Nader v. De Toledano

• Decision Date: 31 July 1979
• Docket Number: No. 13019.,13019.
• Citation: 408 A.2d 31
• Parties: Ralph NADER, Appellant, v. Ralph de TOLEDANO and Copley Press, Inc., Appellees.
• Court: D.C. Court of Appeals

Page 31

408 A.2d 31

Ralph NADER, Appellant, v. Ralph de TOLEDANO and Copley Press, Inc., Appellees.

No. 13019.

District of Columbia Court of Appeals.

Argued June 29, 1978.

Decided July 31, 1979.

Rehearing and Rehearing En Banc Denied September 26, 1979.

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Michael Nussbaum, Washington, D. C., with whom Ronald G. Precup and Lucien Hilmer, Washington, D. C., were on brief, for appellant.

Nicholas S. McConnell, Washington, D. C., with whom Kenneth Wells Parkinson, Washington, D. C., was on brief, for appellee Ralph de Toledano.

John R. Keys, Jr., Washington, D. C., with whom John R. Reilly, Washington, D. C., was on brief, for appellee Copley Press, Inc.

Before NEWMAN, Chief Judge, and KERN and HARRIS, Associate Judges.

NEWMAN, Chief Judge:

This is an appeal from summary judgment for the defendants in a libel action brought by Ralph Nader against journalist Ralph de Toledano and his syndicator, Copley Press, Inc., for statements made by de Toledano in a column distributed by Copley. In determining whether summary judgment was properly entered against appellant, we are called upon to decide a threshold issue of first impression in this court — the showing which a public figure plaintiff must make in order to defeat a defense motion for summary judgment in a libel action governed by the constitutional standards enunciated in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (New York Times).¹ We reverse the summary judgment as to appellee de Toledano and remand for trial; we affirm as to appellee Copley Press.

I

The dispute in this case has its origins in the public controversy which surrounded the issue of the safety of the Corvair automobile, manufactured by General Motors (GM) during the early 1960's. In the intense public debate on the question, appellant Nader was a principal spokesman for critics who contended that defects in the Corvair's basic design presented an unreasonable risk of harm to millions of Americans on the nation's streets and highways. Defending the efficacy of the Corvair design, GM maintained that the Corvair was as safe as any other comparable American vehicle. It was amidst this controversy that the United States Senate Subcommittee on Executive Reorganization and Government Research, chaired by Senator Abraham Ribicoff, held hearings in March 1966 on the subject of GM's investigation and surveillance of appellant because of his general criticism of automobile design and his vigorous anti-Corvair campaign in particular. Despite the narrow focus of the subcommittee's inquiry, the safety of the Corvair became an issue during the hearings. It was first raised by Aloysuis F. Power, then general counsel of GM, who stated for the record that the Corvair was not an unsafe vehicle and cited in support of his contention two personal injury cases involving the Corvair in which GM had won jury verdicts. During his testimony at the hearings, appellant attacked the Corvair's safety; as support for his contention, he submitted a supporting design study of the Corvair prepared by a private consulting firm. James Roche, then Chairman of GM, then inserted in the record copies of relevant testimony supportive of the Corvair which had been given before the Michigan State Legislature in February 1966 by Louis Bridenstine, then assistant general counsel of GM, and Frank Winchell, then chief of research and development at the Chevrolet Division. Other witnesses at the hearing also testified with regard to the Corvair's general safety.

In its report to the Senate on the general issue of the federal role in traffic safety, the subcommittee alluded to the continuing controversy surrounding Corvair, as manifested by the Nader-GM hearings and the volume of litigation in process over the safety of the 1960-63 Corvair design. However, the subcommittee made no finding with respect to the Corvair's safety, noting that such a determination lay beyond the scope of its subject matter jurisdiction (which did not extend to traffic and highway safety legislation) and its technical competence.

