MEMORANDUM OPINION AND ORDER
This matter is before the Court on two Motions for Summary Judgment. The first Motion considered herein is Defendant Klessig’s Motion for Summary Judgment on Plaintiff Chandok’s defamation claim. [Record No. 19]. The Court will also consider Plaintiffs Motion for Summary Judgment on Defendant’s counterclaim under New York’s statutory provision allowing recovery to the victims of Strategic Lawsuits Against Public Participation (“SLAPP”). [Record No. 23]. Responses and replies having been filed, these matters are ripe for review.
Background
A. Statement of Facts
In July of 2000, Plaintiff, Dr. Meena Chandok, was offered a position at Boyce Thompson Institute (“BTI”) to perform biochemical research. Dr. Chandok began work for BTI in November of 2000 for a 2-year аppointment. Dr. Chandok was as
In 2003, Dr. Kim was hired and assigned to verify Dr. Chandok’s work. Dr. Klessig applied for and received a federal grant to further explore NOS and varP. Also in 2003, Dr. Chandok began applying for positions at оther institutions. Dr. Klessig wrote letters of recommendation for Dr. Chandok’s applications. Dr. Chandok collaborated with Dr. Susan Ekengren to research disabling the NOS response from varP. Dr. Chandok and Dr. Ekengren sought publication for this work and succeeded. Their research was published in the Proceedings of the National Academy of Sciences (“PNAS ”). 2 Shortly thereafter, Dr. Klessig began to increase efforts to verify Dr. Chandok’s results. He assigned Dr. Kim to this project, and later added Drs. Lee and Wang to the effort.
In the spring of 2004, Dr. Chandok secured employment in Maryland. She submitted a letter of resignation to BTI on March 30th, and her last day with BTI was April 12. At this time, Drs. Kim, Lee, and Wang had still had not duplicated Dr. Chandok’s results. After Dr. Chandok left BTI, Dr. Klessig and Lucy Pola, Human Resources director at BTI, sent a letter to Dr. Chandok stating that her results still had not been duplicated. The letter requested that Dr. Chandok return to BTI to assist in verifying her results and indicated that, should she fail to return, Dr. Klessig would begin a scientific misconduct investigation and withdraw support for her visa application. [Ex. 35.] Dr. Chandok did not return to assist in the research. Dr. Klessig initiated the investigation by reporting the possibility of scientific misconduct to Dr. Stern, then President of BTI, and Lucy Pola.
Pres. Stern began an investigation to determine if Dr. Klessig’s suspicions that Dr. Chandok falsified some of her research were meritorious.’ Dr. Klessig contacted Dr. Crane, who provided additional information, but Dr. Klessig indiсated that it was insufficient and “the evidence still argues that she falsified at least some of the data.”
3
After reviewing the data, Dr. Stern concluded that the investigation
Dr. Klessig went on to announce the retraction at a lecture at the Juan March Conference in October of 2004, citing unreliable data. 9 Following the lecture, Dr. Klessig sent unsolicited emails to several other colleagues in the scientific community. First, he notified Jyoti Shah, a former associate of his who was working on similar research, and warned her of the retraction, again citing unreliable data. 10 Similar emails were sent by Dr. Klessig to Dr. Priti Krishna, a former supervisor of Dr. Chandok’s in India, and Dr. Nigel Crawford, a colleague performing similar research. 11 Dr. Klessig also informed Allen Collmer and Rose Loria, both of Cornell University, which is the campus on which BTI is located. 12 After a month of relative silence on the subject, Dr. Klessig was interviewed by John Travis, a reporter for Science magazine, and in that interview he described the Cell paper’s data as “shaky” and “unreliable.” 13
In January of 2005, Dr. Klessig emailed the BTI investigatory committee and again stated that he concluded Dr. Chandok had falsified data. 14 Later that same month, Dr. Klessig re-asserted to the same BTI committee that the evidence gathered through the investigation indicated that Dr. Chandok had falsified data. 15 At roughly the same time, Dr. Klessig worked with Bridget Coughlin, an editor for PNAS, to determine the best way to phrase the retraction notice in the publication. 16
On August 26, 2006, Plaintiff Chandok filed the instant action, alleging defamation by Defendant Klessig, her former supervisor. Defendant raised ten defenses in his Answer. [Record No. 8]. The tenth such “defense” was actually a counterclaim under N.Y. C.L.S. Civ. R. § 70-a, which permits defendants to file a SLAPP suit to
B. List of allegedly defamatory statements
For ease of reference, the Court will continue to employ the stаtement numbering system used by the parties, and will refer to the allegedly defamatory statements as follows: 17
Statement 1: To Brian Crane, via e-mail “Unfortunately, the evidence still argues that she falsified at least some of the data on the recombinant varP.” Ex. 84 at 3; Ex. 85.
