United States District Court, D. Massachusetts
MEMORANDUM OF DECISION
WILLIAM G. YOUNG DISTRICT JUDGE.
action involves claims by Hi-Tech Pharmaceuticals, Inc.
(“Hi-Tech”) against Pieter A. Cohen
(“Cohen”) for libel, slander, product
disparagement, and violation of Massachusetts General Laws,
chapter 93A (“chapter 93A”). Hi-Tech's claims
arise out of statements Cohen made in an article and in media
appearances in connection therewith concerning an ingredient
in particular nutritional supplements manufactured and
distributed by Hi-Tech. After the Court denied Cohen's
motions to dismiss the action, the parties cross-moved for
summary judgment, with Cohen requesting judgment as matter of
law on all claims and HiTech seeking partial summary
judgment. On October 5, 2016, the Court entered an order
granting in part and denying in part Cohen's motion, and
denying Hi-Tech's motion. It now explains its reasoning
for doing so.
is a pharmaceutical company that manufactures, distributes,
and sells dietary supplements. Pl.'s Statement Undisputed
Material Facts Pursuant Local Civil Rule 56.1
(“Pl.'s Statement Facts”) ¶ 1, ECF No.
70. Cohen, an internist and professor of medicine,
Id. ¶ 2, is the first author of an article
entitled “An amphetamine isomer whose efficacy and
safety in humans has never been studied,
β-methylphenylethylamine (BMPEA), is found in multiple
dietary supplements” (the “Article”),
Id. ¶ 7; Def., Pieter A. Cohen's, Statement
Facts Supp. Mot. Summ. J. (“Def.'s Statement
Facts”) ¶ 5, ECF No. 61. The Article was published
in Drug Testing and Analysis, a peer-reviewed journal, in
April 2015. Def.'s Statement Facts ¶ 5; Pl.'s
Statement Facts ¶ 7. It identifies six Hi-Tech
supplements whose labels indicate that they contain
“Acacia rigidula” and reports that those
supplements contain a synthetic substance called BMPEA, even
though, according to the Article, “there is no
scientific evidence that BMPEA has ever been extracted from
Acacia rigidula[, ]” Def.'s Mem. Supp. Special Mot.
Dismiss Pl.s' Compl. Pursuant Mass. Gen. Laws ch. 231,
§ 59H, Ex. 2 (“Article”) 5, ECF No. 14-2.
The Article goes on to state that “BMPEA's effect
on human health is entirely unknown” and that it
“is not a legitimate supplement ingredient.”
Article 6. Cohen stated that his conclusions were based on
his review of various scientific articles and discussions
with scientists, Def.'s Statement Facts ¶¶
53-54, though the precise scope of Cohen's research and
the sources of which he was aware at the time of publication
are disputed, see Pl.'s Resp. Def. Pieter A. Cohen's
Statement Facts Supp. Mot. Summ. J. ¶¶ 53-54, ECF
No. 68; Def.'s Resp. Pl.'s Statement Material Facts
Pursuant Local Civil Rule 56.1, Supp. Pl.'s Mot. Partial
Summ. J. ¶ 36, ECF No. 72.
Article calls on the Food and Drug Administration
(“FDA”) to ensure supplements containing BMPEA
are pulled from the market and urges manufacturers to recall,
and consumers to avoid, BMPEA-containing products. Def.'s
Statement Facts ¶¶ 9-10; Article 6. Following the
publication of the Article, Cohen spoke about supplements
containing BMPEA in various media appearances, Pl.'s
Statement Facts ¶¶ 9-11, stating, inter alia, that
various supplements purportedly containing Acacia rigidula
instead contain an untested “designer stimulant called
BMPEA” that “is in a sense, being tested on
buyers, ” Id. ¶ 11.
issued a press release refuting Cohen's contentions.
Def.'s Statement Facts ¶ 23. Upon receiving a letter
from the FDA stating that Hi-Tech's labeling of its
BMPEA-containing products is in violation of federal law and
requesting that it take appropriate action, Id.
¶ 20, Hi-Tech issued an additional press release
objecting to the FDA's letter, Id. ¶ 21.
claims that it has suffered economic harm as a result of
Cohen's statements, which it maintains are false, in the
form of lost customers, revenue, and sales contracts.
Pl.'s Statement Facts ¶ 37.
initiated this action on April 5, 2016. Compl., ECF No. 1.
Cohen filed a timely motion to dismiss for failure to state a
claim, Def., Pieter A. Cohen's, Mot. Dismiss Compl., ECF
No. 15, as well as a special motion to dismiss pursuant to
the Massachusetts “anti-SLAPP” statute, Mass.
Gen. Laws chapter 23, § 59H, Def.'s Special Mot.
