Edward Lewis Tobinick, MD v. Steven Novella , 848 F.3d 935 ( 2017 )

Case: 15-14889 Date Filed: 02/15/2017 Page: 1 of 32
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14889
________________________
D.C. Docket No. 9:14-cv-80781-RLR
EDWARD LEWIS TOBINICK, MD,
a medical corporation, d.b.a the Institute of Neurological Recovery,
INR PLLC,
a Florida professional limited liability company, d.b.a. Institute of Neurological
Recovery,
M.D. EDWARD TOBINICK,
an individual,
Plaintiffs - Appellants,
versus
STEVEN NOVELLA,
an individual,
SOCIETY FOR SCIENCE-BASED MEDICINE, INC.,
a Florida Corporation,
SGU PRODUCTIONS, LLC,
a Connecticut limited liability company, et al.,
Defendants - Appellees,
YALE UNIVERSITY,
a Connecticut corporation, et al.,
Defendants.
Case: 15-14889 Date Filed: 02/15/2017 Page: 2 of 32
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 15, 2017)
Before HULL and MARTIN, Circuit Judges, and RESTANI, ∗ Judge.
RESTANI, Judge:
Appellants Edward Lewis Tobinick, MD (“INR CA”), INR PLLC (“INR
FL”), and M.D. Edward Tobinick (“Dr. Tobinick”) (collectively, the “Tobinick
Appellants”) appeal the district court’s orders striking INR CA’s state law claims
pursuant to California’s anti-SLAPP statute, twice denying amendment of the
Tobinick Appellants’ complaint, denying relief pursuant to Federal Rules of Civil
Procedure (“Rule”) 37, 56(d), and 60 due to potential discovery-related abuses, and
granting summary judgment against the Tobinick Appellants on their Lanham Act
claim. We affirm the district court in all respects.
BACKGROUND
This case concerns a dispute between two doctors regarding the medical
viability of a novel use for a particular drug.
I. The Parties
∗
Honorable Jane A. Restani, Judge for the United States Court of International Trade,
sitting by designation.
2
Case: 15-14889 Date Filed: 02/15/2017 Page: 3 of 32
Dr. Tobinick is certified in internal medicine and dermatology, and he is
licensed in both California and Florida. He has two clinics that conduct business as
The Institute of Neurological Recovery: INR CA in Los Angeles, California, and
INR FL in Palm Beach County, Florida. Dr. Tobinick has developed an
unorthodox use for the drug etanercept by delivering it through perispinal
administration, which involves a needle injection near particular spinal ligaments.
Dr. Tobinick claims that this new use of etanercept is effective at treating spinal
pain, post-stroke neurological dysfunctions, and Alzheimer’s disease. Etanercept
is the generic name of Enbrel, which was first approved by the United States Food
and Drug Administration (“FDA”) in November 1998 to treat rheumatoid arthritis.
Notably, Enbrel has not been FDA approved for the purposes which Dr. Tobinick
seeks to use the drug.
Steven Novella (“Dr. Novella”) is a neurologist at Yale New Haven Hospital
in the Botulinum Program and treats patients with a variety of conditions, including
headaches, back pain, Alzheimer’s disease, dementia, and seizures. Dr. Novella
also engages in endeavors apart from these professional obligations. For instance,
he is on the board of the non-profit Society for Science-Based Medicine, Inc.
(“Society”). In addition, in May 2005, Dr. Novella began working with his brother,
Jay Novella (“Jay”), to produce and broadcast a podcast that discusses a variety of
scientific issues. This podcast, “The Skeptics Guide to the Universe,” is hosted on
3
Case: 15-14889 Date Filed: 02/15/2017 Page: 4 of 32
a website (www.theskepticsguide.org) owned by the for-profit company SGU
Productions, LLC (“SGU”). Also, Dr. Novella is the executive editor of and
contributor for the Science-Based Medicine (“SBM”) blog (www.sciencebased
medicine.org), which examines issues related to science and medicine, and is
operated by a non-profit entity, the New England Skeptical Society. 1
II. Factual Background
In response to a May 5, 2013, Los Angeles Time article discussing Dr.
Tobinick’s novel treatments, Dr. Novella published an article “Enbrel for Stroke
and Alzheimer’s” in SBM’s blog on May 8, 2013 (the “first article”). In this six-
page article, Dr. Novella explains that he learned of the Los Angeles Time article,
the typical characteristics of “quack clinics” or “dubious health clinics,” the key
features of Dr. Tobinick’s clinic, and lastly the plausibility of and the evidence
supporting Dr. Tobinick’s allegedly effective use of etanercept. Particularly
relevant to this case, Dr. Novella also quotes a portion of the Los Angeles Time
article, which reported that “[Dr. Tobinick’s] claims about the back treatment led to
an investigation by the California Medical Board, which placed him on probation
for unprofessional conduct and made him take classes in prescribing practices and
1
The Society is a separate entity from the SBM blog. The Society has its own website that was
first made available to the public on January 1, 2014.
4
Case: 15-14889 Date Filed: 02/15/2017 Page: 5 of 32
ethics.” Am. Compl. Ex. 1 at 3, Edward Lewis Tobinick, MD v. Novella, No. 9:14-
cv-80781-RLR (S.D. Fla. Aug. 1, 2014), ECF No. 55 (“Am. Compl.”).
On June 9, 2014, the Tobinick Appellants filed a complaint against Appellees
Dr. Novella, the Society, SGU (collectively, the “Novella Appellees”), and also
Yale University (“Yale”), challenging Dr. Novella’s first article. In response to the
lawsuit and on July 23, 2014, Dr. Novella published another article in SBM’s blog
entitled “Another Lawsuit To Suppress Legitimate Criticism – This Time SBM”
(the “second article”). In the second article, Dr. Novella details the lawsuit filed by
the Tobinick Appellants and provides Dr. Novella’s view that the lawsuit is
designed to silence his public criticism of Dr. Tobinick’s practices. He also restates
in large part his same criticisms of Dr. Tobinick’s practices as set forth in the first
article. In doing so, Dr. Novella again mentions the Medical Board of California
(“MBC”)’s investigation into Dr. Tobinick’s practices, explains that the MBC “filed
an accusation in 2004, amended in 2005 and 2006,” and lists in detail the different
allegations made in the 2004 Accusation against Dr. Tobinick. Am. Compl. Ex. 5
at 3–4.2
2
The Society’s website also contains a short entry about Dr. Tobinick’s use of etanercept. The
entry discusses the MBC’s 2006 Second Amended Accusation and subsequent settlement and Dr.