Statement 2: To Lucy Pola, Dr. Martin, and possibly Pres. Stern, via e-mail “I absolutely agree that there MUST be an investigation regardless of whether varP has NOS activity or not, given the evidence of falsification.” Ex. 55.
Statement 3: To Pres. Stern and Lucy Pola, via interoffice memorandum “The conclusion we draw from these results is that most or all of the data that Meena presented to us and in the Cell paper concerning the recombinant varP has been falsified.” Ex. 51.
Statement J: To Pres. Stern and Lucy Pola, via interoffice memorandum
“The conclusion I draw from these results is that most or all of the data that Meena presented to us and in the Cell paper concerning recombinant varP may have been falsified.” Ex. 88.
Statement 5: To Pres. Stern and Lucy Pola, via interoffice memorandum
“The conclusion I draw from these results is that most or all of the data that Dr. Chandok presented to us and in the Cell paper concerning recombinant varP is likely to have been falsified.” Ex. 53.
Statement 6: To Pres. Stern, Lucy Pola, Dr. Blissard, Dr. Granados, and Dr. Winans, via memorandum
“The conclusion I draw from these results is that most or all of the data that Dr. Chandok presented to us and in the Cell paper concerning the recombinant varP is likely to have been falsified.” Ex. 54.
Statement 7: To Dr. James J. Anderson, via letter
“Evidenсe recently emerged that strongly suggests that she falsified most or all of the data on recombinant varP____In contrast, the evidence that Dr. Chandok falsified most or all of the recombinant varP data is much clearer and therefore, warrants investigation.” Ex. 58.
Statement 8: To Dr. Susan Ridley, via letter “Evidence recently emerged that strongly suggests that she falsified some of the data showing that the recombinant variant P gene of Arabidopsis encodes a nitric oxide synthesizing enzyme (NOS).” Ex. 59.
Statement 9: To Pres. Stern, Lucy Pola, Dr. Ekengren, and Dr. Martin, via written document
“Further experiments by other members of the Klessig laboratory revealed difficulties in reproducing the results with recombinant variant P and, in addition, suggest that the data on the recombinant variant P presented in the Cell paper is being retracted.... For thisreason and the fact much of the data in this paper are now suspect.... The experiments that produced this data were performed by M. Chandok.” Ex. 96.
Statement 10: To Pres. Stern, Lucy Pola, Dr. Ytterberg, and Dr. Van Wijk, via written document “Further experiments by other members of the Klessig laboratory reveal difficulties in reproducing the data with recombinant variant P and in addition suggest that the data on recombinant variant P presented in Tables I and 2 and Figures 5B and C of this paper are unreliable. An investigation is underway to determine whether these data were fabricated by the lead author.” Ex. 97.
Statement 11: To Pres. Stern, Lucy Pоla, Dr. Ytterberg, Dr. Van Wijk, and Dr. Marcus, via written document “Further experiments by other members of the Klessig laboratory reveal difficulties in reproducing the data with recombinant variant P and in addition suggest that the data on recombinant variant P presented in Tables 1 and 2 and Figures 5B and C of this paper are unreliable. An investigation is underway to determine whether these data were fabricated by the lead author.” Ex. 98.
Statement 12: To Dr. Ekengren and Dr. Martin, via written document “Further experiments by other members of the Klessig laboratory reveal difficulties in reproducing the results with recombinant variant P and, in addition, suggest that the data on the recombinant variant P and in addition suggest that the datа on recombinant variant P presented in the Cell paper may have been fabricated by the lead author — hence the Cell paper is being retracted.... For this reason and the fact we are no longer confident in much of the data in this paper..... The experiments that produced this data were performed by M.R. Chandok and are now suspect.” Ex. 99.
Statement 13: To Dr. Ekengren, and Dr. Martin, via written document “Since the publication of this paper, other members of the Klessig laboratory have been unable to repeat the results with recombinant variant P. In addition, other discrepancies have come to light that suggest data on the recombinаnt variant P presented in the Cell paper may have been fabricated by M.R. Chandok— hence the Cell paper is being retracted.... For this reason and the fact that we are no longer confident in much of the data in this paper.... The experiments that produced this data were performed M.R. Chandok are now suspect.” Ex. 100.
