Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, February 7, 2011

Second Circuit Affirms Lower Court Dismissal of Defamation Lawsuit Against Cornell Scientist

The Second Circuit has affirmed a lower court ruling dismissing a plaintiff biologist's lawsuit against a defendant whom she said had defamed her by criticizing her work in his lab at Cornell University. The case is Chandok v. Klessig.

For purposes of this opinion, we assume, without deciding, that Klessig's Statements did not deal with a matter of public concern, that Chandok was not a limited-issue public figure, and that, therefore, the onerous burden of proving "actual," i.e., constitutional, malice by clear and convincing evidence was not applicable. We nonetheless conclude that summary judgment was properly granted dismissing her claims because the evidence she adduced was insufficient to meet the less demanding standards imposed in these circumstances by New York law.

New York law allows a plaintiff to recover for defamation by proving that the defendant published to a third party a defamatory statement of fact that was false, was made with the applicable level of fault, and either was defamatory per se or caused the plaintiff special harm, so long as the statement was not protected by privilege... But New York "[p]ublic policy mandates that certain communications, although defamatory, cannot serve as the basis for the imposition of liability in a defamation action." .. New York law accords qualified privileges to at least two categories of statements that are pertinent to the present case.

A statement is generally "subject to a qualified privilege when it is fairly made by a person in the discharge of some public or private duty, legal or moral."...For example, a letter from a physician who believed his assistant had stolen patient files, to "an official body charged with responsibility for consideration and processing of complaints of professional misconduct on the part of physician's assistants," was "subject at a minimum to [this] qualified privilege." ... In addition, a "qualified[] privilege extends to a communication made by one person to another upon a subject in which both have an interest." ...This privilege encompasses a defamatory communication on "any subject matter in which the party communicating has an interest . . . made to a person having a corresponding interest." ...In some instances the common-interest privilege may overlap the moral-duty privilege, for one may have a "moral duty to communicate . . . knowledge and information about a person in whom the[ speaker] ha[s] an interest to another who also has an interest in such person,"... Thus, in Buckley, Dr. Litman, the physician who believed his assistant had stolen patient files, had a qualified privilege for communicating that information to a fellow physician who had handled the practice of Dr. Litman while the latter was away and with whom the assistant was seeking employment. ...A qualified privilege may be overcome by a showing either of "actual" malice (i.e., knowledge of the statement's falsity or reckless disregard as to whether it was false) or of common-law malice. ... Common-law malice "mean[s] spite or ill will." ... "The critical difference between common-law malice and constitutional [i.e., "actual"] malice . . . is that the former focuses on the defendant's attitude toward the plaintiff, the latter on the defendant's attitude toward the truth." ...

As for what is needed to prove "actual" malice, "there is a critical difference between not knowing whether something is true and being highly aware that it is probably false. Only the latter establishes reckless disregard in a defamation action."...Further, while either "actual" malice or common-law malice "will suffice to defeat a conditional privilege," ... common-law malice will defeat such a privilege only if it was "'the one and only cause for the publication,'" ....Thus, as to common-law malice, "only if a jury could reasonably conclude that" spite or ill will "'was the one and only cause for the publication'" is "a triable issue . . . raised." ..."Unlike situations in which the 'actual malice' standard is constitutionally imposed and must therefore be proved by 'clear and convincing' evidence, . . . to defeat qualified privilege in New York, the plaintiff need only establish 'actual malice' by a preponderance of the evidence." ...Preponderance is the normal quantum of proof applicable in civil cases, and none of the New York cases discussed above suggests that more than a preponderance is required to establish common-law malice.

Within this framework, we conclude that all of Klessig's Statements were protected by one or more state-law privileges. Several were subject to qualified privileges for statements that Klessig had a legal and/or moral obligation to make. As to legal obligations, the fact that some of the NOS research was funded by federal moneys meant that Klessig was required to inform the pertinent agencies of suspicions of scientific misconduct. Federal regulations defined "[m]isconduct" or "[m]isconduct in [s]cience" to include "fabrication," "falsification," and "other practices that seriously deviate from those that are commonly-accepted within the scientific community for . . . conducting or reporting research," ...and they required that any entity applying for a research grant establish procedures "for investigating and reporting instances of alleged or apparent misconduct involving research . . . or research activities that are supported with funds made available under the [Public Health Service] Act," id. § 50.101 (emphases added). Thus, when Klessig wrote to officials of NIH and NSF stating that "[e]vidence [had] recently emerged that strongly suggests that [Chandok] falsified" some, most, or all of her reported data on recombinant varP, he was fulfilling a legal obligation. Similarly, when Klessig formally filed his allegations against Chandok with the Scientific Misconduct Investigation Committee, he was complying with the reporting requirement, for the regulations required an immediate inquiry and/or investigation into allegations of possible misconduct, see id. §§ 50.101, 50.103(d). Accordingly, in making his Statements to the Committee, NIH, and NSF, Klessig was acting in accordance with a legal duty.