Dismiss Pl.'s Compl. Pursuant Mass. Gen. Laws ch. 231,
§ 59H, ECF No. 13. The Court denied these motions from
the bench. Elec. Clerk's Notes, ECF No. 40. The parties
submitted further briefing on the anti-SLAPP issue,
Def.'s Suppl. Br. Regarding Seventh Amendment Right Jury
Trial and Mass. Gen. Laws ch. 231, § 59H
(“Def.'s Suppl. Mem.”), ECF No. 47; Pl.'s
Mem. Opp'n Def.'s Mot. Reconsider, ECF No. 48, with
Cohen requesting that this Court revise its earlier order
denying Cohen's special motion to dismiss, Def.'s
Suppl. Mem. 1. The Court declined to alter its ruling and
issued a memorandum of decision setting forth its analysis of
the anti-SLAPP issue.Elec. Clerk's Notes, ECF No. 64; Mem.
Decision, ECF No. 66.
parties filed cross-motions for summary judgment on September
9, 2016. Pl.'s Mot. Partial Summ. J., ECF No. 56;
Def.'s, Pieter A. Cohen, M.D., Mot. Summ. J., ECF No. 59.
Cohen sought summary judgment on each of Hi-Tech's
claims, Mem. Def., Pieter A. Cohen, Supp. Mot. Summ. J.
(“Def.'s Mem.”) 1, ECF No. 60, while Hi-Tech
requested judgment as matter of law on a single issue, Br.
Supp. Pl. Hi-Tech's Mot. Partial Summ. J.
(“Pl.'s Mem.”) 1, ECF No. 57. The Court heard
arguments on the parties' summary judgment motions on
September 29, 2016. Elec. Clerk's Notes, ECF No. 81. On
October 5, 2016, the Court entered an order granting in part
and denying in part Cohen's motion -- specifically, the
Court granted the motion as to Hi-Tech's product
disparagement and chapter 93A claims and denied it as to
Hi-Tech's defamation claim (but limited Hi-Tech's
recovery on that claim to special damages) -- and denied Hi-
Tech's motion. Order, ECF No. 88. A jury trial on the
surviving claims for libel and slander commenced on
October 24, 2016. Elec. Clerk's Notes, ECF No. 99.
judgment is proper “[w]hen the facts, so marshalled,
show ‘that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law[.]'” Mandel v. Boston Phoenix,
Inc., 456 F.3d 198, 205 (1st Cir. 2006) (quoting
Fed.R.Civ.P. 56(c)). The movant bears the burden of proving
“an absence of evidence to support the nonmoving
party's case.” Clifford v. Barnhart, 449
F.3d 276, 280 (1st Cir. 2006) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986)). Upon such a showing,
the burden of going forward then shifts to the nonmoving
party to “produce specific facts, in suitable
evidentiary form, to establish the presence of a trialworthy
issue.” Id. (internal quotation marks and
citations omitted). In considering whether summary judgment
is appropriate, the Court “must view the record in the
light most favorable to the nonmoving party and give that
party the benefit of all reasonable inferences[.]”
and Hi-Tech each moved for summary judgment. Cohen sought
dismissal of the entire action, arguing, inter alia, that
Hi-Tech failed to prove the elements of defamation and that
Hi-Tech's other claims were merely derivative of its
defamation claim. Hi-Tech, meanwhile, moved for partial
summary judgment on the sole issue of whether Cohen's
statements amounted to actionable fact, rather than
nonactionable opinion. The Court discusses these motions in
argues that he is entitled to judgment as matter of law on
each of Hi-Tech's claims for defamation, product
disparagement, and violation of chapter 93A. In particular,
he argues that Hi-Tech's defamation claim -- and by
extension, each of its other claims -- is legally infirm
because it is premised on nonactionable statements, and
because Hi-Tech failed to show that Cohen possessed the
requisite level of fault. Def.'s Mem. 7-13. Hi-Tech
maintains that the statements at issue constitute actionable
statements of fact, that it has raised at least a triable
issue as to Cohen's culpability, and that its additional
claims represent viable routes to recovery. Pl.'s Mem.
prevail on a defamation claim under Massachusetts law, a
plaintiff must show that: (1) “[t]he defendant made a
statement, concerning the plaintiff, to a third party”;
(2) “[t]he statement could damage the plaintiff's
reputation in the community”; (3) “[t]he
defendant was at fault in making the statement”; and
(4) “[t]he statement either caused the plaintiff
economic loss (traditionally referred to as ‘special
damages' or ‘special harm'), or is actionable
without proof of economic loss.” Ravnikar v.
Bogojavlensky, 438 Mass. 627, 629-30 (2003) (internal
footnotes and citations omitted). Cohen contends, first, that
his statements are not actionable under this framework, and
second, that Hi-Tech has failed to show the requisite level
of fault under the third element of this test.
argues that he is entitled to judgment as matter of law on
Hi-Tech's defamation claim because the statements at
issue constitute non-actionable opinion, Def.'s Mem.
13-15, and that to the extent they include expressions of
fact, they are nonetheless not actionable because they are
privileged “scientific conclusions about unsettled
matters of scientific debate, ” Id. at
15-18. In response, Hi-Tech contends that
Cohen's statements are statements of fact insofar as they
are capable of being proven true or false. Pl.'s
Opp'n 10-14. Furthermore, it argues that the First
Circuit has not recognized the “scientific
debate” privilege and that, in any event, such
privilege is inapposite here. Id. at 14-15.