Subsequently, in 1970-71, appellant Nader wrote a series of letters to John Volpe, then Secretary of the Department of Transportation (DOT), and to Senator Ribicoff, requesting that their respective government agencies conduct official investigations into the Corvair's safety. He stated that GM, by its introduction of the Corvair on the market, had ignored the warnings of one of its own highly respected engineers as to the hazards of an automobile design (such as the Corvair's) which incorporated a rear engine and a swing axle rear suspension system as central features. He identified what he regarded as specific technical defects in the Corvair (e. g., enhanced rollover capability and hence inadequate vehicle stability due to, inter alia, dysfunctional rear suspension system and differential front and rear tire pressures), which necessitated further governmental inquiry and corrective action. According to Nader, GM persisted in its failure to adopt needed modifications in the early Corvair models which would have remedied these known design defects, even though it possessed the requisite technology. When GM did make design modifications in the 1964 and 1965 models, Nader contended, the company misrepresented the nature, purpose, and effect of such changes.

However, appellant's letters were primarily devoted to an indictment of the veracity and good faith of GM's conduct in relation to the Corvair before both national and state legislative bodies and the courts. Nader charged, inter alia, that: (1) high-level GM officials maintained a special "hot documents" file — consisting of company-produced test data and films which conclusively demonstrated that the 1960-63 Corvair models were dangerously defective due to basic design flaws — which they conspired to, and did, suppress; (2) despite knowledge of the unsafety of the Corvair, GM continued to wage a campaign of public affirmation of the car's safety; (3) in 1966 GM officials made false statements attesting to the Corvair's safety in testimony before the Ribicoff subcommittee and the Michigan State Legislature (copies of which had been submitted to the Ribicoff subcommittee during its hearings) which they knew were contradicted by GM's secret test data and films; (4) GM repeated the same misrepresentations to Secretary Volpe; (5) GM had engaged in fraud and deceit in its defense of two personal injury cases involving the Corvair — Anderson v. General Motors Corporation (tried in Clearwater, Florida) and Collins v. General Motors Corporation (tried in Santa Clara County, California) through its unlawful failure to disclose as required by legal discovery procedures, GM test films and data critical of the Corvair's safety, and through the false and misleading testimony of GM defense witnesses as to the existence of such data and other safety issues. Nader based these allegations on his analysis of several documents — including portions of the transcript of the 1966 Ribicoff subcommittee hearings; transcript of the Anderson and Collins trials; and two GM proving ground test reports which he had obtained, PG 17103 and PG 15699. He recommended that Senator Ribicoff investigate the individual GM officials implicated by his allegations of misrepresentations during the 1966 hearings to determine whether the subcommittee should request a criminal investigation by the Department of Justice for possible violations of 18 U.S.C. § 1001 (1948).² Appellant released at least one of the letters to Senator Ribicoff, a 32 page document, detailing his allegations of GM's suppression of evidence and falsification of testimony before governmental agencies and the courts, to the press, which gave the controversy wide coverage.

Appellant further charged in a later communication that GM had substantially altered the official record of the Ribicoff subcommittee's 1966 hearings by making major deletions and additions in the transcript such that the official hearing record, as published in 1966, did not accurately reflect the substance of the sworn testimony.

In response to Nader's allegations, Senator Ribicoff requested that GM submit to the subcommittee all the documents and films cited by Nader in his correspondence, all other significant test reports, and all internal GM memoranda exchanged among the high-level GM officials designated by Nader relevant to the question of the Corvair's general safety. He also requested that Nader provide the subcommittee with all the information concerning the Corvair which he possessed. Thereafter, the Ribicoff subcommittee embarked upon an investigation, which spanned two and one-half years, into Nader's charges of GM's deceit of governmental agencies.

The investigation focused on two principal issues — the veracity of GM's testimony before the subcommittee in 1966 and GM's conduct of several lawsuits involving the Corvair.³ In addition to studying the scores of documents submitted by GM, and the 53 submitted by Nader, as well as other relevant materials provided at its request, the subcommittee staff interviewed almost 100 people for a total of 117 hours. Through interviews with both active and retired personnel at every level of GM, from top management to clerical and technical employees, the subcommittee sought to obtain all relevant information on the issues under study.

On March 14, 1973, after completion of the lengthy study, the subcommittee issued its findings and conclusions in an extensive report which was inserted into the Congressional Record. 119 Cong.Rec. 5870 (1973). The report addressed in systematic fashion each of the allegations which Nader had made against GM's conduct, both before the Senate subcommittee and in the courts, and the Corvair's safety, insofar as deemed relevant. In the subcommittee's view, the factual evidence yielded by its massive...