Mick v. American Dental Ass'n
| Decision Date | 13 March 1958 |
| Docket Number | No. A--628,A--628 |
| Citation | 49 N.J.Super. 262,139 A.2d 570 |
| Parties | Robert J. H. MICK, Plaintiff-Appellant, v. AMERICAN DENTAL ASSOCIATION, a corporation, Lon W. Morrey and Herbert B. Bain, Defendants-Respondents. . Appellate Division |
| Court | New Jersey Superior Court — Appellate Division |
Harry Green, Newark, argued the cause for plaintiff-appellant (Mulford E. Emmel, Camden, attorney).
Frank M. Lario, Camden, argued the cause for defendants-respondents (Anthony M. Lario, Camden, attorney).
Before Judges GOLDMANN, FREUND and CONFORD.
The opinion of the court was delivered by
FREUND, J.A.D.
This is an action for libel brought by plaintiff, Robert J. H. Mick, a dentist, against the American Dental Association and its officers, based on a letter written by an official of the Association in response to a communication from Charles W. Yeates, another dentist, and upon a series of articles published by the Association on the subject of fluoridation.
Plaintiff appeals from a judgment of dismissal, with prejudice, entered by the trial judge at the close of plaintiff's case. The judge held that the letter was not libelous as a matter of law but merely an opinion sent to a person who had a right to be informed, and that it was a non-malicious privileged communication. With respect to the articles, the court concluded that they dealt with subject matter of general public concern, without any direct or indirect reference to plaintiff.
Robert J. H. Mick has engaged in the general practice of dentistry in Camden County since 1935, except for an interval of about 2 1/2 years, from September 1953 to February 1956, when he was in the military service of the United States with the rank of lieutenant-colonel, and stationed for the must part in Germany. He was associated in the military service with Major Charles W. Yeates. Both are members in good standing of the defendant, American Dental Association, a non-pecuniary professional association.
The fluoridation of potable waters as an effective means of building an immunity in teeth to make them less susceptible to decay has for many years engaged the serious study and investigation of dentists, physicians, their professional organizations, and of public health authorities. Since about 1939 the United States Public Health Service has been making epidemiological surveys. In about 1951, the American Dental Association officially sponsored floridation. In this it has the support of the American Medical Association, National Research Council, American Public Health Association, and the public health services of the Federal Government and of various states. The position taken by the defendants was preceded by extensive discussions in its official publication, The Journal of the American Dental Association, as well as the distribution of pamphlets and brochures on various phases of the problem. Opponents of fluoridation were articulate and vehement and, in some areas, well organized. They, too, disseminated their views widely through all kinds of publications and public forums.
Plaintiff was among the proponents of fluoridation for about four years, from 1944 to 1948, but then as a result of his independent research, studies and experimental work, he concluded that the artificial use of fluorides was harmful. Plaintiff thereupon embarked on a campaign in violent opposition to fluoridation. He talked at public forums in various states. He wrote letters to many newspapers, printed and mimeographed pamphlets containing his views and circulated them among newspapers and magazines throughout the United States. One of his letters was published in the Congressional Record. While in the military service in Germany, he wrote a letter to the mayor of the City of Kassel, Germany which had begun to use fluoridation, offering to go to that city to speak against and present his arguments on the harmful effects of fluoridation.
On December 3, 1954 the plaintiff requested his army associate, Dr. Charles W. Yeates, to write the following letter to the defendant:
'3 December 1954
'American Dental Association
'Bureau of Public Information
'222 East Superior Street
'Chicago 11, Ill.
'Gentlemen:
'I do not believe he is aiding much in the cause of fluoridation.
'If he is wrong--what can be done to prevent his further connection with the American Dental Association and his accusations of fluoridation and the members of the American Dental Association and sponsoring same?
'Could charges be brought against him?
'Charles W. Yeates
'Major DC
'5th General Hospital
'APO 154, N.Y., N.Y.'
Plaintiff acknowledged that the foregoing letter was sent by Dr. Yeates at his request evidenced by the following notation in his handwriting on the copy of the letter:
Dr. Mick testified that he had read that the Bureau of Public Information of the American Dental Association had invited inquiries with respect to the opposition to fluoridation and he requested Dr. Yeates to write the letter because he 'was always being kidded (by all his associates) about being opposed to fluoridation * * *.'
The following reply letter is plaintiff's primary basis for this suit.
'December 21, 1954.
'Major Charles W. Yeates, DC
'5th General Hospital
'New York, New York.
'Dear Major Yeates:
'This is in reply to your registered letter of December 3 addressed to the American Dental Association in which you make inquiry regarding Dr. Robert J. H. Mick.
'Our records show that Dr. Mick is a member in good standing in the American Dental Association.
'As you know Dr. Mick is now on duty with the Armed Forces and I should like to suggest that if you wish an evaluation of Dr. Mick's personal or professional standing that you might make inquiry of the military authorities in charge.
'Very truly yours,
'Herbert B. Bain
'Herbert Bain
'Director
'Bureau of Public Information.'
The complaint alleges that the last paragraph of defendant's reply letter, and particularly the last sentence, is libelous--'meaning that plaintiff is incompetent to evaluate scientific data relating to his profession and that plaintiff is irresponsible in his professional conduct and not a fit person to practice dentistry.'
The complaint also alleges that three publications circulated by the defendant, although they do not identify or name the plaintiff, are nevertheless libelous of plaintiff because he is a well-known opponent of fluoridation. In the August 1953 issue of its Journal, defendant published an article entitled 'The Irresponsible Opposition to Fluoridation,' written by Dr. J. Roy Doty, and containing the following language: 'Because of the lies and half truths being disseminated by a relatively small but vocal group which is apparently dedicated to the perpetuation of misinformation,' and further describing the leading opponents of fluoridation as 'food faddists, purveyors of so called health foods, publicity seekers and writers of sensation articles, together with very few members of the health profession.'
Early in 1953, the Association published and distributed a pamphlet entitled How to Obtain Fluoridation For Your Community, in which it described the types and groups of opponents and their untrustworthy sources of information. In January 1955 it distributed a brochure entitled Comments on the Opponents of Fluoridation,' wherein are listed biographical data concerning leading opponents of fluoridation and characterizing them as 'quacks,' 'faith healers,' 'faddists,' or 'cultists.' The plaintiff is not listed among those named in any of the articles, directly or indirectly, yet he claims that he was included. Plaintiff makes scant reference to this point in his brief. He merely says: 'As to (the) question of applicability of the other publications to plaintiff, it was for (the) jury.' Defendant urges that plaintiff should be deemed to have abandoned this portion of his complaint. We infer lack of confidence by plaintiff on this point, rather than abandonment, and shall deal with it.
Defendants urge the affirmance of the judgment for several reasons: that the letter was not libelous; that it was qualifiedly privileged because it was written in response to a request for an opinion made by plaintiff or by his agent and because the words contained therein constituted fair comment and criticism; and that the publications did not refer, expressly or by implication, to plaintiff.
Preliminarily, we must consider the proper law applicable to the issues presented for our determination. This question of conflict of laws is not free from difficulty. The Restatement, Conflict of Laws, § 377, p. 457, n. 5 (1954), formulates the rule that '* * * where harm is done to the reputation of a person, the place of wrong is where the defamatory statement is communicated.' This view...
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