Cardno ChemRisk, LLC v. Foytlin , 476 Mass. 479 ( 2017 )

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SJC-12082
CARDNO CHEMRISK, LLC vs. CHERRI FOYTLIN & another.1
Suffolk. October 7, 2016. - February 14, 2017.
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
Budd, JJ.
"Anti-SLAPP" Statute. Practice, Civil, Motion to dismiss.
Civil action commenced in the Superior Court Department on
December 16, 2014.
A special motion to dismiss was heard by Edward P.
Leibensperger, J.
The Supreme Judicial Court granted an application for
direct appellate review.
John H. Reichman, of New York (James E. Grumbach also
present) for the defendants.
Megan L. Meier, of Virginia (Samuel Perkins also present)
for the plaintiff.
Thomas R. Sutcliffe, Jeffrey J. Pyle, & Sarah R. Wunsch,
for American Civil liberties Union of Massachusetts, amicus
curiae, submitted a brief.
1
Karen Savage.
2
LENK, J. On April 20, 2010, an oil rig operated by British
Petroleum (BP), known as Deepwater Horizon, suffered a
catastrophic explosion causing approximately 4.9 million barrels
of oil to flow into the Gulf of Mexico, some forty miles off the
coast of Louisiana. Three and one-half years after the oil
spill, and during the ensuing multidistrict Federal litigation
in New Orleans regarding BP's liability for it, the defendants,
both environmental activists, contributed an article appearing
in the Huffington Post, an Internet Web site. That article,
also known as a "blog posting," contained criticism of the
plaintiff, Cardno ChemRisk, LLC (ChemRisk), a scientific
consulting firm that BP had retained to assess the toxic effects
of the oil spill on cleanup workers. ChemRisk maintains that
certain of these criticisms constitute actionable defamation.
ChemRisk brought claims for defamation against both
defendants, in Massachusetts and in New York.2 The defendants
filed a special motion to dismiss the Massachusetts suit under
G. L. c. 231, § 59H, the "anti-SLAPP" statute. A Superior Court
judge denied the motion, concluding that insofar as the Internet
blog posting at issue did not concern or seek to advance the
defendants' own interests, but rather those of the cleanup
workers, the defendants had not met their threshold burden of
2
The Huffington Post, at the time, was incorporated in and
had its principal place of business in New York.
3
showing that the suit was based exclusively on the "exercise of
[their] right of petition under the [C]onstitution," as that
phrase has been interpreted in our case law. G. L. c. 231,
§ 59H. We conclude, to the contrary, that the defendants were
engaged in protected petitioning activity, which was the sole
basis of the plaintiff's defamation claim, and therefore they
have met their threshold burden. On the record before us, the
plaintiff cannot show, as it must in order to defeat the special
motion, that such petitioning was devoid of reasonable factual
support or arguable basis in law. We accordingly reverse.3
1. Background. The pertinent facts taken from the
pleadings and affidavits of record are these.4 ChemRisk is a
scientific consulting company that produces reports and provides
expert testimony for clients concerning the environmental risks
of their products. In one such report, ChemRisk scientists
examined the extent to which cleanup workers responding to the
Deepwater Horizon spill had been exposed to the chemicals
benzene, toluene, ethylbenzene, and xylene (collectively known
as BTEX). ChemRisk concluded that such exposure was
3
We acknowledge the amicus brief submitted by the American
Civil Liberties Union of Massachusetts.
4
See G. L. c. 231, § 59H (in ruling on anti-SLAPP special
motion, "the court shall consider the pleadings and supporting
and opposing affidavits stating the facts upon which the
liability is based").
4
substantially below permissible limits set by the Occupational
Safety and Health Administration.
Defendant Cherri Foytlin, a life-long resident of the
affected region, works full time as an environmental activist.
