McBride v. Merrell Dow and Pharmaceuticals, Inc., No. 85-5800

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore SCALIA and SILBERMAN, Circuit Judges, and WRIGHT; SILBERMAN
Citation800 F.2d 1208,255 U.S.App. D.C. 183
Docket NumberNo. 85-5800
Decision Date12 September 1986
Parties, 13 Media L. Rep. 1386 William G. McBRIDE, Appellant, v. MERRELL DOW AND PHARMACEUTICALS, INC., an Ohio Corporation, et al.

Page 1208

800 F.2d 1208
255 U.S.App.D.C. 183, 13 Media L. Rep. 1386
William G. McBRIDE, Appellant,
v.
MERRELL DOW AND PHARMACEUTICALS, INC., an Ohio Corporation, et al.
No. 85-5800.
United States Court of Appeals,
District of Columbia Circuit.
Argued April 23, 1986.
Decided Sept. 12, 1986.

Page 1209

Appeal from the United States District Court for the District of Columbia (Civil Action No. 81-02639).

W. David Allen, Greenbelt, Md., for appellant.

H. Thomas Howell, Baltimore, and Martin J. Gaynes, with whom Sidney G. Leech and Robert X. Perry, Jr., Washington, D.C., were on the joint brief, for appellees.

Before SCALIA and SILBERMAN, Circuit Judges, and WRIGHT, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

The appellant, Dr. William G. McBride, challenges the district court's dismissal of his libel action against the American Association for the Advancement of Science, publisher of Science magazine; Science reporter Gina Bari Kolata; Merrell Dow Pharmaceuticals, Inc. 1 ; and several of its officers. McBride claims that Science published a false and defamatory story about him and that the Merrell Dow defendants disseminated the story although knowing it was false. On cross-motions of the parties, the district court entered summary judgment against McBride. McBride v. Merrell Dow and Pharmaceuticals, Inc., 613 F.Supp. 1349 (D.D.C.1985). The district court held that McBride was a "public figure" for purposes of the first amendment and could not, as a matter of law, establish that the Science defendants acted with the requisite actual malice; the court also held that the appellant had failed to state a claim against the Merrell Dow defendants. For the reasons that follow, we affirm in part, reverse in part, and remand the case to the district court for further proceedings.

I.

The tortuous history of this case began when the October 31, 1980 issue of Science featured an article by Kolata entitled "How Safe Is Bendectin?" The article discussed a Food and Drug Administration investigation that had commenced in response to widespread public concern over the pregnancy drug's alleged links to birth defects. Doctor McBride, an Australian obstetrician and expert in teratology (the study of birth defects), testified before the FDA. McBride had previously served as an expert witness for plaintiffs who challenged Bendectin's safety in a lawsuit filed against Merrell Dow in Orlando, Florida. Kolata wrote:

These expert witnesses [at the FDA hearing] included William McBride of the Women's Hospital in Sydney, Australia, who was paid $5,000 a day to testify in Orlando. In contrast, [Merrell Dow] pays witnesses $250 to $500 a day, and the most it has ever paid is $1,000 a day.

Page 1210

McBride brought suit, claiming that this statement and several others 2 were libelous. The district court initially dismissed the case for failure to state a claim, holding that none of the statements was defamatory as a matter of law. McBride v. Merrell Dow and Pharmaceuticals, 540 F.Supp. 1252 (D.D.C.1982). On appeal, although affirming the district court's judgment in other respects, this court held that the above-quoted statement about McBride's expert witness fee was reasonably capable of bearing a defamatory meaning. McBride v. Merrell Dow and Pharmaceuticals, 717 F.2d 1460 (D.C.Cir.1983). This court reasoned that the statement at issue, claiming that McBride was paid far more than other expert witnesses, could be read to imply that "Dr. McBride's testimony was for sale." Id. at 1465. This reading of the statement would convey a defamatory meaning under applicable District of Columbia law by making the plaintiff appear "odious, infamous, or ridiculous." Johnson v. Johnson Publishing Co., 271 A.2d 696, 697 (D.C.1970). Whether the statement in fact conveyed that defamatory meaning presented a question for the jury. See 717 F.2d at 1465 (citing Levy v. American Mutual Ins. Co., 196 A.2d 475, 476 (D.C.1964)). Accordingly, this court remanded the case to the district court. Mindful of the potential for harassment of the press through discovery into a journal's editorial processes, this court suggested that "discovery be limited initially to the extent feasible to those questions that may sustain summary judgment." 717 F.2d at 1467.

On remand, the district court restricted the scope of discovery to facts bearing on Doctor McBride's status as a public figure vel non and on McBride's expert witness fee. The court rejected McBride's effort to obtain discovery relating to the fees that Merrell Dow had paid its expert witnesses. The district court then granted the defendants' motion for summary judgment. Although the defendants based their motion on the ground that the fee statement was "substantially true," the district court awarded judgment on the basis of the Merrell Dow defendants' lack of knowledge of its alleged falsity and the Science defendants' lack of actual malice in making the statement (McBride being deemed a public figure). See McBride, 613 F.Supp. at 1354-57. The court reasoned that the basic truth or falsity of the fee statement could not readily be ascertained because the statement could be interpreted in different ways (according to various methods of quantifying expert witness fees). This inherent ambiguity surrounding the statement's meaning, the court concluded, precluded any inference that the statement was made with knowledge or reckless disregard of its falsity. McBride now appeals.

II.

A.

