Roberto Romero v. Irina Buhimschi

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0606n.06
No. 09-1195
FILED
UNITED STATES COURT OF APPEALS Sep 13, 2010
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
ROBERTO ROMERO, M.D., )
)
Plaintiff-Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
IRINA BUHIMSCHI, M.D.; YALE UNIVERSITY, )
) OPINION
Defendants-Appellees, )
)
and )
)
)
CARL WEINER, M.D.; ROYAL COLLEGE OF )
OBSTETRICIANS AND GYNAECOLOGISTS; )
JOHN DOE, A-G, )
)
Defendants. )
BEFORE: NORRIS, MOORE, and McKEAGUE, Circuit Judges.
McKeague, Circuit Judge. Roberto Romero, M.D., filed suit in federal district court against
numerous defendants in connection with the publication of a manuscript in the British Journal of
Obstetrics and Gynaecology. The portion of the suit relevant to this appeal involves Irina
Buhimschi, M.D., the primary author of the manuscript, and her employer Yale University. Romero
alleged that both Buhimschi and Yale defamed him through statements made about his contribution
to the manuscript and his involvement in other research. Romero also alleged that Buhimschi
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breached an implied contract when she published the manuscript without listing Romero as a co-
author. Finally, Romero alleged that both Buhimschi and Yale violated the Lanham Act by failing
to acknowledge that Romero had contributed to the research underlying the manuscript. The district
court dismissed the Lanham Act claim and granted summary judgment in favor of the defendants
on the defamation and contract claims. Romero now appeals these decisions. After carefully
considering Romero’s arguments, we AFFIRM the decisions of the district court.
I.
Roberto Romero is a physician with a sub-speciality in maternal-fetal medicine and works
as chief of the Perinatology Research Branch of the National Institute of Child Health and Human
Development. Romero also holds a tenure position with the National Institute of Health (“NIH”).
At the time relevant to this litigation, Romero was a full-time employee with the federal government;
he held no outside employment. Though he was employed directly by the federal government,
Romero’s position was part of a contract awarded to Wayne State University whereby the NIH
provided funds and advice to Wayne Sate University. Romero served as the project officer under
the contract, which required him to provide technical direction, review performance, provide advice,
and review invoices. In addition to his duties as a project officer, Romero had duties associated with
his role as branch chief of the Perinatology Research Branch. Specifically, Romero developed a
research plan for the Perinatology Research Branch, developed scientific projects, mentored faculty
and fellows, drafted manuscripts, and evaluated projects. These research and drafting activities were
part of Romero’s federal job responsibilities.
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Irina Buhimschi, M.D., was recruited by Wayne State University in late 2000 to work as an
assistant professor in the Division of Maternal-Fetal Medicine. Buhimschi was employed directly
by Wayne State University and not the federal government. At the time she was recruited,
Buhimschi and Romero discussed the possibility of collaborating on research together. Romero
admits that this collaboration with Buhimschi was part of his federal job responsibilities. However,
he nonetheless alleges that an implied-in-fact contract existed between himself and Buhimschi
beginning in March of 2002, whereby the two would collaborate on research. According to Romero,
the terms of this contract specified that Buhimschi would run the experiment while Romero would
assist with experimental design, provide comments, and aid with the preparation of a manuscript.
In addition, Buhimschi would include Romero as a co-author on any article for which Romero met
authorship criteria.
Romero began collaborating with Buhimschi before she arrived at Wayne State University.
The initial collaboration included working with Buhimschi to conduct blood analysis for the
presence of a specific enzyme and providing reagents, antibodies, and standards. Romero and other
individuals at the Perinatology Research Branch continued to collaborate with Buhimschi during her
time at Wayne State University. Specifically, Romero and another physician designed the criteria
for the second phase of the study. Romero also suggested that Buhimschi submit the manuscript to
The Lancet, a medical journal. The manuscript included work on which Romero had collaborated,
and Romero was listed as a co-author on the submission. Soon after the manuscript was submitted,
Romero’s relationship with Buhimschi took a turn for the worse. Communication between the two
became almost non-existent. During this time, Buhimschi also relocated to Yale University.
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Romero then became aware that Buhimschi had removed his name as a co-author on The
Lancet manuscript. At this point, Romero wrote a letter to the vice president of Wayne State
University, and a formal complaint was filed with the university regarding the removal of Romero
and other contributors’ names. In response to the complaint, the university held a hearing into
whether Buhimschi had committed scientific misconduct, and Romero testified at this hearing. In
addition to his Wayne State complaint, Romero also discussed the matter with The Lancet, which
prompted the journal to decline publishing the piece. Romero then became concerned that
Buhimschi would seek to publish the manuscript in a different journal, so he urged Wayne State
University to prepare a plan of action to respond to this possibility. He also notified Wayne State
that if Buhimschi published the manuscript without proper authorship credit, the publication could
create a problem with the contract between the Perinatology Research Branch and Wayne State
University.
