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The Life And Crimes of Ed McSweegan Harassing the ww.lyme.org Lyme Disease Foundation, ho hum who's his next target...

 

Court document below:

"McSweegan developed a negative  opinion of the Forschners and LDF, and he questioned their views on "chronic Lyme disease" and the need for prophylactic antibiotic treatment of tick bites.
 

McSweegan began documenting his dealings with the Forschners and informally investigating LDF. He distributed to various media outlets documents in which he took issue with statements made by the Forschners or LDF and gave his own views on Lyme disease, the Forschners, and LDF. In June 1995, after being reprimanded by his superiors for his conduct, McSweegan was removed from his position as the Lyme disease program officer.
 

McSweegan nonetheless continued his campaign against the Forschners and LDF, which included Internet postings, e-mails, and anonymous mailings criticizing the Forschners and their foundation.
 

McSweegan accused the Forschners of harassing NIH staff members and grantees, and he described LDF as "whacko." McSweegan also gave interviews to a reporter who eventually wrote several articles about the feud between McSweegan and the Forschners. In those interviews, McSweegan made his dislike of the Forschners and LDF crystal clear, essentially describing the Forschners as frauds.
 

While McSweegan was waging his battle, the Forschners were launching their own counter-assault, which included pressuring NIH to remove him from the Lyme disease program. In various Internet postings, the Forschners challenged McSweegan's views about them and their foundation, often referring to him as "a cowardly stalker," "the stalker," and "the LDF stalker." J.A. 639-40. ...
 

===========================

UNPUBLISHED
 

UNITED STATES COURT OF APPEALS
 

FOR THE FOURTH CIRCUIT
 

KAREN VANDERHOOF-FORSCHNER;
 

THOMAS E. FORSCHNER,
 

Plaintiffs-Appellants,
 

v.
 

EDWARD MCSWEEGAN,
 

No. 99-1615
 

Defendant-Appellee,
 

and
 

THE LYME DISEASE FOUNDATION,
 

INCORPORATED,
 

Third Party Defendant.
 

KAREN VANDERHOOF-FORSCHNER;
 

THOMAS E. FORSCHNER,
 

Plaintiffs-Appellees,
 

v.
 

EDWARD MCSWEEGAN,
 

No. 99-1616
 

Defendant-Appellant,
 

and
 

THE LYME DISEASE FOUNDATION,
 

INCORPORATED,
 

Third Party Defendant.
 

Appeals from the United States District Court
 

for the District of Maryland, at Baltimore.
 

William M. Nickerson, District Judge.
 

(CA-97-2450-WMN)
 

Argued: April 3, 2000
 

Decided: May 16, 2000
 

Before MICHAEL and TRAXLER, Circuit Judges,
 

and Roger J. MINER, Senior Circuit Judge of the
 

United States Court of Appeals for the Second Circuit,
 

sitting by designation.
 

_________________________________________________________________
 

Affirmed by unpublished per curiam opinion.
 

_________________________________________________________________
 

COUNSEL
 

ARGUED: Michael Lee Martinez, THOMPSON, HINE & FLORY,
 

L.L.P., Washington, D.C.; James Russell Schraf, LIPSHULTZ &
 

HONE, CHARTERED, Silver Spring, Maryland, for Appellants.
 

Veronica Sophia Parkansky, MORRISON & FOERSTER, L.L.P.,
 

Washington, D.C., for Appellee. ON BRIEF: Danielle E. Berry,
 

THOMPSON, HINE & FLORY, L.L.P., Washington, D.C.; Victor I.
 

Weiner, LIPSHULTZ & HONE, CHARTERED, Silver Spring, Maryland,
 

for Appellants. W. Stephen Smith, MORRISON & FOERSTER,
 

L.L.P., Washington, D.C., for Appellee.
 

_________________________________________________________________
 

Unpublished opinions are not binding precedent in this circuit. See
 

Local Rule 36(c).
 