Defendant Karen Savage also participates in environmental
advocacy. Since the occurrence of the oil spill in 2010, both
defendants have devoted substantial time to exploring its
environmental consequences, particularly its effects on cleanup
workers, and to advocating on behalf of those adversely
affected. One of their efforts in this regard was to write a
piece entitled "ChemRisk, BP and Purple Strategies: A Tangled
Web of Not-So-Independent Science" that appeared on the
Huffington Post's "Green Blog," in which they challenged
ChemRisk's BTEX report. The "Green Blog" described itself as
"[f]eaturing fresh takes and real-time analysis," and the
article appeared there on October 14, 2013, under the byline
"Cherri Foytlin, Gulf Coast based author and journalist," along
with a note that "Karen Savage contributed to this article."
The article begins by discussing then-ongoing Federal
litigation against BP taking place in the United States District
Court for the Eastern District of Louisiana, in which, among
other things, BP's experts contested the extent of the damages
5
caused by the spill.5 The article asserts that BP and the
environmental experts it employs do "not exactly have a
reputation for coming clean on the facts."
The defendants then discuss ChemRisk's BTEX report as an
example of BP's experts not "coming clean," referring to the
study as "independent" and "science" (both in quotation marks).
The article goes on to claim, in the passage alleged to be
defamatory, that ChemRisk, in connection with an unrelated
scientific study unflattering to a different client, had engaged
in deceptive tactics:
"As it turns out, ChemRisk has a long, and on at least
one occasion fraudulent, history of defending big polluters
using questionable ethics to help their clients avoid legal
responsibility for their actions.
"One well known example is the case that became the
basis for the movie Erin Brokovich, where the polluter and
defendant Pacific Gas and Electric (PG & E) was found to
have paid ChemRisk to discredit research done by Chinese
scientist Dr. Jian Dong Zhang.
"In an earlier study, Zhang had found strong links
between chromium-6, which was found in Hinkley,
California's drinking water, and cancer. ChemRisk obtained
Dr. Zhang's data, and without his knowledge, intentionally
manipulated the findings to contradict his own earlier
studies.
"The erroneous data was then submitted to the Journal
of Occupational and Environmental Medicine (JOEM) as though
it had been re-worked by Dr. Zhang personally."6
5
In re Oil Spill by the Oil Rig "Deepwater Horizon" in the
Gulf of Mexico, on April 20, 2010, U.S. Dist. Ct., MDL No. 2179
(E.D. La.).
6
The article closes by asking whether "anyone will ever . . .
make [things] right" in the Gulf Coast.
In response to the blog posting, a ChemRisk representative
wrote by electronic mail to the Huffington Post demanding a
retraction, and an editor forwarded the message to Foytlin. She
responded that she did not believe the piece contained factual
errors, and it remained posted on the site, where it drew
comments from readers. In April, 2014, six months after the
article appeared, ChemRisk filed a defamation action in a New
York State court against Foytlin and Savage. In December, 2014,
while that case was pending, ChemRisk filed another defamation
suit, based on the same set of facts, in the Massachusetts
Superior Court. After a judge of the New York Supreme Court
allowed the defendants' motion to dismiss for lack of personal
jurisdiction, ChemRisk amended its complaint in Massachusetts,
and engaged in discovery.
In August, 2015, the defendants filed a special motion to
dismiss under the anti-SLAPP statute,7 asserting that the claim
against them was based solely on their exercise of the right to
6
Other publications had made substantially similar
allegations. See note 17, infra.
7
Both defendants also moved to dismiss for failure to state
a claim, and Cherri Foytlin moved to dismiss for lack of
personal jurisdiction. Those motions were denied, and the
defendants did not appeal from the denials.
7
petition, that they had a reasonable factual basis for their
statements, and that they caused no injury. See Duracraft Corp.
v. Holmes Prods. Corp., 427 Mass. 156, 167-168 (1998)
(Duracraft). Relying on this court's decision in Fustolo v.
