Edward Lewis Tobinick, MD v. Steven Novella
848 F.3d 935
| 11th Cir. | 2017Background
- Dr. Edward Tobinick operates clinics (INR CA in California and INR FL in Florida) and promotes an unorthodox perispinal use of etanercept (Enbrel) for spinal pain and neurological conditions; Enbrel is not FDA‑approved for those uses.
- Dr. Steven Novella (blogger at Science-Based Medicine and board member of a nonprofit Society; also connected to SGU/ podcast) published critical articles about Tobinick’s treatments after a Los Angeles Times piece.
- Tobinick and his entities sued Novella, the Society, SGU, and Yale asserting Lanham Act and several state-law tort claims arising from the articles; SGU and Yale were dismissed for lack of personal jurisdiction.
- Novella moved under California’s anti‑SLAPP statute to strike INR CA’s state-law claims; the district court granted the motion (finding no clear-and-convincing evidence of actual malice), denied Tobinick leave to amend twice, denied discovery‑related sanctions/relief under Rules 37, 56(d), and 60, and granted summary judgment for Novella on the Lanham Act claim (finding the speech noncommercial).
- On appeal, the Eleventh Circuit affirmed in full: (1) Tobinick waived an Erie challenge to use of California’s anti‑SLAPP procedure; (2) Tobinick failed to show actual malice; (3) district court did not abuse discretion in denying leave to amend; (4) discovery sanction/reconsideration requests were denied reasonably; and (5) Novella’s articles are noncommercial speech, so the Lanham Act claim fails.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Application of California anti‑SLAPP in federal court (Erie) | Erie prevents application of state anti‑SLAPP procedures in federal diversity actions | Anti‑SLAPP may be applied; plaintiffs conceded or failed to raise Erie below | Waived by Tobinick; court declined to consider Erie on appeal |
| Actual malice (state defamation/related claims) | Novella acted with knowledge or reckless disregard (relying on superseded docs, inconsistent declarations/deposition, false statements) | Novella investigated credible sources; inconsistencies do not show subjective doubt; statements often opinion | Tobinick failed to present clear-and-convincing evidence of actual malice; anti‑SLAPP grant affirmed |
| Leave to amend complaint | Amendments would add relevant webpages, podcast, FDUTPA claim, and defendants; little prejudice to Novella | Amendments were late, extensive, would reset case and cause undue delay | Denial of leave to amend was not an abuse of discretion |
| Lanham Act false advertising (commercial speech) | Articles were part of a revenue-generating ecosystem (ads, links, memberships) and Novella had economic motivation; statements were false/misleading | Articles are informational/editorial, not advertisements proposing commercial transactions; any revenue is attenuated | Articles are noncommercial expression; no Lanham Act liability; summary judgment for Novella affirmed |
Key Cases Cited
- Royalty Network, Inc. v. Harris, 756 F.3d 1351 (11th Cir.) (standard of review for statutory interpretation)
- World Holdings, LLC v. Fed. Republic of Germany, 701 F.3d 641 (11th Cir.) (Rule 56(d) abuse-of-discretion review)
- Garfield v. NDC Health Corp., 466 F.3d 1255 (11th Cir.) (leave-to-amend abuse-of-discretion standard)
- Serra Chevrolet, Inc. v. Gen. Motors Corp., 446 F.3d 1137 (11th Cir.) (Rule 37 sanction standard)
- Cox Nuclear Pharmacy, Inc. v. CTI, Inc., 478 F.3d 1303 (11th Cir.) (Rule 60(b) fraud/reconsideration standard)
- McCullum v. Orlando Reg'l Healthcare Sys., Inc., 768 F.3d 1135 (11th Cir.) (summary judgment de novo review)
- Foman v. Davis, 371 U.S. 178 (U.S.) (factors for denying leave to amend)
- New York Times Co. v. Sullivan, 376 U.S. 254 (U.S.) (actual malice standard)
- Reader's Digest Ass'n, Inc. v. Superior Court, 690 P.2d 610 (Cal.) (defining actual malice under California law)
- Bolger v. Young Drug Prods. Corp., 463 U.S. 60 (U.S.) (factors for identifying commercial speech beyond core commercial transaction)
- Central Hudson Gas & Elec. v. Public Service Comm'n, 447 U.S. 557 (U.S.) (definition of commercial speech)
- Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (U.S.) (speech about commercial topics not automatically commercial)
- Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376 (U.S.) (profit motive alone does not strip First Amendment protection)
- Farah v. Esquire Magazine, 736 F.3d 528 (D.C. Cir.) (editorial article not commercial speech despite publisher’s profit motive)
- Suntree Techs., Inc. v. Ecosense Int'l, Inc., 693 F.3d 1338 (11th Cir.) (elements of Lanham Act commercial advertising or promotion)