Doctor's Data, Inc. v. Barrett

Decision Date21 March 2016
Docket NumberNo. 10 C 03795,10 C 03795
Citation170 F.Supp.3d 1087
Parties Doctor's Data, Inc., Plaintiff, v. Stephen J. Barrett, M.D., National Council Against Health Fraud, Inc., and Quackwatch, Inc., Defendants.
CourtU.S. District Court — Northern District of Illinois

Algis K. Augustine, Jeffrey Barton Levens, Augustine, Kern & Levens, Ltd., Anthony James Masciopinto, Jeffrey R. Kulwin, Shelly Byron Kulwin, Kulwin, Masciopinto & Kulwin, LLP, Larry Joseph Lipka, Mudd Law Offices, Chicago, IL, for Plaintiff.

Michael Kevin Botts, Attorney at Law, Washington, DC, Ashley Lauren Orler, Laura A. Balson, Matthew Charles Wasserman, Peter Michael Katsaros, Golan & Christie, LLP, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

John J. Tharp, Jr., United States District Judge

The plaintiff, Doctor's Data, Inc. (DDI), brings a claim under § 43 of the Lanham Act, 15 U.S.C. § 1125, as well as state law claims for defamation and related torts against Stephen J. Barrett, M.D. (Barrett), the National Council Against Health Fraud, Inc. (NCAHF), and Quackwatch, Inc. (Quackwatch). This opinion addresses DDI's motion for partial summary judgment (“PMSJ,” Dkt. 242) and the defendants' motion for summary judgment on all counts (“DMSJ,” Dkt. 248).1 For the reasons stated below, the Court denies DDI's motion for partial summary judgment, grants the defendants' motion for summary judgment in part, and denies the defendants' motion for summary judgment in part.

BACKGROUND

Pursuant to Rule 56, a court shall grant summary judgment if the moving party shows “that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). On a motion for summary judgment, the Court construes all genuinely disputed facts in the light most favorable to the nonmoving party and draws all reasonable inferences in that party's favor. Scott v. Harris , 550 U.S. 372, 378–80, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ; Majors v. Gen. Elec. Co. , 714 F.3d 527, 532 (7th Cir.2013). The facts in this background section, and the further details that will subsequently be introduced as needed, are primarily drawn from the undisputed (or not properly disputed) facts in the parties' Local Rule 56.1 statements and responses.2 See generally Senske v. Sybase, Inc. , 588 F.3d 501, 503 n. 1 (7th Cir.2009) (party must cite to evidence that directly contradicts opponent's assertions to demonstrate a genuine fact dispute); Bank Leumi Le–Israel, B.M. v. Lee , 928 F.2d 232, 237 (7th Cir.1991) ([T]he nonmovant in a summary judgment action may not rest on general denials or lack of knowledge...to contest the movant's evidence.”); Ortega v. Chi. Pub. Sch. of the Bd. of Educ. , No. 11 C 8477, 2015 WL 4036016, at *2 (N.D.Ill. June 30, 2015) (responses that claim “insufficient knowledge” or otherwise “neither admit nor deny” certain statements of facts are insufficient to create a genuine dispute).

The plaintiff, DDI, is a clinical laboratory that is organized as a corporation under Nevada law and has its principal place of business in Illinois. See DSOF, Dkt. 250, ¶ 4; PSOAF, Dkt. 273, at 12, ¶ 12; Third Amended Complaint (the “Complaint” or “TAC”), Dkt. 224, ¶ 4.3 DDI's business involves analyzing urine, blood, and other samples for health care practitioners. One of the tests that DDI performs is designed to assess the levels of heavy metals present in a patient's urine. For this test, physicians submit urine samples to DDI which are either “provoked” or “non-provoked”; a provoked sample is one the physician collects after administering a “chelating agent,” which temporarily increases the patient's excretion of heavy metals. DDI uses the same form to report the test results for both provoked and non-provoked samples. See DSOF, Dkt. 250, ¶ 4; PSOAF, Dkt. 273, at 12-14, ¶¶ 12-14, 19, 23; see also DMSJ Mem., Dkt. 249, at 2; Resp. to DMSJ, Dkt. 274, at 3. See generally Ex. 56 to DSOF, Dkt. 273-59 at 2-3 (explaining the effects of chelation on metal levels in urine). The form reports the heavy metal levels in the patient's urine, lists “reference ranges” of typical heavy metal levels in non-provoked samples, and graphically classifies each of the patient's levels as “within reference range,” “elevated,” or “very elevated” based on those non-provoked reference ranges. See Pl.'s DMSJ Ex. 11, Dkt. 273-21 (blank DDI report form); Ex. 11 to PSOF, Dkt. 244-11 (DDI report form with sample entries); Ex. 3.15 to DSOF, Dkt. 250-16, at 2 (article displaying a DDI report form for a patient's provoked sample); see also PSOAF, Dkt. 273, at 13-14, ¶¶ 21-22; PMSJ Mem., Dkt. 243, at 6-7, 10; DMSJ Mem., Dkt. 249, at 2-3.4