We begin by affirming the district court's entry of summary judgment for the Merrell Dow defendants. McBride failed to advance any reasons in his opening brief why that judgment should be reversed; he made such an argument only in his reply brief, after the appellees pointed out McBride's omission and suggested that his claim against the Merrell Dow defendants had been waived. This court ordinarily will refuse to disturb judgments on the basis of claims not adequately briefed on appeal. See Railway Labor Executives' Ass'n v. U.S.R.R. Retirement Bd., 749 F.2d 856, 859 n. 6 (D.C.Cir.1984); Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983). We generally will not entertain arguments omitted from an appellant's opening brief and raised initially in his reply brief. See Environmental Defense Fund v. Costle, 657 F.2d 275, 284 n. 32 (D.C.Cir.1981); United States v. Haldeman, 559 F.2d 31, 78 n. 113 (D.C.Cir.1976) (en banc) (per curiam), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53

Page 1211

L.Ed.2d 250 (1977); accord Matter of Texas Mortgage Servs. Corp., 761 F.2d 1068, 1073-74 (5th Cir.1985); Pignons S.A. de Mecanique v. Polaroid Corp., 701 F.2d 1, 3 (1st Cir.1983); Preservation Coalition, Inc. v. Pierce, 667 F.2d 851, 862 (9th Cir.1982); see also Fed.R.App.P. 28(a)(4). As we stated in Carducci, "[t]he premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them." 714 F.2d at 177. Considering an argument advanced for the first time in a reply brief, then, is not only unfair to an appellee, see Costle, 657 F.2d at 284 n. 32, but also entails the risk of an improvident or ill-advised opinion on the legal issues tendered. See Haldeman, 559 F.2d at 78 n. 113.

The appellant's failure to raise the issue in timely fashion is particularly inexcusable in this case. What McBride omitted from his opening brief was not merely an argument or legal theory supporting a claim, but any mention of a claim against...

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247 practice notes
  • Natural Res. Def. Council v. Envtl. Prot. Agency & Gina Mccarthy, No. 12–1321.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 23, 2014
    ...in a reply brief.” Rollins Envtl. Servs. v. EPA, 937 F.2d 649, 652 n. 2 (D.C.Cir.1991) (citing McBride v. Merrell Dow & Pharm., Inc., 800 F.2d 1208, 1210–11 (D.C.Cir.1986)). In addition, the argument in NRDC's reply brief is that EPA misinterpreted South Coast, not that the statute bars EPA......
  • Natural Res. Def. Council v. Envtl. Prot. Agency, No. 12–1321.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 23, 2014
    ...in a reply brief.” Rollins Envtl. Servs. v. EPA, 937 F.2d 649, 652 n. 2 (D.C.Cir.1991) (citing McBride v. Merrell Dow & Pharm., Inc., 800 F.2d 1208, 1210–11 (D.C.Cir.1986) ). In addition, the argument in NRDC's reply brief is that EPA misinterpreted South Coast, not that the statute bars EP......
  • Natural Res. Def. Council v. Envtl. Prot. Agency & Gina Mccarthy, No. 12–1321.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 23, 2014
    ...in a reply brief.” Rollins Envtl. Servs. v. EPA, 937 F.2d 649, 652 n. 2 (D.C.Cir.1991) (citing McBride v. Merrell Dow & Pharm., Inc., 800 F.2d 1208, 1210–11 (D.C.Cir.1986)). In addition, the argument in NRDC's reply brief is that EPA misinterpreted South Coast, not that the statute bars EPA......
  • Brown v. Nucor Corp., No. 13–1779.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 11, 2015
    ...on an unbriefed issue.” United States v. Leeson, 453 F.3d 631, 638 n. 4 (4th Cir.2006) (citing McBride v. Merrell Dow & Pharm., Inc., 800 F.2d 1208, 1211 (D.C.Cir.1986) ). Given the briefing presented, the fully developed record below, and the lack of any showing of unfairness or prejudice,......
  • Request a trial to view additional results
247 cases
  • Natural Res. Def. Council v. Envtl. Prot. Agency & Gina Mccarthy, No. 12–1321.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 23, 2014
    ...in a reply brief.” Rollins Envtl. Servs. v. EPA, 937 F.2d 649, 652 n. 2 (D.C.Cir.1991) (citing McBride v. Merrell Dow & Pharm., Inc., 800 F.2d 1208, 1210–11 (D.C.Cir.1986)). In addition, the argument in NRDC's reply brief is that EPA misinterpreted South Coast, not that the statute bars EPA......
  • Natural Res. Def. Council v. Envtl. Prot. Agency, No. 12–1321.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 23, 2014
    ...in a reply brief.” Rollins Envtl. Servs. v. EPA, 937 F.2d 649, 652 n. 2 (D.C.Cir.1991) (citing McBride v. Merrell Dow & Pharm., Inc., 800 F.2d 1208, 1210–11 (D.C.Cir.1986) ). In addition, the argument in NRDC's reply brief is that EPA misinterpreted South Coast, not that the statute bars EP......
  • Natural Res. Def. Council v. Envtl. Prot. Agency & Gina Mccarthy, No. 12–1321.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 23, 2014
    ...in a reply brief.” Rollins Envtl. Servs. v. EPA, 937 F.2d 649, 652 n. 2 (D.C.Cir.1991) (citing McBride v. Merrell Dow & Pharm., Inc., 800 F.2d 1208, 1210–11 (D.C.Cir.1986)). In addition, the argument in NRDC's reply brief is that EPA misinterpreted South Coast, not that the statute bars EPA......
  • Brown v. Nucor Corp., No. 13–1779.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 11, 2015
    ...on an unbriefed issue.” United States v. Leeson, 453 F.3d 631, 638 n. 4 (4th Cir.2006) (citing McBride v. Merrell Dow & Pharm., Inc., 800 F.2d 1208, 1211 (D.C.Cir.1986) ). Given the briefing presented, the fully developed record below, and the lack of any showing of unfairness or prejudice,......
  • Request a trial to view additional results

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