Tobinick v. Novella, Case No. 9:14–CV–80781.

Citation108 F.Supp.3d 1299
Decision Date04 June 2015
Docket NumberCase No. 9:14–CV–80781.
Parties Edward Lewis TOBINICK, MD, et al., Plaintiffs, v. M.D. Steven NOVELLA, et al., Defendants.
CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida

Jarod Bona, Aaron R. Gott, Bona Law, P.C., La Jolla, CA, Alexander Daniel Brown, The Concept Law Group, P.A., Fort Lauderdale, Geoffrey Michael Cahen, Cahen Law, P.A., Boca Raton, FL, Reid Alexander Cocalis, Salvatore Hazard Fasulo, Peter Glen Herman, Tripp Scott PA, Fort Lauderdale, FL, Daniel A. Miller, Mark R. Osherow, Broad and Cassel, West Palm Beach, FL, for Plaintiffs.

Darren Joel Spielman, Kain & Associates, Ft. Lauderdale, FL, for Defendants.

ORDER GRANTING DEFENDANT STEVEN NOVELLA'S SPECIAL MOTION TO STRIKE (ANTI–SLAPP MOTION)

ROBIN L. ROSENBERG, District Judge.

THIS CAUSE is before the Court upon Defendant Steven Novella's Special Motion to Strike (Anti–SLAPP Motion) [DE 93] ("the Motion"), filed herein on September 30, 2014. The Motion has been fully briefed by both sides and the Court heard oral argument on the Motion on November 20, 2014. The Court has reviewed the documents in the case file and is fully advised in the premises.

Plaintiffs have sued Defendant Steven Novella for making allegedly false and/or defamatory statements about Plaintiffs' medical practice in two blog posts. Novella has moved to strike Tobinick M.D.'s unfair competition, trade libel, and libel per se claims under California's "anti-SLAPP" statute, California Code of Civil Procedure section 425.16.1 A "SLAPP" is a strategic lawsuit against public participation, i.e. a lawsuit "brought primarily to chill the valid exercise of the constitutional right[ ] of freedom of speech." Cal.Civ.Proc.Code § 425.16(a). Novella contends that this was the driving intent behind Plaintiffs' suit, and argues that Tobinick M.D.'s claims should be stricken. The Court agrees and grants the Motion.

I. BACKGROUND

This case concerns two articles written by Dr. Steven Novella, the only defendant remaining in the instant suit.2 Both articles address the practice of Plaintiff Edward Tobinick ("Tobinick"), a doctor who provides medical treatment to patients with "unmet medical needs" via two institutes—Edward Lewis Tobinick M.D., a California medical corporation ("Tobinick M.D."), and INR PLLC, a Florida professional limited liability company ("INR")—both doing business as the "Institute of Neurological Recovery" (collectively "Plaintiffs"). Am. Compl. ¶¶ 2–4, 12. Novella published the first article, "Enbrel

for Stroke and Alzheimer's" ("the first article"), on May 8, 2013 in response to a piece published in the Los Angeles Times. Am. Compl. Ex. 1 at 1. As Novella described it,

The [Times ] story revolves around Dr. Edward Tobinick and his practice of perispinal etanercept

(Enbrel ) for a long and apparently growing list of conditions. Enbrel is an FDA-approved drug for the treatment of severe rheumatoid arthritis. It works by inhibiting tumor necrosis factor (TNF), which is a group of cytokines that are part of the immune system and cause cell death. Enbrel, therefore, can be a powerful anti-inflammatory drug. Tobinick is using Enbrel for many off-label indications, one of which is Alzheimer's disease (the focus of the LA Times story).

Id. The allegedly false statements in the first article concern the viability of Dr. Tobinick's treatments, the scientific literature discussing those treatments, the size and locations of Dr. Tobinick's Institutes, and, by implication, the categorization of Dr. Tobinick's practice as "health fraud." See Am. Compl. ¶¶ 54–56, 60–61, 63–64, 69–70, 71–72. Novella published the second article, entitled "Another Lawsuit To Suppress Legitimate Criticism—This Time SBM" ("the second article"), on July 23, 2014, after Plaintiffs filed their suit. Am. Compl. Ex. 5 at 1. In large part, the second article simply restates the content of the first, and Plaintiffs incorporated it into an Amended Complaint. See generally id.; Am. Compl. ¶¶ 102–03. The only statement in the second article which Plaintiffs allege is false and misleading is Novella's statement, as characterized by Plaintiffs, that "there have been no double-blind placebo-controlled clinical trials of the treatment provided by the Plaintiffs."3 Id.

