Reuber v. Food Chemical News, Inc.

Citation899 F.2d 271
Decision Date05 April 1990
Docket NumberNos. 88-2641--88-2643,s. 88-2641--88-2643
Parties, 17 Media L. Rep. 1537 Melvin D. REUBER, Plaintiff-Appellee, v. FOOD CHEMICAL NEWS, INC.; Defendant-Appellant, and Litton Industries, Inc.; Litton Bionetics, Inc.; Vincent T. Devita, Jr., National Cancer Institute, National Institute of Health; Richard Adamson, National Cancer Institute, National Institute of Health; William V. Hartwell, National Cancer Institute, National Institute of Health; William Payne, Frederick Cancer Research Center; Michael G. Hanna, Jr., Frederick Cancer Research Center; James C. Nance, Litton Bionetics, Inc.; I.J. Fidler, Frederick Cancer Research Center; United States of America; U.S. Department of Health & Human Services; Environmental Protection Agency, Defendants, The Newsletter Association; Maryland-Delaware-District of Columbia Press Association; National Association of Broadcasters; The Radio-Television News Directors Association; The Reporters Committee for Freedom of the Press; Washington Merry-Go-Round, Inc.; The Washington Post, Amici Curiae. Melvin D. REUBER, Plaintiff-Appellant, v. LITTON INDUSTRIES, INC.; Litton Bionetics, Inc.; Vincent T. Devita, Jr., National Cancer Institute, National Institute of Health; Richard Adamson, National Cancer Institute, National Institute of Health; William V. Hartwell, National Cancer Institute, National Institute of Health; William Payne, Frederick Cancer Research Center; Michael G. Hanna, Jr., Frederick Cancer Research Center; James C. Nance, Litton Bionetics, Inc.; I.J. Fidler, Frederick Cancer Research Center; U.S. Department of Health & Human Services; Environmental Protection Agency, Defendants-Appellees, and United States of America; Food Chemical News, Inc., Defendants, The Newsletter Association; Maryland-Delaware-District of Columbia Press Association; National Association of Broadcasters; the Radio-Television News Directors Association; the Reporters Committee for Freedom of the Press; Washington Merry-Go-Round, Inc.; The Washington Post, Amici Curiae. Melvin D. REUBER, Plaintiff-
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Frances E. Kanterman, Leonard E. Cohen (Frank, Bernstein, Conaway & Goldman, on brief), Aaron L. Handleman (Melissa Chappell-White, Laxalt, Washington, Perito & Dubuc, on brief) for appellants.

Raymond Donald Battocchi (Isaac N. Groner, Walter H. Fleischauer, Cole and Groner, P.C., on brief), Gerald P. Greiman (Green, Hoffmann & Dankenbring, Roger C. Spaeder, Leslie A. Blackmon, Zuckerman, Spaeder, Goldstein, Taylor & Kolker, Alphonse M. Alfano, Bassman, Mitchell & Alfano, E. Grey Lewis, McDermott, Will & Emery, on brief) for appellees.

(Lee Levine, James E. Grossberg, Ross, Dixon & Masback, Henry L. Baumann, Steven A. Bookshester, J. Laurent Scharff, Pierson, Ball & Dowd, Jane E. Kirtley, Boisfeuillet Jones, Jr., Barbara P. Percival, on brief), for amici curiae.

Before WILKINS, Circuit Judge, WINTER, Senior Circuit Judge, and HARVEY, Chief United States District Judge for the District of Maryland, sitting by designation.

HARRISON L. WINTER, Senior Circuit Judge:

These consolidated appeals raise myriad issues, but the principal ones concern the law of defamation and invasion of privacy.

I. Introduction

In 1981 the plaintiff Melvin Reuber worked for Litton Bionetics, Inc. (Litton), a private research firm, as a pathologist researching the potential carcinogenic effects of various chemicals. 1 Litton operated the Frederick Cancer Research Center ("FCRC") under a contract with the National Cancer Institute ("NCI"), a public agency. In addition to his official duties, Reuber performed a substantial amount of independent research on his own time. He used his access to data from other NCI studies to produce his own evaluation of the results.

