 1249, 1256 (9th Cir. 1997). The Court makes this determination by examining the statements themselves, in context of the entire broadcast. See Auvil v. CBS 60 Minutes, 67 F.3d 816, 822 (9th Cir. 1995); Underwager v. Channel 9 Australia, 69 F.3d 361, 366 (9th Cir. 1995) (finding that the court examines the "totality of the circumstances" in determining whether a statement implies a factual assertion). "It is the statements themselves that are of primary concern in the analysis." Auvil, 67 F.3d at 822. "Defamatory meaning may not be imputed to true statements. The defamatory character of the language must be apparent from the words themselves." Id.; see also Isuzu Motors Ltd. v. Consumers Union of U.S., Inc., 12 F. Supp. 2d 1035, 1045 (C.D. Cal. 1998) (finding that the court must "refrain from scrutinizing what is not said to find a 'defamatory meaning which the article does not convey to a lay reader'") (quoting Church of Scientology of California v. Flynn, 744 F.2d 694, 696 (9th Cir. 1984)).

Here, Wornick's statement does not imply a "consensus" in the scientific community, as Metabolife asserts. The statement is explicitly limited to the experts consulted by Defendants Wornick and WCVB. It would be unreasonable to believe that Defendants consulted the entire scientific community before making the statement. Yet, such an inference is logically necessary to finding the implication urged by Metabolife. The Court finds, therefore, that Wornick's "every expert" statement is not capable of supporting the alleged implication asserted by Metabolife. [FN 17] Court strikes Metabolife's claim based on this alleged implication.
[FN 17] The Court does not believe, as Metabolife insists, that the Marylander Survey compels Metabolife's defamatory implications. First, the Court determines whether a statement carries an alleged implication as a threshold question of law; only if the Court answers this question yes does the jury then address whether the statement was so understood by the audience. See Isuzu Motors, 12 F. Supp. 2d at 1045; Restatement (Second) of Torts § 614 (1977). While the Marylander Survey may be useful to the jury in its role, it does not assist the Court in making the threshold determination of law, for which the Court relies primarily on the statements themselves. See Auvil, 67 F.3d at 822. Second, even if the Marylander Survey factored into the Court's decision, it would be of negligible value. The only evidence that viewers discerned the implications alleged by Metabolife is participants selection from a list of propositions proposed by Metabolife. The list of propositions was leading and overly suggestive, as it contained only two types of statements to select among: (1) positive or neutral statements clearly unsubstantiated by the broadcasts (e.g., "Metabolife has been evaluated an approved by the FDA"), or (2) the negative "implications" that Metabolife asserts as the basis for this lawsuit.


C. Statements about "just restricting, or banning, Metabolife?"

Metabolife seeks to hold Defendants Wornick and WCVB liable for Wornick's prediction regarding what steps, if any, government regulators would take regarding sales of Metabolife 356. The Court strikes Metabolife's claim based on these statements under the anti-SLAPP statute because the statements are non-actionable opinion.

Because defamation requires false statements of fact, mere opinions are not actionable. See Standing Comm. on Discipline v. Yagman, 55 F.3d 1430, 1439 (9th Cir. 1995) (holding that an attorney's comments questioning the integrity of a judge were not actionable in a disciplinary proceeding as they were expressions of opinion based on stated facts); Rizzuto v. Nexxus Products Co., 641 F. Supp. 473, 481 (S.D.N.Y.) (holding that statements of opinion were not actionable in trade libel case), aff'd, 810 F.2d 1161 (2d Cir. 1986); cf. Milkovich v. Lorain Journal Co., 497 U.S. 1, 19, 111 L. Ed. 2d 1, 110 S. Ct. 2695 (1990) (holding that statements of opinion are protected by the First Amendment in a defamation action unless they "imply a false assertion of fact"). An opinion is a statement that is not "provable as false": "[A] statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection." See Milkovich, 497 U.S. 1, 20, 111 L. Ed. 2d 1, 110 S. Ct. 2695 (1990) (citing Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 89 L. Ed. 2d 783, 106 S. Ct. 1558 (1986)).

Defendant Wornick's statement is a prediction of uncertain future actions by government regulators. By definition, such a statement is not "provable as false" when uttered because the future has not happened yet. When Wornick made the statement, it was impossible to determine what form of regulation, if any, would govern sales of Metabolife 356. Thus, Wornick's statement was not "provable as false" when made, and cannot constitutionally serve as the basis for liability.