II. CHOICE OF LAW

A genuine conflict of law exists, as Florida has no equivalent to California's anti-SLAPP statute. See Ranbaxy Labs., Inc. v. First Databank, Inc., No. 3:13–cv–859–J–32MCR, 2014 WL 982742, at *5 (M.D.Fla. Mar. 12, 2014). Because of this conflict, a choice of law analysis is necessary. Novella contends that California law applies, at least as to the claims of the California plaintiff, Tobinick M.D. Tobinick M.D. argues that California law does not apply, and that this Court should apply Florida law instead.

A federal court sitting in diversity applies the conflict of law rules of the forum state. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Florida's conflict of law test utilizes the "significant relationship" test for torts. See Bishop v. Fla. Specialty Paint Co., 389 So.2d 999, 1001 (Fla.1980). The significant relationship test utilizes the following framework:

(1) A court, subject to constitutional restriction, will follow a statutory directive of its own state on choice of law.
(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectation,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.

Restatement (Second) of Conflict of Laws § 6 (1971). Many of the above-referenced factors do not apply in the context of torts. A court applying these principles in the context of tort claims therefore should consider the following:

(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue.

Restatement (Second) of Conflict of Laws § 145 (1971). The presumption of the significant relationship test is that generally, the law of the forum where the injury occurred determines the substantive issues unless another state has a more compelling interest. See Bishop, 389 So.2d at 1001.

Here, California has the most significant relationship to the California plaintiff's claims. Novella's anti-SLAPP motion is brought solely against the California entity, Tobinick M.D. Tobinick M.D. is a California corporation with its principal place of business in California. To the extent that Tobinick M.D. was injured, most—if not all—of its injury undoubtedly occurred in California, given that the corporation is based in that state. See § 145(2)(a), (c). Novella published the allegedly false and/or defamatory statements online, from his domicile in Connecticut. See § 145(2)(b) ; Am. Compl. ¶ 5. Any relationship that exists between the parties is not centered in a particular state, given that the statements at issue were made on the internet. See § 145(2)(d) (listing the center of the parties' relationship as a factor to be "evaluated according to [its] relative importance with respect to the particular issue"). California's interest in limiting frivolous litigation filed by its residents outweighs any interest Florida has in the dispute, where that dispute is between a California corporation and a Connecticut resident. See generally § 6(2). Under the significant relationship test, then, the Court must apply the anti-SLAPP statute under California law.

III. CALIFORNIA'S ANTI–SLAPP STATUTE

Although framed as a rule of state procedure, California's anti-SLAPP statute protects substantive rights and thus applies in federal court. United States ex rel. Newsham v. Lockheed Missiles & Space Co., Inc., 190 F.3d 963, 973 (9th Cir.1999).4 The statute is designed to discourage actions that "masquerade as ordinary lawsuits but are brought to deter common citizens from exercising their political or legal rights or to punish them for doing so." Batzel v. Smith, 333 F.3d 1018, 1024 (9th Cir.2003) (internal quotation marks omitted). The Legislature declared "that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process." Cal.Civ.Proc.Code § 425.16(a). The legislature amended the statute in 1997 to ensure that it "shall be construed broadly." Id.

Under the statute, "[a] cause of action against a person arising from any act ... in furtherance of the person's right of petition or free speech ... in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." Cal.Civ.Proc.Code § 425.16(b)(1). The statute explicitly defines four categories of activities "in furtherance of ... free speech," including "(3) any written or oral statement or writing made in a place open to the public or a...

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3 cases
  • Edward Lewis Tobinick v. Novella
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 15 Febrero 2017
    ...to be a plethora of case law that suggests that it is allowable in diversity actions in federal court." Tr. of Mot. Hr'g, at 26, Edward Lewis Tobinick, MD v. Novella, No. 9:14–cv–80781–RLR (S.D. Fla. Nov. 20, 2014), ECF No. 113. The Tobinick Appellants, therefore, waived the issue. See, e.g......
  • Edward Lewis Tobinick, MD, Corp. v. Steven Novella, an Individual, Soc'y for Science-Based Med., Inc.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 15 Febrero 2017
    .... . . the specific anti-SLAPP statute at issue has previously been allowed in federal court." Edward Lewis Tobinick, MD v. Novella, 108 F. Supp. 3d 1299, 1305 n.4 (S.D. Fla. 2015) ("Tobinick"). Moreover, that the Seventh Circuit's June 29, 2015,Page 14 decision in Intercon Solutions, Inc. v......
  • Ratner v. Kohler
    • United States
    • U.S. District Court — District of Hawaii
    • 26 Febrero 2018
    ...domicile applied in a defamation case); DeRoburt v. Gannett Co., Inc., 83 F.R.D. 574, 580-83 (D. Haw. 1979); see Tobinick v. Novella, 108 F.Supp.3d 1299, 1304 (S.D. Fla. 2015) (finding California law had the most significant relationship to the claims because plaintiff's damages were most l......

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