Novella’s criticism of Dr. Tobinick. The entry also links to Dr. Novella’s entire article on the
SBM blog.
5
Case: 15-14889 Date Filed: 02/15/2017 Page: 6 of 32
III. Course of Proceedings
As stated above, the Tobinick Appellants filed their initial complaint on June
9, 2014. On June 11, 2014, the Tobinick Appellants moved for a preliminary
injunction to enjoin the Novella Appellees from continuing to display the articles.
On August 1, 2014, the Tobinick Appellants filed an amended complaint to add
allegations relating to the second article that was published just nine days prior.
This operative amended complaint contests several aspects of the first article,
including claims that these neurological conditions “not known to be immune
mediated [can be] treated by a specific immunosuppressant,”3 claims that Dr.
Tobinick’s retrospective case studies are not probative medical evidence,
implications that Dr. Tobinick is committing a health fraud, statements that Dr.
Tobinick’s clinics are “a one-man institute,” and that Florida is a “very quack-
friendly state.” Am. Compl. ¶¶ 54, 60, 63, 69, 71. Regarding the second article, the
Tobinick Appellants’ operative complaint specifically takes issue with only one
new statement therein, that “there have been no double-blind placebo-controlled
clinical trials of the treatment provided by [Dr. Tobinick].” Am. Compl. ¶ 102.
These disputes are covered in the operative complaint by the following causes of
3
According to Dr. Novella, his statement that the neurological conditions treated by Dr.
Tobinick are “not known to be immune mediated” means “that the current consensus is not that
these conditions are primarily caused by or driven by an autoimmune disease that could be
modified by this treatment.” Dep. of Steven Novella, M.D., at 35–36, Edward Lewis Tobinick,
MD v. Novella, No. 9:14-cv-80781-RLR (S.D. Fla. Sept. 1, 2015), ECF No. 261-9. Dr. Novella
identified etanercept as an example of an immunosuppressant. Id.
6
Case: 15-14889 Date Filed: 02/15/2017 Page: 7 of 32
action: violation of the Lanham Act, 15 U.S.C. § 1125(a) (Count I); common law
unfair competition (Count II); trade libel (Count III); libel per se (Count IV); and
tortious interference with business relationships (Count V).
On August 8, 2014, and August 13, 2014, SGU and Yale, respectively,
moved to dismiss the action as to them for lack of personal jurisdiction. On August
11, 2014, Dr. Novella moved to dismiss all claims against him for various reasons.
On August 18, 2014, the Society moved to dismiss the action against it for failure to
state a claim, or for summary judgment, because, inter alia, the Society did not
engage in false advertising under the Lanham Act.
On September 25, 2014, pursuant to SGU’s and Yale’s motions to dismiss
for lack of personal jurisdiction, the district court dismissed each from the case. On
September 30, 2014, Dr. Novella invoked California’s anti-SLAPP law4 and moved
to strike the only California plaintiff’s, INR CA’s, state law claims. On January 23,
2015, the district court denied Dr. Novella’s motion to dismiss in nearly all respects
but granted his motion to dismiss Count V of the amended complaint, i.e., the
tortious interference claim, because Florida’s single publication rule barred that
claim. The Tobinick Appellants do not challenge this dismissal on appeal.
4
The purpose of the anti-SLAPP law is to curb the “increase in lawsuits brought primarily to
chill the valid exercise of the constitutional rights of freedom of speech and petition for the
redress of grievances.” See Cal. Civ. Proc. Code § 425.16(a). Such causes of action are subject
to a special motion to strike. Id. § 425.16(b)(1).
7
Case: 15-14889 Date Filed: 02/15/2017 Page: 8 of 32
On March 16, 2015, after converting the Society’s motion to dismiss into a
motion for summary judgment, the district court granted summary judgment in
favor of the Society with respect to the Lanham Act (Count I) and the unfair
competition (Count II) claims, explaining that the articles were not commercial
speech. The district court also dismissed without prejudice the trade libel (Count
III) and libel per se (Count IV) claims against the Society because the Tobinick
Appellants failed to properly notice the Society of these claims as required by
Florida law. The district court, therefore, dismissed the Society from the action, but
it did provide the Tobinick Appellants leave to re-file their claims against the
Society in a separate suit.5 On April 2, 2015, following limited discovery, the
district court denied the Tobinick Appellants’ motion for a preliminary injunction.
On May 11, 2015, the deadline for amended pleadings, the Tobinick
Appellants moved for leave to file a second amended complaint, adding new
factual allegations some of which related to new webpages and a podcast that
discussed Dr. Tobinick,6 raising a new claim for common law civil conspiracy, re-
5
On appeal, the Tobinick Appellants do not explicitly challenge the order granting summary
judgment in favor of the Society. Their discovery-related requests for relief could be generously
construed as a challenge to the validity of this summary judgment order. But, because we
conclude that the district court did not abuse its discretion in denying the requests for discovery-
related relief, we see no remaining challenge to the grant of summary judgment in favor of the
Society.
6
More precisely, the Tobinick Appellants add allegations regarding (1) a July 23, 2014, legal
defense webpage on SGU’s website, which requests donations to help defend against the
Tobinick Appellants’ suit, (2) a July 26, 2014, SGU podcast that discusses Dr. Tobinick’s
(continued . . . )
8
Case: 15-14889 Date Filed: 02/15/2017 Page: 9 of 32
asserting claims against the previously-dismissed defendant SGU, and inserting
two new defendants—Jay and Paul Ingraham (“Ingraham”), a co-blogger of Dr.
Novella. On May 15, 2015, the Tobinick Appellants filed a corrected version of
their motion for leave to amend.
