Document e1QnOzMr7rqBVmKy0Q8xLz1qG

COVER SHEET Paul Merrell & Carol Van Strum Bradley & Merrell From: Peter Montague Environmental Research Foundation (410) 263-1584 (voice) (410) 263-8944 (tax) 5 pages (including this cover sheet) Sent on 07-Nov-93 at 16:45 Comment: Gerson asked me to fax this along. The last paragraph shows how it may be relevant to my dispute with Mr. Gaffey. I received it from Gerry Ortbals. -P e te r Montague Sent via FaxWorks OSr2 i v. C BS "60 M inutes' 21 Med. L. Rptr. 2059 lc; no such statute exists. Therefore, (he 7.013| (1981). If we arc to fulfill our duty public's right of access to the records at as judges to apply the Public Records Act issue in the present case is controlled a* written by the legislature, we arc left solely by the terms of the Public Records with no choice in this case hut to hold Act as enacted by the General Assembly, that the defendants must allow the plain rather than by this Court's view of what tiffs access to the documents they' seek constitutes sound public policy. News and For the foregoing reasons, 1 respectful Observer v. Slate, 312 N.C. at 281, 322 ly dissent from the decision of the major S.E.2U at 137. ity which denies the plaintiffs access to In defending the holding in the present public records. case, the opinion of the majority advances Chief Justice F.xnm and Justice Frye the quite reasonable public policy con join in this dissenting opinion. cern that disclosure of records such as those at issue here could lead in other cases to the disclosure of names of confi dential informants, undercover agents, or individuals who have been investigated for crimes but not charged. This Court AUV1L v. CBS "60 MINUTES" has previously recognized the validity of such public policy concerns. In fact, in holding that Sftl records-were not subjecr U.S. D istric t C o u rt Eastern District of Washington to disclosure under the Public Records Act, we expressly stated that we assumed that- Hitt-Ggrifrol Asurr.bty..had considered such valid ``reasons for denying acerss to police records, as well as the common GRADY AUVIL and LIL L IE AUVIL, et al., v. CBS "60 M IN U TE S," et al-, No. CS-90-0S53-WFN, September 13, 1993 law and statutory history concerning such access, when it enacted the statute declaring S.B.I. records not to be public REGULATION CONTENT OF MEDIA and, thereby, exempted them from dis 1. Defam ation--T rial procedure*--In closure under the Public Records Act." general ($11,1701) Id. at 283, 322 S.E.2d at 138 (emphasis added). In the nine years since we ren Expert testimony presented by tclevi- dered that opinion highlighting the pub lic policy reasons for denying access to acuon psike itv-bmsiSVSfi (hi -General As sembly has not seen fit to adopt a statute exempting records of police departments from the Public Records Act like the specific exemption it enacted for SRI records. cidea u$&q on apples, is admisatnic. ip extent such opinions were based on Envi ronmental Protection Agency data and conclusions, nee such conclusions arc sufficiently reliable and relevant. The General Assembly has clearly 2. Defamation--Truth--In general dtx&cxtra&d by enacting N.C.G.S. $ (11.4001) l l 4-15 and other statutes that it knows how to create a specific exemption from Defam ation--Related cause* of ac the requirements of the Public Records tion-- in general (11.5801) Act for police department records if it desires to do so. Until the General As sembly enacts such an exception, how ever, it is the duty of this Court to apply the Public Records Act as written Ac cordingly, we arc required to resist all temptations to exceed our legitimate au Television network's statements about use of pesticide on apples, which apple growers claim disparaged their product, involve issue of public ooncern and, since statements cannot be proven by plaintiffs to be false, action must be dismissed. thority by adding public policy excep tions to the Public Records Act which have not been placed there by the Gener Action for libel against network. M o al Assembly. News and Observer Publishing Co. v. rbdie, 330' N'.C.' 4TSV *4r2 ` tion b.y. /pl/a-i-n--t-if--fs- 1to__9_tr_ik_e__e_x_perts' opin- 'J U U S 'd llu (V I - p a u a i a u ii u i in i ; j u u g u ,i .k - S E.2d 7, 18 [19 Med.L.Rptr. 1873] Motion by defendants for summary (1772); Aiixiticc 11icaticns, Inc. v. City of----judjpneoi......... ........... ............................ Elizabeth-Giiy-, 53-N .C. App. 504, 506, - Plaintiffs' motions denied 281 S.E.2d 69, 70-71 [7 Med.L.Rptr. Defendants' motion granted 5 jo ? sfed S : 91 E 6 AON -0 uot-^TBpuno^ -[queunxoiTAU3 1 Li. tVJJU. 6UVU .......... Auvil-v. CBS -60 Minutes ' Friardecisions: 20 Med.L.Rptr. 1361, 19 Med.L.Rptr. 1830. Jarretr Sandlin and Kevin W. Crean, Yakima, Wash.; Scott A. Jonsson and Peter A. Ozanne, of Schwabe. Wil liamson & Wyatt, Portland, Ore., and David H Putney, Yakima, for plaintiffs. Douglas P Jacobs, Susanna M. Lowy, and Anthony M. Bongiorno, of CBS Inc., New York, N Y., Brurc E.II. Johnson, P. Cameron DeVore, Christo pher Pesce, C. David Jennings, and Wil liam C. Komaroflf, of Davis Wright T rr- uiatnej`Seattle, for defendant. Full I ext of Opinion reliable foundation and is relevant to the task ai hand,'* Id. at 2799. The expert testimony is dearly relevant to the task at hand so the only issue is reliability. fl} 'Hie plaintiffs maintain that the data underlying CBS' expert opinions* is fundamentally flawed. However, this court finds that at least to the extern CBS' experts relied on the data and conclusions provided by the EPA, their conclusions are dearly sufficiently reli able for this inquiry. B. Plaintiffs' Motion for Partial .Sum mary Judgment Based on the Issue of Falsity. Nielsen, J: before the court arc plaintiffs' Mo tte,ns to Strike Experts' Opinions, C:. Rcc. 172, and for Partial Summary ludgmem, Ct. Rcc. 171, and defendants' Motion for Summary Judgment, Ct. Ree. 164, heard on August 26, 1993 before the undersigned. Appearing on behalf of plaintiffs were Scott Jonsson, Peter Ozanne and Jay Sandlin; appear ing on behalf of defendants were Bruce Johnson and Cameron DeVore Having heard the oral argument of counsel, hav ing reviewed the record and being fully informed, this court DENIES plaintiffs' Motion to Strike Experts' Opinions; Vfrttint* I7\r Partial Summary Judgment; and GRANT'S de fendants' M otion for Sum m ary Judgment. The facts of this case have already been set out in Anvil v. CBS "60 Minutes ', 800 F.Supp. 928 (20 M ed.L.Rptr. 1361} (E D. Wa. 1992) A. Plaintiffs' Motion to Strike Experts' Opinions. Plaintiffs have moved to strike he opinions of CBS' experts claiming they arc all inadmissible under Daubert v Merrel! Dow Pharmaceuticals% Inc., 113 '> A . v i n / / r * r\-> \ r _ r\-..L. . t U a n.K*L. lO V y i r r j / , lii - - -- preme x'*out l icjcticd the N tnih Circuii position that expert opinion is only ad m irable if it is based on a technique or methodology that is generally accepted hy the scientific community The thrust of Danhert was to move away from the focus on " `general acceptance,' as gauged by publication and the decisions of other courts" and to focus on whether "an expert's testimony both rests on a In o rd e r to rule in plaintiffs' favor, this court would have to find there is no material issue of fact as to the falsity of CBS' broadcast Fed. R. Civ. P. So. This would he inappropriate in view of the fact that even the message ol the broad cast is hotly contested. Since this court cannot find as a matter of law that the message of the broadcast is established, neither car. it judge the falsiiy nf that message. C. Defendants' Motion for Summary J u dgment. CBS claims tha* it is entitled to sum mary judgment because the plaimifls cannot prove that CBS' statements were an..i.nitial matter, the hurden and standard of proof must be estab lished. In a disparagement case, plaintiff carries the initial burden of proof to show that an objectionable statement is false and made with actual malice. <YVu York Times u. Sullivan, 376 U.S. 254, 279-80 (l Med.L.Rptr. !527| (1964); Auvil, 800 F. Sunp. at 937. It is without dispute '.hat malice must be established by clear and convincing evidence. .See Anderson v Liberty Lobby, hr., 477 U.S. 242 (12 Med.L.Rptr. 2297] (1986). The Supreme Court and the Ninth Circuit have not ruled on whether falsity must also be established by dear and convinc ing evidence. Harte^ljanks Cwtltfiunjcfl-. t'Cr.s ItlC. V. (sttttt/wohinn. 