form of the substance ephedrine. Because the Food and Drug Administration
("FDA") considers ma huang to be a food, not a drug, Metabolife can sell
its product without undergoing the FDA's rigorous "new drug" approval
process. See 21 U.S.C. § 321 (1999) (defining "food, " "drug," and
"dietary supplement," which includes "an herb or other botanical");
21 U.S.C. § 355 (establishing the "new drug" application process).
Nonetheless, concerns about the safety of dietary supplements containing
ephedrine have animated recent debates in government. For example, in
1997, the FDA proposed a rule establishing a dosage regimen and labeling
requirements for dietary supplements containing ephedrine alkaloids, like
ma huang. See 62 Fed.Reg. 30678 (1997); Unites States General Accounting
Office, Dietary Supplements: Uncertainties in Analyses Underlying the
FDA'S Proposed Rules on Ephedrine Alkaloids 1 (July 1999)
["Uncertainties"]; see also Massachusetts Dept. Of Public Health, DPH
Issues Advisory on Herbal Dietary Supplements Containing Ephedra (Aug.
2, 1996). The FDA's proposed rule responds to over 800 Adverse Event
Reports ("AERs") linking ingestion of ephedrine-based diet pills to
serious health effects, including stroke and death. See Uncertainties, at
5. In response to these concerns, the media has produced numerous
broadcasts and articles on the safety of ephedrine-based diet pills.
See, e.g., Charles Babcock, Stimulant Propels Diet Empire: Herbal
Coalition Fights FDA'S Proposed Safety Regulation, Wash. Post, May 24,
1999, at A1; Claudie Kalb, Weighing the Health Risks: Do diet pills like
Metabolife work? And are they safe?, Newsweek, Oct. 18, 1999, at 59.
While no regulations currently exist, the debate rages on.
Metabolife has sued Defendants for their public contributions to this
debate. Defendant Hearst-Argyle Television, Inc. ("WCVB") owns numerous
television and radio stations across the nation, including WCVB-TV, a
local television station in Boston, Massachusetts. From May 11 to May
13, 1999, WCVB broadcast a three-part news report (the "broadcasts") on
the safety of Plaintiff's product, Metabolife 356. The broadcasts marked
the culmination of a "five-month investigation" by Defendant Wornick, a
WCVB reporter and presented a negative perspective on the health risks of
Metabolife 356 use. The broadcasts include narration by Wornick and
footage from several interviews, including one with Defendant Blackburn,
a leading authority in obesity research.
After the broadcasts aired, Metabolife began a campaign against the
onslaught of negative media attention. Metabolife immediately bought a
full page ad refuting the broadcasts in the May 15, 1999 addition of the
Saturday Boston Globe. The ad concludes "We will see Ms. Wornick and
WCVB-TV in court." (Def. Blackburn's R. Ex. B.) The company also wrote
letters to media companies designed to deter similar broadcasts on the
safety concerns surrounding Metabolife 356. (Janis Decl.Exs. 8-10.)
Finally, Metabolife filed the present action, seeking damages based on
numerous statements and alleged defamatory implications arising from the
broadcasts. The complaint alleges causes of action for defamation,
slander, trade libel, and intentional and negligent interference with
prospective economic advantage. For convenience of presentation, the Court
lists the alleged statements and defamatory implications before
addressing each in turn:
Alleged Defamatory Statements
1. Defendant Wornick: "Every expert we asked said
Metabolife is not safe because of its main
ingredient, ma huang."
2. Defendant Blackburn: "You can die from taking this
3. Anchor: "Will the legislature here be considering
just restricting, or banning, Metabolife?"
Defendant Wornick: "I think that is what they are
going to do eventually. Health officials have told us
that they would like to regulate very tightly how it
4. Wornick: "Remember that ad calling Metabolife
clinically tested for safety? Metabolife was tested at
Vanderbilt University, but only for two weeks and,
according to their attorney, not for safety.
Vanderbilt officials have ordered Metabolife to stop
making that claim."
5. Wornick: "Does this company have any credibility at