First of all, I hope that all of you have a happy and safe Thanksgiving with your families and loved ones, and take some time to think about who and what in your lives are important to you. (And in care you’re wondering, Google’s only connection to this post is that I liked its Thanksgiving logo.)
By the way, yesterday was the last day of the Supreme Court of Appeals of West Virginia’s September Term, and the court has issued most, but not all, of its opinions. One opinion that is eagerly anticipated is DuPont’s appeal of the $400 million verdict in the medical monitoring class-action brought by residents of a town where DuPont had operated a zinc smelter. In the past, the court has released opinions for several days after the end of the term, so we may have the opinion next week.
But today I want to discuss a lawsuit filed last month in the Circuit Court of Monongalia County, West Virginia by Mylan, Inc. and its subsidiary, Mylan Pharmaceuticals, Inc., against the Pittsburgh Post-Gazette, two of its reporters, Patricia Sabatini and Len Boselovic, and several John Does, which is the second action Mylan has filed against the paper and its reporters. Mylan, Inc. v. PG Publishing Co., Civil Action No. 09-C-807 (October 30, 2009).
In its first lawsuit filed on August 19, 2009, Mylan asserted claims for misappropriation of trade secrets, conversion, detinue, and trespass to chattels, as a result of a story written by Sabatini and Boselovic and published by PG on July 26, 2009 about alleged violations of drug-quality controls by Mylan employees at its Morgantown, West Virginia manufacturing facility.
Here is the complaint, in which Mylan asserts the purpose of PG’s July 26 article:
From its alarmist headline to its foreboding conclusions, the July 26th article and subsequent Post-Gazette articles were designed to fulfill two objectives. The first was to instill apprehension in the minds of patients, shareholders, and the general public by communicating the frightening fiction that Mylan’s pharmaceuticals are "unsafe," knowing that this could cause patients, caregivers, and customers to question the continued use of Mylan products. The second was to incite animosity against Mylan, its management and employees, by falsely accusing them of acting in callous disregard for patient health and well-being.
Then, Mylan describes the effect of the article:
The defamatory import of these articles is unmistakable: The Post-Gazette intentionally communicated to readers the false impression that Mylan deliberately glossed over serious and potentially dangerous production problems. Further, the Post-Gazette conveyed the false message that Mylan, its management and employees were sacrificing drug quality, safety and effectiveness for profit. Mylan believes that, in doing so, the Post-Gazette and its employees acted maliciously and with reckless disregard for the truth, knowing that the information it maliciously printed was false and knowing that the information it had did not warrant the implications and conclusions of the articles.
Although the complaint refers repeatedly to "numerous articles" published for several weeks after the July 26 article, it does not identify any article by date except the one on July 26.
Mylan asserts three claims for libel per se against the defendants based on the overall message of the July 26 article, its use of certain words and phrases, such as "tainted medications" and "catastrophically serious," and its allegedly false accusation that Mylan conducted an inadequate investigation into alleged deviations from its own internal procedures.
For some additional background, here is my post in which I wrote about PG’s decision to remove Mylan’s first lawsuit on the grounds that Mylan’s subsidiary, Mylan Pharmaceuticals, which is a West Virginia corporation, is not a proper party, which creates diversity between the parties and the basis for federal jurisdiction. According to PACER, PG’s motion to dismiss and Mylan’s motion to remand have been briefed and are pending before United States District Judge Irene M. Keeley.
I don’t know whether this libel action was planned by Mylan or is a reflection that perhaps the first lawsuit is not having the intended effect. But even if the answer is the former — which we are not likely to find out anyway –truth is a defense to libel and slander actions, which would seem to entitle PG and its reporters to broad discovery in their efforts to show that what they wrote about Mylan was accurate.