Immuno A.G. v. Moor-Jankowski
| Decision Date | 17 January 1989 |
| Docket Number | D,MOOR-JANKOWSK |
| Citation | 145 A.D.2d 114,537 N.Y.S.2d 129 |
| Parties | , 16 Media L. Rep. 1145 IMMUNO, A.G., Plaintiff-Respondent, v. J.efendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Raymond S. Fersko, of counsel (Anders R. Sterner, Mitchell Lapidus and Cynthia J. Leinwand, with him on the brief; Tanner Gilbert Propp & Sterner, New York City, attorneys), for plaintiff-respondent.
Robert G. Sugarman, of counsel (Philip A. Byler and Kenneth L. Bressler with him on the brief; Weil, Gotshal & Manges, New York City,) for defendant-appellant.
Michael S. Zachary, of counsel (Moses & Singer, New York City, attorneys), on behalf of the New York Civil Liberties Union, as amicus curiae.
Henry R. Kaufman, New York City, for World Wildlife Fund, as amicus curiae.
Laura M. Mattera, Oceanside, for the Sierra Club, Humane Soc. of the United States, American Soc. for the Prevention of Cruelty to Animals, Animal Protection Institute of America, Animal Welfare Institute, United Action for Animals, Friends of Animals and International Wildlife Coalition, as amici curiae.
Before MURPHY, P.J., and SULLIVAN, ROSS, ROSENBERGER and SMITH, JJ.
This libel action was commenced in December, 1984 against numerous defendants only one of whom, the appellant Dr. Jan Moor-Jankowski, has managed to remain in the action to seek a determination on the merits.
The plaintiff, Immuno, A.G. (hereinafter Immuno) is an Austrian based corporation with related corporate entities in some thirty countries. Immuno manufactures biologic products derived from blood plasma. These products are tested for safety and efficacy on chimpanzees, the only primates suitable for such purposes.
Defendant Moor-Jankowski is a universally acknowledged authority on the use of primates in biomedical research. He is professor of medical research at the New York University Medical School and Director of New York University Medical School's Laboratory for Experimental Medicine and Surgery in Primates (LEMSIP). He is also Director of the World Health Organization Collaborating Center for Hematology of Primate Animals and the editor-in-chief of the Journal of Medical Primatology.
In December, 1983, Moor-Jankowski caused to be published in the Journal of Medical Primatology a letter to the editor by Dr. Shirley McGreal. 1 Dr. McGreal is the chairwoman of the International Primate Protection League (IPPL). The IPPL is an organization which has advocated strenuously, and often effectively, for the humane treatment of primates, particularly those used in biomedical research. Dr. McGreal's letter was sharply critical of a proposed plan by plaintiff Immuno to build a medical research facility in the West African nation of Sierra Leone. The text of the letter follows:
The International Primate Protection League has learned with concern of proposals submitted by Immuno AG Company of Austria to the Government of Sierra Leone, West Africa, regarding the company's plans to establish a chimpanzee research facility in Sierra Leone, West Africa.
According to a statement dated August 23, 1982 submitted to the Government of Sierra Leone by Klaus Bieber, Austrian Consul in Sierra Leone, the animals would be used in hepatitis non-A, non-B research and testing of hepatitis B vaccine. The purpose of establishing the facility in Africa was stated to be "to avoid the problems involved with the importation of live chimpanzees." Presumably, these "problems" include national and international laws and treaties regarding the movement of live animals belonging to endangered species. The chimpanzees Pan troglodytes is listed in Appendix I of the Convention on International Trade in Endangered Species.
Besides getting round restrictions on the international movement of chimpanzees, cheapness of wild-caught chimpanzees appears to be a motivating factor for the Immuno Company. According to the Austrian newspaper Presse (February 3, 1983), Immuno Official Johann Eibl stated that captive breeding of chimpanzees was not an economically viable proposition.
The proposed facility would procure 60-80 chimpanzees per year, to be obtained from the wild. However, according to Bieber's statement, "it must be emphasized that the research will not bring about a decimation of chimpanzees: on the contrary, their numbers would remain stable." Readers familiar with the destructive method by which chimpanzees are caught (killing of mothers in most cases) may be surprised at this statement. However, Bieber cheerfully explains the nondetriment theme by saying, "Because, after going through a research circle of about 3 years, the animals will be in perfect condition and ready for rehabilitation into the wild."