Metabolife attempts to render Wornick's statement actionable by asserting certain factual implications regarding the health risks of taking Metabolife that purportedly arise from the broadcast of the statement in context. [FN 18] The Court rejects Metabolife's attempts to generate liability through alleged implications from Wornick's literal statement for two reasons: (1) Wornick's statement is not "reasonably capable" of sustaining the meaning that Metabolife ascribes to it, and (2) even if the Court could find the implication urged by Metabolife, Metabolife cannot meet its burden of proving falsity under the anti-SLAPP statute.

[FN 18] Metabolife claims that the following implications arise from Wornick's statement, in the context of the broadcasts as a whole: (1) taking Metabolife is deadly; (2) the consensus in the medical community is that taking Metabolife is deadly; and (3) taking Metabolife as directed poses a risk of death to the average person that is substantially greater than that posed by other over-the-counter legal products.
Defendant Wornick's predictions regarding government regulation of the sale of Metabolife 356 are not capable of supporting the very specific factual implications regarding risk of death that Metabolife attempts to ascribe to them. On its face, Wornick's statement does not address the particular health risks associated with Metabolife 356. At most, her statement could be found to imply a general accusation that Metabolife 356 requires regulatory supervision to be safe enough for public consumption. The Court refuses to imply Metabolife's factual assertions. Moreover, even if the Court found that Wornick conveyed the alleged implications, Metabolife could not meet its prima facie burden of proving falsity under the anti-SLAPP statute because, as the Court finds above, its scientific evidence of safety is inadmissible under Daubert.


D. Statements regarding the Vanderbilt Study.

Because Defendant Wornick's statements regarding the Vanderbilt study are literally true, Metabolife relies on several alleged implications from these statements as the basis for liability. [FN 19] The Court holds that, even if Wornick's statements create the alleged implications, Metabolife cannot establish a prima facie case that the implications state false propositions of fact.

[FN 19] Metabolife claims that Wornick's statements imply the following factual propositions: (1) Metabolife knows that the product it makes and sells to the public is deadly; (2) There are no scientific studies concluding that Metabolife 356 is a safe product, and no scientific support for the assertion that Metabolife 356 is a safe product; (3) Metabolife misrepresents to the public that scientific studies have concluded that Metabolife 356 is a safe product, and that there is scientific support for the assertion that Metabolife 356 is a safe product; (4) Metabolife 356 has not been tested for safety; and (5) Metabolife misrepresents to the public that Metabolife 356 has been tested for safety.
In public concern cases, the Court grants full First Amendment protection to all substantially true statements despite minor inaccuracies. See Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 516-17, 115 L. Ed. 2d 447, 111 S. Ct. 2419 (1991); see also Maheu v. Hughes Tool Co., 569 F.2d 459, 465-66 (9th Cir. 1977) (finding that a statement is protected if the "imputation is substantially true so as to justify the 'gist' or 'sting' of the remark"). In other words, to prove falsity, a plaintiff must show that the implication "would have had a different effect on the mind of the [audience] from that which the pleaded truth would have produced." See Masson, 501 U.S. at 517.

Even assuming, arguendo, that Wornick's literally true statements about the Vanderbilt Study support the alleged defamatory implications, Metabolife cannot prove that those defamatory implications are false. The first proposition, regarding the "deadly" nature of Metabolife 356, suffers the same fate as the alleged implications derived from Dr. Blackburn's "you can die" statement. Metabolife has not offered any admissible scientific evidence to establish the safety of its product.

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 discusses above, [FN 20] those studies are so insubstantial as to be essentially the same as "no studies" for purposes of establishing the "gist" of Defendants' public concern speech. The Court considers it unlikely that, had Wornick noted the existence of the Chinese animal studies, it "would have had a different effect on the mind of the [audience]" than the alleged implication that there were no studies at all. See Masson, 501 U.S. at 517. Short-term studies on mice and rats in Asia do not bolster public confidence in product safety. Accordingly, the Court will not permit Metabolife to assert claims on the basis of the alleged implications from the Vanderbilt Study statements.
[FN 20] See supra pp. 16-17.