On June 4, 2015, the district court granted Dr. Novella’s special motion to
strike INR CA’s state law claims (“anti-SLAPP order”). On June 18, 2015, the
district court issued an omnibus order denying the Tobinick Appellants’ corrected
motion for leave to file a second amended complaint. In that omnibus order, the
district court also granted Dr. Tobinick’s and INR FL’s request for voluntary
dismissal of Counts III and IV for trade libel and libel per se, respectively. Shortly
thereafter, on June 25, 2015, Dr. Novella filed his answer to the operative amended
complaint.
On August 18, 2015, the Tobinick Appellants again moved for leave to file
another second amended complaint in order to add a claim under the Florida
Deceptive and Unfair Trade Practices Act (“FDUTPA”). On August 20, 2015, the
district court denied the Tobinick Appellants’ motion.
On August 25, 2015, Dr. Novella moved for summary judgment on all
remaining claims. On September 1, 2015, the Tobinick Appellants filed two
medical treatments, the transcript of which was published on August 7, 2014, and (3) an April 1,
2015, article in SBM’s blog that provided an update on the status of the litigation against the
Tobinick Appellants.
9
Case: 15-14889 Date Filed: 02/15/2017 Page: 10 of 32
motions based on the allegation that Dr. Novella provided false deposition
testimony, one motion pursuant to Rule 37 seeking sanctions and one pursuant to
Rule 60(b) seeking reconsideration of the district court’s anti-SLAPP order. The
Tobinick Appellants argued that Dr. Novella falsely denied that he had
communicated with the author of the May 5, 2013, Los Angeles Times article;
denied that he had ever discussed Dr. Tobinick with Ingraham; and denied
communicating with another physician, Stephen Barrett, regarding Dr. Tobinick.
On September 15, 2015, the district court denied each of the Tobinick
Appellants’ motions based on the alleged discovery-related abuses. On October 2,
2015, the district court found that Dr. Novella’s speech is not commercial and then
granted summary judgment in favor of Dr. Novella on both remaining claims. The
district court reasoned that the Tobinick Appellants largely based their unfair
competition claim (Count II) on their Lanham Act false advertising claim (Count I).
The Tobinick Appellants now appeal.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction of this appeal pursuant to 28 U.S.C. § 1291. We
review de novo “the district court’s interpretation and application of a statute” such
as California’s anti-SLAPP statute. Royalty Network, Inc. v. Harris, 756 F.3d
1351, 1354 (11th Cir. 2014). We review for an abuse of discretion the district
court’s denial of leave to amend and the denial of requests for relief brought under
10
Case: 15-14889 Date Filed: 02/15/2017 Page: 11 of 32
Rules 37, 56(d), and 60(b). World Holdings, LLC v. Fed. Republic of Germany,
701 F.3d 641, 649, 654–55 (11th Cir. 2012) (Rule 56(d)); Garfield v. NDC Health
Corp., 466 F.3d 1255, 1270 (11th Cir. 2006) (leave to amend); Serra Chevrolet,
Inc. v. Gen. Motors Corp., 446 F.3d 1137, 1146–47 (11th Cir. 2006) (Rule 37);
Cox Nuclear Pharmacy, Inc. v. CTI, Inc., 478 F.3d 1303, 1314 (11th Cir. 2000)
(Rule 60(b)).
Further, we review a grant of summary judgment de novo, “viewing all facts
in the light most favorable to the nonmoving party and drawing all reasonable
inferences in favor of that party.” McCullum v. Orlando Reg’l Healthcare Sys.,
Inc., 768 F.3d 1135, 1141 (11th Cir. 2014). “Summary judgment is appropriate
where there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.” Id.
DISCUSSION
I. Dr. Novella’s Special Motion to Strike
The Tobinick Appellants challenge the district court’s anti-SLAPP order on
two grounds. First, the Tobinick Appellants contend that the district court erred in
adopting the anti-SLAPP expedited procedures because doing so “trampled federal
procedure and constitutional rights” and violated the doctrine of Erie R. Co. v.
Tompkins, 304 U.S. 64 (1938). Second, the Tobinick Appellants argue the district
court’s determination that there was no evidence of actual malice by Dr. Novella is
11
Case: 15-14889 Date Filed: 02/15/2017 Page: 12 of 32
erroneous. Dr. Novella responds that the Tobinick Appellants waived their Erie
claim and, in the alternative, that the district court did not err on the merits of that
claim. Dr. Novella also avers that the Tobinick Appellants fail to point to evidence
of actual malice.
A. Waiver of Erie Claim
We do not consider an issue “not raised in the district court and raised for
the first time in an appeal.” Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324,
1331 (11th Cir. 2004) (quoting Walker v. Jones, 10 F.3d 1569, 1572 (11th Cir.
1994)). We have recognized exceptions to the waiver doctrine, including, inter
alia, where there is a: (1) “pure question of law, and if refusal to consider would
result in a miscarriage of justice[,]” or (2) “no opportunity to raise [the objection]
at the district court level.” Id. at 1332 (quoting Wright v. Hanna Steel Corp., 270
F.3d 1336, 1342 (11th Cir. 2001)).
The Tobinick Appellants waived their challenge to the district court’s
application of California’s anti-SLAPP statute based on the Erie doctrine. The
Tobinick Appellants did not raise the Erie claim in their response to Dr. Novella’s
special motion to strike INR CA’s state law claims, nor do the Tobinick Appellants
now contend that they ever raised the issue before the district court. Moreover,
when asked by the district judge “what about the issue of anti-SLAPP statutes
applying in diversity cases in federal court?” the Tobinick Appellants’ counsel
12
Case: 15-14889 Date Filed: 02/15/2017 Page: 13 of 32
responded “[t]here seems to be a plethora of case law that suggests that it is
allowable in diversity actions in federal court.” Tr. of Mot. Hr’g, at 26, Edward
Lewis Tobinick, MD v. Novella, No. 9:14-cv-80781-RLR (S.D. Fla. Nov. 20,
2014), ECF No. 113. The Tobinick Appellants, therefore, waived the issue. See,
e.g., NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C., 745 F.3d 742, 753–54 (5th Cir.
2014) (deeming waived party’s argument that Texas’ anti-SLAPP statute conflicts
with the certain federal Rules).