The investigative committee at Wayne State issued a report of its findings in 2004. The
report concluded that Buhimschi had committed misconduct on two of the counts but that there was
insufficient evidence as to one of the counts. Romero objected to the committee’s findings on this
last count, and he attempted to forward additional evidence to the committee in an effort to change
the committee’s findings. Romero also objected to the committee’s recommended remedy, which
included providing a two year period of oversight of Buhimschi’s publications. After learning of the
committee’s findings, Buhimschi appealed the decision in a letter dated January 20, 2005. Further,
in accordance with Wayne State policy, Yale University was notified of the committee’s findings,
though Yale declined to take action until Wayne State considered Buhimschi’s appeal.
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At around this same time, Romero became aware that the British Journal of Obstetrics and
Gynaecology (“BJOG”) intended to publish a modified version of the manuscript; a version which
did not include Romero as a co-author. Romero then notified officials at Wayne State University
and suggested that the university contact BJOG about the authorship dispute. He continued to follow
up with Wayne State officials about their contact with BJOG, and he assisted Wayne State officials
in their communications with BJOG staff by comparing The Lancet manuscript with the BJOG
manuscript. In correspondence between BJOG and Wayne State officials, BJOG staff indicated that
they were aware of the authorship dispute and that they had been in contact with Buhimschi. BJOG
officials stated that they intended to publish a correction if it was later found that Romero deserved
authorship credit.
Through communications with BJOG staff, Romero also became aware of a thirty-one page
appeal letter that Buhimschi had sent to the Wayne State University investigative committee. In the
letter, Buhimschi denied wrongdoing and criticized Romero and Wayne State University. Buhimschi
also sent this letter to BJOG, which in turn provided a copy to Romero. This letter forms part of
Romero’s defamation claim against Buhimschi and Yale University. Romero contends that this
letter contains twenty-nine separate defamatory statements.
In spite of Romero’s protests, BJOG published the manuscript, without giving credit to
Romero or his team at Wayne State University, in early 2005. Immediately thereafter, Yale
University issued a press release crediting Yale researchers and a Yale team with the results of the
research. The press release did not contain any mention of Romero or researchers at Wayne State
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University. This press release, along with the manuscript itself, forms the basis of Romero’s Lanham
Act claim.
In the meantime, Wayne State University denied Buhimschi’s appeal from its finding of
scientific misconduct on February 16, 2005, which prompted Yale to appoint an ad hoc committee
to evaluate the matter. In connection with Yale’s ad hoc committee investigation, Buhimschi
supplied Yale officials with an email sent by her former supervisor Carl Weiner, M.D., to BJOG staff
regarding her submission of the manuscript. In the email, Weiner described the background of the
research and manuscript and explained his position that Romero was not involved with the research
in a manner that entitled him to authorship credit. Buhimschi’s republication of this email to a
deputy general counsel at Yale University forms a second portion of Romero’s defamation claim.
Also in connection with the Yale ad hoc committee, Lawrence Cohen, M.D., an Integrity Officer at
Yale University, sent a letter to committee members providing background information on the
dispute and giving the committee instructions. This letter forms the final portion of Romero’s
defamation claim.
Romero was apparently dissatisfied with the outcome of the investigations at Wayne State
University and Yale University, and he filed the instant action in federal district court in February
2006. An amended complaint was filed in June 2006, which contained seven counts of wrongdoing
against eleven named and unnamed defendants. Of the seven counts and eleven defendants, only
two defendants and three counts are relevant to this appeal. Specifically, this appeal involves: (1)
Romero’s claim of violation of the Lanham Act against Buhimschi and Yale; (2) Romero’s claim
of breach of an implied-in-fact contract against Buhimschi; and (3) Romero’s claim of defamation
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against Buhimschi and Yale. These claims were disposed of in the district court under different
procedural postures.
Specifically as to the Lanham Act claim, both Yale and Buhimschi filed motions to dismiss
for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The motions were
premised on the Supreme Court’s decision in Dastar Corp. v. Twentieth Century Fox Film Corp.,
539 U.S. 23 (2003). A magistrate judge evaluated the motions and issued a report and
recommendation stating that the Lanham Act claim was barred by Dastar, and the district court
adopted this recommendation. As to the contract and defamation claims, discovery moved forward
and both Yale and Buhimschi filed motions for summary judgment. The district court granted
summary judgment in favor of Yale and Buhimschi on these claims, finding that the contract claim
failed because Romero had a preexisting duty to perform the contract and the defamation claim failed
because Romero impliedly consented to the defamations through his initiation of the investigation.
Romero appeals this decision along with the dismissal of the Lanham Act claim.1
II.
We begin by addressing our jurisdiction over the issues presented in this appeal. The district
court possessed subject matter jurisdiction over the Lanham Act claim pursuant to 28 U.S.C. § 1331.
It possessed diversity jurisdiction over the state-law claims pursuant to 28 U.S.C. § 1332 because
1
Romero has also filed a motion to expand the record on appeal and seeks to include
seventeen additional exhibits that the district court struck from the record in evaluating his motion
for reconsideration. Because Romero has failed to argue any of the equitable factors for expanding
the record on appeal, we deny this motion. See United States v. Murdock, 398 F.3d 491, 500 (6th
Cir. 2005).
