Edward Lewis Tobinick v. Novella

Decision Date15 February 2017
Docket NumberNo. 15-14889,15-14889
Citation848 F.3d 935
Parties EDWARD LEWIS TOBINICK, MD, a medical corporation, d.b.a the Institute of Neurological Recovery, INR PLLC, a Florida professional limited liability company, d.b.a. Institute of Neurological Recovery, M.D. Edward Tobinick, an individual, Plaintiffs–Appellants, v. Steven NOVELLA, an individual, Society for Science–Based Medicine, Inc., a Florida Corporation, SGU Productions, LLC, a Connecticut limited liability company, et al., Defendants–Appellees, Yale University, a Connecticut corporation, et al., Defendants.
CourtU.S. Court of Appeals — Eleventh Circuit

Cullin A. O'Brien, Cullin O'Brien Law, PA, Fort Lauderdale, FL, Geoffrey Michael Cahen, Quarles & Brady, LLP, Boca Raton, FL, for PlaintiffsAppellants.

Marc J. Randazza, Jay Marshall Wolman, Randazza Legal Group, PLLC, Las Vegas, NV, Jason Allan Fischer, Fischer Law, PL, Miami, FL, for DefendantAppellee Steven Novella, an individual.

Scott Allan Cole, Alexandra Valdes, Cole Scott & Kissane, PA, Miami, FL, for DefendantAppellee Society for Science–Based Medicine, Inc.

Darren Joel Spielman, Kain & Associates, PA, Fort Lauderdale, FL, for DefendantAppellee SGU Productions, LLC, a Connecticut limited liability company.

Eugene Volokh, UCLA School of Law, Los Angeles, CA, for Amici Curiae Gregory Dolin, Henry Greely, David Hyman, Abigail Moncrieff, Natalie Ram, The Center for Medicine and Law.

Ian Clark, Pro Se.

Coralie Graham, Pro Se.

Robert Bruce Rich, Weil Gotshal & Manges, LLP, New York, NY, for Amici Curiae Association of American Publishers, Inc., American Booksellers for Free Expression, Comic Book Legal Defense Fund, Media Coalition Foundation, The Freedom to Read Foundation.

Mark P. McKenna, Notre Dame Law School, Notre Dame, IN, for Amicus Curiae Intellectual Property Law Professors.

Hannah Bloch–Wehba, Student Press Law Center, Arlington, VA, for Amici Curiae Reporters Committee for Freedom of the Press, 24 Media Organizations.

Bruce D. Brown, Reporters Committee for Freedom of the Press, Washington, DC, for Amicus Curiae Reporters Committee for Freedom of the Press.

Before HULL and MARTIN, Circuit Judges, and RESTANI,* Judge.

RESTANI, Judge:

Appellants Edward Lewis Tobinick, MD ("INR CA"), INR PLLC ("INR FL"), and M.D. Edward Tobinick ("Dr. Tobinick") (collectively, the "Tobinick Appellants") appeal the district court's orders striking INR CA's state law claims pursuant to California's anti-SLAPP statute, twice denying amendment of the Tobinick Appellants' complaint, denying relief pursuant to Federal Rules of Civil Procedure ("Rule") 37, 56(d), and 60 due to potential discovery-related abuses, and granting summary judgment against the Tobinick Appellants on their Lanham Act claim. We affirm the district court in all respects.

BACKGROUND

This case concerns a dispute between two doctors regarding the medical viability of a novel use for a particular drug.

I. The Parties

Dr. Tobinick is certified in internal medicine and dermatology, and he is licensed in both California and Florida. He has two clinics that conduct business as The Institute of Neurological Recovery: INR CA in Los Angeles, California, and INR FL in Palm Beach County, Florida. Dr. Tobinick has developed an unorthodox use for the drug etanercept

by delivering it through perispinal administration, which involves a needle injection near particular spinal ligaments. Dr. Tobinick claims that this new use of etanercept is effective at treating spinal pain, post-stroke neurological dysfunctions, and Alzheimer's disease. Etanercept is the generic name of Enbrel, which was first approved by the United States Food and Drug Administration ("FDA") in November 1998 to treat rheumatoid arthritis. Notably, Enbrel has not been FDA approved for the purposes which Dr. Tobinick seeks to use the drug.