Statement Ik: To Ian T. Baldwin, via email “Over the past 6-8 months several new postdocs have ben following up on the NOS work started by Meena Chandok. The have had difficulties reproducing the results with recombinant variant P and, in addition, have obtained evidence suggesting that the data on recombinant variant P presented in the Cell paper may have been fabricated— hence the Cell paper is being retracted. The follow-up PNAS paper is also suspect and will very likely be retracted.” Ex. 102.
Statement 15: To audience at Juan March Conference on October 6, 2004, via spoken statement “Since publication of this work in Cell in 2003, several new postdocs have joined our group to study varP or the pathogen-inducible NOS. To date, they have not been able to repeat the results with the recombinant variant P that were reported. In addition, other discrepancies have very recently come to light that strongly suggest that the data on the recombinant variant P is unreliable.” Ex. 103.
Statement 16: To Jyoti Shah, via e-mail “Over the past several months several new pоstdoc [sic] in our group have attempted to reproduce Meena Chandok’s results with recombinant varP to study its NO synthesizing activity. They have been unable to demonstrate this activity. In addition, several other discrepancies have come to light in the past several weeks which strongly suggest that the data on the recombinant varP reported in our 2003 Cell paper are unreliable. Therefore, we are retracting the Cell paper. The follow-up PNAS paper is also being retracted because we are no long [sic] confident in much of the enzymological data in this paper.” Ex. 104.
Statement 17: To Nigel Crawford and Priti Krishna, via e-mail “Over the pаst several months several new postdoc [sic] in our group have attempted to reproduce Meena Chandok’s results with recombinant varP to study its NO synthesizing activity. They have been unable to demonstrate this activity. In addition, several other discrepancies have come to light in the past several weeks which strongly suggest that the data on the recombinant varP reported in our 2003 Cell paper are unreliable. Therefore, we are retracting the Cell paper. The follow-up PNAS paper is also being retracted because we are no long [sic] confident in much of the enzymological data in this paper.” Ex. 105.
Statement 18: To Allen Collmer and “Rose,” via e-mail “Over the past several months several new postdoc [sic] in our group have attempted to reproduce Meena Chandok’s results with recombinant varP to study its NO synthesizing activity. They have been unable to demonstrate this activity. In addition, several other discrepancies have come to light in the past several weeks which strongly suggest that the data on the recombinant varP reported in our 2003 Cell paper are unreliable. Therefore, we are retracting the Cell paper. The follow-up PNAS paper is also being retracted because we are no long [sic] confident in much of the enzymolоgical data in this paper.” Ex. 106.
Statement 19: To John Travis, reporter for Science magazine Quoted in article as having informed reporter for Science magazine that the data was “shaky” and “unreliable.” Ex. 107.
Statement 20: To BTI, Dr. Blissard, and Dr. Wang, via e-mail “With this additional data it is very hard to avoid the conclusion that she falsified at least some of her results with recombinant varP.” Ex. 108.
Statement 21: To Dr. Blissard and Dr. Wang, via e-mail “Therefore, her results with recombinant AtvarP protein made in baeulovirus expression system had to be falsified because she could not have made the protein.” Ex. 109.
Statement 22: Bridget Coughlin to Nick Cozzarelli, via e-mail “Dr. Klessig has contacted me about retracting his paper (attached). It appears that the first author, a former post doc in his lab, fabricated the data and spiked the samplеs to indicate iNOS activity.” Ex. 110. Statement 28: To Dr. Crane, via e-mail “varP is unreliable. Because I don’t believe she ever had the recombinant version.” Ex. 111.
Jurisdiction
The Court finds that it has jurisdiction to hear both claims. At the time the Complaint was filed, Dr. Chandok had established domicile in Maryland and Dr. Klessig was still domiciled in New York. This, combined with the allegation of damages in excess of the amount in controversy, is sufficient to establish a complete diversity of parties as is required by 28 U.S.C. § 1332. Furthermore, since the court has jurisdiction over the defamation claim, it necessarily has jurisdiction over the compulsory counterclaim. Ruling on the SLAPP claim is ultimately bound to the
Standard of Review
Under federal law, summary judgment is appropriate if, after adequate time for discovery, the moving party can show that there is “no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(b)(c). The movant does not need to actively negate an element of the nonmovant’s case, but instead it is sufficient if the movant shows that an essential element of the nonmovant’s case has suffered a “complete failure of proof.”
