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UNPUBLISHED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