Hollander, 455 Mass. 861 (2010), the judge determined that
because the defendants were not seeking to redress a grievance
of their own, they were not engaged in protected petitioning
activity. He therefore denied the motion without reaching the
questions whether the defendants' statements had a reasonable
basis in fact or whether they caused actual injury. The
defendants filed an interlocutory appeal, see Fabre v. Walton,
436 Mass. 517, 521-522 (2002), S.C., 441 Mass. 9 (2004), and we
granted their application for direct appellate review.8
2. Discussion. ChemRisk contends that the anti-SLAPP
statute offers the defendants no protection. Because their
article did not address a grievance personal to them, ChemRisk
argues that the defendants were not exercising their right to
8
After the defendants filed their notice of interlocutory
appeal, they unsuccessfully moved to stay discovery in the
Superior Court pending appeal; ChemRisk opposed the motion. The
defendants complied with the extant discovery order. Shortly
after direct appellate review was allowed, and ChemRisk's own
discovery responses were due, ChemRisk indicated its intention
voluntarily to dismiss the action pursuant to Mass. R. Civ. P.
41 (a) (2), 365 Mass. 803 (1974). The defendants opposed the
dismissal. The judge subsequently denied ChemRisk's motion,
reasoning that the defendants' special anti-SLAPP motion seeking
attorney's fees and costs constituted "for all intent[s] and
purposes, a counterclaim that remains alive."
8
petition, as required by the statute. We disagree. Such a
constrained view of the right of petition, a right the anti-
SLAPP statute exists to protect, is without basis in the United
States or Massachusetts Constitution or in our case law.
a. Statutory background. The object of a SLAPP9 suit is
not necessarily to prevail, but rather, through the difficulty
and expense of litigation, to discourage and intimidate
individuals from exercising their constitutional right of
petition. See Duracraft, 427 Mass. at 161. Although not
limiting the statute to such cases, the Legislature enacted
G. L. c. 231, § 59H, primarily to protect "citizens of modest
means" who speak out against larger, more powerful entities.10
See id. The statute allows a defendant who believes he or she
has been targeted in a SLAPP suit to file a special motion to
dismiss that suit prior to completing discovery, thereby
"provid[ing] a quick remedy" against the time and cost of
otherwise protracted litigation. Kobrin v. Gastfriend, 443
Mass. 327, 331 (2005). A defendant who prevails on the special
9
SLAPP is an acronym for "strategic lawsuits against public
participation." See Duracraft Corp. v. Holmes Prods. Corp., 427
Mass. 156, 159-160 & n.7 (1998), (Duracraft). See also G.W.
Pring & P. Canan, SLAPPs: Getting Sued for Speaking Out 3
(1996).
10
Foytlin is a mother of six supporting herself with modest
monthly stipends; she lives in Louisiana less than fifty miles
from the affected portion of the Gulf Coast shore. Karen Savage
is a single mother of four who, at the relevant time, worked as
a middle school teacher in the Roxbury section of Boston.
9
motion to dismiss is to be awarded attorney's fees and costs.
See G. L. c. 231, § 59H.
The special motion procedure employs a two-stage framework.
See Duracraft, 427 Mass. at 167-168. First, the special
movants, here the defendants, must establish that the nonmoving
party's claim is based solely on the special movant's protected
petitioning activity. If the special movant so establishes, the
burden shifts to the nonmoving party. To withstand the special
motion to dismiss, the nonmoving party must show, by a
preponderance of the evidence, that the special movant's
petitioning activity was devoid of any reasonable factual or
legal support and that it caused the nonmoving party actual
injury. See Baker v. Parsons, 434 Mass. 543, 544 (2001);
Duracraft, supra at 168; G. L. c. 231, § 59H.
The anti-SLAPP statute provides protection, by its terms,
wherever "civil claims . . . against [a] party are based on said
party's exercise of its right of petition under the
[C]onstitution of the United States or of the [C]ommonwealth."
