Court Transcript
Court Transcript
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
KAREN VANDERHOOF-FORSCHNER;
THOMAS E. FORSCHNER,
Plaintiffs-Appellants,
v.
EDWARD MCSWEEGAN,
No. 99-1615
Defendant-Appellee,
and
THE LYME DISEASE FOUNDATION,
INCORPORATED,
Third Party Defendant.
KAREN VANDERHOOF-FORSCHNER;
THOMAS E. FORSCHNER,
Plaintiffs-Appellees,
v.
EDWARD MCSWEEGAN,
No. 99-1616
Defendant-Appellant,
and
THE LYME DISEASE FOUNDATION,
INCORPORATED,
Third Party Defendant.
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CA-97-2450-WMN)
Argued: April 3, 2000
Decided: May 16, 2000
Before MICHAEL and TRAXLER, Circuit Judges,
and Roger J. MINER, Senior Circuit Judge of the
United States Court of Appeals for the Second Circuit,
sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Michael Lee Martinez, THOMPSON, HINE & FLORY,
L.L.P., Washington, D.C.; James Russell Schraf, LIPSHULTZ &
HONE, CHARTERED, Silver Spring, Maryland, for Appellants.
Veronica Sophia Parkansky, MORRISON & FOERSTER, L.L.P.,
Washington, D.C., for Appellee. ON BRIEF: Danielle E. Berry,
THOMPSON, HINE & FLORY, L.L.P., Washington, D.C.; Victor I.
Weiner, LIPSHULTZ & HONE, CHARTERED, Silver Spring, Mary-
land, for Appellants. W. Stephen Smith, MORRISON & FOERSTER,
L.L.P., Washington, D.C., for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Karen Vanderhoof-Forschner and her husband Thomas E. Forsch-
ner (the "Forschners"), founders of the non-profit Lyme Disease
Foundation ("LDF"), filed an action against Dr. Edward McSweegan,
asserting claims of defamation and interference with business and
contractual relations. McSweegan, who had been the program officer
for the National Institutes of Health's Lyme disease program, filed a
counterclaim against the Forschners and a third-party claim against
2
LDF, asserting claims of defamation and civil conspiracy. Cross-
motions for summary judgment on liability resulted in a classic "dog-
fall"1--the district court granted summary judgment against the
Forschners on their claims and against McSweegan on his claims. The
Forschners appealed the district court's decision, prompting McSwee-
gan to file a cross-appeal. We affirm.
I.
Giving all involved the benefit of all appropriate inferences, the
evidence presented in support of the motions for summary judgment
tended to establish the following. The Forschners founded LDF after
they became convinced that Karen's contracting of Lyme disease dur-
ing her pregnancy caused the severe health problems suffered by their
son. Karen, chairperson of LDF's Board of Directors, took her cause
to the public. She made appearances on national television programs
and was featured in articles appearing in national newspapers and
magazines. Karen's work for LDF brought her in contact with various
members of Congress, and she became a successful lobbyist, persuad-
ing officials to dedicate additional funds to Lyme disease research.
Within a few short years, LDF had received sufficient donations and
grants to hire a staff, which included her husband Tom as the founda-
tion's Executive Director.
McSweegan's contact with the Forschners began when he was
appointed as program officer for the Lyme disease program at the
_________________________________________________________________
1 See Ferrell v. Ashmore, 507 So. 2d 691, 694 (Fla. Dist. Ct. App.
1987) ("In both cases, both the contractor and the owner lost their respec-
tive claims (in the vernacular, a `dogfall')."); Raybon v. Reimers, 226
S.E.2d 620, 621 n.1 (Ga. Ct. App. 1976) (defining"dogfall" as a "collo-
quialism . . . derived from wrestling where it signifies a draw or tie.");
Dixon v. Dixon, 306 S.W.2d 879, 879 (Ky. 1957) ("This divorce action
resulted in a dog-fall, to use a wrestling term. The Chancellor refused to
grant a divorce to either . . . ."); McFarland v. Bruening, 185 S.W.2d
247, 250 (Ky. 1945) ("It is further contended that it was error . . . not to
have given what is sometimes called the `dogfall' instruction; that is, that
if the jury shall believe that both drivers were negligent and their concur-
rent negligence caused the accident and consequent injuries, they will not
award damages either to the plaintiff or to the defendant.").