Celotex Corp. v. Catrett,
DEFAMATION CLAIM
A. Elements of a defamation claim
Plaintiff Chandok has filed an action to recover damages for defamation. Defamation, which is commonly divided into the categories of libel and slander, is a factually false publication which “tends to expose the plaintiff to public hatred, contempt, ridicule, or disgrace.”
Kimmerle v. N.Y. Evening Journal,
Under New York law, it is for the Court to decide whether, given the overall context of the publication, a statement is reasonably susceptible to a defamatory meaning.
Levin v. McPhee,
B. Statements susceptible to defamatory meaning
Each of the twenty-three statements is reasonably susceptible to a defamatory meaning. Defendant argues that Statements 2 and 9-19 do not concern Plaintiff, but simply the “results” or “data” obtained through Plaintiffs research. The Court disagrees. Statements 2 and 9-19 are cеntered around the results of Plaintiffs research, and that fact that, despite numerous attempts, no other scientist was unable to replicate Plaintiffs results. The individuals to whom Defendant published Statements 2 and 9-18 were members of the scientific community, many of whom collaborated with Plaintiff on the NOS research and attempted to replicate the results. While a member of the general population may not understand Statements 2 and 9-19 to refer to a particular individual’s work, the individuals to whom these Statements were published certainly might.
Among the allegedly defamatory statements are Defendant’s comments that “there MUST be an investigation ... given the еvidence of falsification,” [Statement 1], that there were “difficulties in reproducing the data,” [Statement 11], that other scientists “have been unable to repeat the results,” [Statement 13], and that the data was “shaky” and “unreliable.” [Statement 19]. The scientifically sophisticated individuals to whom these Statements were communicated could very well understand the references to falsification, difficulty reproducing data, and an investigation to be a statement that some, i.e., Plaintiff, falsified or fabricated her research. Upon reading these communications in full and giving consideration to the context in which they were sent, the Court finds that Statements 2 аnd 9-19 could reasonably be considered to be susceptible to a defamatory meaning.
C. Statements of opinion
In addition to its numerous and varied provincial elements, defamation also embodies constitutional concerns. Statements of opinion are neither actionable under New York law, nor under the U.S. Constitution.
Immuno AG. v. Moor-Jankowski,
In determining if a statement is an opinion, a court must consider 1) whether the statement has a precise meaning or is ambiguous, 2) whether the statement is capable of being proven true or false, and 3) whether the statement, when taken in the context of the entire document or the social context of the circumstances, would “ ‘signal ... readers or listeners that what is being read or heard is likely to be opinion, not fact.’ ”
Gross v. New York Times Company,
A statement accompanied by a recitation of facts from which it is supposedly derived is either a statement of “pure opinion” or of “mixed opinion.”
Steinhilber v. Alphonse,
Defendant argues that the Statements are protected as opinion. While he concedes that each of the Statements did not fully recite the facts upon he based his opinion, he argues that because they were published to an audience alreаdy familiar with the relevant facts, republication to the entirety of the facts was not required. The Court notes Defendant’s argument, but finds it unnecessary to decide this Motion on those grounds, as the Court will grant summary judgment in favor of defendant because Plaintiff, a public figure, has failed to meet the heightened burden of proof required of a public figure.
D. Plaintiff is a limited issue public figure
The tort of defamation is intended to make a speaker internally consider the otherwise external ramifications of making false statements to the public that might harm another person. By design, it encourages a “self-censorship” of speech. This has a practical effect of limiting speеch which, in turn, hinders the operation of the free marketplace of ideas that the constitutional freedom of speech is intended to buttress. Under the First and Fourteenth Amendments to the Constitution, speech is a protected right that cannot be removed by operation of state law. U.S. Const., amend I; U.S. Const., amend XIV. This creates a conflict where the courts must weigh a person’s individual interest in protecting his reputation against society’s interest in fostering free speech.
See Barger v. Playboy Enterprises,
The first and foremost consideration in determining whether Plaintiff is a limited issue public figure, is Plaintiffs degree of voluntarily involvement in the public controversy.
James v. Gannett Co.,
The magazines
Cell
and
PNAS
reach an international audience, albeit a specialized one. All communities within the human set have an effective limit of scope beyond which their defining aspects do not effectively extend. While this scope is familiarly based in geography, it is not required to be.
See Celle v. Filipino Reporter Enterprises, Inc.,
Actual malice is defined as knowledge of falsity or reckless disregard for the truth.