E. Statements about the "Credibility" of Metabolife.

Metabolife seeks to hold Defendants liable for Dr. Blackburn's statement that the company lacks "credibility." Like Defendant Wornick's predictions regarding government regulation, this statement is non-actionable opinion. Whether or not a company is credible is not "provable as false," see Milkovich, 497 U.S. at 19, because credibility is not a concept capable of definite and universal measurement. Rather, statements regarding credibility reflect the character and perspective of the speaker and could trigger unresolvable, yet rational, disagreement among speakers. As such, Dr. Blackburn's statement resembles the Supreme Court's example of non-actionable opinion in Milkovich: "the statement, 'In my opinion Mayor Jones shows his abysmal ignorance by accepting the teachings of Marx and Lenin,' would not be actionable." Milkovich, 497 U.S. at 20. Dr. Blackburn, therefore, is entitled to the "breathing space" that "freedoms of expression require in order to survive." See Hepps, 475 U.S. at 772. Accordingly, the Court strikes Metabolife's claims based on Dr. Blackburn's "credibility" statement. [FN 21]

[FN 21] In so ruling, the Court consciously applies the constitutional standard for non-actionable opinion in circumstances for which the Supreme Court has explicitly "reserved judgment." See Milkovich, 497 U.S. at 20 n.6 (reserving judgment in cases involving non-media defendants). The Court refuses to treat Dr. Blackburn differently than Defendants Wornick and WCVB because (1) Dr. Blackburn and the two media Defendants published their statements in the same forum, and (2) the Court can discern no reason why Dr. Blackburn is entitled to less "breathing space" for his expression than are members of the media. See Hepps, 475 U.S. at 772.
Moreover, as with Defendant Wornick's statements regarding the Vanderbilt Study, the Court refuses to permit liability based on the defamatory implications alleged by Metabolife. [FN 22] As discussed above, Metabolife cannot prove falsity with respect to those implications. [FN 23]
[FN 22] Metabolife asserts the same defamatory implications on the basis of Dr. Blackburn's "credibility" statement and Defendant Wornick's Vanderbilt Study statements.

[FN 23] See supra pp. 30-31.


F. Statements noting that ephedrine is a main ingredient of both Metabolife 356 and methamphetamine.

The last category of statements for which Metabolife seeks damages are Defendant Wornick's statements that ephedrine is the main ingredient in both Metabolife 356 and the illegal drug methamphetamine. The Court grants Defendants' anti-SLAPP motions and strikes all claims based on the statements themselves and any alleged implications therefrom.

Defendant Wornick's statements are protected by the First Amendment because they are substantially true. All of the statements and one of Metabolife's alleged implications [FN 24] focus on the similarity between the main ingredient in Metabolife 356, ma huang, and pure ephedrine, a precursor chemical to methamphetamine. In order to prove falsity, Metabolife offers expert testimony that ephedrine and ma huang are not identical. (Farber Decl. PP 14, 15.) Even Metabolife's own expert concludes that "the effects of Ma Huang are similar to ephedrine," while noting differences in potency and absorption rates between the two. (Id.) Significantly ingredient labels for Metabolife 356 and discount knock-offs of the product describe "Ma Huang Concentrate" as "naturally-occurring ephedrine." The fact that Metabolife requires expert scientific opinion to describe the limited differences between ma huang and ephedrine convinces the Court that such fine distinctions would have had no effect on the state of minds of the audience had they been raised by Defendant Wornick. Accordingly, Wornick's statements are substantially true and protected by the First Amendment.

[FN 24] This refers to the implication that "the main ingredient in Metabolife 356 is identical to the main ingredient in the illegal drug methamphetamine."
Metabolife also asserts claims on the basis of two additional implications derived from Wornick's statements: (1) the main ingredient of Metabolife 356 is an illegal controlled substance, and (2) Metabolife intentionally and deceitfully passes off as a dietary supplement a product that is essentially no different than the illegal drug methamphetamine. The Court holds that these statements are not "reasonably capable" of being implied from Defendant Wornick's statements. [FN 25] Defendant Wornick's statements do not concern the regulatory status of ma huang or make a direct comparison between Metabolife 356 and methamphetamine. Rather, the statements consistently compare the primary ingredient of Metabolife 356 to the primary ingredient of methamphetamine. Only by misconstruing Defendant Wornick's carefully chosen words could a listener come away with the impression that ma huang itself is an illegal narcotic or that Metabolife 356 is identical to methamphetamine. [FN 26] Consequently, the Court strikes Metabolife's claims based on those alleged implications.
[FN 25] See Court's discussion, supra, pp. 25-26.

[FN 26] For a discussion of how such misconceptions can be provoked, see the Court's evaluation of Metabolife's Marylander Study, supra note 17.


IV. Conclusion

For the reasons stated above, the Court grants Defendants' anti-SLAPP motions to strike as to each of Metabolife's claims. Accordingly, the Court dismisses the complaint with prejudice.
 
IT IS SO ORDERED:
 
Date: 11/16/99

John S. Rhoades, Sr.

United States District Judge