G. L. c. 231, § 59H. The statute defines the "exercise of [the]
right of petition"11 to include
11
The First Amendment to the United States Constitution
protects "the right . . . to petition the [g]overnment for a
redress of grievances," along with the right to "free exercise"
of religion, "freedom of speech," freedom "of the press," and
"the right . . . peaceably to assemble." Unlike similar
statutes in other States, the Massachusetts anti-SLAPP statute
10
"[1] any written or oral statement made before or
submitted to a legislative, executive, or judicial body, or
any other governmental proceeding; [2] any written or oral
statement made in connection with an issue under
consideration or review by a legislative, executive, or
judicial body, or any other governmental proceeding; [3]
any statement reasonably likely to encourage consideration
or review of an issue by a legislative, executive, or
judicial body or any other governmental proceeding; [4] any
statement reasonably likely to enlist public participation
in an effort to effect such consideration; or [5] any other
statement falling within constitutional protection of the
right to petition government."
Id.
While this definition is "very broad," Duracraft, 427 Mass.
at 162, it has been limited by our construction of the statutory
phrase "said party's exercise of its right of petition." G. L.
c. 231, § 59H (emphasis added). We have taken this phrase to
mean that one seeking the protection of the statute must show
that he or she has "petition[ed] the government on [his or her]
own behalf . . . in [his or her] status as [a] citizen."
Kobrin, 443 Mass. at 332. Put another way, the petitioning at
issue must be of the kind contemplated by the United States and
Massachusetts Constitutions. See id. at 334; Fisher v. Lint, 69
Mass. App. Ct. 360, 364 (2007). Thus, to meet the threshold
burden for its special motion dismiss, the special movant must
show that its claimed petitioning activity falls within one or
protects only the "right of petition," G. L. c. 231, § 59H, not
all First Amendment rights. See Fustolo v. Hollander, 455 Mass.
861 871, n.12 (2010), citing Cal. Civ. Proc. Code § 425.16 (West
2004 & Supp. 2010).
11
more of the five statutorily enumerated categories; that such
exercise was petitioning in the constitutional sense, i.e.,
undertaken as the exercise of the special movant's right of
petition; and that it formed the sole basis of the nonmoving
party's claim.
b. Defendants' threshold burden. Thus, in order to
prevail on the special motion to dismiss, Foytlin and Savage
must show that the Huffington Post article qualifies as
petitioning activity within one or more of the statutory
definitions, that the article was an exercise of their own right
of petition, and that there was no basis for ChemRisk's
defamation claim other than the statements in the article.12
i. Statutory categories. The Huffington Post blog posting
falls within at least one of the enumerated definitional
categories. It formed part of the defendants' ongoing efforts
to influence governmental bodies by increasing the amount and
tenor of coverage around the environmental consequences of the
spill,13 and it closes with an implicit call for its readers to
12
ChemRisk does not dispute that its complaint is based
exclusively on the Huffington Post article. Its single-count
defamation complaint points only to the four paragraphs quoted
supra.
13
In addition to writing the blog posting at issue, the
defendants have worked to raise awareness of the consequences of
the spill by, among other things, marching from New Orleans to
Washington, D.C.; drafting press releases; meeting with Federal
officials; and corresponding with Federal agencies such as the
12
take action. Given this, the article fits squarely within the
second clause of G. L. c. 231, § 59H: "any statement reasonably
likely to enlist public participation."
In addition, it was written against the backdrop of
multidistrict litigation pending against BP, and referred to
that litigation and to BP's efforts to limit its liability for
the spill. The article noted, specifically, the actions of one
of BP's experts, ChemRisk. Given this, it may fit within the
second clause of G. L. c. 231, § 59H: "any written . . .
statement made in connection with an issue under . . . review by
a . . . judicial body." This language includes communications
"closely and rationally related to the [judicial] proceedings,"
Plante v. Wylie, 63 Mass. App. Ct. 151, 159 (2005), that are
"made to influence, inform, or at the very least, reach
[judicial] bodies -- either directly or indirectly" (citation
omitted). North American Expositions Co. Ltd. Partnership v.
