Exner v. American Medical Ass'n

• Decision Date: 09 December 1974
• Docket Number: No. 2267--I,2267--I
• Citation: 75 A.L.R.3d 603,529 P.2d 863,12 Wn.App. 215
• Parties: , 75 A.L.R.3d 603 Frederick B. EXNER, Appellant, v. AMERICAN MEDICAL ASSOCIATION et al., Respondents.
• Court: Washington Court of Appeals

Page 215

12 Wn.App. 215

529 P.2d 863, 75 A.L.R.3d 603

Frederick B. EXNER, Appellant, v. AMERICAN MEDICAL ASSOCIATION et al., Respondents.

No. 2267--I.

Court of Appeals of Washington, Division 1.

Dec. 9, 1974.

Rehearing Denied Dec. 31, 1974.

Review Denied Feb. 25, 1975.

[529 P.2d 865] Frederick B. Exner, pro se.

Detels, Draper & Marinkovich, Frank W. Draper, Seattle, for respondent American Dental Association.

Williams, Lanza, Kastner & Gibbs, Peter E. Peterson, Seattle, for respondent American Medical Association.

CALLOW, Judge.

The plaintiff, Dr. Frederick Exner, brought suit claiming he had suffered damages from allegedly defamatory

statements made in an article by the defendant Goulding, Director of Public Information for the American Dental Association. The article appeared October 1965 in the American Medical Association's journal, 'Today's Health,' and is published as an appendix to this opinion save for those deletions which could be made in the interest of brevity without affecting the substance and flavor of the article.

HISTORICAL BACKGROUND

For a number of years there has been a great deal of controversy over the fluoridation of public water supplies as a dental health measure. The plaintiff has been an active opponent of fluoridation for over two decades and has, by his own statement, devoted considerable time, effort and resources to this cause. He has written books and magazine articles, lectured, and participated in court actions, both as a litigant and as an expert witness, on the subject of fluoridation. The American Dental Association and the American Medical Association have been in favor of fluoridation.

PLEADINGS AND PROCEEDINGS

The plaintiff's complaint claimed that the defendants conspired to defame him by publication of the article. The defendants denied that the statements were defamatory and raised state and federal constitutional protection of free speech in defense. The plaintiff was represented by counsel during the early stages of the proceedings but has represented himself during the hearing on the motions for summary judgment brought by the defendants and on this appeal. Following a hearing on the motions, a consideration of the depositions and other evidence presented, and the argument of counsel and the plaintiff, the trial court concluded the article itself was not defamatory. The trial court also held that the evidence presented was insufficient to support a determination that the defendants published the article with knowledge that it was false or with reckless disregard of whether it was false or true. The plaintiff

claims that summary judgment should not have been granted as genuine issues of material fact were involved.

WAS THE ARTICLE DEFAMATORY?

The intital examination that must be made is whether or not the article was defamatory. Its introductory paragraphs make it clear that its purpose is to discuss and evaluate the motives of the opponents of fluoridation. These paragraphs state that the people to be discussed 'range from the sincere to the charlatan, from the confused to the quask.' The writer, having planted this prologue in the mind of the reader, then proceeds to a discussion of the motives behind several factions of the opposition to fluoridation.

