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Hi-Tech Pharmaceuticals, Inc. v. Cohen

United States District Court, D. Massachusetts

October 28, 2016

PIETER A. COHEN, Defendant.




         This 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.

         A. Factual Background

         Hi-Tech 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.

         The 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.

         Hi-Tech 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.

         Hi-Tech 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.

         B. Procedural History

         Hi-Tech 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”[1] 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.[2]Elec. Clerk's Notes, ECF No. 64; Mem. Decision, ECF No. 66.

         The 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[3] commenced on October 24, 2016. Elec. Clerk's Notes, ECF No. 99.

         II. ANALYSIS

         Summary 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[.]” Id.

         Cohen 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 turn.

         A. Cohen's Motion

         Cohen 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. 5-11.

         1. Defamation

         To 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.

         a. Actionable Statements

         Cohen 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.[4] 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.

         i. Fact ...

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