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Cardno Chemrisk, LLC v. Foytlin

Supreme Judicial Court of Massachusetts, Suffolk

February 14, 2017

CHERRI FOYTLIN & another.[1]

          Heard: October 7, 2016.

         A special motion to dismiss was heard by Edward P. Leibensperger, J.

         The Supreme Judicial Court granted an application for direct appellate review.

          John H. Reichman, of New York (James E. Grumbach also present) for the defendants.

          Megan L. Meier, of Virginia (Samuel Perkins also present) for the plaintiff.

          Thomas R. Sutcliffe, Jeffrey J. Pyle, & Sarah R. Wunsch, for American Civil liberties Union of Massachusetts, amicus curiae, submitted a brief.

          Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.

          LENK, J.

         On April 20, 2010, an oil rig operated by British Petroleum (BP), known as Deepwater Horizon, suffered a catastrophic explosion causing approximately 4.9 million barrels of oil to flow into the Gulf of Mexico, some forty miles off the coast of Louisiana. Three and one-half years after the oil spill, and during the ensuing multidistrict Federal litigation in New Orleans regarding BP's liability for it, the defendants, both environmental activists, contributed an article appearing in the Huffington Post, an Internet Web site. That article, also known as a "blog posting, " contained criticism of the plaintiff, Cardno ChemRisk, LLC (ChemRisk), a scientific consulting firm that BP had retained to assess the toxic effects of the oil spill on cleanup workers. ChemRisk maintains that certain of these criticisms constitute actionable defamation.

         ChemRisk brought claims for defamation against both defendants, in Massachusetts and in New York.[2] The defendants filed a special motion to dismiss the Massachusetts suit under G. L. c. 231, § 59H, the "anti-SLAPP" statute. A Superior Court judge denied the motion, concluding that insofar as the Internet blog posting at issue did not concern or seek to advance the defendants' own interests, but rather those of the cleanup workers, the defendants had not met their threshold burden of showing that the suit was based exclusively on the "exercise of [their] right of petition under the [C]onstitution, " as that phrase has been interpreted in our case law. G. L. c. 231, § 59H. We conclude, to the contrary, that the defendants were engaged in protected petitioning activity, which was the sole basis of the plaintiff's defamation claim, and therefore they have met their threshold burden. On the record before us, the plaintiff cannot show, as it must in order to defeat the special motion, that such petitioning was devoid of reasonable factual support or arguable basis in law. We accordingly reverse.[3]

         1. Background.

         The pertinent facts taken from the pleadings and affidavits of record are these.[4] ChemRisk is a scientific consulting company that produces reports and provides expert testimony for clients concerning the environmental risks of their products. In one such report, ChemRisk scientists examined the extent to which cleanup workers responding to the Deepwater Horizon spill had been exposed to the chemicals benzene, toluene, ethylbenzene, and xylene (collectively known as BTEX). ChemRisk concluded that such exposure was substantially below permissible limits set by the Occupational Safety and Health Administration.

         Defendant Cherri Foytlin, a life-long resident of the affected region, works full time as an environmental activist. Defendant Karen Savage also participates in environmental advocacy. Since the occurrence of the oil spill in 2010, both defendants have devoted substantial time to exploring its environmental consequences, particularly its effects on cleanup workers, and to advocating on behalf of those adversely affected. One of their efforts in this regard was to write a piece entitled "ChemRisk, BP and Purple Strategies: A Tangled Web of Not-So-Independent Science" that appeared on the Huffington Post's "Green Blog, " in which they challenged ChemRisk's BTEX report. The "Green Blog" described itself as "[f]eaturing fresh takes and real-time analysis, " and the article appeared there on October 14, 2013, under the byline "Cherri Foytlin, Gulf Coast based author and journalist, " along with a note that "Karen Savage contributed to this article."

         The article begins by discussing then-ongoing Federal litigation against BP taking place in the United States District Court for the Eastern District of Louisiana, in which, among other things, BP's experts contested the extent of the damages caused by the spill.[5] The article asserts that BP and the environmental experts it employs do "not exactly have a reputation for coming clean on the facts."

         The defendants then discuss ChemRisk's BTEX report as an example of BP's experts not "coming clean, " referring to the study as "independent" and "science" (both in quotation marks). The article goes on to claim, in the passage alleged to be defamatory, that ChemRisk, in connection with an unrelated scientific study unflattering to a different client, had engaged in deceptive tactics:

"As it turns out, ChemRisk has a long, and on at least one occasion fraudulent, history of defending big polluters using questionable ethics to help their clients avoid legal responsibility for their actions.
"One well known example is the case that became the basis for the movie Erin Brokovich, where the polluter and defendant Pacific Gas and Electric (PG & E) was found to have paid ChemRisk to discredit research done by Chinese scientist Dr. Jian Dong Zhang.
"In an earlier study, Zhang had found strong links between chromium-6, which was found in Hinkley, California's drinking water, and cancer. ChemRisk obtained Dr. Zhang's data, and without his knowledge, intentionally manipulated the findings to contradict his own earlier studies.
"The erroneous data was then submitted to the Journal of Occupational and Environmental Medicine (JOEM) as though it had been re-worked by Dr. Zhang personally."[6]

         The article closes by asking whether "anyone will ever . . . make [things] right" in the Gulf Coast.

         In response to the blog posting, a ChemRisk representative wrote by electronic mail to the Huffington Post demanding a retraction, and an editor forwarded the message to Foytlin. She responded that she did not believe the piece contained factual errors, and it remained posted on the site, where it drew comments from readers. In April, 2014, six months after the article appeared, ChemRisk filed a defamation action in a New York State court against Foytlin and Savage. In December, 2014, while that case was pending, ChemRisk filed another defamation suit, based on the same set of facts, in the Massachusetts Superior Court. After a judge of the New York Supreme Court allowed the defendants' motion to dismiss for lack of personal jurisdiction, ChemRisk amended its complaint in Massachusetts, and engaged in discovery.

         In August, 2015, the defendants filed a special motion to dismiss under the anti-SLAPP statute, [7] asserting that the claim against them was based solely on their exercise of the right to petition, that they had a reasonable factual basis for their statements, and that they caused no injury. See Duracraft Corp. v.Holmes Prods. Corp., 427 Mass. 156, 167-168 (1998) (Duracraft). Relying on this court's decision in Fustolov.Hollander, 455 Mass. 861 (2010), the judge determined that because the defendants were not seeking to redress a grievance of their own, they were not engaged in protected petitioning activity. He therefore denied the motion without reaching the questions whether the defendants' statements had a reasonable basis in fact or whether they caused ...

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