Following a paragraph on the attitude of some chiropractors towards fluoridation, the writer then states that the plaintiff is 'Perhaps the most frequently quoted 'professional' opponent to fluoridation . . .' The plaintiff asserts that the use of the term 'professional' was libelous. The term 'professional' can mean many things. It can be construed as sarcasm or to be complimentary. We note that the dictionaries do not recognize a sarcastic implication. In this case, the word could be interpreted as calling the plaintiff 'professional' in terms of his background as a medical practitioner, or in his fulltime devotion of his energies to resisting fluoridation, or in the manner in which he had successfully opposed fluoridation proposals. The reader might give the term any one of these constructions even though it has been placed in quotes in the article. Terms, however, should be construed in the sense in which they would ordinarily be understood. McNair v. Hearst Corp., 494 F.2d 1309 (9th Cir. 1974); Amsbury v. Cowles Publishing Co., 76 Wash.2d 733, 458 P.2d 882 (1969); Purvis v. Bremer's, Inc., 54 Wash.2d 743, 344 P.2d 705 (1959). When the reader is left to decide for himself whether the term 'professional' is meant to imply that the person referred to is in a profession such as medicine, law, the clergy, or the military, is totally committed to his cause, is expert and businesslike, or is a practitioner of the 'world's oldest profession'- The plaintiff next challenges the use of the word 'Exner's' being substituted in parenthesis for the word 'these' with respect to the discussion of the reviews of the book he co-authored on the hazards of fluoridation. It is true that the book reviews attacked the book forcefully. The defendant-writer of the article likewise attacked the ideas and results achieved by the plaintiff in his opposition to fluoridation. The opinions expressed in the book reviews and the comments of the defendant in the article were justified even though the statements were fuel adding to the 'heat of the kitchen' to which the plaintiff has exposed his beliefs. The comments in the article on the book reviews amount to no more than reiteration of the criticism voiced by the reviewers of the book. These comments did not result in defamation. If it were otherwise, every book reviewer who found fault with an author's performance rather than applauding his work would be subject to suit. Reviewers who attack the contents of a literary work, as these reviewers did, rather than engaging in personal vilification cannot be held to have defamed the author. Merivale v. Carson, (1887) 20 Q.B.D. 275; Bearce v. Bass, 88 Me. 521, 34 A. 411 (1896). Authors are not entitled to protection for a thin skin, and critics are not required to tread lightly. It follows the neither are those who only report what such a reviewer has said. Fisher v. Washington Post Co., 212 A.2d 335 (D.C.App.1965); Fitzgerald v. Hopkins, 70 Wash.2d 924, 425 P.2d 920 (1967); 3 Restatement of Torts §§ 606, 609 (1938); 1 F. Harper & F. James, The Law of Torts § 5.28 (1956).

--resolving any ambiguity in favor of a disparaging connotation is not justified. The apparently intended meaning was to denote the plaintiff as a completely devoted but overly zealous opponent. This could be taken by some as uncomplimentary, but the implications were not defamatory. Dowling v. Livingstone, 108 Mich. 321, 66 N.W. 225 (1896).

The allegation that Dr. Exner was defamed because he was mentioned along with others who may have been characterized The article did mistakenly report that of those members of the King County Medical Society voting in a poll on the subject, 706 were for fluoridation and 68 were against. The actual vote was 595 in favor and 166 against fluoridation. There is no evidence that this mistake was other than inadvertent or that it was material. This apparently unintentional mistake does not indicate malice.

in a disparaging manner in the article is not defamatory towards him of itself and does not indicate malice specifically directed towards him. The article did not condemn all who opposed fluoridation in a derogatory manner but separately commented upon each group of opponents to fluoridation and proceeded to analyze the considerations that impelled each group. We find that the article, while attempting to cast doubt upon the soundness of the concepts espoused by the plaintiff, did not attempt to personally disgrace him or diminish the esteem in which he was held in the community. It is true that a reader of the article might be persuaded that the position of the plaintiff on the subject of fluoridation was wrong. This does not amount to defamation, however, even though rejection of one's theories by others does not enhance that person's reputation. See Walker v. D'Alesandro, 212 Md. 163, 129 A.2d 148, 64 A.L.R.2d 231 (1957); Cohen v. Cowles Publishing Co., 45 Wash.2d 262, 273 P.2d 893 (1954), and the cases discussed therein.

The article finally proceeds to attack on a more personal basis others who opposed fluoridation and then states that those who have fought fluoridation (characterizing Some as 'convicted quacks, or hate mongers, or food fadists') have fought fluoridation with astonishing success. The article concludes that the scientists, health agencies, family physicians, and dentists who have supported fluoridation have been beaten not because of any question about the effectiveness or safety of fluoridation but because 'men like this have been able to confuse, frighten, and mislead.' These We consider the article to have commented fairly on the plaintiff's position on fluoridation and not to have attacked his personal character or medical competence. The defendants were privileged to do so, and the article was not defamatory.

statements were not directed against the plaintiff specifically and did not malign him personally.

WAS THE PLAINTIFF A PUBLIC FIGURE?

We find that the action of the trial court is supportable as well on the ground that the plaintiff was a 'public figure' and failed to show malice towards himself in the publication of the article. We turn to a discussion of this ground for summary judgment for the defendants.

During the hearing on the motions for summary judgment, the following colloquy took place:

THE COURT: . . . I will consider first the question: Is Dr. Exner a public figure as a matter of law? If Dr. Exner is not a public figure as a matter of law, then there are different consequences than if he is a public figure as a matter of law.

DR. EXNER: May I suggest I am most definitely a public figure.

In a deposition considered by the court, the plaintiff stated: 'I am regarded all over...