McBride v. Merrell Dow and Pharmaceuticals, Inc., 85-5800

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

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.

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 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 Merrell Dow. Though he disputed the district court's disposition of his libel claim against the Science defendants, McBride failed to address the separate legal issue implicated by his claim against the Merrell Dow defendants. This is not a situation in which an appellant incorporates by reference or otherwise "implicitly" raises a generic legal claim against all parties. It would, consequently, be patently inequitable to force Merrell Dow to defend an appeal by guessing the arguments that the appellant might make in his reply brief. We affirm the dismissal of the Merrell Dow defendants from this case.

B.

We turn to McBride's claims against the Science defendants. The district court held that McBride is a public figure for purposes of the controversy covered by the allegedly libelous story, and thus would have to satisfy the "actual malice" standard of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), to prevail on his claim. See 613 F.Supp. at 1353-54. We agree. As one who has "voluntarily inject[ed] himself ... into [the] particular public controversy" surrounding Bendectin's safety, McBride has become a public figure for the "limited range of issues" about the drug. Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 94 S.Ct. 2997, 3012, 41 L.Ed.2d 789 (1974); see also Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287 (D.C.Cir.), cert. denied, 449 U.S. 898, 101 S.Ct. 266, 66 L.Ed.2d 128 (1980).

Indeed, McBride's role in the Bendectin controversy is a paradigm of the limited-purpose public figure concept. The alleged link between Bendectin and birth defects had begotten a widespread and heated public controversy over the drug's safety. See Waldbaum, 627 F.2d at 1296-97. McBride voluntarily entered this controversy, intending to influence its outcome. See Gertz, 418 U.S. at 345, 94 S.Ct. at 3009. As a world-renowned expert on birth defects--he was prominent in discovering the dangers of Thalidomide and has been dubbed the "Father of Teratology"--McBride occupied a central place in the Bendectin debate. See Waldbaum, 627 F.2d at 1297-98. His role included testifying before the FDA about the perceived dangers of Bendectin and serving as an expert witness in litigation challenging the drug's safety. We conclude that by vigorously taking on an important role in a current public controversy, McBride assumed public figure...

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