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all of the parties were diverse and Romero alleged an amount-in-controversy greater than $75,000.
We possess jurisdiction over final decisions of the district court pursuant to 28 U.S.C. § 1291.
III.
In evaluating Romero’s Lanham Act claim, we review de novo the district court’s dismissal
under Rule 12(b)(6). Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 608–09 (6th Cir. 2009). “[T]o
survive a motion to dismiss, the plaintiff must allege facts that, if accepted as true, are sufficient ‘to
raise a right to relief above the speculative level,’ and to ‘state a claim to relief that is plausible on
its face.’” Id. at 609 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). This
burden is met if the pleadings contain sufficient factual content to allow the court to infer liability
for the alleged misconduct. Id.The Lanham Act creates a civil cause of action in favor of any person who is injured by false
designations of origin or false descriptions. 15 U.S.C.A. § 1125(a). Section 43 of the Act states:
(1) Any person who, on or in connection with any goods or services,
or any container for goods, uses in commerce any word, term, name,
symbol, or device, or any combination thereof, or any false
designation of origin, false or misleading description of fact, or false
or misleading representation of fact, which--
(A) is likely to cause confusion, or to cause mistake, or to
deceive as to the affiliation, connection, or association of such person
with another person, or as to origin, sponsorship, or approval of his
or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the
nature, characteristics, qualities, or geographic origin of his or her or
another person’s goods, services, or commercial activities, shall be
liable in a civil action . . . .
Id. This section of the Lanham Act provides broad federal remedies beyond simple trademark
protection. Dastar, 539 U.S. at 29.
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The Supreme Court interpreted this section in Dastar Corp. v. Twentieth Century Fox Film
Corp. 539 U.S. at 25. Specifically, the Court addressed “whether § 43(a) of the Lanham Act, 15
U.S.C. § 1125(a), prevents the unaccredited copying of a work . . . .” Id. In Dastar, Twentieth
Century Fox sued Dastar under a theory of reverse passing off2 for Dastar’s sale of a video series on
General Eisenhower’s crusade through Europe. Id. at 26–27. To make the series, Dastar purchased
beta cam tapes of a 1949 series, which Fox owned the rights to but had let the copyright expire. Id.Dastar then edited the series by changing the opening and closing sequence, inserting new titles,
rearranging the “recap” section, and removing references to a corresponding book. Id. Dastar
advertised its series as being produced and distributed by a Dastar-owned company and included a
credit line “DASTAR CORP presents.” Id. at 27. The Dastar series made no reference to the
original series owned by Fox. Id.In determining whether Dastar’s actions violated the Lanham Act, the Supreme Court focused
its inquiry on the meaning of origin of goods in § 43(a)(1)(A). Id. at 31. The Court stated that
“origin of goods” could not mean “the person or entity originating the ideas or communications”
because such a meaning would stretch the text and purpose of the Lanham Act. Id. at 32. Under
Dastar, the Lanham Act can not be read to encompass communicative products, whose origins have
little consequence to purchasers, because this reading would conflict with copyright law and would
render portions of that body of law superfluous. Id. at 33–35. “Reading ‘origin’ in § 43(a) to require
attribution of uncopyrighted materials would pose serious practical problems.” Id. at 35. Thus, the
2
Reverse passing off (also known as palming off) occurs when a party misrepresents someone
else’s goods or services as his own. Dastar, 539 U.S. at 27, n.1.
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Court held that the Lanham Act did not create a cause of action for behavior that amounted to
plagiarism or the use of unprotected work without attribution. Id. at 36. However, the Court left
open the possibility that a cause of action could exist under the misrepresentation prong of §
43(a)(1)(B). Id. at 38. Specifically, if Dastar had given purchasers the impression through
advertising or promotion that its series was substantially different from the series on which it was
based, Fox could have stated a claim under § 43(a)(1)(B). Id.
This court has applied Dastar and held that the use of educational materials, including
workbooks and audiotapes, without proper attribution did not violate the Lanham Act because
“taking the intellectual property contained in [] goods and incorporating it into your own goods does
not” constitute a violation. Nat’l Bus. Dev. Servs. v. Am. Credit Educ. & Consulting Inc., 299 F.
App’x 509, 511 (6th Cir. 2008). Similarly, the First Circuit held that a claim for failing to attribute
authorship credit on a college textbook did not create a cause of action under the “false origin”
section of the Lanham Act. Zyla v. Wadsworth, 360 F.3d 243, 252 (1st Cir. 2004). The Zyla court
nevertheless noted that “[t]he Court in Dastar left open the possibility that some false authorship
claims could be vindicated under the auspices of § 43(a)(1)(B)’s prohibition on false advertising.”
Id. at 252 n.8.
Other Circuits have noted that Dastar’s holding was limited to § 43(a)(1)(A), but have
rejected the claim that false designation of authorship or licensing is actionable under § 43(a)(1)(B).
