Croce v. N.Y. Times Co.

• Decision Date: 17 July 2019
• Docket Number: No. 18-4158,18-4158
• Citation: 930 F.3d 787
• Parties: Carlo M. CROCE, Plaintiff-Appellant, v. The NEW YORK TIMES COMPANY; James Glanz; Agustin Armendariz; Arthur Ochs Sulzberger, Jr.; Dean Baquet, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

930 F.3d 787

Carlo M. CROCE, Plaintiff-Appellant,

v.The NEW YORK TIMES COMPANY; James Glanz; Agustin Armendariz; Arthur Ochs Sulzberger, Jr.; Dean Baquet, Defendants-Appellees.

No. 18-4158

United States Court of Appeals, Sixth Circuit.

Argued: June 20, 2019

Decided and Filed: July 17, 2019

ARGUED: Gerhardt A. Gosnell, II, JAMES E. ARNOLD & ASSOCIATES, LPA, Columbus, Ohio, for Appellant. Jay Ward Brown, BALLARD SPAHR LLP, Washington, D.C., for Appellees. ON BRIEF: Gerhardt A. Gosnell, II, James E. Arnold, Damion M. Clifford, JAMES E. ARNOLD & ASSOCIATES, LPA, Columbus, Ohio, for Appellant. Jay Ward Brown, Michael D. Sullivan, BALLARD SPAHR LLP, Washington, D.C., Keith W. Schneider, MAGUIRE & SCHNEIDER, Columbus, Ohio, for Appellees. Bruce D. Brown, THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, Washington, D.C., for Amici Curiae.

Before: MOORE, COOK, and NALBANDIAN, Circuit Judges.

KAREN NELSON MOORE, Circuit Judge.

Some say there's no such thing as bad publicity, but Dr. Carlo Croce did not share this sentiment after the New York Times published an article that included allegations against him. The article also questioned Ohio State University's ability to investigate properly these allegations because of a supposed conflict of interest. Dr. Croce is a prolific cancer

researcher at OSU, but some critics have made allegations against him. The article at issue may be unflattering, but the question is whether it is defamatory. In a thorough opinion, the district court thought not. We agree. The article is a standard piece of investigative journalism that presents newsworthy allegations made by others, with appropriate qualifying language. For the reasons that follow, we AFFIRM .

I. BACKGROUND

Dr. Carlo Croce is a professor and the Chair of Human Cancer Genetics at The Ohio State University. Over the course of his forty-five-year career as a cancer

researcher, Dr. Croce has published over 650 papers. R. 32 (Am. Compl. at ¶¶ 31–32) (Page ID #608). Of these hundreds of papers, twelve have been subject to corrections and two more have been withdrawn with Dr. Croce's consent. See id. ¶¶ 35–39 (Page ID #609–11). (A few of these corrections and one withdrawal occurred after the publication of the New York Times's article.) Dr. Croce's research has earned him numerous awards. See R. 32-2 (Croce Resp. Ex. B) (Page ID #704–06).

The story behind the article in question begins on September 14, 2016, when Dr. Croce received an email from New York Times reporter James Glanz. After this exchange, Dr. Croce agreed to speak with Glanz about "promising anti-cancer results" that Glanz was purportedly reporting on. R. 32 (Am. Compl. at ¶ 43) (Page ID #611). After the meeting, Glanz said that he would be in touch with Dr. Croce.

On November 1, 2016, Glanz followed up, but the tone of the communications changed. Glanz emailed Dr. Croce as "a courtesy to let [Dr. Croce] know that the scope of [the New York Times's] reporting has broadened, and [Glanz had] made a few records requests at OSU and other institutions." Id. at ¶ 49 (Page ID #613). About three weeks later, "Glanz sent a letter on New York Times letterhead to OSU and to Dr. Croce stating that Glanz had questions he wanted to ‘put urgently’ to Dr. Croce and OSU ‘as part of an article’ Glanz was preparing." Id. at ¶ 50 (Page ID #613); see also R. 32-1 (Glanz Letter). The letter (which was at issue in the district court but is not challenged on appeal) contained some loaded and pointed questions, many of which followed allegations made by others against Dr. Croce. See R. 32-1 (Glanz Letter).

The letter prompted Dr. Croce to retain counsel. On January 25, 2017, Dr. Croce, through his retained counsel, responded to the letter. The response denied the allegations, stating that "[m]any of the statements in [Glanz's] letter are false and defamatory." R. 32-2 (Croce Resp. at 1) (Page ID #684). On March 2, 2017, Glanz sent another email that contained "additional ‘misconduct allegations.’ " R. 32 (Am Compl. at ¶ 74) (Page ID #620). Dr. Croce's counsel responded to Glanz the next day and again denied each allegation. Id. at ¶ 74 (Page ID #620–21). No further communication occurred between the two sides.