Defendant Barrett is a retired psychiatrist who owns and operates numerous health care consumer advocacy websites, including www.quackwatch.com, www.quackwatch.org, www.ncahf.com, www.ncahf.org, www.casewatch.org, and www.autism-watch.org; he has criticized heavy metal urine testing and DDI's report form on his websites and related email listservs. See DSOF, Dkt. 250, ¶¶ 1, 4; DMSJ Mem., Dkt. 249, at 1; Answer to TAC, Dkt. 225, ¶¶ 9, 16, 26-28. Defendants NCAHF and Quackwatch were not-for-profit corporations that focused on health care consumer advocacy; NCAHF dissolved after the instigation of this lawsuit, while Quackwatch dissolved before the case began. NCAHF was organized under California law and headquartered in California, while Quackwatch was organized under Pennsylvania law and had its principal place of business in Pennsylvania. See DSOF, Dkt. 250, ¶¶ 2-3; PSOAF, Dkt. 273, at 10-12, ¶¶ 4, 7, 10; Answer to TAC, Dkt. 225, ¶¶ 10, 14. Barrett resides in, and is a citizen of, North Carolina. See Answer to TAC, Dkt. 225, ¶¶ 7-8.

DDI sued Barrett, NCAHF, and Quackwatch in June 2010, alleging that the defendants disseminated misleading and defamatory statements about DDI, as exemplified in seven articles included with the complaint. See Original Complaint, Dkt. 1. DDI eventually filed a Second Amended Complaint (“SAC,” Dkt. 24) which appended the same seven articles and contained the following counts: restraint of trade, deceptive business practices, and trademark dilution under the Lanham Act (Count I); trademark dilution under the Illinois Trademark Registration and Protection Act (“ITRPA”), 765 ILCS 1036/65(a) (Count II); unfair competition under the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2 (Count III); unfair competition under the Illinois Uniform Deceptive Trade Practices Act, 815 ILCS 510/2 (Count IV); defamation per se (Count V); defamation per quod (Count VI); tortious interference (Count VII); fraud (Count VIII); civil conspiracy (Count IX); corporate officer and board member personal liability (Count X); and “injunctive relief” (Count XI). The defendants filed an answer to the SAC asserting affirmative defenses based on the Illinois statute of limitations for defamation actions and the doctrine of laches. See Answer to SAC, Dkt. 25, at 39-40. Subsequently, the defendants moved to dismiss the SAC. See Mtn. to Dismiss SAC, Dkt. 38.

In November 2011, Judge Chang (who was then presiding in this case) granted the defendants' motion to dismiss the SAC in part. He dismissed Count I to the extent it stated a claim for false advertising and dismissed Counts III, IV, VI, VIII and XI in their entirety. Counts II, V, VII, IX, and X survived in full, while Count I survived “solely with respect to the trademark dilution claim under § 43(c).” Mem. Op., Dkt. 85, at 26-27. Discovery on the remaining counts began in December 2011.5 During discovery, DDI identified a number of additional publications by the defendants that allegedly contained misleading and defamatory statements about DDI. See DDI's First Supplemental Interrogatory Responses (“First Supp. Resp.”), Dkt. 273-58; DDI's Second Supplemental Interrogatory Responses (“Second Supp. Resp.”), Dkt. 294-1.6 DDI also produced new information relating to damages, in light of which the Court granted DDI leave to file another amended complaint to reinstate a revised version of its defamation per quod claim (Count VI). See 11/20/13 Order, Dkt. 223; see also Mem. Op., Dkt. 85, at 20 (dismissing Count VI for failure to plead special damages).

DDI filed the TAC in November 2013.7 In addition to including Count VI as contemplated by the Court's order, DDI included three of the other dismissed counts (Counts III, IV, and VIII) in order to “preserve [its] appellate rights” with respect to those counts. TAC, Dkt. 224, at 22 n.18, 26 n.19, 34 n.20. As discussed in further detail below, DDI also included Count I without acknowledging the partial dismissal of that count or revising its text in light of that dismissal. See TAC, Dkt. 224, at 16-19. The Complaint thus purports to present active claims for violating the Lanham Act (Count I); trademark dilution under ITRPA (Count II); defamation per se (Count V); defamation per quod (Count VI); tortious interference (Count VII); civil conspiracy (Count IX); and corporate officer and board member personal liability (Count X).8 The defendants answered the TAC in December 2013 and asserted affirmative defenses based on the statute of limitations and the doctrine of laches (as they had in their answer to the SAC). See Answer to TAC, Dkt. 225, at 41-42.

DDI has now filed a motion for summary judgment on its defamation per se claim and the defendants' asserted affirmative defenses (Dkt. 242), while the defendants have moved for summary judgment on all pending claims (Dkt. 248).

DISCUSSION
A. Defendants' Motion for Summary Judgment—Count I (Lanham Act)

As noted above, Judge Chang's 2011 memorandum opinion in this case dismissed Count I of the SAC to the extent it stated a claim for false advertising. Mem. Op., Dkt. 85, at 14. The court began by analyzing DDI's allegations and determining that Count I appeared to assert claims based on two of the four main categories of unfair competition claims under ...

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