No exception to waiver saves the Tobinick Appellants’ claim. The Tobinick
Appellants have not identified any miscarriage of justice resulting from a finding
of waiver, nor do we see one, given the weakness of the Tobinick Appellants’ state
law claims. 7 Furthermore, not only did the Tobinick Appellants squarely concede
the Erie issue at the hearing, the district court nevertheless considered the argument
in its anti-SLAPP order. The district court acted reasonably in applying
California’s anti-SLAPP statute to the state law claims, stating that “the majority of
circuit courts have found anti-SLAPP special motions to strike permissible, and . . .
the specific anti-SLAPP statute at issue has previously been allowed in federal
court.” Edward Lewis Tobinick, MD v. Novella, 108 F. Supp. 3d 1299, 1305 n.4
(S.D. Fla. 2015) (“Tobinick”). Moreover, that the Seventh Circuit’s June 29, 2015,
7
As reflected in the discussion of actual malice, infra, it seems highly unlikely that the Tobinick
Appellants’ state law claims would survive even without the availability of an anti-SLAPP
motion.
13
Case: 15-14889 Date Filed: 02/15/2017 Page: 14 of 32
decision in Intercon Solutions, Inc. v. Basel Action Network, on which the
Tobinick Appellants rely, had not been issued until after the district court issued its
June 4, 2015, anti-SLAPP order does not excuse the Tobinick Appellants’ waiver.
See 791 F.3d 729, 731–32 (7th Cir. 2015) (holding that Washington’s anti-SLAPP
statute was inapplicable in federal court after that state’s highest court interpreted
that anti-SLAPP statute as going beyond a summary judgment procedure and as
violating the right to a trial by a jury by requiring a judge to make factual findings).
First, Intercon is obviously of limited applicability. Second, notwithstanding
the date of the Intercon decision, the Tobinick Appellants explicitly conceded the
Erie issue at the hearing in which Dr. Novella’s counsel alerted the district court of
that potential issue. Even more telling, the Tobinick Appellants did not raise the
Erie issue in their September 1, 2015, motion for reconsideration of the district
court’s anti-SLAPP order, which was filed months after Intercon had been decided.
Accordingly, we decline to consider the merits of the Tobinick Appellants’ Erie-
based challenge for the first time on appeal.
B. Actual Malice
In applying California’s anti-SLAPP statute, 8 the district court reasoned that
Dr. Tobinick was a limited public figure 9 and that he had not produced evidence of
8
The anti-SLAPP statute provides:
(continued . . . )
14
Case: 15-14889 Date Filed: 02/15/2017 Page: 15 of 32
actual malice such that INR CA, Dr. Tobinick’s California entity, had a probability
of prevailing on its state law claims. Tobinick, 108 F. Supp. 3d at 1308, 1309; see
Cal. Civ. Proc. Code § 425.16(b)(1). The Tobinick Appellants challenge only the
latter holding regarding actual malice.
Actual malice is defined as “with knowledge that [a statement] was false or
with reckless disregard of whether it was false or not” and must be shown “by clear
and convincing evidence.” Reader’s Digest Ass’n, Inc. v. Superior Court, 690
P.2d 610, 617 (Cal. 1984) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 280
(1964)). To show reckless disregard for truth or falsity, California courts apply a
subjective test in which “[t]here must be sufficient evidence to permit the
conclusion that the defendant in fact entertained serious doubts as to the truth of
A cause of action against a person arising from any act of that person in
furtherance of the person’s right of petition or free speech under the United States
Constitution or the California Constitution in connection with a public issue shall
be subject to a special motion to strike, unless the court determines that the
plaintiff has established that there is a probability that the plaintiff will prevail on
the claim.
Cal. Civ. Proc. Code § 425.16(b)(1).
9
As we have explained, the Supreme Court has identified two types of public figures in this
context. An all-purpose public figure is one that “occup[ies] positions of such persuasive power
and influence that they are deemed public figures for all purposes.” Silvester v. Am. Broad.
Cos., 839 F.2d 1491, 1494 (11th Cir. 1988) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323,
345 (1974)). A limited public figure, by contrast, “ha[s] thrust [himself] to the forefront of
particular public controversies in order to influence the resolution of the issues involved.” Id.
(quoting Gertz, 418 U.S. at 345). Both types of public figures must prove that the defamatory
statements were made with actual malice. See Gertz, 418 U.S. at 336; Reader’s Digest Ass’n,
Inc. v. Superior Court, 690 P.2d 610, 615 (Cal. 1984) (“Unlike the ‘all purpose’ public figure,
the ‘limited purpose’ public figure loses certain protection for his reputation only to the extent
that the allegedly defamatory communication relates to his role in a public controversy.”).
15
Case: 15-14889 Date Filed: 02/15/2017 Page: 16 of 32
his publication.” Id. at 617–18 (quoting St. Amant v. Thompson, 390 U.S. 727,
731 (1968)). California courts consider factors such as “[a] failure to investigate,
anger and hostility toward the plaintiff, [and] reliance upon sources known to be
unreliable or known to be biased.” Id. at 618–19 (citations omitted); see Christian
Research Inst. v. Alnor, 55 Cal. Rptr. 3d 600, 612 (Cal. Ct. App. 2007).
The Tobinick Appellants have not presented evidence that rises to the level
of actual malice. The Tobinick Appellants believe there is actual malice because
(1) Dr. Novella improperly relied on the MBC’s 2004 Accusation, which had been
superseded by a 2006 Second Amended Accusation, (2) Dr. Novella provided false
declarations to the district court because one declaration indicates that, in
researching the articles, Dr. Novella relied on the MBC’s 2004 Accusation and
other declarations state he relied on the MBC’s 2006 Second Amended
Accusation, (3) the articles contained false statements, such as claiming Dr.
Tobinick ran a “one-man institute,” and (4) Dr. Novella’s deposition included false
testimony regarding communications with certain third-parties. Here, even all of
the Tobinick Appellants’ circumstantial evidence taken as true is insufficient to
show that Dr. Novella had serious doubts as to the truth of the content contained in
his two articles.