See, e.g., Baden Sports, Inc. v. Molten USA, Inc., 556 F.3d 1300, 1307 (Fed. Cir. 2009); Sybersound
Records, Inc. v. UAV Corp., 517 F.3d 1137, 1144 (9th Cir. 2008). In Baden Sports, the Federal
Circuit applied Ninth Circuit law and rejected an argument that Molten, a manufacturer of
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basketballs, violated § 43(a)(1)(B) by advertising that dual cushion technology was a “Molten
innovation.” Id. at 1302–03, 1305. The “Molten innovation” claim was false because another
basketball manufacturer had developed the technology. Id. at 1302–03. However, the Federal
Circuit held that the claim was not actionable because the “Molten innovation” advertising materials
did not concern the “origin of goods” prong under § 43(a)(1)(A) nor did the materials concern the
“nature, characteristics, [or] qualities” prong under § 43(a)(1)(B). Id. at 1305. According to the
Federal Circuit, “nature, characteristics, and qualities” under § 43(a)(1)(B) refers to the
characteristics of the good itself, rather than authorship designation. Id. at 1307. To read the
Lanham Act otherwise would put it in conflict with patent and copyright law. Id.
In this case, Count I of Romero’s complaint alleges violation of the Lanham Act by reverse
palming off. The count specifically alleges that: (1) Buhimschi passed off research and results as
findings by “Yale researchers” rather than collaboration with a Wayne State team; (2) Buhimschi
and Yale misrepresented the research and findings in the BJOG article as being conducted at Yale
by Yale faculty; (3) Buhimschi and Yale issued a press release that attributed the work to Yale
researchers and a “Yale team” but failed to identify the names of collaborators; and (4) the article
contained false and misleading statements about where and how the research was conducted and
funded. The complaint alleged that these representations misled the scientific community as to the
origin of the research. In the complaint, this claim was titled “Reverse Palming Off,” yet it did not
cite any specific provision of the Lanham Act. In evaluating the defendants’ motion to dismiss, both
the magistrate judge and the district court held that Count I failed to state a claim under Dastar,
without evaluating whether Romero stated a claim under § 43(a)(1)(B) of the Lanham Act. Romero
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v. Buhimschi, 2:06-cv-10859 at 4 (E.D. Mich. Sept. 28, 2007); Romero v. Buhimschi, 2:06-cv-10859
at 7–11 (E.D. Mich. May 22, 2007).
To the extent that Romero’s claim relies on § 43(a)(1)(A)’s “origin of goods” prong, the
claim clearly falls within the scope of Dastar. Aside from the fact that Dastar involved a video and
this case involves a manuscript, the cases are nearly identical because both plaintiffs alleged that the
defendants used portions of the plaintiffs’ work but failed to attribute the work to the plaintiffs. And
the Court in Dastar made clear that origin did not refer to the person originating the idea and could
not be read to apply to communicative products. 539 U.S. at 32, 35. Thus, Romero’s Lanham Act
claim fails in as much as it alleges that Buhimschi and Yale failed to credit Romero’s work in the
manuscript. However, at least one Circuit has left open the possibility that a claim can be made for
misrepresenting authorship in promotional material or advertisements under § 43(a)(1)(B). See Zyla,
360 F.3d at 252 n.8. And at least a portion of Romero’s pleadings allege that Yale violated the
Lanham Act through its press release.
Assuming that a portion of Romero’s pleadings could fall under § 43(a)(1)(B)’s advertising
prong, the misconduct alleged in the pleadings would have to relate to the “nature, characteristics,
qualities, or geographic origin” of the manuscript. 15 U.S.C.A. § 1125(a). The Federal Circuit’s
decision in Baden Sports provides guidance on this issue because that court held that false
advertising materials, which claimed that basketball technology was a “Molten innovation,” did not
go to the nature, characteristics, or qualities of basketballs, but instead related to authorship of the
technology. 556 F.3d at 1305. Similarly, any advertising or promotional claim by Yale or
Buhimschi that attributed the research to a “Yale team” or “Yale researchers” appears to be related
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to authorship, rather than the nature, characteristics, or qualities of the research. Further, Romero’s
claim in this case does not fit within the Supreme Court’s dicta in Dastar, which left open the
possibility for claims to be brought under § 43(a)(1)(B). Instead, comparing Romero’s pleadings
with the allegations in Dastar, Romero’s claim closely tracks the claims made in that case. We
therefore hold that the district court properly dismissed the Lanham Act claim.
IV.
We now turn to Romero’s state-law claims, alleging breach of contract and defamation. This
court reviews a district court’s grant of summary judgment de novo. Travelers Prop. Cas. Co. of
Am. v. Hillerich & Bradsby Co., 598 F.3d 257, 264 (6th Cir. 2010). “Summary judgment is
appropriate when ‘the discovery and disclosure materials on file, and any affidavits show that there
is no genuine issue as to any material fact’ regarding any essential element of the non-moving party’s
case and the moving party is entitled to judgment as a matter of law.” Id. (quoting Fed. R. Civ. P.
