Reuber v. Food Chemical News, Inc.

• Citation: 925 F.2d 703
• Decision Date: 27 February 1991
• Docket Number: No. 88-2641,88-2641
• Parties: , 18 Media L. Rep. 1689 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 and 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.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 703

925 F.2d 703

59 USLW 2504, 18 Media L. Rep. 1689

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 and 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.

No. 88-2641.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 2, 1990.

Decided Feb. 5, 1991.

As Amended Feb. 12 and Feb. 27, 1991.

Aaron L. Handleman, argued (Melissa Chappell-White, on brief), Eccleston and Wolf, Washington, D.C., for defendant-appellant.

Raymond Donald Battocchi, argued (Isaac N. Groner and Walter H. Fleischer, on brief), Cole and Groner, P.C., Washington, D.C., for plaintiff-appellee.

Lee Levine and James E. Grossberg, Ross, Dixon & Masback, Washington, D.C., on brief, for amici curiae Newsletter Ass'n, Maryland-Delaware-District of Columbia Press Ass'n, Washington Merry-Go-Round, Inc.

Henry L. Baumann and Steven A. Bookshester, Washington, D.C., on brief, for amicus curiae Nat. Ass'n of Broadcasters.

J. Laurent Scharff, Pierson, Ball & Dowd, Washington, D.C., on brief, for amicus curiae Radio-Television News Directors Ass'n. Jane E. Kirtley, Washington, D.C., on brief, for amicus curiae Reporters Committee for Freedom of the Press.

Boisfeuillet Jones, Jr. and Barbara P. Percival, Washington, D.C., on brief, for amicus curiae Washington Post.

Before ERVIN, Chief Judge, and RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, CHAPMAN, WILKINSON, WILKINS and NIEMEYER, Circuit Judges, sitting en banc.

WILKINSON, Circuit Judge:

Melvin Reuber was employed as a scientist at a research center operated for the National Cancer Institute (NCI). While operating under the aegis of the NCI, Reuber disseminated his own research and took other actions which created the misleading impression that the NCI had reversed its official position that the pesticide malathion was a non-carcinogen. By such actions, Reuber, a self-styled whistleblower, entered the public controversy swirling around malathion's safety. In response to Reuber's involvement, his supervisor issued a letter of reprimand which criticized Reuber for, among other things, promoting inadequate research and subverting public confidence in the NCI. A news publication received a copy of the letter and published the majority of its contents. Reuber then sued and won a judgment against the publication for defamation and invasion of privacy.

In reviewing Reuber's claims, we hold that a whistleblower is not invariably immune from public figure status and that recovery in this instance must be judged under an actual malice standard, a standard Reuber has failed to satisfy. In addition, we hold that appellant did not invade Reuber's privacy. We therefore reverse the district court's judgment.

I.

Melvin Reuber is no stranger to the scientific and political debates raging over the carcinogenicity of chemical pesticides. He began his research on carcinogens in the 1950s during his graduate training in pathology. In the early 1970s, Reuber served as a consultant to the Environmental Protection Agency on the carcinogenicity of certain chemicals, including pesticides. In this capacity, Reuber testified at EPA hearings and at a Senate subcommittee hearing. At these hearings, Reuber established himself as a scientist who frequently found pesticides to be carcinogens. At one hearing, for example, he challenged the validity of reports submitted by the chemical companies on pesticide safety, deeming most of the reports to be "worthless."

In 1976, Reuber started work with the Frederick Cancer Research Center ("FCRC"). Litton Bionetics operated the FCRC under a contract with the National Cancer Institute ("NCI"), a public agency. At the FCRC, Reuber studied the carcinogenic effects of various chemicals. Reuber also performed independent research on his own time, often using materials and facilities at Tracor Jitco, another facility under contract with the NCI. As part of his independent research, Reuber analyzed the pesticide picloram and concluded that it was a carcinogen. He delivered his findings at a conference in Oregon in the late 1970s. At the conference, Reuber touted his abilities to accurately determine carcinogenicity. He also reported his views on the carcinogenicity of picloram in a study that environmental groups in Wisconsin utilized to oppose the use of picloram in the state.