3
National Institutes of Health ("NIH"). McSweegan developed a nega-
tive opinion of the Forschners and LDF, and he questioned their
views on "chronic Lyme disease" and the need for prophylactic anti-
biotic treatment of tick bites.
McSweegan began documenting his dealings with the Forschners
and informally investigating LDF. He distributed to various media
outlets documents in which he took issue with statements made by the
Forschners or LDF and gave his own views on Lyme disease, the
Forschners, and LDF. In June 1995, after being reprimanded by his
superiors for his conduct, McSweegan was removed from his position
as the Lyme disease program officer.
McSweegan nonetheless continued his campaign against the
Forschners and LDF, which included Internet postings, e-mails, and
anonymous mailings criticizing the Forschners and their foundation.
McSweegan accused the Forschners of harassing NIH staff members
and grantees, and he described LDF as "whacko." McSweegan also
gave interviews to a reporter who eventually wrote several articles
about the feud between McSweegan and the Forschners. In those
interviews, McSweegan made his dislike of the Forschners and LDF
crystal clear, essentially describing the Forschners as frauds.
While McSweegan was waging his battle, the Forschners were
launching their own counter-assault, which included pressuring NIH
to remove him from the Lyme disease program. In various Internet
postings, the Forschners challenged McSweegan's views about them
and their foundation, often referring to him as"a cowardly stalker,"
"the stalker," and "the LDF stalker." J.A. 639-40.
This battle of words gave rise to the present action. As to the defa-
mation claims, the district court determined that all claims should be
considered under the constitutional "actual malice" standard because
all of the parties were limited public figures. 2 The court then con-
cluded that none of the statements made by any of the parties were
defamatory, but instead were "`heat-of-battle' hyperbole." J.A. 1075.
_________________________________________________________________
2 Karen Forschner and McSweegan conceded that, for purposes of this
action, they were limited public figures. Thus, only the status of Tom
Forschner was in dispute.
4
The court noted that the remaining claims--the Forschners' inten-
tional interference with contract and business relations claim and
McSweegan's conspiracy claim--were dependent upon a determina-
tion that defamation had occurred. Because the court rejected the def-
amation claims on both sides, it likewise rejected the remaining
claims, thus ending the action.
II.
The Forschners contend on appeal that the district court erred in its
conclusion that none of McSweegan's statements were defamatory.
They also contend that the court erred in determining that Tom
Forschner was a limited public figure. As to the dismissal of their
intentional interference claim, they argue that if this Court reverses
the district court's decision on the defamation claim, then the dis-
missal of the interference claim should likewise be reversed, given
that the claim rises or falls with the defamation claim.
For his part, McSweegan makes it clear that he appealed to protect
his right to assert his counterclaim only in the event that the Forsch-
ners prevailed on appeal. McSweegan contends that no meaningful
distinction can be made between the statements made by him about
the Forschners and the statements made by the Forschners about him.
Thus, if this Court determines that his statements about the Forsch-
ners are defamatory, then McSweegan contends that we must likewise
conclude that their statements about him are defamatory.
"[B]ecause defamation claims raise First Amendment issues, we
have an obligation to make an independent examination of the whole
record in order to make sure that the judgment does not constitute a
forbidden intrusion on the field of free expression." Wells v. Liddy,
186 F.3d 505, 520 (4th Cir. 1999) (internal quotation marks omitted),
cert. denied, 120 S. Ct. 939 (2000). After thoroughly reviewing the
entire record and considering the briefs and arguments of the parties,
we agree with the district court that Tom Forschner is properly
viewed as a limited public figure and that none of the statements at
issue in this case can be reasonably understood as defamatory.
Instead, the statements must be viewed as "rhetorical hyperbole, a
lusty and imaginative expression of the contempt felt by" McSweegan
for the Forschners, and by the Forschners for McSweegan. Old
5
Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers v. Austin,
418 U.S. 264, 286 (1974). Accordingly, we affirm on the reasoning
of the district court.3 See Vanderhoof-Forschner v. McSweegan, No.
WMN-97-2450 (D. Md. April 2, 1999).
AFFIRMED
_________________________________________________________________
3 A federal court sitting in diversity must apply the choice-of-law rules
of the forum state. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S.