56(c)). A claim lacks a genuine issue of material fact if no reasonable jury could return a verdict in
favor of the nonmoving party. Id. Michigan substantive law applies to both the contract claim and
the defamation claim. See Gass v. Marriott Hotel Servs., 558 F.3d 419, 425 (6th Cir. 2009); Uhl v.
Komatsu Forklift Co., 512 F.3d 294, 302 (6th Cir. 2008).
A.
Under Michigan law, consideration is an essential element of any contract. Yerkovich v.
AAA, 610 N.W.2d 542, 546 (Mich. 2000). The preexisting duty rule states that a contract fails for
lack of consideration where the party promises something that he is already legally bound to do.
46th Circuit Trial Court v. County of Crawford, 719 N.W.2d 553, 568 (Mich. 2006). This rule
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applies whether the preexisting duty is based on statute or contract and whether the promise at issue
is a modification to an existing agreement or whether it is a new agreement. Kassab v. Dennis, No.
283394, 2009 WL 763433 at *1 (Mich. Ct. App. Mar. 24, 2009). Michigan courts have applied this
rule to nullify contracts in a variety of contexts. See, e.g., 46th Circuit Trial Court, 719 N.W.2d at
568 (finding no contract for county to provide a certain amount of funding to a court where the
constitution required the county to provide “reasonable and necessary funds”); Yerkovich, 610
N.W.2d at 546 (finding subrogation agreement between insured and insurance company lacked
consideration because the insurance company had a preexisting duty under the policy to pay
plaintiff’s medical expenses); Pawlak v. Redox Corp., 453 N.W.2d 304, 307 (Mich. App. Ct. 1990)
(per curiam) (finding no contract between city and decedent to transport decedent to hospital because
the city had a statutorily imposed preexisting duty to provide service); Freiburger v. State of Mich.
Dep’t of Mental Health, 409 N.W.2d 821, 822 (Mich. Ct. App. 1987) (finding no contract between
decedent and state-run medical clinic to provide appropriate care because medical clinic had a
statutorily imposed duty to provide services).
In this case, Romero alleges that an implied-in-fact contract existed between himself and
Buhimschi whereby Buhimschi would list Romero as a co-author in exchange for collaboration on
the research. Romero further asserts that Buhimschi breached this contract by publishing the
manuscript in BJOG without including him as a co-author. In granting summary judgment in favor
of Buhimschi, the district court determined that Romero’s “entire collaboration with Buhimschi was
within the scope of his [federal] employment.” Romero v. Buhimschi, No. 2:06-cv-10859, 2009 WL
92226 at *6 (E.D. Mich. Jan. 14, 2009). Therefore, any contract failed for lack of consideration
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because Romero had a preexisting duty to collaborate with Buhimschi. Id. at 13. In deposition
statements, Romero described his federal job duties as requiring him to mentor faculty and fellows,
provide technical direction, review performance, provide advice, develop scientific projects, and
draft manuscripts. Romero also explicitly stated that his federal job duties required him to
collaborate with Buhimschi. Thus, the district court’s conclusion is supported by the record.
Romero nonetheless argues that the district court erred for the following reasons: (1) under
Michigan law the preexisting duty must be owed to the promisor and not a third party; (2) the
National Institute of Child Health and Human Development expected Romero to enter into an
authorship agreement with Buhimschi; and (3) even if no implied-in-fact contract existed, Romero
is entitled to specific performance under equity principles. Beginning with Romero’s first argument,
his contention that the duty must be owed to the promisor is not supported by case law. Romero
cites Yerkovich, 610 N.W.2d at 546, yet nothing in Yerkovich discusses whether the preexisting duty
rule applies solely in the context of a promisor-promisee relationship. Romero also cites the
Restatement (Second) of Contracts § 73, which notes in the comments that “the tendency of the law
has been simply to hold that performance of contractual duty can be consideration if the duty is not
owed to the promisor.” While this section might provide support for Romero’s argument, there is
no indication that Michigan courts have adopted it. Further, Romero’s preexisting duty existed
within the context of his federal employment. And both Michigan courts and the Restatement
recognize that the performance of a preexisting duty is not consideration when the legal duty is owed
by a public official. See, e.g., 46th Circuit Trial Court, 719 N.W.2d at 568 (finding no contract for
county to provide a certain amount of funding to court where constitution required county to provide
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“reasonable and necessary funds”); Restatement (Second) Contracts § 73, cmt. b (stating that public
duties cannot form legal consideration).
Romero also argues that National Institute of Child Health and Human Development
expected him to enter into an authorship agreement with Buhimschi. To support his argument,
Romero cites the NIH’s Guidelines for the Conduct of Research, which highlights the importance
of publishing scientific research and recommends open discussions on authorship. Romero attempts
to elevate these guidelines into explicit authority to enter into a contract. However, this argument
is unavailing because the document which Romero cites plainly states in the introduction that it “is
not meant to codify a set of rules, but rather to elucidate, increase awareness and stimulate discussion
. . . .” The advice in these guidelines, recommending that “authorship issues[] be discussed openly,”
simply does not form a legal basis on which to enforce an implied contract between Romero and
Buhimschi, given that Romero had a preexisting duty to collaborate with Buhimschi.
