66 F. Supp. 3d 263
D. Mass.2014Background
- ATC (maker of an automated ball indentation — ABI — nondestructive tensile-testing system) sued Instron for commercial disparagement after an industry‑magazine article by retired Instron employees discussed ISO TR 29381 and methods described as instrumented indentation testing (IIT), including a method called RSS associated with a competitor.
- ATC alleges readers would reasonably infer the article referred to ATC’s ABI, that the article conveyed falsehoods (portraying ABI/RSS as new, untested, or less accurate), and that publication caused lost sales and reduced growth (specifically a lost sale/engagement with Vectren).
- The article praised RSS as “promising” but also described it as still under development and reported only preliminary correlation results with destructive tests.
- Instron moved for summary judgment arguing the article discussed IIT/RSS (not ABI or ATC), that statements were opinion/scientific debate protected by the First Amendment, and that ATC cannot prove the required special damages.
- The district court found triable issues on falsity, “of and concerning” ATC, reckless disregard/knowledge, and foreseeability of pecuniary harm, but held ATC failed to prove special damages (direct and immediate pecuniary loss) and granted summary judgment for Instron.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Falsity of statements | Article would be read as about ABI and therefore conveyed false factual claims (ABI is tested/widely used; not new) | Article accurately discussed IIT/RSS; tone shows opinion or nonactionable praise | Court: material dispute exists; ATC proffered sufficient evidence of falsity for summary judgment purposes |
| Opinion/scientific‑debate defense | Statements implied factual assertions about ABI and RSS, not mere protected opinion | Assertions are opinion/scientific conclusions protected by the First Amendment and by analogy to scientific‑journal protections | Court: statements could be reasonably read as factual and Instron failed to show disclosure of underlying data; not protected as pure opinion/scientific debate at this stage |
| "Of and concerning" ATC | Readers could reasonably infer the article referenced ABI/ATC; some customers testified they so inferred | Article named RSS/Frontics (competitor), not ATC; no direct reference to ATC or ABI | Court: ATC offered evidence of intent/negligence and third‑party confusion; element satisfied for summary judgment purposes |
| Special damages (direct, immediate pecuniary loss) | Lost Vectren engagement and lost growth projections link publication to pecuniary loss | Vectren’s decision was based on accuracy concerns and regulatory approval, not the article; forecasts are speculative/incompetent | Court: ATC failed to show direct and immediate pecuniary loss caused by the article; summary judgment for Instron granted |
Key Cases Cited
- Dulgarian v. Stone, 420 Mass. 843 (Mass. 1995) (commercial disparagement elements and Restatement standard)
- HipSaver, Inc. v. Kiel, 464 Mass. 517 (Mass. 2013) (elements and proof requirements for commercial disparagement, including special damages)
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (U.S. 1990) (opinion vs. fact analysis in defamation context)
- ONY, Inc. v. Cornerstone Therapeutics, Inc., 720 F.3d 490 (2d Cir. 2013) (protection for scientific conclusions based on disclosed methodologies/data)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986) (summary judgment standard for genuine disputes of material fact)