As an additional part of Reuber's independent research, he reanalyzed bioassays testing the potential carcinogenicity of malathion, an insecticide. These bioassays had been deposited at Tracor Jitco by other scientists under contract to the NCI. These scientists had found malathion to be non-carcinogenic and reported their findings in an official NCI report. Reuber concluded, on the contrary, that malathion was carcinogenic and assembled his findings in an unpublished manuscript.

Reuber's research on malathion gained prominence during the Mediterranean fruit fly ("Medfly") infestation of California in 1980-81. State officials proposed the use of malathion to eradicate the Medfly. The question of how to eradicate the Medfly, in particular the proposed use of malathion, engendered a significant public controversy pitting state agricultural interests against those of other groups, including environmentalists. A California environmental group began using Reuber's malathion manuscript, which it had earlier requested from Reuber, as ammunition in its battle to oppose the use of malathion. Although Reuber based the manuscript on his independent research, the address that appeared on the paper directly below Reuber's name was "NCI, Frederick Cancer Research Center/Frederick, Maryland 21701."

By affiliating his own study with the NCI/FCRC in this way, Reuber created confusion over the official NCI position on the potential carcinogenic effects of malathion. In fact, California state health officials contacted NCI to determine whether Reuber's manuscript represented the current NCI position or whether NCI adhered to the findings of its prior published study. Drs. Vernon Hartwell and Richard Adamson, two NCI executives, responded to this confusion by contacting Dr. Michael Hanna, Reuber's supervisor at FCRC and its director, and urging him to investigate Reuber's activities.

On March 26, 1981, Hanna reprimanded Reuber in a letter (the "Hanna letter") asserting that Reuber had engaged in various forms of professional misconduct: creating the impression that the NCI endorsed his independent research, engaging in inadequate research, spending excessive time away from his job, and ignoring NCI publication clearance procedures. For example, the letter states, "you have operated under the guise of the endorsement of both NCI and the ... FCRC. These obstreperous actions have had a multi-million dollar implication, giving the impression that the NCI may be administering programs of questionable competency." On the adequacy of research, the letter states that after reviewing the evidence, "I can only assume that your statement regarding your thorough evaluation of these slides was incorrect and misleading ... thus raising a question of whether your interpretation is scientifically valid."

Hanna sent copies of the reprimand letter to officials at Litton and the NCI. This letter was then leaked to outside parties. How the letter leaked from its initial recipients has not been determined. In any event, on April 13, 1981 an anonymous source provided Dr. William Hollis of the National Agricultural Chemicals Association with a copy of the letter. Hollis then forwarded a copy to Jack Wise of Stauffer Chemical Company. Wise, in turn, informed Catherine Cooper, the editor of the Pesticide and Toxic Chemical News ("PTCN" or "the News"), about the letter. The PTCN is a newsletter with approximately 1,300 subscribers seeking information on pesticides and toxic chemicals. Appellant Food Chemical News owns PTCN. On April 15, 1981, Cooper published an article about the Hanna letter, essentially reprinting most of the letter's contents. It is undisputed that Wise gave Cooper an accurate copy of the Hanna reprimand and that the News reported accurately its contents. On April 24, 1981, Reuber resigned from Litton.

Reuber then filed suit in federal district court for the District of Columbia against the Food Chemical News as well as his employers and supervisors. The suit against the Food Chemical News was eventually transferred to the United States District Court for the District of Maryland and is the only one before us on appeal. The district court held a jury trial on Reuber's common law claims against the News for defamation and invasion of privacy. On the defamation count, the jury found that the News had acted with actual malice in publishing one or more false statements about Reuber. The jury also held the News liable for invasion of privacy. It awarded Reuber $625,000 in compensatory damages and $250,000 in punitive damages.

The News appealed the district court's judgment. A panel of this circuit affirmed the judgment for Reuber. Reuber v. Food Chemical News, Inc., 899 F.2d 271 (4th Cir.1990). The court then voted to rehear the case en banc and we now...