Finally, Romero claims that he is entitled to specific performance under principles of equity
or unjust enrichment.3 Romero did not include this equity theory in his pleadings. Instead, in his
response to Buhimschi’s motion for summary judgment, Romero requested leave to amend his
pleadings to include this theory. Romero then formally filed a motion to amend, which the district
court denied in its order granting summary judgment in favor of Buhimschi and Yale. Thus, this
issue is technically before us on review from the district court’s denial of Romero’s motion to amend
3
Romero vaguely labels his claim as one for quasi-contract, without citing any specific
Michigan case law. Under Michigan law, claims for implied-in-law contracts are labeled “quantum
meruit” or “unjust enrichment.” Daimler-Chrysler Servs. N. Am. v. Summit Nat’l Inc., 289 F. App’x
916, 924–25 (6th Cir. 2008).
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his complaint. This court reviews a district court’s denial of a motion for leave to amend a
complaint for an abuse of discretion. Total Benefits Planning Agency v. Anthem Blue Cross & Blue
Shield, 552 F.3d 430, 437 (6th Cir. 2008). “A motion to amend a complaint should be denied if the
amendment is brought in bad faith, for dilatory purposes, results in undue delay or prejudice to the
opposing party, or would be futile.” Colvin v. Caruso, 605 F.3d 282, 294 (6th Cir. 2010) (quoting
Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995)). When the district court denies the motion
on the basis of futility, we review the decision de novo. Riverview Health Inst. v. Med. Mut. of Ohio,
601 F.3d 505, 512 (6th Cir. 2010).
In denying Romero’s motion, the district court simply stated that “[b]ecause the Court
concludes that there was no consideration to support any contract between the parties, it will not
consider . . . Romero’s motion.” Romero, 2009 WL 92226 at *4. The exact basis of this denial is
not entirely clear to us. However, it appears to be based on futility, so we review the decision de
novo. See Riverview Health Inst., 601 F.3d at 512. To make a case for unjust enrichment, the
plaintiff must not only show that the defendant received a benefit but that “the circumstances of its
receipt or retention are such that, as between the two persons, it is unjust for [the defendant] to retain
it.” Dumas v. Auto Club Ins. Ass’n, 473 N.W.2d 652, 663 (Mich. 1991) (quoting Restatement
Restitution § 1, cmt. c). Romero’s brief does not contend that it would be unjust for Buhimschi to
retain the benefit of his collaboration, rather he simply urges the court to allow the amended
complaint based on general equity principles. Because Romero has not provided a proper legal basis
to reverse the district court’s denial, we affirm the district court’s decision.
B.
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Finally, we review the district court’s grant of summary judgment in favor of the defendants
on the defamation claim. To establish a claim for defamation under Michigan law, a plaintiff must
show “(1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged
communication to a third party, (3) fault amounting at least to negligence on the part of the
publisher, and (4) either actionability of the statement irrespective of the special harm (defamation
per se) or the existence of special harm caused by the publication.” Mitan v. Campbell, 706 N.W.2d
420, 421 (Mich. 2005) (per curiam). Michigan courts have repeatedly recognized that a publication
is absolutely privileged if the defamed party invited or consented to the publication. See, e.g., Hieke
v. Guevara, No. 09-10427-BC, 2010 WL 538300 at *5 (E.D. Mich. Feb. 9 2010); Ramsey v.
Speedway SuperAmerica LLC, No. 279034, 2008 WL 3541206 at *4–5 (Mich. Ct. App. Aug. 14,
2008); Leftwich v. Lula Belle Stewart Ctrs., No. 270089, 2006 WL 3304190 at *2 (Mich. Ct. App.
Nov. 14, 2006) (per curiam); Jaafar v. Sabon, No. 229992, 2002 WL 1482605 at *1 (Mich. Ct. App.
July 9, 2002) (per curiam); Med. Planning Consulting v. St. Mary’s Med. Ctr., No. 214018, 2000 WL
33418859 at *5 (Mich. Ct. App. June 13, 2000) (per curiam); Hollowell v. Career Decisions, Inc.,
298 N.W.2d 915, 922 (Mich. Ct. App. 1980); Merritt v. Detroit Mem. Hosp., 265 N.W.2d 124, 127
(Mich. App. Ct. 1978); Schechet v. Kesten, 141 N.W.2d 641, 644 (Mich. Ct. App. 1966). The
privilege can be both express or implied. Ramsey, 2008 WL 3541206 at *4 (quoting 50 Am. Jur. 2d
Libel & Slander § 254). An absolutely privileged communication is not subject to a defamation
claim even if the statement was false or malicious. Oesterle v. Wallace, 725 N.W.2d 470, 474
(Mich. Ct. App. 2006).