Contrary to the Tobinick Appellants’ arguments, the evidence indicates that
Dr. Novella consulted both the MBC’s 2004 Accusation and the 2006 Second
16
Case: 15-14889 Date Filed: 02/15/2017 Page: 17 of 32
Amended Accusation. We see no reason why the fact that Dr. Novella consulted
the 2006 document precludes him from having also consulted the 2004 document.
Notwithstanding the alleged discrepancy, the Tobinick Appellants are unable to
point to a definitively false statement in either of Dr. Novella’s articles stemming
from the reliance on the 2004 Accusation.10 Instead, Dr. Novella’s second article
explicitly acknowledges that the MBC’s 2004 Accusation was amended in 2006,
thereby laying credence to the belief that Dr. Novella had seen both documents.
Similarly, the allegedly false statements in Dr. Novella’s articles and the
inconsistencies in his deposition testimony are insufficient to demonstrate actual
malice. Neither speaks to whether Dr. Novella was “aware of any erroneous
statements or [was] in any way reckless in that regard” when he wrote the articles.
Sullivan, 376 U.S. at 286. The mere existence of a false statement does not, on its
own, demonstrate Dr. Novella’s knowledge of its falsity. Tellingly, the Tobinick
Appellants are unable to show that many of Dr. Novella’s statements are actually
10
The Tobinick Appellants do state that both the 2004 Accusation and the 2006 Second
Amended Accusation were superseded by an MBC 2007 Decision adopting a Stipulated
Settlement and Disciplinary Order, which recognized that “studies . . . have provided evidence
that perispinal etanercept is effective for treatment of disc-related pain.” Pls.’ Corrected Rule
60(b) Mot. for Relief from June 4, 2015 Order and Sanctions and Incorporated Mem. of Law Ex.
29, at 4, Edward Lewis Tobinick, MD v. Novella, No. 9:14-cv-80781-RLR (S.D. Fla. Sept. 1,
2015), ECF No. 261. The Tobinick Appellants do not identify which of Dr. Novella’s statements
is in conflict with this settlement; instead, they seems to imply that Dr. Novella’s articles are
misleading as to existence of these studies incorporated in the MBC’s 2007 Decision. Not only
is this implication on its own insufficient to rise to the level of actual malice, but Dr. Novella’s
second article appears to reference these very studies. The second article admits that “[t]here are
small studies for disc herniation showing conflicting results.” Am. Compl. Ex. 5 at 3.
17
Case: 15-14889 Date Filed: 02/15/2017 Page: 18 of 32
false or that they are anything more than medical or personal opinion. As an
example, the Tobinick Appellants rely on Dr. Novella’s characterization of Florida
as a “very quack-friendly state,” Am. Compl. ¶ 71, but this statement is plainly Dr.
Novella’s opinion and cannot be proven as true or false. The Tobinick Appellants,
instead, point to isolated statements, which do not pertain to the article’s essential
criticism of Dr. Tobinick’s medical practices, as evidence that Dr. Novella
recklessly included falsities in the article. But, this evidence at most demonstrates
mere negligence and does not raise to the level of reckless disregard needed to
prove actual malice. See Sullivan, 376 U.S. at 271–72 (“[E]rroneous statement is
inevitable in free debate, and . . . it must be protected if the freedoms of expression
are to have the ‘breathing space’ that they ‘need to survive[.]’”). For instance, the
Tobinick Appellants allege that Dr. Novella “falsely implies” that Dr. Tobinick’s
clinics “have committed a health fraud insomuch as the [first article] was placed
into a category identified as ‘Health Fraud.’” Am. Compl. ¶ 63. The article itself,
however, never states that Dr. Tobinick is committing or has committed health
fraud. And, placement in a category on a website is insufficient here where there is
no evidence that Dr. Novella decided in which category the article would be
included. Furthermore, regarding the “one-man institute” comment, the Tobinick
Appellants have failed to rebut Dr. Novella’s statement that he looked at the
websites for Dr. Tobinick and his clinic and “Dr. Tobinick [was] the only
18
Case: 15-14889 Date Filed: 02/15/2017 Page: 19 of 32
physician named and profiled on the websites.” Def. Dr. Steven Novella’s Mot. to
Dismiss Ex. 1, ¶ 30, Edward Lewis Tobinick, MD v. Novella, No. 9:14-cv-80781-
RLR (S.D. Fla. July 23, 2014), ECF No. 36. Dr. Novella’s statement is reasonably
held, as the name of Dr. Tobinick’s California clinic, “Edward Lewis Tobinick,
MD,” further supports his belief that “Dr. Tobinick was a solo practicioner[.]” Id.
Instead, as the district court acknowledged, Dr. Novella’s articles contain “a more
nuanced discussion of the issues than [INR CA’s] pleading admits.” Tobinick, 108
F. Supp. 3d at 1311.
As to the allegedly false statements in the deposition testimony, they relate
primarily to Dr. Novella’s communications with certain third-parties after the first
article had been published and do not speak to Dr. Novella’s knowledge of the
accuracy of the statements made in either of his articles. In any event, as discussed
infra, the Tobinick Appellants’ challenges to Dr. Novella’s allegedly false
deposition testimony are based on mere conjecture and, if true, at most
demonstrate ill will towards Dr. Tobinick, likely based on differing views on
medical matters. See Reader’s Digest Ass’n, 690 P.2d at 619 (“[M]ere proof of ill
will on the part of the publisher may . . . be insufficient [to prove actual malice].”).
Moreover, although “[t]he failure to conduct a thorough and objective
investigation, standing alone, does not prove actual malice,” id. at 619, we
conclude that the evidence of Dr. Novella’s investigation, in which he looked to
19
Case: 15-14889 Date Filed: 02/15/2017 Page: 20 of 32
trustworthy sources, demonstrates his lack of subjective belief that the articles
contained false statements. Before writing, Dr. Novella consulted the Los Angeles
Times article, many of Dr. Tobinick’s case studies, the MBC’s accusations, and the
Tobinick Appellants’ own websites. See Tobinick, 108 F. Supp. 3d at 1310.
Accordingly, because the Tobinick Appellants have not demonstrated a probability
of success on the actual malice issue, the district court did not err in granting Dr.
