Metabolife International v. Wornick

Citation264 F.3d 832
Decision Date09 May 2001
CourtU.S. Court of Appeals — Ninth Circuit

Counsel Stephen Mansfield (argued), Akin, Gump, Strauss, Hauer & Feld, Los Angeles, California, for the plaintiff-appellant.

Steven J. Comen (argued), and J. Anthony Downs, Goodwin, Procter & Hoar, Boston, Massachusetts, for defendants-appellees Hearst-Argyle Television, Inc. and Susan Wornick.

Robert O'Regan (argued), Burns & Levinson, Boston Massachusetts, and Gregory D. Roper, Luce, Forward, Hamilton & Scripps, San Diego, California, for defendant-appellee George Blackburn.

Appeal from the United States District Court for the Southern District of California John S. Rhoades, District Judge, Presiding D.C. No. CV-99-01095JSR/RBB

Before: Pamela Ann Rymer, Michael Daly Hawkins, and Ronald M. Gould, Circuit Judges.

Opinion by Judge Hawkins; Partial Concurrence and Partial Dissent by Judge Rymer

Hawkins, Circuit Judge

The heart of this case lies at the difficult three-way intersection of the news media's desire to inform the public about the potential dangers of an over-the-counter herbal supplement, California's public policy interest in the prompt resolution of so-called "SLAPP suits," and the liberal policies underlying the discovery provisions of the Federal Rules of Civil Procedure. Metabolife appeals the dismissal with prejudice of state law claims against (1) an investigative reporter for local Boston television station WCVB-TV, (2) the station itself, (3) the station's parent corporation, and (4) a Harvard Medical School professor, Dr. George Blackburn. The complaint arises from a three-part "investigative report" that aired on WCVB in May 1999 detailing dangers allegedly associated with the use of Metabolife's main product, the herbal weight loss and energy supplement "Metabolife 356." Metabolife sought relief in the district court under California law.


The underlying facts are not in dispute. In May 1999, a local Boston television station (WCVB-TV) aired a three-part series of "investigative reports" prepared by its reporter Susan Wornick ("Wornick").1 These reports challenged the safety of Metabolife 356)2 as well as the public policy influence of Metabolife founder Joseph Ellis, who a decade earlier sustained a felony conviction based on methamphetamine manufacturing.

When the station would not grant a retraction, Metabolife filed suit in district court based on diversity jurisdiction.3 Metabolife asserted claims under California state law for: (1) defamation; (2) slander; (3) trade libel; and (4) negligent and intentional interference with prospective economic advantage. Metabolife challenged eight discrete statements from the broadcast before the district court, only four of which are at issue on appeal:

1. A statement by Harvard Medical School professor Dr. George Blackburn, an obesity specialist, that "You can die from taking this product [Metabolife 356]."4

2. A statement by Wornick that, "Every expert we asked said Metabolife [356] is not safe because of its main ingredient, ma huang."

3. A statement by Wornick allegedly implying that Metabolife 356 had not been tested for safety.5

4. Statements by Wornick that Metabolife and methamphetamine share the same main ingredient, ephedrine.6

The defendants -Wornick, Dr. Blackburn, the station, and the station's parent corporation -filed motions to strike Metabolife's complaint pursuant to California's"antiSLAPP" statute, Cal. Civ. Proc. Code §§ 425.16.7 Defendants refused to engage in discovery pending the outcome of their motions pursuant to Cal. Civ. Proc. Code §§ 425.16(g).

Metabolife responded by moving to compel full responses to its written discovery requests. The district court temporarily stayed discovery and asked Metabolife to itemize the discovery it needed to respond to the anti-SLAPP motions, which Metabolife did. The district court then reversed its field, and ordered Metabolife to respond to the anti-SLAPP motions without discovery, itemized or otherwise. 8

Despite the lack of discovery, Metabolife's opposition to the anti-SLAPP motions included over twenty affidavits and more than 750 pages of exhibits, including the opinions of six experts on issues relating to Metabolife 356's safety. After receiving these materials and in preparation for its next hearing, scheduled to decide venue and perhaps the anti-SLAPP issues, the district court directed the parties to be prepared to address twenty-one questions at the hearing, some of which went to the reliability of the scientific evidence presented by Metabolife in its opposition to the anti-SLAPP motions.