The International Primate Protection League is concerned over Immuno's plans on many grounds; to cite just a few of them:
1. Release of chimpanzee "veterans" of hepatitis non-A, non-B research would be hazardous to wild populations, as there is no way to determine that an animal is definitely not a carrier of the disease. Should release of carrier animals occur, hepatitis could well spread among wild chimpanzees over large parts of Africa. Thus chimpanzees could well become a reservoir for hepatitis just as bats are a reservoir for rabies. The result might be increased human persecution of chimpanzees.
2. Although chimpanzee rehabilitation has acquired a certain "chic," it is well known that wild chimpanzees attack introduced newcomers. For this reason, chimpanzees in the Mount Asserik project in Senegal directed by Stella Brewer had to be recaptured and released on islands in the River Gambia with no resident chimpanzees. As yet, no permanent home has been located for these animals. The rehabilitation procedures take many years per animal and are extremely costly and hence not feasible on the scale that would be required to start 60-80 animals per year on rehabilitation. Assuming a 5-year training per animal, there could be up to 400 animals undergoing rehabilitation at any given time, at the cost of millions of dollars annually. It is questionable whether, in spite of the most dedicated efforts, any rehabilitated chimpanzees will become totally normal, since they are usually removed from the wild at 1-2 years of age and thus miss the most critical years of their social development.
3. Capture of wild chimpanzees for research is in clear violation of the World Health Organization's 1982 statement on the procurement of primates for biomedical research. Chimpanzees are listed in the Red Data Book of the International Union for the Conservation of Nature as "vulnerable." The WHO statement "strongly recommends" that
endangered, vulnerable, and rare species be considered for use in biomedical research projects only if they are obtained from existing [emphasis added] self-sustaining captive breeding colonies (i.e., captive-breeding all animals required to at least the F-2 generation).
4. Currently, there are over 1000 chimpanzees in US laboratories, as well as large numbers in the Netherlands, Poland, Liberia, etc. These animals should be enough to supply any legitimate requirements for chimpanzees.
The International Primate Protection League shares the scientific community's concern over hepatitis. However, we feel that a way can and must be found to solve this problem without recourse to the dwindling populations of wild chimpanzees. Therefore, we appreciate the opportunity to draw this situation to the attention of interested parties. Shirley McGreal, MD
International Primate
Protection League
P.O. Drawer X
The letter was prefaced with an editorial note by Moor-Jankowski explaining the circumstances under which it had come to be published. A draft of the McGreal letter had first been received by Moor-Jankowski in January, 1983. Shortly thereafter, in February, 1983, Moor-Jankowski sent a copy of the draft letter to Dr. Hans Eibl of Immuno, requesting comments or a reply letter. Immuno referred the matter to its New York attorneys who wrote Moor-Jankowski in March, 1983, demanding access to the documents upon which McGreal had relied in composing her letter and threatening legal action if the letter was printed before an opportunity for meaningful response was provided. Moor-Jankowski refused Immuno's request for McGreal's source material, but extended the deadline for a response from Immuno until April 20, 1983. The letter was eventually published in December, 1983, nearly a full year after receipt of the draft, and after articles had appeared in the Austrian press apparently confirming much of what McGreal said.
Prior to publication of the McGreal letter, in October, 1983, an article entitled "Loophole May Allow Trade in African Chimps" appeared in New Scientist magazine. The article's author, Nancy Heneson, had interviewed Moor-Jankowski concerning the proposed Immuno project and reported that he had condemned the project terming it "scientific imperialism." Moor-Jankowski expressed to Heneson his concern that Immuno's attempt to circumvent treaty restrictions on trade in endangered species would reflect poorly on others, himself included, engaged in biomedical research using chimpanzees. He also offered the view that the World Health Organization would soon find it necessary to take a stand on the Immuno project since the project apparently conflicted with WHO policy respecting the use of endangered, vulnerable and rare species in biomedical research. As noted in the McGreal letter, the recommended WHO policy was that members of endangered, vulnerable and rare species were not to be used as research subjects unless they were obtained from "existing self-sustaining breeding colonies." Moor-Jankowski indicated to Heneson that there were enough chimpanzees in captivity to meet research requirements.
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