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A Michigan appellate court has recognized the absolute privilege of consent in a case where
the plaintiff’s attorney sent a letter to the defendant threatening to file suit for breach of contract and
requesting a response. Med. Planning Consulting, 2000 WL 33418859 at *2. The Michigan Court
of Appeals determined that the plaintiff had invited the defamatory statements by sending the letter.
Id. at *4–5. Both Michigan and federal courts have also applied the privilege of consent where
defamatory publications were sent as part of a review or investigatory process. See Heike, 2010 WL
538300 at *5 (holding that plaintiff impliedly consented to defamation where defendant made
statements to a school’s appeals committee as part of an investigation into whether the defendant-
coach harassed the plaintiff-player); Schechet, 141 N.W.2d at 644 (holding that the privilege of
consent applied to letters sent to a credentials committee at a hospital where the letters were sent as
part of the hospital’s review process for staff privileges).
In this case, Romero bases his defamation claim on three publications: (1) Buhimschi’s
republication to BJOG and Yale of her appeal letter originally sent to the Wayne State University
investigative committee; (2) Buhimschi’s republication to a deputy general counsel at Yale of Carl
Weiner’s emails to BJOG urging the journal to publish Buhimschi’s manuscript; and (3) Lawrence
Cohen’s letter to members of the Yale ad hoc committee outlining the committee’s duties. The
district court determined that Romero invited, and thus consented to, the defamations by invoking
Wayne State’s investigative proceedings, by prompting Wayne State to notify BJOG of the
authorship dispute, and by having a role in Yale forming its ad hoc committee to investigate the
Wayne State findings.
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No. 09-1195
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A reading of the allegedly defamatory publications shows that the privilege of consent applies
to Romero’s defamation claim. Beginning with the first publication, consisting of Buhimschi’s
republication of her appeal letter to BJOG and Yale, Romero’s own deposition testimony indicates
that he urged Wayne State officials to contact BJOG about the authorship dispute. By prompting
this contact with BJOG, Romero impliedly consented to Buhimschi’s defense of her manuscript.
See Schechet, 141 N.W.2d at 644. Moving to the second and third publications, both of these were
sent in the context of Yale’s investigation, after that school learned of the findings by the Wayne
State committee. In his brief, Romero admits that Wayne State officials notified Yale of its scientific
misconduct findings, as was required by Wayne State policy, and that Yale appointed its own
investigative committee after the investigation at Wayne State was complete. Further, Romero’s
own deposition testimony indicates that he initiated the investigatory proceedings at Wayne State
University, which culminated in the findings being reported to Yale. Romero therefore impliedly
consented to Buhimschi’s response to Yale officials. See Schechet, 141 N.W.2d at 644.
Romero nevertheless argues that the publications were not absolutely privileged under
Michigan law because the Michigan Supreme Court has not recognized consent as an absolute
privilege. He relies on Smutherwaite v. News Pub. Co., 83 N.W. 116 (Mich. 1900), to support his
position. In Smutherwaite, the Michigan Supreme Court specifically recognized a privilege of “self-
defense,” which arises when a defendant answers charges against him. 83 N.W. at 119. The court
found error in the trial court’s jury instructions on this issue because the instruction did not limit the
privilege based on malice and did not limit the privilege based on whether the statement was related
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No. 09-1195
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to the charges. Id. While Smutherwaite might appear at first blush to provide support for Romero’s
position, a careful reading of the case shows that it does not.
To begin with, Smutherwaite does not appear to be addressing the same privilege asserted
by Buhimschi and Yale in this case. While the trial court’s instructions in Smutherwaite used the
term “consent,” the Michigan Supreme Court’s decision discusses the privilege as being one of “self
defense.” 83 N.W. at 119. It also describes the privilege as applying where “the occasion is one
which justifies such publication,” and states that defendants have a “qualified privilege” to respond
to accusations. Id. Given that the case was published in 1900, the exact privilege at issue is difficult
to ascertain. However, a careful reading of the opinion leads us to conclude that the Smutherwaite
court addressed a qualified occasional privilege, rather than the privilege of consent.
Under the section on conditional privileges, the Restatement of Torts lists “occasions making
a publication conditionally privileged” and further lists “protection of the publisher’s interest” as a
conditional privilege. Restatement (Second) of Torts § 594. A communication falls under this
qualified occasional privilege if the circumstances surrounding the communication are such that a
reasonable belief exists that the communication “affects a sufficiently important interest of the
publisher” and “the recipient’s knowledge of the defamatory matter will be of service in the lawful
protection of this interest.” Id. This occasional privilege is separate and distinct from the privilege
of consent. Because the Smutherwaite court described the privilege as being one of “self defense”
and used the words “occasion” and “qualified” in its analysis, we believe that the case addresses the
qualified occasional privilege of protecting the publisher’s interest, rather than the privilege of
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No. 09-1195
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consent. Our reading of Smutherwaite is bolstered by the Michigan appellate courts’ treatment of
the privilege of consent.