The district court held its motions hearing, focusing solely on the anti-SLAPP motions. After the hearing, the court ordered limited discovery on two issues: (1) Wornick's and WCVB's editing of Dr. Blackburn's interview and (2) what experts Wornick had spoken with to back up her statement that "Every expert we spoke to said Metabolife[356] is not safe because of its main ingredient, ma huang." However, just six days later the court rescinded this order, halting all discovery under the anti-SLAPP statute. Metabolife filed an objection, and the court responded by ordering briefing on five final questions.

After receiving this post-hearing material, the district court issued its decision, granting the defendants' anti-SLAPP motions. Metabolife Int'l Inc. v. Wornick, 72 F. Supp. 2d 1160 (S.D. Cal. 1999). On the statement, "You can die from taking this product," the district court held that it did not matter whether the statement was construed literally or, as Metabolife argued it should be, as "You can die from taking this product as directed."9 Id. at 1167, n.4. The court held that the defendants prevailed either way because "Metabolife has not provided any admissible prima facie evidence of falsity." Id. The district court arrived at this ruling because"Metabolife's scientific evidence [allegedly proving safety if taken as directed] is inadmissible under Daubert because it lacks sufficient indicia of reliability." 72 F. Supp. 2d at 1168. The district court also held, alternatively, that Dr. Blackburn's speech was protected by the First Amendment as a rational interpretation "of the ambiguous and unresolved state of scientific knowledge regarding the safety of products like Metabolife." Id. at 1166-67.

The district court dismissed the claim based on the statement that "Every expert we asked said Metabolife is not safe because of its main ingredient, ma huang," on the same Daubert concerns. Id. at 1172-73. The court also held that the statement "does not imply a `consensus' in the scientific community," and thus could not support the defamatory implication asserted by Metabolife. Id. at 1173.

Wornick's statement allegedly implying that Metabolife 356 had not been tested for safety was dismissed because her comments regarding the Vanderbilt University study were "literally true." Id. at 1174. The district court also held that "[e]ven assuming . . . that Wornick's literally true statements about the Vanderbilt Study support the alleged defamatory implications [that Metabolife 356 was not tested for safety], Metabolife cannot prove that those defamatory implications are false" because Metabolife had put forward no admissible evidence of affirmative safety studies. Id. at 1174-75.

Finally, on the statements whose alleged implication was that, through the common presence of ephedrine, Metabolife 356 and methamphetamine share the same main ingredient, the district court ruled that the statements were substantially true. Id. at 1176. The court disregarded Metabolife's expert testimony that ephedrine and ma huang are not identical because "that Metabolife requires expert scientific opinion to describe the limited difference between ma huang and ephedrine10 convinces the Court that such fine distinctions would have no effect on the state of minds [sic] of the audience. . . ." Id.

Metabolife appealed the district court's decision on these three issues and "all interlocutory orders that gave rise to that judgment." We have jurisdiction under 28 U.S.C.§§ 1291.


The admissibility of scientific evidence under Federal Rule of Evidence 702 is reviewed for abuse of discretion. Kennedy v. Collagen Corp., 161 F.3d 1226, 1227 (9th Cir. 1998). The district court's decision not to permit additional discovery pursuant to Federal Rule of Civil Procedure 56(f) is reviewed for abuse of discretion. DeGrassi v. City of Glendora, 207 F.3d 636, 641 (9th Cir. 2000). The district court's conclusions of law are reviewed de novo. Cigna Prop. and Cas. Ins. Co. v. Polaris Pictures Corp., 159 F.3d 412, 418 (9th Cir. 1998).


This case presents three discrete, though related, issues, the district court's: (1) exclusion of Metabolife's scientific evidence; (2) decision under the California anti-SLAPP statute not to allow Metabolife discovery; and (3) conclusion that the challenged statements are alternatively protected by the first amendment. Each issue will be dealt with individually; the analysis begins with a description of the state statute under which this case was dismissed.

I. California's Anti-SLAPP Statute

The anti-SLAPP statute was enacted to allow early dismissal of meritless first amendment cases aimed at chilling expression through costly, time-consuming litigation.11 Under the statute, a civil defendant may move to strike a cause of action based on an "act in furtherance of [the ] right to petition or free speech." Cal....

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