Yiamouyiannis v. Consumers Union of U.S., Inc.

Decision Date19 March 1980
Docket NumberNo. 470,D,470
Citation619 F.2d 932
Parties6 Media L. Rep. 1065 John YIAMOUYIANNIS, Appellant, v. CONSUMERS UNION OF the UNITED STATES, INC., Appellee. ocket 79-7541.
CourtU.S. Court of Appeals — Second Circuit

John R. Graham, Minneapolis, Minn. (Paul S. Beeber, Plainview, N. Y., Kirkpatrick W. Dilling, Chicago, Ill., James K. Simakis, Columbus, Ohio, of counsel), for appellant.

Michael N. Pollet, New York City (Karpatkin, Pollet & LeMoult, Steven Delibert, New York City, of counsel), for appellee.

Before MULLIGAN, OAKES and GURFEIN, * Circuit Judges.

OAKES, Circuit Judge:

This appeal in a diversity libel action is from a summary judgment for the defendant granted by the United States District Court for the Southern District of New York, Richard Owen, Judge. The plaintiff, John Yiamouyiannis, Ph.D., brought suit against Consumers Union of the United States, Inc. (Consumers Union) for libel said to have been contained in a two-part series of articles appearing in appellee's magazine, Consumer Reports, in July and August of 1978. The articles, entitled Fluoridation: The Cancer Scare and The Attack on Fluoridation Six Ways to Mislead the Public, as their titles imply, attacked as misleading and erroneous the claims made by certain individuals and organizations that fluoridation causes cancer, birth defects and other ills. Appellant claims that he was defamed, particularly in the scientific community, but also in the eyes "of his fellow countrymen to whom he has something important to say" and "whom he serves and must convince." We affirm the judgment.

Briefly stated, the underlying facts are these: Dr. Yiamouyiannis is and for many years has been an active opponent of the fluoridation of public water supplies, and since 1974 has been a paid employee of the National Health Federation, which is an organization that for over twenty years has been actively opposed to fluoridation. Dr. Yiamouyiannis has also authored over fifteen articles on fluoride and is a coeditor of a quarterly, Fluoride, published by the International Society for Fluoride Research. He appeared actively before the Subcommittee on Intergovernmental Relations and Human Resources of the House Committee on Governmental Operations on September 21 and October 12, 1977, 1 both to state his own views on the dangers of fluoridation and to refute the arguments of the National Cancer Institute (NCI) and various other The Consumer Reports article was written by Joseph R. Botta, a senior editor on the magazine staff. Botta is a professional journalist who has been a scientific writer for fifteen years, having worked for the Shell Oil Company from 1959 to 1971, and for Consumers Union in the environmental and health areas since 1972. Botta became interested in the topic of the campaign against fluoridation after having read an article in the New England Journal of Medicine Walsh, Fluoride: Slow Diffusion of a Proved Preventive Measure, 296 New England J.Med. 1118 (1977) and an article in a leading British medical journal Doll & Kinlen, Fluoridation of Water and Cancer Mortality in the USA, Lancet, June 18, 1977, at 1300. But it was only when the House Subcommittee held hearings on the effects of fluoridation and its possible link to cancer that the decision to write and publish an article on the subject was made. Botta obtained a copy of the transcript of the hearings before the House Subcommittee and reviewed some standard medical reference works, which led him to the World Health Organization's 1970 report, Fluorides and Human Health, and to other studies on fluoridation. His conclusion from these studies, as stated in his affidavit, was that there was "no acceptable scientific evidence of any kind that the practice of fluoridating drinking water at appropriate levels had any deleterious effects whatever" (emphasis in original).

organizations that have taken the position that fluoridation is not harmful and helps significantly in the prevention of dental caries. These other organizations include the National Academy of Sciences, the National Heart, Lung and Blood Institute, the American Medical Association, the American Cancer Society, and the American Dental Association.

In the course of Botta's research he also made reference to studies by the British Royal College of Physicians, by the Royal Statistical Society and by investigators at Oxford University. The Subcommittee hearings record contained a schedule, set out in the margin, of studies between 1954 and 1977 showing no association between cancer incidence or deaths and fluoride. 2

Accordingly, Botta was led by "the overwhelming weight of scientific evidence" to have serious doubts as to the credibility to be accorded to Dr. Yiamouyiannis's work two unpublished versions of which, dating from July and December of 1975, were criticized by the National Cancer Institute. Hearings Record at 98-101, 110-113, 203-208. A more recent version of appellant's work, presented in England in May of 1977 and published in the magazine Fluoride, was incorporated in the hearings record. Id. at 18-40.