Ultimately, the article was not about "promising anti-cancer" research. Instead, on March 8, 2017, the New York Times published an article on its website (and social media) with the title, "Years of Ethics Charges, but Star Cancer

Researcher Gets a Pass"; and subtitle text, "Dr. Carlo Croce was repeatedly cleared by Ohio State University, which reaped millions from his grants. Now, he faces new whistle-blower accusations." R. 32-3 (Article at 1) (Page ID #707). Agustin Armendariz, another reporter, is listed as a coauthor with Glanz in the byline. When the New York Times posted the article on Twitter and Facebook, the tagline read: "A star cancer researcher accused of fraud was repeatedly cleared by Ohio State, which reaped millions from his grants." R. 32 (Am. Compl. at ¶ 77) (Page ID #621). Then the next day, March 9, 2017, the article appeared on the front page and above the fold in the printed edition, under the headline, "Years of Questions but Researcher Gets a Pass." Id. at ¶ 78 (Page ID #621). The article detailed various allegations against and criticisms of Dr. Croce—all casting him in an unfavorable light.

After the New York Times published the article online, it apparently reached the top of the New York Times's " ‘Most Popular’ articles" list and attracted 444 comments from online readers. R. 32 (Am. Compl. at ¶ 80) (Page ID #622). Many of these internet commenters had harsh words for Dr. Croce. See generally id. at ¶ 93 (Page ID #625–28). In addition to detailing the negative allegations and criticisms of Dr. Croce, the article also reads: "Despite the lashing criticisms of his work, Dr. Croce has never been penalized for misconduct, either by federal oversight agencies or by Ohio State, which has cleared him in at least five cases involving his work or the grant money he receives." R. 32-3 (Article at 2) (Page ID #708); see also id. at 3 (Page ID #709) (stating that Dr. Croce "denied any wrongdoing ...."); id. at 8 (Page ID #714) ("Dr. Croce was cleared in [two cases outlined in the article]. But that was just the beginning.").

Needless to say, Dr. Croce was not pleased with the article or the internet comments. So he sued. Dr. Croce brought defamation, false-light, and intentional-infliction-of-emotional-distress claims against the New York Times, Glanz, Armendariz, Arthur Ochs Sulzberger, Jr. (publisher of the New York Times), and Dean Baquet (executive editor of the New York Times) ("Defendants"). See R. 32 (Am. Compl. at 69–78) (Page ID #668–77). The Defendants filed a motion to dismiss, which the district court largely granted, except for one statement in the Glanz Letter. See Croce v. New York Times Co. , 345 F. Supp. 3d 961, 995 (S.D. Ohio 2018) ; R. 32-1 (Glanz Letter) (Page ID #682). Dr. Croce stipulated to dismissing this remaining claim with prejudice, thus allowing a clear path to appeal the district court's ruling. See R. 56 (Stipulated Order) (Page ID #1082).

II. STANDARD OF REVIEW

"We review de novo ... the district court's grant of a Rule 12(b)(6) motion to dismiss ...." Seaton v. TripAdvisor LLC , 728 F.3d 592, 596 (6th Cir. 2013). Although a court must view all facts in the light most favorable to the plaintiff at this stage, the article also speaks for itself. Consequently, "if a factual assertion in the pleadings is inconsistent with a document attached for support," a court is not bound to accept as true the plaintiff's factual allegation. See Williams v. CitiMortgage, Inc. , 498 F. App'x 532, 536 (6th Cir. 2012) (collecting cases).

Because we are sitting in diversity, we apply the law of the forum state. Himmel v. Ford Motor Co. , 342 F.3d 593, 598 (6th Cir. 2003). Ohio law governs this case, and we must apply the State's law as announced by its highest court. Bank of New York v. Janowick , 470 F.3d 264, 272 (6th Cir. 2006). If the Ohio Supreme Court has not provided guidance on the issue at hand, we may consider the decisions of the State's courts of appeals, relevant dicta from the Ohio Supreme Court, as well as other sources such as "restatements of law, law-review commentaries, and the rules adopted by other jurisdictions." Mazur v. Young , 507 F.3d 1013, 1016–17 (6th Cir. 2007).

III. DEFAMATION CLAIMS

Under Ohio law, "defamation occurs when a publication contains a false statement made with some degree of fault, reflecting injuriously on a person's reputation, or exposing a person to public hatred, contempt, ridicule, shame or disgrace, or affecting a person adversely in his or her trade, business or profession." Am. Chem. Soc'y v. Leadscope, Inc. ("ACS "), 133 Ohio St.3d 366, 978 N.E.2d 832, 852 (2012) (internal quotation marks omitted). To state a claim of defamation,

the plaintiff must show (1) that a false statement of fact was made, (2) that the statement was defamatory, (3) that the statement was published, (4) that the plaintiff suffered injury as a proximate result of the publication, and (5) that the defendant acted with the requisite degree of fault in publishing the statement.

Id. (citation omitted). The second element is at the heart of this dispute. A court must "decide as a matter of law whether certain statements alleged to be defamatory are actionable or not." Yeager v. Local Union 20, Int'l Bhd. of Teamsters , 6 Ohio St.3d 369, 453 N.E.2d 666, 669 (1983), abrogated on other grounds by Welling v. Weinfeld , 113 Ohio St.3d 464, 866 N.E.2d 1051 (2007).

The Ohio Supreme Court has stated that when a court is deciding "whether a statement is defamatory as a matter of law, a court must review the totality of the circumstances and ... read[ ] the statement in the context of the entire publication to determine whether a reasonable reader would interpret it as defamatory." See ACS , 978 N.E.2d at 853 (alterations from original incorporated) (...