Moreover, in light of the facts that Klessig had twice applied to NIH for, and twice failed to be awarded, federal funds for his NOS research, and that NIH granted Klessig's laboratory funds (in excess of $1 million) for NOS research only after receiving his third application, which was cowritten by Chandok and consisted almost exclusively of Chandok's reported data, we conclude that even had there been no federal reporting regulations, Klessig would have had a moral obligation to inform NIH of the possible fabrication of the data on which, clearly, it had relied.

Further, Klessig plainly had a moral obligation to share his concerns about Chandok's reported results with BTI's president Stern, with BTI's responsible personnel officer Pola, with the Cell and PNAS articles' coauthors Ekengren, who was a BTI scientist, and Martin, Ytterberg, and van Wijk, who were members of the faculty at Cornell. The reputations and credibility of both institutions and all of these individual scientists were imperiled by the fact that they were explicitly associated with scientific articles that may have been predicated on fabricated research results or fraudulent reporting. The moral-obligation qualified privilege applies to at least the nine Statements sent to one or more of these BTI and Cornell recipients. Indeed, several of these Statements were merely drafts of the retraction statements that were to be sent to Cell and PNAS by the respective articles' coauthors other than Chandok.

We note also that Klessig's Imputed Statement to the PNAS editor and the formal retraction sent to PNAS too fell within the qualified privilege for statements that Klessig had a moral obligation to make. Having caused PNAS to publish the article, and having developed serious doubts about the accuracy or veracity of its contents, Klessig and his coauthors who shared those doubts rightly felt that they owed it to PNAS—and to any fellow scientist who might otherwise base his or her research on those reported data—to make known their views of the Cell and PNAS articles' unreliability.

Finally, many of Klessig's Statements were within the scope of the New York qualified privilege for statements on a matter of common interest among communicants. His Statements to Stern, Pola, Ekengren, Martin, Ytterberg, and van Wijk, discussed above, in addition to being within the moral-obligation privilege, were within the common-interest privilege. The remaining eight Statements of which Chandok complains were e-mails sent by Klessig to fellow scientists, at Cornell or other institutions, who shared his interest in NOS research, and some of whom had made contributions to Klessig's research. In these e-mails, Klessig stated that his researchers had been unable to reproduce Chandok's reported results, and he warned his fellow scientists that that inability and other recent evidence "strongly suggest that the data on the recombinant varP," reported in the 2003 Cell article, were "unreliable" or "falsified" or "may have been fabricated" or "had to be falsified because [Chandok] could not have made the protein," or that Klessig had come to believe that she "[n]ever had the recombinant version." As communications to colleagues with whom he had a common interest in NOS research, these e-mailed statements too were qualifiedly privileged.

Thus, all of Klessig's Statements were privileged under New York law in the absence of a showing by Chandok that they were motivated by "actual" or common-law malice.

As to "actual" malice, the record does not contain evidence from which a rational juror could find by a preponderance of the evidence either that Klessig knew the Statements were false or that he acted in reckless disregard for the truth. For months, Klessig had at least three scientists attempting to replicate Chandok's reported results; it is undisputed that they failed. Although Chandok argues that the experiments were difficult and opines that those scientists were simply less able than she, that opinion, even if warranted, is plainly insufficient to permit a jury to find that Klessig acted in reckless disregard of the truth. The Scientific Misconduct Investigation Committee found that Chandok's record-keeping practices with respect to her research results were egregious, hampering the duplication of her reported efforts and the confirmation of her reported findings. Klessig repeatedly importuned Chandok to return to Ithaca to help replicate her results; it is undisputed that she refused. In light of (a) Chandok's acknowledgement that it was important to be able to replicate reported scientific results, (b) the lack of any dispute as to the fact that other scientists were unable independently to replicate or confirm Chandok's reported results, (c) the undisputed fact that Klessig repeatedly attempted to discuss the research with Chandok and repeatedly implored her to assist his researchers, (d) the undisputed fact that Chandok refused to assist in their efforts, and (e) the absence of corroborating details in Chandok's records of her research, no rational juror could find that Klessig's Statements with regard to the retraction of the Cell and PNAS articles on the ground that Chandok's reported results were "suspect," "unreliable," and "may have been fabricated," were made either with knowledge that the Statements were false or with reckless disregard for their truth.

Nor does the record permit an inference of common-law malice. In light of the efforts made by Klessig to have the results reported by Chandok replicated, including his repeated requests that she visit Ithaca to help in the replication effort, and given the importance of NOS research, the need for independent verification of important scientific announcements, and the stakes of the various institutions and individual scientists in their reputations as collaborators in the publication of Chandok's unverifiable reported results, no rational juror could conclude that Klessig's Statements were made solely out of spite and ill will.

We conclude that Chandok failed to adduce evidence of either "actual" or common-law malice sufficient to create a genuine issue for trial. Summary judgment dismissing her complaint was properly granted.

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