487, 496-97 (1941). Under Maryland law, defamation claims are gov-
erned by the law of the state where the defamatory statement was pub-
lished. See Wells, 186 F.2d at 521-22. However, because the parties
agree that Maryland law governs their claims, we need not inquire fur-
ther into the choice-of-law questions. See American Fuel Corp. v. Utah
Energy Dev. Co., 122 F.3d 130, 134 (2d Cir. 1997) ("[W]here the parties
have agreed to the application of the forum law, their consent concludes
the choice of law inquiry.").
6
QUOTE- Karen Forschner- "Lastly, I admit that I did cry during the deposition. Yup. It was during a reading of material Ed admitted writing, that mocked our dead son and pets."
Re: Sweeg at the FDA meeting, telling Karen Forschner to "Buzz Off" posted by Karen Forschner
- From: "Usenet Supreme Commadner Chuck" <kattaklizm@xxxxxxxxx>
- Date: 16 Oct 2006 09:09:34 -0700
ActionLyme wrote:
10
From: Writer0608 - view profile
Date: Thurs, Feb 8 2001 1:58 pm
Email: writer0...@xxxxxxx (Writer0608)
Groups: sci.med.diseases.lyme
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Anon:
Sorry you have so much confused and incorrect. Why would you keep
attributing statements to me, that you know I did not say? You need to be
accurate.
My concern is that you are fixated on me, and that fixation is
increasing. Including increasing over the internet.
Ed did say "Buzz-off Karen." Not very mature. And, I did not go up to
him. I noticed him after I was talking with Phil Baker. And, he was there with Phil.
I wonder how his lawsuit against NIH is going. Is he claiming conspiracy again?
And, the document was missing when it was FOI'd. Ed even sent an email
to the reporter, asking why she was interested in the document(s). But, I
guess you know this.
You state "I heard both conversations went badly." What do you think
you "heard"? Now, be careful, because you need to cite first hand
information, not gossip. Who told you the information, Phil or Ed?
Lastly, I admit that I did cry during the deposition. Yup. It was during a reading of material Ed admitted writing, that mocked our dead son and pets.
And, a number of such writings were done WHILE he was a public
official working at NIH as LD Project Officer.
I was also surprised that Ed, (while a Public Official and LD Program
Officer) was tracking my parents address and phone numbers; my home address and phone numbers; my travel agent's information; employee names, home addresses, home phone numbers; my movements while working for the LDF; and had been at the LDF's office.
He even had tracked down and talked with a person working with Dr. Joe
Burrascano. Keeping their informtion in his files. I was also
surprised to see his point system, giving himself a score when he was able to harm/interfere with an LDF/Karen initiative. This was happening while he was the LD project officer.
When was he working? And, who else did he track that he wasn't caught
tracking?
Anon, if you plan to cite depositions I suggest this format.
These are regarding various charges Ed made about the LDF. Ed's
deposition. Q's
are by lawyers to Ed. A's are Eds answers.
p229 lines 11-13.
"Q. But you have no factual basis to rely on?
A. Not at the moment."
p 288 lines 1-8
"Q. And what was your basis for saying this may invite investigation
and
prosecution?
(ed -accusing the LDF of a wide range of things while NIH LD
Program Office)
A. Clairvoyance.
Q. Anything else?
A. Wishful thinking. I don't know.
Q. Clairvoyance and wishful thinking, okay. Anything else's?
A. No, I didn't have any knowledge of anything related to
investigations at the
time."
p 147 lines 15-22 p 148 lines 1-6
"Q. Are the things you've said about them, the Forschners or the
Foundation,
that you believe to be true but that you didn't necessarily follow up
on and
check yourself before you made those statements?
A. For example?
Q Anything
A. I don't think so.
Q In other words, if you made a statement about the Forschners or the
Lyme
Disease Foundation that you didn't have personal knowledge about, did
you make
an inquiry about it before you would make that statement in writing or
orally
to make sure it was accurate?
A. Yes, but, in fact, I have no personal knowledge of anything."
The LDF received a lot of material from Ed during the time he was suing
the
LDF. Much of this crossed lines from NIH to CDC and to the FDA. Ed
appeared
to be very concerned with the activities of various people and we were
not the
only ones to receive threats, retaliation, or reporting to federal
authorities.
His own colleagues and a grantee was included as targets to be turned
in to
federal, state, and local officials accused of serious wrongdoing.
It wasn't just the LDF.
http://sci.tech-archive.net/Archive/sci.med.diseases.lyme/2006-10/msg01386.html