Corcoran, 452 Mass. 852, 861 (2009).
ii. Defendants' exercise of their own right of petition.
In three cases in our jurisprudence, Kobrin, 443 Mass. at 328,
Fisher, 69 Mass. App. Ct. at 361, and Fustolo, 455 Mass. at 861-
Department of Justice, the Environmental Protection Agency, the
Occupational Safety and Health Administration, the Department of
Health and Human Services, the Centers for Disease Control and
Prevention, and the National Institute of Environmental Health
Sciences.
13
862, activities that met at least one of the statutorily
enumerated categories were nonetheless held not to be protected
petitioning because such activities were not established to be
the special movant's exercise of "its [own] right of petition."
G. L. c. 231, § 59H. Using the language of Kobrin, 443 Mass. at
332, in each instance, the special movant was determined not to
have petitioned on its "own behalf" or in its "status as [a]
citizen[]." Each such case involved circumstances not present
here: the special movants in those cases spoke in the capacity
of either a contracted government expert witness, Kobrin, 443
Mass. at 329; a government employee, Fisher, 69 Mass. App. Ct.
at 360; or a journalist charged with objectively reporting the
news, Fustolo, 455 Mass. at 862. In so doing, they were not
speaking for themselves, but in a different capacity. As such,
they were not exercising their own constitutional right of
petition, as they must in order to claim protection under the
statute. Nothing, however, in the history of the constitutional
right to petition, or in those cases, suggests that the right of
petition protected by the anti-SLAPP statute is limited to
seeking redress of purely personal grievances.
A. Constitutional history. The United States Constitution
protects the right to petition to redress grievances whether
those grievances be private or public in nature. "[T]he
right[] . . . to petition for a redress of grievances [is] among
14
the most precious of the liberties safeguarded by the Bill of
Rights." United Mine Workers of Am., Dist. 12 v. Illinois State
Bar Ass'n, 389 U.S. 217, 222 (1967). It has been a fundamental
aspect of liberty for the better part of 1,000 years: first to
petition the King, then Parliament, then the colonial
Legislatures, and finally the institutions of our own
government. See generally Mark, The Vestigial Constitution:
The History and Significance of the Right to Petition, 66
Fordham L. Rev. 2153 (1998). Never in that time has the right
been confined to petitions seeking to redress grievances that
are either purely personal or purely public in nature. See id.
at 2166-2167, 2182, 2184, 2196, 2207, 2226-2228.
In the first eighty years of this Republic, for example,
petitions flooded Congress on many topics. Among the most
prominent were petitions regarding one matter of personal
concern -- the payment of individual Revolutionary War
pensions -- and those regarding one of public concern -- the
abolition of slavery. See Higginson, A Short History of the
Right to Petition Government for the Redress of Grievances, 96
Yale L.J. 142, 158-165 (1986) (discussing abolitionist
petitions); Keenan, Discretionary Justice: The Right to
Petition and the Making of Federal Private Legislation, 53 Harv.
J. Legis. 563, 585-590 (2016) (discussing war pension
petitions). The absolute right to present these petitions
15
regardless of subject matter was never questioned. See
Higginson, supra at 159.
B. Case law. Our cases recognize that the anti-SLAPP
statute, like the constitutional right it safeguards, protects
those looking to "advanc[e] causes in which they believe"
(citation omitted), Hanover v. New England Reg'l Council of
Carpenters, 467 Mass. 587, 594 (2014), as well as those seeking
to protect their own private rights. See Duracraft, 427 Mass.
at 164. This is so because it is the right of petition as such
that the statute seeks to protect. See, e.g., Hanover, 467
Mass. at 594. To meet its threshold burden, a party bringing a
special motion to dismiss must be exercising his or her own
constitutional right of petition, but need not be the
beneficiary of the particular cause the party seeks to advance.