_________________________________________________________________
 

OPINION
 

PER CURIAM:
 

Karen Vanderhoof-Forschner and her husband Thomas E. Forschner
 

(the "Forschners"), founders of the non-profit Lyme Disease
 

Foundation ("LDF"), filed an action against Dr. Edward McSweegan,
 

asserting claims of defamation and interference with business and
 

contractual relations. McSweegan, who had been the program officer
 

for the National Institutes of Health's Lyme disease program, filed a
 

counterclaim against the Forschners and a third-party claim against
 

2
 

LDF, asserting claims of defamation and civil conspiracy. Crossmotions
 

for summary judgment on liability resulted in a classic "dogfall"
 

1--the district court granted summary judgment against the
 

Forschners on their claims and against McSweegan on his claims. The
 

Forschners appealed the district court's decision, prompting McSweegan
 

to file a cross-appeal. We affirm.
 

I.
 

Giving all involved the benefit of all appropriate inferences, the
 

evidence presented in support of the motions for summary judgment
 

tended to establish the following. The Forschners founded LDF after
 

they became convinced that Karen's contracting of Lyme disease during
 

her pregnancy caused the severe health problems suffered by their
 

son. Karen, chairperson of LDF's Board of Directors, took her cause
 

to the public. She made appearances on national television programs
 

and was featured in articles appearing in national newspapers and
 

magazines. Karen's work for LDF brought her in contact with various
 

members of Congress, and she became a successful lobbyist, persuading
 

officials to dedicate additional funds to Lyme disease research.
 

Within a few short years, LDF had received sufficient donations and
 

grants to hire a staff, which included her husband Tom as the foundation's
 

Executive Director.
 

McSweegan's contact with the Forschners began when he was
 

appointed as program officer for the Lyme disease program at the
 

_________________________________________________________________
 

1 See Ferrell v. Ashmore, 507 So. 2d 691, 694 (Fla. Dist. Ct. App.
 

1987) ("In both cases, both the contractor and the owner lost their
respective
 

claims (in the vernacular, a `dogfall')."); Raybon v. Reimers, 226
 

S.E.2d 620, 621 n.1 (Ga. Ct. App. 1976) (defining"dogfall" as a
"colloquialism
 

. . . derived from wrestling where it signifies a draw or tie.");
 

Dixon v. Dixon, 306 S.W.2d 879, 879 (Ky. 1957) ("This divorce action
 

resulted in a dog-fall, to use a wrestling term. The Chancellor refused to
 

grant a divorce to either . . . ."); McFarland v. Bruening, 185 S.W.2d
 

247, 250 (Ky. 1945) ("It is further contended that it was error . . . not to
 

have given what is sometimes called the `dogfall' instruction; that is, that
 

if the jury shall believe that both drivers were negligent and their
concurrent
 

negligence caused the accident and consequent injuries, they will not
 

award damages either to the plaintiff or to the defendant.").
 

3
 

National Institutes of Health ("NIH"). McSweegan developed a negative
 

opinion of the Forschners and LDF, and he questioned their
 

views on "chronic Lyme disease" and the need for prophylactic antibiotic
 

treatment of tick bites.
 

McSweegan began documenting his dealings with the Forschners
 

and informally investigating LDF. He distributed to various media
 

outlets documents in which he took issue with statements made by the
 

Forschners or LDF and gave his own views on Lyme disease, the
 

Forschners, and LDF. In June 1995, after being reprimanded by his
 

superiors for his conduct, McSweegan was removed from his position
 

as the Lyme disease program officer.
 

McSweegan nonetheless continued his campaign against the
 

Forschners and LDF, which included Internet postings, e-mails, and
 

anonymous mailings criticizing the Forschners and their foundation.
 

McSweegan accused the Forschners of harassing NIH staff members
 

and grantees, and he described LDF as "whacko." McSweegan also
 

gave interviews to a reporter who eventually wrote several articles
 

about the feud between McSweegan and the Forschners. In those
 

interviews, McSweegan made his dislike of the Forschners and LDF
 

crystal clear, essentially describing the Forschners as frauds.
 