Steven Novella ("Dr. Novella") is a neurologist at Yale New Haven Hospital in the Botulinum Program and treats patients with a variety of conditions, including headaches, back pain, Alzheimer's disease, dementia

, and seizures. Dr. Novella also engages in endeavors apart from these professional obligations. For instance, he is on the board of the non-profit Society for Science–Based Medicine, Inc. ("Society"). In addition, in May 2005, Dr. Novella began working with his brother, Jay Novella ("Jay"), to produce and broadcast a podcast that discusses a variety of scientific issues. This podcast, "The Skeptics Guide to the Universe," is hosted on a website (www.theskepticsguide.org) owned by the for-profit company SGU Productions, LLC ("SGU"). Also, Dr. Novella is the executive editor of and contributor for the Science–Based Medicine ("SBM") blog (www.sciencebasedmedicine.org), which examines issues related to science and medicine, and is operated by a non-profit entity, the New England Skeptical Society.1

II. Factual Background

In response to a May 5, 2013, Los Angeles Time article discussing Dr. Tobinick's novel treatments, Dr. Novella published an article "Enbrel

for Stroke and Alzheimer's" in SBM's blog on May 8, 2013 (the "first article"). In this six-page article, Dr. Novella explains that he learned of the Los Angeles Time article, the typical characteristics of "quack clinics" or "dubious health clinics," the key features of Dr. Tobinick's clinic, and lastly the plausibility of and the evidence supporting Dr. Tobinick's allegedly effective use of etanercept. Particularly relevant to this case, Dr. Novella also quotes a portion of the Los Angeles Time article, which reported that "[Dr. Tobinick's] claims about the back treatment led to an investigation by the California Medical Board, which placed him on probation for unprofessional conduct and made him take classes in prescribing practices and ethics." Am. Compl. Ex. 1 at 3, Edward Lewis Tobinick, MD v. Novella, No. 9:14–cv–80781–RLR (S.D. Fla. Aug. 1, 2014), ECF No. 55 ("Am. Compl.").

On June 9, 2014, the Tobinick Appellants filed a complaint against Appellees Dr. Novella, the Society, SGU (collectively, the "Novella Appellees"), and also Yale University ("Yale"), challenging Dr. Novella's first article. In response to the lawsuit and on July 23, 2014, Dr. Novella published another article in SBM's blog entitled "Another Lawsuit To Suppress Legitimate Criticism—This Time SBM" (the "second article"). In the second article, Dr. Novella details the lawsuit filed by the Tobinick Appellants and provides Dr. Novella's view that the lawsuit is designed to silence his public criticism of Dr. Tobinick's practices. He also restates in large part his same criticisms of Dr. Tobinick's practices as set forth in the first article. In doing so, Dr. Novella again mentions the Medical Board of California ("MBC")'s investigation into Dr. Tobinick's practices, explains that the MBC "filed an accusation in 2004, amended in 2005 and 2006," and lists in detail the different allegations made in the 2004 Accusation against Dr. Tobinick. Am. Compl. Ex. 5 at 3–4.2

III. Course of Proceedings

As stated above, the Tobinick Appellants filed their initial complaint on June 9, 2014. On June 11, 2014, the Tobinick Appellants moved for a preliminary injunction to enjoin the Novella Appellees from continuing to display the articles. On August 1, 2014, the Tobinick Appellants filed an amended complaint to add allegations relating to the second article that was published just nine days prior. This operative amended complaint contests several aspects of the first article, including claims that these neurological conditions "not known to be immune mediated [can be] treated by a specific immunosuppressant,"3 claims that Dr. Tobinick's retrospective case studies are not probative medical evidence, implications that Dr. Tobinick is committing a health fraud, statements that Dr. Tobinick's clinics are "a one-man institute," and that Florida is a "very quack-friendly state." Am. Compl. ¶¶ 54, 60, 63, 69, 71. Regarding the second article, the Tobinick Appellants' operative complaint specifically takes issue with only one new statement therein, that "there have been no double-blind placebo-controlled clinical trials of the treatment provided by [Dr. Tobinick]." Am. Compl. ¶ 102. These disputes are covered in the operative complaint by the following causes of action: violation of the Lanham Act, 15 U.S.C. § 1125(a) (Count I); common law unfair competition (Count II); trade libel (Count III); libel per se (Count IV); and tortious interference with business relationships (Count V).

On August 8, 2014, and August 13, 2014, SGU and Yale, respectively, moved to dismiss the action as to them for lack of personal jurisdiction. On August 11, 2014, Dr. Novella moved to dismiss all claims against him for various reasons. On August 18, 2014, the Society moved to dismiss the action against it for failure to state a claim, or for summary judgment, because, inter alia, the Society did not engage in false advertising under the Lanham Act.

On September 25, 2014, pursuant to SGU's and Yale's motions to dismiss for lack of personal jurisdiction, the district court dismissed each from the case. On September 30, 2014, Dr. Novella invoked California's anti-SLAPP law4 and moved to strike the only California plaintiff's, INR CA's, state law claims. On January 23, 2015, the district court denied Dr. Novella's motion to dismiss in nearly all respects but granted his motion to dismiss Count V of the amended complaint, i.e., the tortious interference claim, because Florida's single publication rule barred that claim. The Tobinick Appellants do not challenge this dismissal on appeal.

On March 16, 2015, after converting the Society's motion to dismiss into a motion for summary judgment, the district court granted summary judgment in favor of the Society with respect to the Lanham Act (Count I) and the unfair competition (Count II) claims, explaining that the articles were not commercial speech. The district court also dismissed without prejudice the trade libel (Count III) and libel per se (Count IV) claims...

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