Another poster child for a national anti-SLAPP law: dilution claims against a critic

Doctor’s Data, Inc. v. Barrett, 2016 WL 1086510, No. 10 C
03795 (N.D. Ill. Mar. 21, 2016)
Plaintiff DDI sued Dr. Stephen J. Barrett, M.D., the
National Council Against Health Fraud, and Quackwatch for violating §43, as
well as state law claims for defamation and related torts.  Here, the defendants get rid of a number of
claims on summary judgment. DDI is a clinical lab that analyzes urine, blood,
and other samples for health care practitioners; one of its tests is designed
to assess the levels of heavy metals present in a patient’s urine.  Samples are either “provoked” or
“non-provoked”; a provoked sample is one the physician collects after
administering a “chelating agent,” which temporarily increases the patient’s
excretion of heavy metals. DDI uses the same form to report the test results
for both provoked and non-provoked samples. The form reports the heavy metal
levels in the patient’s urine, lists “reference ranges” of typical heavy metal
levels in non-provoked samples, and graphically classifies each of the
patient’s levels as “within reference range,” “elevated,” or “very elevated”
based on those non-provoked reference ranges.
Barrett, a retired psychiatrist and consumer advocate,
criticized heavy metal urine testing and DDI’s report form on his websites and
related email listservs. NCAHF and Quackwatch were not-for-profit corporations
that focused on health care consumer advocacy, though they were dissolved by
the time of this opinion.
Previously, the court dismissed the Lanham Act claim to the
extent it covered false advertising because DDI lacked standing, but allowed a
claim under §43(c) dilution (!) to proceed. 
(After Lexmark, the standing
argument is probably wrong, but given the context I doubt the defendants’
statements count as commercial speech/commercial advertising or
promotion.)  DDI, however, continued to
press §43(a) false advertising claims, despite the court’s clear earlier
statements; the court construed it as abandoning a federal dilution claim and
the §43 claim was dismissed in its entirety with prejudice.
DDI did continue with its claim for trademark dilution under
ITRPA, which provides that the owner of a mark which is famous in Illinois is
entitled to relief “against another person’s commercial use of a mark or
tradename, if the use…causes dilution of the distinctive quality of the
mark.”  This law requires actual
dilution, not merely likely dilution. 
DDI argued that Barrett’s websites were commercial and that defendants
caused dilution by referencing “Doctor’s Data” in the challenged publications
and including DDI’s logo on the first page of one of the publications. But
there was no evidence of dilution of distinctiveness of DDI’s marks.
DDI provided evidence that defendants used its marks, and possibly that DDI’s reputation was damaged by
defendants’ statements using its marks. 
“But causing consumers to think less highly of a trademarked product or
service—even if accomplished through false or misleading statements—is not
equivalent to diluting the distinctiveness of that product or service.
Allegations solely of the former nature point not to trademark dilution but to
defamation and other similar claims.” 
(Something we all knew should be true, but it’s nice to have such a
clear statement in a case.)  Summary
judgment for defendants.
Then there is a long, long slog through 85 allegedly
defamatory statements, which I will not inflict on readers who aren’t, like the
court, required to wade through them. 
Basically, Barrett said that “referring patients who have provided
provoked samples to standards applicable to non-provoked tests is highly
misleading and permits unscrupulous physicians and other purported health care
practitioners to convince patients to undergo expensive, but unnecessary,
detoxification treatments,” and the disputes in the case “center primarily on
the extent to which the defendants’ statements assert that Doctor’s Data is a
witting participant in these schemes.” 
The court concluded that, for the most part, the statements that were
most likely to cause reputational harm were about the allegedly scummy doctors
rather than DDI, or appeared in reports protected by the fair report privilege
(e.g., reports of lawsuits filed against DDI and others). Most of the remaining
statements were either true descriptions of the report form or expressions of opinion
about the form. Thus, most of the statements weren’t actionable, though the
court denied summary judgment on a few that might have implicated DDI.
For example, Barrett’s description of the DDI report
classifications as misleading (that is, the fact that the form reported the
patient’s provoked levels but only provided unprovoked reference levels for
comparison, and those lower than other labs’) was nonactionable opinion.  The description of the report classification
as misleading was immediately followed by the factual basis for that
evaluation, and Barrett even reproduced a report.  “Misleading” was clearly his opinion.  There is qualifying language at the bottom of
the DDI report that says “[r]eference ranges are representative of a healthy
population under non-challenge or non-provoked conditions.”  While a reasonable jury could find that this
put patients adequately on notice that the reference ranges shown next to the
test results “should be given less weight, or possibly even no weight, if the urine
sample at issue was provoked,” no reasonable jury could find that the report
didn’t make a comparison between provoked results and non-provoked reference
ranges, which was the practice Barrett criticized.
Also, here’s a fun discussion:
[T]he statement “The provoked urine
toxic metals test is a fraud” does not have a precise and readily apparent
meaning. As an initial matter, the term “fraud” has a broad scope; to speak of
something as a “fraud” may mean it is criminally deceptive, but it may also mean
simply that it is not what it purports to be. When H. L. Mencken famously
opined that “All men are frauds,” he did not incur universal liability for
defamation.  As well, “fraud” is a term
often used as hyperbole, trotted out in even the most inconsequential contexts
…. That the term expressly refers here not to a person, or a knock-off designer
purse, but to a test does nothing to make its meaning more clear; what does it
mean for a test to be a fraud? … [I]f anything, the context here points not to
DDI as the party responsible for “fraud” but to those who use DDI’s test to
deceive the public—that is to say, the physicians who buy DDI’s testing
Also, while “shady” is not a factual claim capable of
verification or disproof, describing DDI as a “nonstandard” laboratory might be
defamatory, and the court denied summary judgment on the following statement,
since given more context it might contain some factual claims:  
The sample report on DDI’s Web site
includes three pages of measurements and three pages of clinically useless
biochemical tidbits, diagnostic speculations, pseudoscientific blather, and
recommendations for further testing. Unfortunately for patients, amino acid
analysis of urine does not provide basic information about the individual’s
general health, metabolism, nutrient status, or dietary adequacy, and the
supplement recommendations lack a rational basis. It is not possible, for
example, to figure out what people eat by looking at what they excrete. And
finding a substance does not mean that it came from a single source or
metabolic pathway.
Tortious interference with prospective economic advantage
claims failed because DDI couldn’t prove a specific enough expectancy of future
business that was disrupted by Barrett’s claims. And tortious interference with
existing contractual relations failed because DDI couldn’t show that a breached
contract resulted from Barrett’s claims, much less that defendants
intentionally induced the breach.  DDI
believed that the relevant doctor’s business collapsed because of Barrett’s
complaints to the Texas medical board and to insurance companies, rendering her
incapable of paying DDI’s bills.  But DDI
didn’t show that Barrett’s complaint caused the doctor’s financial problems or
her failure to pay DDI, or that Barrett complained with the intent to cause a
breach of contract.

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