See Kobrin, 443 Mass. at 332 n.8.
In this light, we have held that the statute protects
nonself-interested petitioning on behalf of the environment,
much like the petitioning at issue here. See Baker, 434 Mass.
at 545-546 (biologist spoke to Federal and State agencies
expressing her opinion that island in Plymouth Bay provided
vital bird habitat and her hope that government agencies would
protect site). The Baker decision finds support in the fact
that, as this court previously has acknowledged, the Legislature
enacted the anti-SLAPP statute with antidevelopment activists in
16
mind, many of whom were focused on protecting natural
resources.14 See Kobrin, 443 Mass. at 336, 337 n.11; Duracraft,
427 Mass. at 161. The decisions in Kobrin, Fisher, and Fustolo
are not to the contrary.
In Kobrin, 443 Mass. at 332 n.8, 340, we drew a distinction
between people who engaged in petitioning activity "in their own
right" and the defendant in that case, whom we classified as
simply a "vendor[] of services." One in the latter group does
not exercise "its right to petition" (emphasis supplied). G. L.
c. 231, § 59H. While holding that an expert witness retained to
investigate and testify on behalf of the government could not
claim the protection of the anti-SLAPP statute, the court in
Kobrin reiterated the principle that petitioners need not act in
their own self-interest. See id. at 339-340 (reaffirming
holding in Baker despite those defendants' lack of personal
stake). The defendant in Kobrin fell outside the ambit of the
statute because he was not exercising his own constitutional
right, but instead had entered into a "mere[ly] contractual"
relationship to vend his skills and knowledge to the government.
Id. at 338. The defendants here, far from having a "merely
14
The catalyst for the introduction of the anti-SLAPP
legislation was an incident in 1991 in which a developer sued
several residents of Rehoboth, who had engaged in petitioning
activity concerning the developer's effects on wetlands that
drained into the Palmer River. See Duracraft, 427 Mass. at 161.
The residents incurred more than $30,000 in legal fees prior to
the suit's dismissal nine months later. Id.
17
contractual" commitment to Gulf Coast cleanup, have the same
type of independent interest in their cause that the Baker
defendants did.
In Fisher, the Appeals Court applied the reasoning of
Kobrin to another case involving a witness speaking in his
capacity as an employee of the government. There, the court
held that a police officer, ordered to investigate a fellow
officer for an internal affairs hearing, was simply carrying out
the duties of his job -- duties specifically assigned to him by
his superior -- rather than exercising any constitutional right
of his own. See Fisher, 69 Mass. App. Ct. at 364-365.
Fustolo, on which the plaintiff places particular reliance,
extends the logic of Kobrin and Fisher to a journalist carrying
out a specific assignment. In so doing, she, too, was not
seeking to redress a grievance "of [her] own." Fustolo, 455
Mass. at 867. The staff reporter in question in that case
worked for a local newspaper, and was sued for defamation for
reporting on proposed development projects at local properties
owned by Fustolo. The reporter was employed to write, and did
write, impartial news articles, despite having personal views on
the same subjects. See id. at 862. As we explained, the
reporter
"expressly stated in her affidavit that in writing all her
articles, she was 'always careful to present an objective
description of the subject matter, including the positions
18
of both sides where applicable,' and that while she had
personal views on the issues she covered, 'they were not
reflected in the articles [she] wrote.'"
Id. at 867. This objectivity was pivotal to the decision
insofar as the reporter was not exercising her own
constitutional right to petition when authoring the challenged
articles. See id.
c. Reasonable basis in fact. Because they expressed their
own opinions, speaking for themselves and at their own behest,
Foytlin and Savage have established that they exercised their
own right to petition when they wrote the article at issue.