A brief review of the Consumer Reports articles is as follows: The first article, published in July 1978, relates how Dr. Yiamouyiannis's colleague, Dean Burk, Ph.D., an American biochemist, helped to kill a proposal before the Dutch Parliament to fluoridate water supplies, by virtue of a television interview in Holland in 1976 in which he told the audience that "fluoridation is a form of public mass murder." The article discusses the defeat in Los Angeles and hundreds of other American communities of fluoridation proposals, and mentions the House Subcommittee hearings. What emerged from the testimony, the article says, was "an unmistakable sense that millions of Americans are being grossly misled about fluoridation. The article then describes the initial investigation in the 1930s and 1940s resulting in the conclusion that fluoridation helps prevent dental cavities, and also refers to the opposition that gradually developed. This opposition is now led by the National Health Federation, whose roots, the article says, "run deep into the soil of medical quackery." 3 The article goes on to say that in 1974, the NHF decided to " 'break the back' " of fluoridation efforts and "hired Dr. Yiamouyiannis to do the job." It says that he was successful in influencing the debate in 1974 in Los Angeles, and that his July 1975 study with Dr. Burk (who is said to be a leading advocate of laetrile along with the NHF), "failed (according to the NCI) to take into account widely recognized risk factors known to affect the death rate." It adds that a later December 1975 study was even more " amateurish," according to an NCI official, and ignored "the most fundamental factors involved in cancer mortality rates age, sex and race." The article reports that Drs. Burk and Yiamouyiannis were successful in Holland, but unsuccessful in England, and points out that "independent investigations by seven of the leading medical and scientific organizations in the English-speaking world have unanimously refuted the National Health Federation's cancer claims." See note 2 supra.

The second article, published one month later, refers to other claims that fluoridation causes harm, yet nowhere mentions Dr. Yiamouyiannis, Dr. Burk, or the National Health Federation in refuting theories that fluoride is a poison, causes birth defects, is mutagenic, causes allergic reactions, causes cancer in animals, and contributes to heart disease. However, the article does state that "every type of misrepresentation known to Disraeli" has "been used to attack fluoridation," referring to the "misleading Appellant's unverified complaint in four counts, each seeking two million dollars in damages, complains of defamation mainly by innuendo. In essence, appellant reads the articles as saying that his work is "grossly and irresponsibly misleading" the American people; that fluoridation is absolutely and unquestionably safe; that appellant sold his scientific integrity and objectivity to contrive a deliberately false case against fluoridation; that appellant's work is incompetent "claptrap" and overlooks fundamental risk factors that elementary principles require; that appellant and Dr. Burk have insisted both in America and Europe that fluoridation is mass murder; and that they are men of no credibility or honor. All of this is said to be false and to have been published with the purpose of destroying the appellant's reputation with "willful or reckless disregard of the facts."

information" that appears regularly in a paper called the National Fluoridation News, and also states that the "entire gamut of hokum" has recently been published in an issue of the Cancer Control Journal, a pro-laetrile magazine based in Los Angeles. The article concludes by saying that the "simple truth is that there is no 'scientific controversy' over the safety of fluoridation," and that the "survival of this fake controversy represents, in CU's opinion, one of the major triumphs of quackery over science in our generation."

In moving for a summary judgment, appellee submitted Mr. Botta's affidavit as well as the House Subcommittee hearings. The affidavit set forth Botta's account of research, as above stated, which was undisputed, as well as his investigation of the background and qualifications of Drs. Yiamouyiannis and Burk and his consultations before publication, also undisputed. These consultations were with (1) the Consumers Union library staff, to determine the reliability of supporting references, (2) the technical department, (3) an in-house medical consultant, (4) an outside medical advisor, (5) a dental consultant, (6) a Ph.D. with experience in epidemiology and the safety of water supplies, (7) a psychiatrist who in connection with health fraud had investigated and written about the National Health Federation, (8) the head of the...

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