Novella’s special motion to strike the state law claims pursuant to California’s
anti-SLAPP statute.
II. The Tobinick Appellants’ Motion for Leave to Amend
The Tobinick Appellants argue that the district court erred in twice denying
them leave to amend the operative complaint because there would not have been
prejudice to the Novella Appellees.
Rule 15 provides that “[a] party may amend its pleading once as a matter of
course . . . .” Fed. R. Civ. P. 15(a)(1). And “[i]n all other cases, a party may
amend its pleading only with . . . the court’s leave. The court should freely give
leave when justice so require.” Id. 15(a)(2). The Supreme Court has explained
that a district court may properly deny leave to amend for reasons “such as undue
delay.” Foman v. Davis, 371 U.S. 178, 182 (1962).
The district court did not abuse its discretion in twice denying leave to
amend the operative complaint. Both motions for leave to amend were sought
20
Case: 15-14889 Date Filed: 02/15/2017 Page: 21 of 32
approximately a year after the Tobinick Appellants filed the original complaint.
By the time the Tobinick Appellants sought amendment, the course of proceedings
had been markedly advanced—the district court had dismissed SGU and Yale for
lack of personal jurisdiction, dismissed Count V of the operative complaint,
granted summary judgment in favor of the Society, and denied the Tobinick
Appellants’ motion for preliminary injunction. The Tobinick Appellants filed the
first motion for leave to amend on the deadline for amended pleadings and sought
extensive changes to the operative complaint: they alleged new factual allegations,
added a civil conspiracy claim, reinserted previously-dismissed SGU back into the
case, and added two new defendants. The second motion to amend also sought to
supplement the complaint with the new FDUTPA cause of action.
In denying the first motion, the district court reasonably concluded that
allowing amendment “would essentially reset the case.” Omnibus Order, at 2,
Edward Lewis Tobinick, MD v. Novella, No. 9:14-cv-80781-RLR (S.D. Fla. June
18, 2015), ECF No. 202. The district court noted the “aggressively litigated”
course of proceedings, the extent of the amendments sought by the Tobinick
Appellants, and the fact that the Tobinick Appellants “could only identify a limited
number of recent statements incorporated into the proposed” complaint. Id. at 1–2.
Indeed, many of the new factual allegations added by the Tobinick Appellants
related to the legal defense webpage and the SGU podcast, which were both
21
Case: 15-14889 Date Filed: 02/15/2017 Page: 22 of 32
initially published in July 2014, nearly a year before the Tobinick Appellants filed
their first motion for leave to amend. Similarly, the district court denied the
second motion, which was filed after the deadline for amended pleadings, in a
docket entry “for all of the reasons previously stated on the record at the Court’s
Status Conference on June 18, 2015, as well as the timing of the Motion in relation
to the dispositive motion deadline, which is imminent, and trial, which is two
months hence.” Paperless Order, Edward Lewis Tobinick, MD v. Novella, No.
9:14-cv-80781-RLR (S.D. Fla. Aug. 20, 2015), ECF No. 245. Thus, even though
Dr. Novella had not yet filed his answer, the district court did not abuse its
discretion because it properly sought to prevent an undue delay caused by the
Tobinick Appellants’ last-minute attempts to amend their complaint.
III. The Tobinick Appellants’ Discovery-Related Requests for Relief
The Tobinick Appellants argue that the district court abused its discretion in
not granting relief under Rules 37, 56(d), and 60(b) because Dr. Novella misled the
Tobinick Appellants and the district court through his deposition testimony,
thereby prejudicing the Tobinick Appellants by an unfavorable summary judgment
ruling.
22
Case: 15-14889 Date Filed: 02/15/2017 Page: 23 of 32
Under Rule 60(b), a party may move for relief from a final judgment or
order, for reasons including fraud. Fed. R. Civ. P. 60(b).11 The moving party must
show “by clear and convincing evidence that an adverse party has obtained the
verdict through fraud, misrepresentation, or other misconduct.” Cox Nuclear
Pharmacy, 478 F.3d at 1314 (quoting Frederick v. Kirby Tankships, Inc., 205 F.3d
1277, 1287 (11th Cir. 2000)).
Under Rule 37(b)(2), a party may move for sanctions for failure to comply
with a discovery order. Fed. R. Civ. P. 37(b)(2). A district court has broad
discretion in applying these sanctions, and “a default judgment sanction,” as
requested by the Tobinick Appellants, “requires a willful or bad faith failure to
obey a discovery order.” Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1542
(11th Cir. 1993).
Rule 56(d) provides: “[i]f a nonmovant shows by affidavit or declaration
that, for specified reasons, it cannot present facts essential to justify its opposition,
the court may: (1) defer considering the motion or deny it; (2) allow time to obtain
affidavits or declarations or to take discovery; or (3) issue any other appropriate
order.” Fed. R. Civ. P. 56(d).
11
Because the Tobinick Appellants did not specify the grounds on which they were moving, the
district court reasonably construed the basis as for “fraud . . . , misrepresentation, or misconduct
by an opposing party.” Edward Lewis Tobinick, M.D. v. Novella, No. 9:14-cv-80781, 2015 WL
11254727, at *1 (S.D. Fla. Sept. 15, 2015) (quoting Fed. R. Civ. P. 60(b)(3)). On appeal, the
Tobinick Appellants do not challenge the district court’s construction.
23
Case: 15-14889 Date Filed: 02/15/2017 Page: 24 of 32
First, to support his requests for Rules 37 and 60(b) relief, the Tobinick
Appellants allege a scheme to ruin Dr. Tobinick perpetrated by Dr. Novella and
other co-conspirators, but none of his claims are sufficient to demonstrate bad faith
or fraud justifying sanctions or reconsideration. Dr. Novella explained each of the
alleged false statements in his deposition. As to his communications with the
author of the Los Angeles Times article, Dr. Novella testified that at the time of the
deposition he did not remember a brief email conversation that had occurred more
than two years prior. And, Dr. Novella explained that he truthfully answered his
reasonable interpretation of the questions regarding his communications with
Ingraham and Barrett. 12 The Tobinick Appellants’ conjecture of an elaborate
conspiracy is not sufficient to controvert Dr. Novella’s reasonable explanations and
certainly is insufficient to demonstrate bad faith or fraud. It, consequently, was not
an abuse of discretion for the district judge to deny the motions under Rules 37 and
60(b).