Having satisfied their threshold burden, the burden shifts to
the nonmoving party, here ChemRisk, who, to defeat the special
motion to dismiss, must show by a preponderance of the evidence
that the allegations in the blog posting were devoid of any
reasonable factual support or arguable basis in law.15 See G. L.
c. 231, § 59H. It has not done so, having provided minimal
evidence that the defendants lacked a reasonable basis in fact
for the challenged statements.16
15
Although the motion judge did not perform this analysis,
we reach the question because "only one conclusion is possible
on this record." See Adams v. Whitman, 62 Mass. App. Ct. 850,
858 (2005).
16
ChemRisk attached to its unverified complaint a letter
apparently from Dr. Jian Dong Zhang, the author of the study
that was the subject of the allegedly defamatory statements,
suggesting that he agreed with ChemRisk's later analysis. Given
the defendants' verified submissions to the contrary, that
19
Foytlin and Savage, by contrast, offered verified support
for their special motion to dismiss, each detailing in
affidavits the basis for the challenged statements. Foytlin,
for example, referenced in and attached to her affidavit a
series of articles appearing in scholarly journals and reputable
newspapers, and other Internet blog postings. These articles
and blog postings provide factual support for the defendants'
characterizations of ChemRisk's practices, and also contain
assertions similar to those made by the defendants concerning
those practices.17 Foytlin further averred that the journal that
letter fails to demonstrate by a preponderance of the evidence
that the challenged statements were "devoid of any reasonable
factual support." G. L. c. 231, § 59H.
17
See Heath, Center for Public Integrity, How Industry
Scientists Stalled Action on Carcinogen (Mar. 13, 2013);
Egilman, Commentary: Corporate Corruption of Science -- The
Case of Chromium(VI), 12 Int'l J. Occup. Envtl. Health 169
(2006); Waldman, Medical Journal to Retract Study: Firm's
Consultants Conducted Research, not Chinese Doctors, Wall St. J.
(June 6, 2006); Waldman, Study Tied Pollutant to Cancer; Then
Consultants Got Hold of It: "Clarification" of Chinese Study
Absolved Chromium-6; Did Author Really Write It?, Wall St. J.
(Dec. 23, 2005); Chrome-Plated Fraud: The ChemRisk Documents,
Environmental Working Group (Dec. 23, 2005), http://www.ewg.
org/research/chrome-plated-fraud [https://perma.cc/B7WT-A9PW];
Michaels, A Chrome-Plated Controversy, The Pump Handle (Dec. 7,
2006), https://thepumphandle.wordpress.com/2006/
12/07/a-chrome-plated-controversy [https://perma.cc/3EPD-D84M].
See also Roe & Callahan, "Flat-out Deceptive": Distortion of
Science Helped Industry Promote Flame Retardants, Downplay the
Health Risks, Chicago Tribune (May 9, 2012) (Pulitzer Prize-
nominated article accusing ChemRisk of distorting different
study on behalf of clients); Lane, Weakened Rules a Boon to 3
Polluters: Work of Scientist Paid by the Firms Viewed
20
had published the ChemRisk study, criticized by the defendants
in their Huffington Post piece, later retracted the article.
Given ChemRisk's failure to offer evidence that would establish
the absence of any reasonable factual support for the challenged
statements, it cannot withstand the defendants' special motion
to dismiss ChemRisk's defamation suit brought against them.
That motion must be allowed.
3. Conclusion. The denial of the special motion to
dismiss is reversed, and the case is remanded to the Superior
Court for the entry of a judgment consistent with this opinion
and for the award of reasonable attorney's fees and costs. The
defendants also may file an appropriate application for
appellate fees and costs in this court, pursuant to Fabre v.
Walton, 441 Mass. 9, 10 (2004).
So ordered.
Skeptically by Other Experts, Newark Star-Ledger (Mar. 7, 2004)
(reporting on ChemRisk's chromium research in other contexts).