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Reuber v. Food Chemical News, Inc.

United States Court of Appeals for the Fourth Circuit

October 2, 1990, Argued ; February 5, 1991, Decided

No. 88-2641

Opinion

 [*706]  WILKINSON, Circuit Judge

Melvin Reuber was employed as a scientist at a research center operated for the National Cancer Institute (NCI). While operating under the aegis of the NCI, Reuber disseminated his own research and took other actions which created the misleading impression that the NCI had reversed its official position that the pesticide malathion was a non-carcinogen. By such actions, Reuber, a self-styled whistleblower, entered the public controversy swirling around malathion's safety. In response to Reuber's involvement, his supervisor issued a letter of reprimand which criticized Reuber for, among other things, promoting inadequate research and subverting public confidence in the NCI. A news publication received a copy of the letter and published the majority of its contents. Reuber then sued and won a judgment [**3]  against the publication for defamation and invasion of privacy.

In reviewing Reuber's claims, we hold that ] a whistleblower is not invariably immune from public figure status and that recovery in this instance must be judged under an actual malice standard, a standard Reuber has failed to satisfy. In addition, we hold that appellant did not invade Reuber's privacy. We therefore reverse the district court's judgment.

Melvin Reuber is no stranger to the scientific and political debates raging over the carcinogenicity of chemical pesticides. He began his research on carcinogens in the 1950s during his graduate training in pathology. In the early 1970s, Reuber served as a consultant to the Environmental Protection Agency on the carcinogenicity of certain chemicals, including pesticides. In this capacity, Reuber testified at EPA hearings and at a Senate subcommittee hearing. At these hearings, Reuber established himself as a scientist who frequently found pesticides to be carcinogens. At one hearing, for example, he challenged the validity of reports submitted by the chemical companies on pesticide safety, deeming most of the reports to be "worthless."

In 1976, Reuber started work  [**4]  with the Frederick Cancer Research Center ("FCRC"). Litton Bionetics operated the FCRC under a contract with the National Cancer Institute ("NCI"), a public agency. At the FCRC, Reuber studied the carcinogenic effects of various chemicals. Reuber also performed independent research on his own time, often using materials and facilities at Tracor Jitco, another facility under contract with the NCI. As part of his independent research, Reuber analyzed the pesticide picloram and concluded that it was a carcinogen. He delivered his findings at a conference in Oregon in the late 1970s. At the conference, Reuber touted his abilities to accurately determine carcinogenicity. He also reported his views on the carcinogenicity of picloram in a study that environmental groups in Wisconsin utilized to oppose the use of picloram in the state.

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925 F.2d 703 *; 1991 U.S. App. LEXIS 1560 **; 18 Media L. Rep. 1689

MELVIN D. REUBER, Plaintiff-Appellee, v. FOOD CHEMICAL NEWS, INC., Defendant-Appellant, and LITTON INDUSTRIES, INC.; LITTON BIONETICS, INC.; VINCENT T. DEVITA, JR., National Cancer Institute, National Institute of Health; RICHARD ADAMSON, National Cancer Institute, National Institute of Health; WILLIAM V. HARTWELL, National Cancer Institute, National Institute of Health; WILLIAM PAYNE, Frederick Cancer Research Center; MICHAEL G. HANNA, JR., Frederick Cancer Research Center; JAMES C. NANCE, Litton Bionetics, Inc.; I.J. FIDLER, Frederick Cancer Research Center; UNITED STATES OF AMERICA; U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES; ENVIRONMENTAL PROTECTION AGENCY, Defendants, THE NEWSLETTER ASSOCIATION; MARYLAND-DELAWARE-DISTRICT OF COLUMBIA PRESS ASSOCIATION; NATIONAL ASSOCIATION OF BROADCASTERS; THE RADIO-TELEVISION NEWS DIRECTORS ASSOCIATION; THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS; WASHINGTON MERRY-GO-ROUND, INC.; THE WASHINGTON POST, Amici Curiae

Subsequent History:  [**1]  As Amended February 12, 1991. As Amended February 27, 1991.

Prior History: Appeal from the United States District Court for the District of Maryland, at Baltimore. Joseph C. Howard, District Judge. CA-85-2028-JH.

Disposition: Reversed and Remanded.

CORE TERMS

malathion, actual malice, public figure, reprimand, defamation, reckless disregard, carcinogenic, invasion of privacy, public controversy, falsity, pesticides, Chemical, reputation, damages, allegations, trial court, scientific, scientist, charges, press, district court, Cancer, argues, chemical industry, reporting, contents, leaked, print, public concern, organizations

Labor & Employment Law, Wrongful Termination, Whistleblower Protection Act, General Overview, Torts, Defenses, Privileges, Constitutional Privileges, Intentional Torts, Defamation, Defamation, Public Figures, Limited Purpose Public Figure, Civil Procedure, Appeals, Standards of Review, De Novo Review, Remedies, Damages, Punitive Damages, Constitutional Law, Freedom of Speech, Public Figures, Punitive Damages, Measurement of Damages, Judicial Review, Procedural Matters, Actual Malice, Clear & Convincing Evidence, Voluntary Public Figures, Types of Damages, Compensatory Damages, Damages, Evidence, Burdens of Proof, Clear & Convincing Proof, Tax Law, Federal Taxpayer Groups, S Corporations, Involuntary Public Figures, Jury Trials, Jury Instructions, Trials, Jury Deliberations, Verdicts, General Verdicts, Fair Comment & Opinion, Journalist's Privilege, Free Press, Qualified Privileges, Invasion of Privacy, Public Disclosure of Private Facts, Defenses, Administrative Law, Personal Information, Agency Duties, Accuracy, Employee Privacy, Privacy Act, Penalties, Enforcement, Costs & Attorney Fees