As part of his private research, Reuber had reanalyzed bioassays concerning the potential carcinogenic effects of the chemical malathion (an insecticide). An official NCI report concluded that the bioassays did not show the chemical to cause cancer, but Reuber's independent work led him to believe that malathion might be carcinogenic. He reported this result in an unpublished manuscript. A California environmental group, which had previously requested a copy of the manuscript from Reuber, began using the paper in its opposition to the use of malathion in combatting the infestation of Mediterranean fruit flies ("Medflys") in 1980-81. While the paper was based on Reuber's private work, he had placed his office address on the manuscript, which indicated that he was associated with the FCRC and the NCI. 2

The use of the malathion manuscript created some confusion over the official NCI position on the potential carcinogenic effects of the insecticide and prompted inquiries. As a result, Drs. Vernon Hartwell and Richard Adamson, two NCI executives, contacted Dr. Michael Hanna, Reuber's supervisor at Litton, and urged him to investigate Reuber's activities. After consulting with a number of NCI and Litton employees, Dr. Hanna convinced Reuber to mail errata letters to journals that had published papers based on his private research to clarify that they were not official FCRC or NCI reports.

Hanna believed that he should also impose a sanction on Reuber. On March 26, 1981, Hanna wrote a scathing letter of reprimand (the "Hanna letter") in which he asserted that Reuber had committed the following professional misconduct:

1. knowingly and wrongly bypassing FCRC/NCI clearance procedures when publishing papers and circulating manuscripts based on his independent research,

2. admitting that he bypassed those FCRC/NCI clearance procedures because the papers were of insufficient quality to merit approval,

3. either lying about the extent of his research on the chemical malathion or spending too little time analyzing the results to support scientific conclusions,

4. spending an excessive amount of time away from his work, and

5. using the name of the FCRC and the NCI without authorization.

Hanna sent the letter of reprimand to Reuber with copies to James Nance and Dr. Fidler at Litton and Drs. Adamson, DeVita, Hartwell and Payne at NCI. Reuber has been unable to prove who leaked the Hanna letter to the outside, but it is clear that Dr. William Hollis of the National Agricultural Chemicals Association received a copy of the letter from an anonymous source on April 13, 1981. 3 Hollis sent a copy to Jack Wise of Stauffer Chemical Company. Wise contacted Catherine Cooper, the editor of the Pesticide and Toxic Chemical News ("PTCN"). 4 On April 15, after making "a conscious decision not to inquire into whether the statements contained in [the letter] were true or false," Cooper published an article about the reprimand reproducing most of the contents of the Hanna letter.

Reuber resigned from Litton on April 24, 1981, on the advice of his physician. He has not found regular employment in his field of study since that time.

In 1981 Reuber filed suit in the District of Columbia against the United States, the Department of Health and Human Services ("HHS"), and the Environmental Protection Agency ("EPA") based on the Privacy Act and the Federal Tort Claims Act. Reuber also sued Food Chemical News (the "News"), Litton Industries, Inc. and its subsidiary Litton Bionetics, Inc., four individuals employed by the NCI ("NCI employees"), and three employees of Litton ("Litton employees") for violations of his rights under the First and Fifth Amendments to the U.S. Constitution and for violation of his common law rights against defamation, invasion of privacy, conspiracy, breach of contract, negligence, interference with business and contractual relationships, and intentional and/or negligent infliction of emotional distress. 5

The district judge severed Reuber's claims against the government, dismissed the First and Fifth Amendment claims against the government, and held a bench trial on the Privacy Act claims in 1984. Reuber lost most of these claims, and, on appeal, the District of Columbia Circuit held that the district court should have granted summary judgment against Reuber on all of his Privacy Act claims. Reuber v. United States, 829 F.2d 133 (D.C.Cir.1987).

The district judge also dismissed Reuber's First Amendment claims against all other defendants in 1982. On appeal, the District of Columbia Circuit reinstated Reuber's First Amendment claims against Litton and affirmed dismissal of Reuber's claims against all individual defendants for lack of personal jurisdiction. Reuber v. United States, 750 F.2d 1039 (D.C.Cir.1984).

In 1982 Reuber filed a similar set of claims in Maryland state court against Litton and the seven individuals named in the District of Columbia suit. This suit was removed to federal court. After the decision of the District of Columbia Circuit in 1984, the District of Columbia case (except for the claims involving the United States) was transferred to the United States District...

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