New York Times,
While Defendant may have admitted that the postdoctoral students assigned to duplicate Plaintiffs results had less experiencе that Plaintiff, that in no way evidences — and certainly not with convincing clarity — that Defendant was aware of the falsity of any of the Statements. The Statements were based on data provided
Similarly, while Plaintiff attempts to paint Defendant’s actions in reporting the failure of the replication studies and going about the business of retracting the Cell paper as evidencing Defendant’s actual malice toward Plaintiff, those actions do not provide clearly convincing evidence of actual malice. Defendant reported the discrepanсies and the failure to reproduce the results, as he was required to do. He invited Plaintiff back to BTI to attempt to replicate the results herself or to more thoroughly explain how she arrived at her results, something her sparse lab notebooks failed to do. Defendant gave Plaintiff every opportunity to help explain the inability of other scientists to duplicate her work, efforts that are far from a clearly convincing showing of actual malice.
Because Plaintiff has failed to present clearly convincing evidence that Defendant was aware of the falsity of the Statements, or that he acted with actual maliсe, the Court will grant summary judgment in favor of Defendant on the defamation claims.
SLAPP Counterclaim
Dr. Klessig filed a counterclaim under the relevant New York SLAPP statutes. These statutes require, for the basic elements of a SLAPP counterclaim, 1) there must be a public application or petition, 2) the public applicant or permittee of that application must file a lawsuit against a person who is “materially related to any efforts of the defendant to report on, comment on, rule on, challenge or oppose such application or permission,” and 3) that the lawsuit must be, at a minimum, substantially without merit. NY CLS Civ. R. § 70; NY CLS Civ. R. § 76.
As applied to Dr. Klessig’s claim, the SLAPP suit would require that the grant proposal seeking federal funds be a public application or petition, that Dr. Chandok is a public applicant with regard to that application, and that Dr. Klessig’s notification of possible scientific misconduct is an attempt to “report on, comment on, rule on, challenge or oppose” that grant application. If all of these basic prerequisites were met, the cause of action would be available if Dr. Chandok were to file a sufficiently meritless suit against Dr. Klessig. However, Dr. Klessig’s allegations, even if taken as true, fail to meet the prerequisites.
There is no public application or petition. The defining aspect of a public application or petition, is that it is a required government process that must be satisfied to perform some other task.
See Harfenes v. Sea Gate Assoc., Inc.,
Conclusion
Accordingly, and for the foregoing reasons, IT IS ORDERED:
(1) That Defendant Klessig’s Motion for Summary Judgmеnt [Record No. 19] shall be, and the same hereby is, GRANTED;
(2) That Plaintiffs Chandok’s Motion for Summary Judgment [Record No. 23], shall be, and the same hereby is, GRANTED;
(3) That all other pending motion shall be DENIED AS MOOT; and
(4) That all scheduled proceeding shall be CONTINUED GENERALLY.
Notes
. This would become the Cell paper.
. Authorship was attributed to Dr. Chandok and Dr. Ekengren, with Dr. Ekengren's director, Dr. Gregory Martin, listed as a coauthor.
.This is the first allegedly defamatory statement (hereinafter, Statement 1). Another statement in the same email, claiming that Dr. Chandok did not have the proper materials to even perform the tests she reported, is allegedly defamatory Statement 23.
. This is the second allegedly defamatory statement (hereinafter, Statement 2).
. These are allegedly defamatoiy Statements 3 through 6.
. These are allegedly defamatoiy Statements 7, 8, and 9.
. These are allegedly defamatory Statements 10, 11, and 12.
. These are allegedly defamatoiy Statements 13 and 14.
. This is allegedly defamatory Statement 15, and is the only spoken statement among those alleged.
. This is allegedly defamatoiy Statement 16.
. This is allegedly defamatoiy Statement 17.
. This is allegedly defamatoiy Statement 18.
. This is allegedly defamatoiy Statement 19.
. This is allegedly defamatoiy Statement 20.
. This is allegedly defamatory Statement 21.
. The first suggested phrasing of this retraction statement is allegedly defamatory Statement 22.
. All statements were made by Defendant Klessig, with the exception of Statement 22, which was an e-mail from Bridget Coughlin to Nick Cozzarelli.
. In fact, Plaintiff never contends that Defendant's comments that numerous other scientists were unable to duplicate Plaintiff's results are false. Plaintiff does not appear to take issue with the factual portions of the Statements, only with the veracity of Defendant’s conclusions as to the implications of those facts — that if numerous other scientists could not replicate the results, the original results must have been fabricated or falsified.