While McSweegan was waging his battle, the Forschners were
 

launching their own counter-assault, which included pressuring NIH
 

to remove him from the Lyme disease program. In various Internet
 

postings, the Forschners challenged McSweegan's views about them
 

and their foundation, often referring to him as"a cowardly stalker,"
 

"the stalker," and "the LDF stalker." J.A. 639-40.
 

This battle of words gave rise to the present action. As to the defamation
 

claims, the district court determined that all claims should be
 

considered under the constitutional "actual malice" standard because
 

all of the parties were limited public figures. 2 The court then concluded
 

that none of the statements made by any of the parties were
 

defamatory, but instead were "`heat-of-battle' hyperbole." J.A. 1075.
 

_________________________________________________________________
 

2 Karen Forschner and McSweegan conceded that, for purposes of this
 

action, they were limited public figures. Thus, only the status of Tom
 

Forschner was in dispute.
 

4
 

The court noted that the remaining claims--the Forschners' intentional
 

interference with contract and business relations claim and
 

McSweegan's conspiracy claim--were dependent upon a determination
 

that defamation had occurred. Because the court rejected the defamation
 

claims on both sides, it likewise rejected the remaining
 

claims, thus ending the action.
 

II.
 

The Forschners contend on appeal that the district court erred in its
 

conclusion that none of McSweegan's statements were defamatory.
 

They also contend that the court erred in determining that Tom
 

Forschner was a limited public figure. As to the dismissal of their
 

intentional interference claim, they argue that if this Court reverses
 

the district court's decision on the defamation claim, then the dismissal
 

of the interference claim should likewise be reversed, given
 

that the claim rises or falls with the defamation claim.
 

For his part, McSweegan makes it clear that he appealed to protect
 

his right to assert his counterclaim only in the event that the Forschners
 

prevailed on appeal. McSweegan contends that no meaningful
 

distinction can be made between the statements made by him about
 

the Forschners and the statements made by the Forschners about him.
 

Thus, if this Court determines that his statements about the Forschners
 

are defamatory, then McSweegan contends that we must likewise
 

conclude that their statements about him are defamatory.
 

"[B]ecause defamation claims raise First Amendment issues, we
 

have an obligation to make an independent examination of the whole
 

record in order to make sure that the judgment does not constitute a
 

forbidden intrusion on the field of free expression." Wells v. Liddy,
 

186 F.3d 505, 520 (4th Cir. 1999) (internal quotation marks omitted),
 

cert. denied, 120 S. Ct. 939 (2000). After thoroughly reviewing the
 

entire record and considering the briefs and arguments of the parties,
 

we agree with the district court that Tom Forschner is properly
 

viewed as a limited public figure and that none of the statements at
 

issue in this case can be reasonably understood as defamatory.
 

Instead, the statements must be viewed as "rhetorical hyperbole, a
 

lusty and imaginative expression of the contempt felt by" McSweegan
 

for the Forschners, and by the Forschners for McSweegan. Old
 

5
 

Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers v. Austin,
 

418 U.S. 264, 286 (1974). Accordingly, we affirm on the reasoning
 

of the district court.3 See Vanderhoof-Forschner v. McSweegan, No.
 

WMN-97-2450 (D. Md. April 2, 1999).
 

AFFIRMED
 

_________________________________________________________________
 

3 A federal court sitting in diversity must apply the choice-of-law rules
 

of the forum state. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S.
 

487, 496-97 (1941). Under Maryland law, defamation claims are governed
 

by the law of the state where the defamatory statement was published.
 

See Wells, 186 F.2d at 521-22. However, because the parties
 

agree that Maryland law governs their claims, we need not inquire further
 

into the choice-of-law questions. See American Fuel Corp. v. Utah
 

Energy Dev. Co., 122 F.3d 130, 134 (2d Cir. 1997) ("[W]here the parties
 

have agreed to the application of the forum law, their consent concludes
 

the choice of law inquiry.").
 

6