Second, the district court did not abuse its discretion on the Rule 56(d) issue
as the Tobinick Appellants never made a proper motion for Rule 56(d) relief. “A
request for a court order must be made by motion.” Fed. R. Civ. P. 7(b)(1).
12
Specifically, Dr. Novella’s declaration provided that his deposition did not contain false
statements because (1) as to Ingraham, he was asked if he discussed the topic of Dr. Tobinick
with Ingraham, but the emails show one-sided emails from Ingraham to Dr. Novella, but did not
contain responses from Dr. Novella, and (2) as to Barrett, he answered that he could not recall
whether or not an email exchange took place and therefore never falsely denied the existence of
such emails in his deposition.
24
Case: 15-14889 Date Filed: 02/15/2017 Page: 25 of 32
Instead, the Tobinick Appellants requested Rule 56(d) relief in their brief
responding to Dr. Novella’s motion for summary judgment. The district court did
not issue an order regarding Rule 56(d), likely because it was not moved to do so.
Indeed, the Tobinick Appellants had once before sought relief pursuant to Rule
56(d) by motion pending the close of discovery, and the district court both
considered and ultimately granted the motion. To the extent that the Tobinick
Appellants’ request for Rule 56(d) relief is premised on the same discovery-related
abuses as their other two motions, their claim fails because for the reasons already
stated the district court did not abuse its discretion. Thus, the district court did not
abuse its discretion in denying each of the Tobinick Appellants’ discovery-related
requests for relief.
IV. The Tobinick Appellants’ Lanham Act Claim
The Tobinick Appellants argue that the district court erred in granting
summary judgment against them on their Lanham Act claim because there are
material facts in dispute regarding the commercial nature of Dr. Novella’s speech,
chiefly as it relates to his economic motivations. The Tobinick Appellants further
contend that Dr. Novella’s statements are false and misleading and that the
Tobinick Appellants have satisfied the remaining elements of a Lanham Act claim.
The Lanham Act prescribes liability for false advertising to “commercial
advertising or promotion.” 15 U.S.C. § 1125(a)(1)(B). Commercial advertising or
25
Case: 15-14889 Date Filed: 02/15/2017 Page: 26 of 32
promotion includes “(1) commercial speech; (2) by a defendant who is in
commercial competition with plaintiff; (3) for the purpose of influencing
consumers to buy defendant’s goods or services[;]” and (4) “the representations . . .
must be disseminated sufficiently to the relevant purchasing public to constitute
‘advertising’ or ‘promotion’ within that industry.” Suntree Techs., Inc. v.
Ecosense Int’l, Inc., 693 F.3d 1338, 1349 (11th Cir. 2012) (quoting Gordon &
Breach Sci. Publishers S.A. v. Am. Inst. of Physics, 859 F. Supp. 1521, 1535–36
(S.D.N.Y. 1994)).
Commercial speech is “expression related solely to the economic interests of
the speaker and its audience.” Central Hudson Gas & Elec. Corp. v. Pub. Serv.
Comm’n of N.Y., 447 U.S. 557, 561 (1980). The “core notion” of commercial
speech extends to speech that proposes a commercial transaction. Bolger v. Young
Drug Prods. Corp., 463 U.S. 60, 66 (1983). The Supreme Court has identified
three factors in looking beyond the core notion of commercial speech: (1) that the
material was “conceded to be advertisements,” (2) it contained a “reference to a
specific product,” and (3) the speaker “has an economic motivation” for
distributing the material. Id. No one factor is dispositive. See id. at 67. “The
combination of all three characteristics, however, provides strong support for the
. . . conclusion that the [material is] properly characterized as commercial speech.”
Id. at 62, 67. But, “speech is not rendered commercial by the mere fact that it
26
Case: 15-14889 Date Filed: 02/15/2017 Page: 27 of 32
relates to an advertisement.” Pittsburgh Press Co. v. Pittsburgh Comm’n on
Human Relations, 413 U.S. 376, 384 (1973).
There is no genuine dispute of material fact regarding whether Dr. Novella’s
articles are commercial speech. A plain reading of the first and second articles
makes clear that they do not fall within the core notion of commercial speech as
they do not propose a commercial transaction. Instead, Dr. Novella’s articles
evoke many characteristics of noncommercial speech. The articles
“communicate[] information, express[] opinion, [and] recite[] grievances, . . . .”
See Sullivan, 376 U.S. at 266. Dr. Novella, who posted the articles on SBM’s
blog, states in his second article that the purpose of the SBM blog is to “provide an
objective analysis of questionable or controversial medical claims so that
consumers can make more informed decisions . . . .” Am. Compl. Ex. 5 at 1. The
content of the articles corroborates this stated educational purpose, as the articles
discuss the plausibility of Dr. Tobinick’s practices in relation to the different
medical conditions treated, the way etanercept works, and the shortage of medical
studies supporting Dr. Tobinick’s position. These articles, which conclude that Dr.
Tobinick’s perispinal administration of etanercept is ineffective, add to the public
debate regarding the viability of a non-FDA approved medical treatment and are
clearly of import to the public.
27
Case: 15-14889 Date Filed: 02/15/2017 Page: 28 of 32
We turn next to the three factors outlined by the Supreme Court in Bolger
with regard to non-core commercial speech and conclude that these factors do not
save the Tobinick Appellants’ Lanham Act claim. First, the Novella Appellees do
not concede that the articles are advertisements, nor can they reasonably be
construed as such. The first article makes no mention of Dr. Novella’s practice or
medical services. Although the second article does make such a mention, it was
authored in response to the Tobinick Appellants’ filing of their lawsuit, criticizes
the lawsuit as an attempt to suppress Dr. Novella’s critiques, and mentions Dr.
Novella’s medical practice only to provide context regarding the lawsuit. In
addition, Dr. Novella clarifies in his second article that he primarily treats
headaches, thereby distancing the types of medical services he provides from the
services marketed by Dr. Tobinick, who does not claim to treat headaches.