491 U.S. 657. 661 n.2 (16 M ed.DRptr. 188 1 (1989); Ncufion v. National Broadcasting Company. Inc., 930 F.2d 662, 669 n.7 (18 Med.L.Rptr. 1001) <9th Cir. 1990), rr.rl den. 112 S.GL 192 (1991). However, the Washington State Supreme Court has held that "(a]U the elements of defama tion must be shown with convincing clar ity." tderron v. King Bro<xdcu5iiHy, 12 S jo g &tv S!9I E6AON-0 oot^vpimoj tp>;fB&sey [equeiauoiTAug L. Rptr. 2062 Ions on the restrictions that the First Amendment places upon the common law of defamation firmly support our conclusions here with respect to the allocation of the burden of proof. In attempting to resolve related issues in the defamation context, the Court has affirmed that Ji]he First Amendment requires that we protect some false hood in order to protect speech that matters. Hepps, 475 U.S. at 778 citing Gertz u. Rotten Welch, Inc., 418 U.S. 323, 341 |1 Med. L. Rptr. 1633] (1974). Hero, the issue of the carcinogenic effect of pesti cides in the food supply is speech that clearly matters. [2] Even if CBS' statements are false, they were about an issue that mattered, Ju ly 29, 1993 Ftrrr.tich V. Chung R E G U L A T IO N OF MEDIA CONTENT D efam ation'--P re -tria l p ro c e dures--In general (11.1201) D efam ation--Public figurc/offi- cial-- In general (11.2001) Libel plaintiffs response, to defen dants' request for admission, clearly de nying that he is public figure is appro priate response pursuant to Fed.R.Civ.P. 36, regardless of accuracy of Such re sponse, nor does Rule 36 allow defen dants to litigate, at this time, whether plaintiff was justified in denying their must be protected. To hold as plaintiffs request would have required CB5 to take the bl A report an<t perform a iccrintcarscftfctlrrc stuay oet'or^ issin public broadcast about that report:' news reporting service is iKfca SUdfltlftr" testing lab and these services should oc Action for libel against reporter, pt<>dueer, and television network. On dclcn- dstratii-rociies hi determine the sufficien cy of the p la in tiff's response to defendants' request for admission and lor a P l f 16" f g f y 'n n a ~ stTtrn t i f h ' KU T m i i i n in ' `costs. report when they are relaying the re Denied. port1s iTgtMlS.' "Hie duty plaintiff pror\!\ca iinrrrijirr^1nU11 /iniw a l-1 f--n p uW trw u iu dw-w'iiiil ucUtUC Vlldl U1C iFCC- Stephen Andrew Armstrong. Falls Church, Va., for plaintiff. dom of speech would be at risk. Lee Levine, James E. Grossbcrg, and Accordingly, Seth D. Berlin, of Rosa, Dixon & Mas- IT IS O R D ER ED that: back. Washington, D C., and Douglas P. 1. Plaintiffs' Motion to Strike Expert Jacobs and Susanna M. Lowy, CBS Inc., Testimony, Cu Rec. 172, be and the New York, N.Y., For defendant. same is hereby D EN IED , 2. Plaintiffs' Motion For Partial Sum mary Judgment. Cu Rec. 171, be and the Full 'ext oj Opinion same is hereby D EN IED . 3. Defendants' Motion for Summary Greene, J. Judgment, C l Rec. 164, be and the same is hereby GRAN TED. The Clerk is directed to file this O r der, enter judgment for defendants, pro vide copies to counsel and CLOSE TH IS This case involves one of the many FILE. pieces of litigation arising out of the highly publicized custody baule between Dr. Eric Forctich and his former wife, Dr. Elizabeth Morgan. In this particular r a t i i iv^jn v r vr t int Tu nnr ru action Dr. Foretich is suin* Connie. Chung. Peter Michaelts, and CBS int:., U.S. District Court District of Columbia ERIC A. FORETICH. D.D.S. v. CO NN IE CHUNCi, et a t , No. 91-0123, ' Conceivably the EPA report was incor reel, tout iri that case/plaintitls*'dispute would be with the government decision and not CBS' reporting of the same. fo r uCiniaaiiOrk OUt Ol (CICUUU aired ny CBS on the dispute between Forettch and Morgan. Now pending be fore the Court is the defendants' motion to determine the sufficiency of the plain tiff's response to their request for admis sion ana for costs. This motion is based on one specific request for admission served by the defendants tr> which they seek to determine whether the plaintiff is Z i z e,pd 0 I ' L l E 6 -AON -0 uoiq-cpunoj tpjveaa ^queuxuoaTAUS