While it is admittedly unclear whether the Michigan Supreme Court has addressed the
privilege of consent, Michigan appellate courts have clearly and consistently recognized that an
invited or consented to communication is privileged.4 Though the precedential value of these cases
is somewhat weakened by their age or unpublished status, we find these cases difficult to ignore
given their numbers. We also find it difficult to ignore these cases’ explicit description of the
privilege as being “absolute.” See, e.g., Heike, 2010 WL 538300 at *5 (citing Restatement (Second)
of Torts § 583); Leftwich, 2006 WL 3304190 at *2 (“A communication regarding a person is
absolutely privileged if the person consents to the communication.”); Jafar, 2002 WL 1482605 at
*1 (“A communication regarding a person is absolutely privileged if the person who is the subject
of the communication consented to it.”); Med. Planning Consulting, 2000 WL 33418859 at *5 (“A
communication regarding a person is absolutely privileged if the person consents to the
communication.”); Hollowell, 298 N.W.2d at 922 (“A communication regarding a person is
absolutely privileged if it is consented to.”); Merritt, 265 N.W.2d at 127 (“A communication
regarding a person is absolutely privileged if he consents to it.”); Schechet, 141 N.W.2d at 644
(“[T]he publication of false and defamatory matter of another is absolutely privileged if the other
consents thereto.”). Finally, we find it difficult to ignore the factual similarities between these cases
4
See, e.g., Hieke, 2010 WL 538300 at *5; Ramsey, 2008 WL 3541206 at *4–5; Leftwich,
2006 WL 3304190 at *2; Jaafar, 2002 WL 1482605 at *1; Med. Planning Consulting, 2000 WL
33418859 at *5; Hollowell, 298 N.W.2d at 922; Merritt, 265 N.W.2d at127; Schechet, 141 N.W.2d
at 644.
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and Romero’s case. Because this is the body of case law on which Yale and Buhimschi rely, we find
it controlling.
Moreover, none of the Michigan appellate court decisions listed above cites Smutherwaite,
which further supports our conclusion that Smutherwaite did not address the privilege of consent but
instead addressed a qualified occasional privilege.5 And if we were to reverse the district court under
the auspices of Smutherwaite, we would be ignoring this large body of Michigan case law that
recognizes an absolute privilege of consent. We would further be implying that all of these Michigan
appellate cases were wrongly decided under Smutherwaite. Notwithstanding this large body of
Michigan appellate court decisions, Romero makes persuasive arguments as to how he believes the
Michigan Supreme Court would evaluate the privilege of consent. However, his arguments are
nothing more than his own speculations. And we should look to the decisions of the intermediate
appellate courts unless we are convinced that the state supreme court would decide the issue
differently. Mike’s Train House, Inc. v. Lionell, LLC, 472 F.3d 398, 413 (6th Cir. 2006). We
therefore find the decisions of the Michigan appellate courts, recognizing an absolute privilege of
consent, controlling in this case.
Additionally, we believe that it would be problematic to rely on Smutherwaite given its age
and developments that have occurred in defamation law since the decision. Smutherwaite involved
defamatory statements published in a newspaper in the context of an election. 83 N.W. at 117. The
5
In Merritt, the Michigan appellate court applied a qualified occasional privilege to some of
the defendants’ defamatory publications and applied an absolute consent privilege to other
publications. 265 N.W.2d at 127. This opinion, therefore, indicates that these are in fact separate
privileges under Michigan law.
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No. 09-1195
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case was decided long before the Supreme Court’s seminal decision in New York Times Co. v.
Sullivan, 376 U.S. 254 (1964). While Smutherwaite’s analysis on common-law privileges might
remain good law, the holding is questionable under Sullivan. Its precedential value is therefore
dubious. Further, we note that Smutherwaite has only been cited five times in its 110-year history,
four of which occurred prior to 1916. We therefore do not believe that it controls the outcome of
this case.
Romero offers one final argument in support of his position. He argues that even if the
privilege of consent is absolute under Michigan law, the defendants in the present case exceeded the
scope of any consent. Michigan courts have noted that the consent privilege applies to those
statements relevant to the purpose for which consent was given and to those persons with a
legitimate interest in their content. Ramsey, 2008 WL 3541206 at * 4 (quoting 50 Am. Jur. 2d Libel
& Slander § 254). It is clear that Buhimschi, as well as the parties to which she published the
statements, had a legitimate interest in the content of the statements. Further, it is also clear from
Romero’s pleadings and a reading of the statements themselves that all of the allegedly defamatory
statements were relevant to the purpose for which the consent was given. Specifically, all of the
statements concerned Buhimschi’s reasons for originally including Romero as a co-author, her
reasons for removing Romero as a co-author, her views on Wayne State’s investigatory process, and
her version of Romero’s contributions to the research. While Romero might dispute the veracity of
these statements, absolute privileges apply regardless of whether the statements are false or
malicious. Oesterle, 725 N.W.2d at 474. We therefore hold that defamatory statements are
privileged under Michigan law.
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V.
For the foregoing reasons, we AFFIRM the district court’s dismissal of the Lanham Act claim
and grant of summary judgment in favor of the defendants on the contract and defamation claims.
We also DENY Romero’s motion to expand the record on appeal.
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