Second, the articles do not discuss any products for sale by Dr. Novella, and,
as discussed, only briefly mention his practice for context. The articles’ sole
reference to a product is found in their discussion of Dr. Tobinick’s medical
treatments. But, these references to Dr. Tobinick’s medical treatments are, by
themselves, insufficient to subject Dr. Novella’s otherwise protected speech to
Lanham Act liability. See Va. State Bd. of Pharmacy v. Va. Citizens Consumer
Council, Inc., 425 U.S. 748, 761–62 (1976) (explaining that speech that includes
content on commercial topics is not automatically commercial speech). In Gordon
28
Case: 15-14889 Date Filed: 02/15/2017 Page: 29 of 32
& Breach Sci. Publishers S.A., the district court explained that “a restaurant or
movie review or a . . . product report” on its own is not commercial speech under
the Lanham Act, 15 U.S.C. § 1125(a), but can be transformed into commercial
speech when, for instance, a restaurant “posts the . . . review in its window.” 859
F. Supp. at 1544. Dr. Novella’s discussion of Dr. Tobinick’s use of etanercept,
which resembles a medical peer review of a treatment’s viability, therefore, does
not render the articles commercial speech.
Third, the Tobinick Appellants have not demonstrated economic motivation
sufficient to transform Dr. Novella’s speech into commercial speech. As a
preliminary matter, there is no factual dispute as to where the articles were
displayed online, how the websites were set up, and whether the websites
generated revenue through advertisements and membership subscriptions. The
Tobinick Appellants describe a complex “funneling” scheme to generate profit for
Dr. Novella, in which the Tobinick Appellants claim that the two articles are
connected to other websites through hyperlinks in a way that readers are directed to
websites that generate revenue for Dr. Novella, such as through advertising or
membership subscriptions.13 This funneling theory, which attempts to connect the
13
The Tobinick Appellants argue that the court should consider the “full context” of the
“interrelated websites, promotion and links that funnel money directly to [Dr.] Novella.” But,
much of the “full context” the Tobinick Appellants implore us to now consider are merely the
websites and factual allegations that the Tobinick Appellants sought to add to their complaint by
moving for leave to amend. Because we determined above that the district court did not abuse its
(continued . . . )
29
Case: 15-14889 Date Filed: 02/15/2017 Page: 30 of 32
articles to revenue sources, relies on such a level of attenuation that it fails to
demonstrate economic motivation in the commercial speech context.
The Tobinick Appellants’ reliance on World Wrestling Federation
Entertainment, Inc. v. Bozell is misplaced. 142 F. Supp. 2d 514, 525 (S.D.N.Y.
2001). There, a wrestling organization sued a council comprising concerned
parents who had initiated a public attack campaign about the risk to children of
portraying violence in wrestling television programs. Id. at 521. The district court
denied a motion to dismiss the complaint and held that the allegations were
sufficient to demonstrate that the council engaged in commercial speech because it
featured the attacks “prominently in a fundraising video,” in “fundraising letters,”
and in order “to raise the profile of [the council].” Id. at 525, 526. Unlike the
speech in Bozell, Dr. Novella’s articles are neither featured prominently in
fundraising efforts14 (or other similar solicitations for money), nor have the
Tobinick Appellants shown that these articles are the central content driving
advertising or membership-based revenue.
discretion in denying leave to amend, we limit our review, as we must, to the allegations
included in the operative amended complaint.
14
To the extent that the Tobinick Appellants argue that SGU’s legal defense webpage sought
donations, as discussed, the allegations regarding that webpage are not under review as they were
not made in the operative amended complaint.
30
Case: 15-14889 Date Filed: 02/15/2017 Page: 31 of 32
To be sure, neither the placement of the articles next to revenue-generating
advertising nor the ability of a reader to pay for a website subscription would be
sufficient in this case to show a liability-causing economic motivation for Dr.
Novella’s informative articles. Both advertising and subscriptions are typical
features of newspapers, whether online or in-print. But, the Supreme Court has
explained that “[i]f a newspaper’s profit motive were determinative, all aspects of
its operations—from the selection of news stories to the choice of editorial
position—would be subject to regulation if it could be established that they were
conducted with a view toward increased sales. Such a basis for regulation clearly
would be incompatible with the First Amendment.” Pittsburgh Press, 413 U.S. at
385.
Furthermore, as our sister circuits have recognized, magazines and
newspapers often have commercial purposes, but those purposes do not convert the
individual articles within these editorial sources into commercial speech subject to
Lanham Act liability. See Farah v. Esquire Magazine, 736 F.3d 528, 541 (D.C.
Cir. 2013) (holding that a satirical article about a book in a magazine’s online blog
was not commercial speech subject to Lanham Act liability even though “writers
write and publishers publish . . . for commercial purposes”); Hoffman v. Capital
Cities/ABC, Inc., 255 F.3d 1180, 1186 (9th Cir. 2001) (“A printed article meant to
draw attention to the for-profit magazine in which it appears, however, does not
31
Case: 15-14889 Date Filed: 02/15/2017 Page: 32 of 32
fall outside of the protection of the First Amendment because it may help to sell
copies.”). We agree. Even if Dr. Novella receives some profit for his quasi-
journalistic endeavors as a scientific skeptic, the articles themselves, which never
propose a commercial transaction, are not commercial speech simply because
extraneous advertisements and links for memberships may generate revenue. See
Va. State Bd. of Pharmacy, 425 U.S. at 761 (“Speech . . . is protected . . . even
though it may involve a solicitation to purchase or otherwise pay or contribute
money.”); see also Burstyn v. Wilson, 343 U.S. 495, 501 (1952) (“That books,
newspapers, and magazines are published and sold for profit does not prevent them
from being a form of expression whose liberty is safeguarded by the First
Amendment.”). Thus, because the articles are not commercial speech, they cannot
be subject to Lanham Act liability as commercial advertising or promotion.
Accordingly, we need not reach the other elements of a prima facie Lanham Act
false advertising action.
CONCLUSION
For all of the reasons stated above, the judgment of the district court is
AFFIRMED.
32