Wednesday, March 23, 2016

Another poster child for a national anti-SLAPP law: dilution claims against a critic

Doctor’s Data, Inc. v. Barrett, 2016 WL 1086510, No. 10 C 03795 (N.D. Ill. Mar. 21, 2016)
Plaintiff DDI sued Dr. Stephen J. Barrett, M.D., the National Council Against Health Fraud, and Quackwatch for violating §43, as well as state law claims for defamation and related torts.  Here, the defendants get rid of a number of claims on summary judgment. DDI is a clinical lab that analyzes urine, blood, and other samples for health care practitioners; one of its tests is designed to assess the levels of heavy metals present in a patient’s urine.  Samples are either “provoked” or “non-provoked”; a provoked sample is one the physician collects after administering a “chelating agent,” which temporarily increases the patient’s excretion of heavy metals. DDI uses the same form to report the test results for both provoked and non-provoked samples. The form reports the heavy metal levels in the patient’s urine, lists “reference ranges” of typical heavy metal levels in non-provoked samples, and graphically classifies each of the patient’s levels as “within reference range,” “elevated,” or “very elevated” based on those non-provoked reference ranges.
Barrett, a retired psychiatrist and consumer advocate, criticized heavy metal urine testing and DDI’s report form on his websites and related email listservs. NCAHF and Quackwatch were not-for-profit corporations that focused on health care consumer advocacy, though they were dissolved by the time of this opinion.
Previously, the court dismissed the Lanham Act claim to the extent it covered false advertising because DDI lacked standing, but allowed a claim under §43(c) dilution (!) to proceed.  (After Lexmark, the standing argument is probably wrong, but given the context I doubt the defendants’ statements count as commercial speech/commercial advertising or promotion.)  DDI, however, continued to press §43(a) false advertising claims, despite the court’s clear earlier statements; the court construed it as abandoning a federal dilution claim and the §43 claim was dismissed in its entirety with prejudice.
DDI did continue with its claim for trademark dilution under ITRPA, which provides that the owner of a mark which is famous in Illinois is entitled to relief “against another person’s commercial use of a mark or tradename, if the use...causes dilution of the distinctive quality of the mark.”  This law requires actual dilution, not merely likely dilution.  DDI argued that Barrett’s websites were commercial and that defendants caused dilution by referencing “Doctor’s Data” in the challenged publications and including DDI’s logo on the first page of one of the publications. But there was no evidence of dilution of distinctiveness of DDI’s marks. DDI provided evidence that defendants used its marks, and possibly that DDI’s reputation was damaged by defendants’ statements using its marks.  “But causing consumers to think less highly of a trademarked product or service—even if accomplished through false or misleading statements—is not equivalent to diluting the distinctiveness of that product or service. Allegations solely of the former nature point not to trademark dilution but to defamation and other similar claims.”  (Something we all knew should be true, but it’s nice to have such a clear statement in a case.)  Summary judgment for defendants.
Then there is a long, long slog through 85 allegedly defamatory statements, which I will not inflict on readers who aren’t, like the court, required to wade through them.  Basically, Barrett said that “referring patients who have provided provoked samples to standards applicable to non-provoked tests is highly misleading and permits unscrupulous physicians and other purported health care practitioners to convince patients to undergo expensive, but unnecessary, detoxification treatments,” and the disputes in the case “center primarily on the extent to which the defendants’ statements assert that Doctor’s Data is a witting participant in these schemes.”  The court concluded that, for the most part, the statements that were most likely to cause reputational harm were about the allegedly scummy doctors rather than DDI, or appeared in reports protected by the fair report privilege (e.g., reports of lawsuits filed against DDI and others). Most of the remaining statements were either true descriptions of the report form or expressions of opinion about the form. Thus, most of the statements weren’t actionable, though the court denied summary judgment on a few that might have implicated DDI.
For example, Barrett’s description of the DDI report classifications as misleading (that is, the fact that the form reported the patient’s provoked levels but only provided unprovoked reference levels for comparison, and those lower than other labs’) was nonactionable opinion.  The description of the report classification as misleading was immediately followed by the factual basis for that evaluation, and Barrett even reproduced a report.  “Misleading” was clearly his opinion.  There is qualifying language at the bottom of the DDI report that says “[r]eference ranges are representative of a healthy population under non-challenge or non-provoked conditions.”  While a reasonable jury could find that this put patients adequately on notice that the reference ranges shown next to the test results “should be given less weight, or possibly even no weight, if the urine sample at issue was provoked,” no reasonable jury could find that the report didn’t make a comparison between provoked results and non-provoked reference ranges, which was the practice Barrett criticized.
Also, here’s a fun discussion:
[T]he statement “The provoked urine toxic metals test is a fraud” does not have a precise and readily apparent meaning. As an initial matter, the term “fraud” has a broad scope; to speak of something as a “fraud” may mean it is criminally deceptive, but it may also mean simply that it is not what it purports to be. When H. L. Mencken famously opined that “All men are frauds,” he did not incur universal liability for defamation.  As well, “fraud” is a term often used as hyperbole, trotted out in even the most inconsequential contexts …. That the term expressly refers here not to a person, or a knock-off designer purse, but to a test does nothing to make its meaning more clear; what does it mean for a test to be a fraud? … [I]f anything, the context here points not to DDI as the party responsible for “fraud” but to those who use DDI’s test to deceive the public—that is to say, the physicians who buy DDI’s testing services.
Also, while “shady” is not a factual claim capable of verification or disproof, describing DDI as a “nonstandard” laboratory might be defamatory, and the court denied summary judgment on the following statement, since given more context it might contain some factual claims:  
The sample report on DDI’s Web site includes three pages of measurements and three pages of clinically useless biochemical tidbits, diagnostic speculations, pseudoscientific blather, and recommendations for further testing. Unfortunately for patients, amino acid analysis of urine does not provide basic information about the individual’s general health, metabolism, nutrient status, or dietary adequacy, and the supplement recommendations lack a rational basis. It is not possible, for example, to figure out what people eat by looking at what they excrete. And finding a substance does not mean that it came from a single source or metabolic pathway.
Tortious interference with prospective economic advantage claims failed because DDI couldn’t prove a specific enough expectancy of future business that was disrupted by Barrett’s claims. And tortious interference with existing contractual relations failed because DDI couldn’t show that a breached contract resulted from Barrett’s claims, much less that defendants intentionally induced the breach.  DDI believed that the relevant doctor’s business collapsed because of Barrett’s complaints to the Texas medical board and to insurance companies, rendering her incapable of paying DDI’s bills.  But DDI didn’t show that Barrett’s complaint caused the doctor’s financial problems or her failure to pay DDI, or that Barrett complained with the intent to cause a breach of contract.

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