McCullough v. Gannett Co.

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DR. PETER A. MCCULLOUGH, Plaintiff, v. GANNETT, CO., INC., et al, Defendants.

Civil Action No. 1:22-cv-1099 (RDA/LRV)

United States District Court, E.D. Virginia, Alexandria Division

April 25, 2023

MEMORANDUM OPINION AND ORDER

ROSSIE D. ALSTON, JR UNITED STATES DISTRICT JUDGE

This matter comes before the Court on Defendants Gannett Co., Inc. (“Gannett”) and The Bartlesville Examiner-Enterprise's (“BEE”) Motion to Dismiss (Dkt. 12) and Motion for Attorney's Fees (Dkt 10). This Court has dispensed with oral argument as it would not aid in the decisional process. Fed.R.Civ.P. 78(b); Local Civil Rule 7(J). This matter has been fully briefed and is now ripe for disposition. Having considered the Motion together with Gannett and the BEE's Memoranda in Support (Dkt. Nos. 11; 13), Plaintiff's Oppositions (Dkt Nos. 17; 18), and Gannett and the BEE's Replies in Support of their Motions (Dkt. Nos. 19; 20), this Court GRANTS Defendants' Motion to Dismiss (Dkt. 12) and DENIES Defendants' Motion for Attorney's Fees (Dkt. 10) for the reasons that follow.

I. BACKGROUND^[1]

A. Factual Background

Plaintiff, Dr. Peter McCullough, is an “internist, cardiologist, and epidemiologist.” Dkt. 1 ¶ 1. He holds various certifications and has published articles on a “range of topics.” Id. He practices “internal medicine” including the “cardiovascular complications of both the viral infection and the injuries developing after the COVID-19 vaccine.” Id.

Dr. McCullough has been a “leader in the medical response to COVID-19” since “the outset of the pandemic.” Id. He published an early article about COVID-19, has been involved in peer-review of various publications related to COVID-19, and “commented extensively on the medical response to the COVID-19 crisis[,]” including through testimony before federal and state legislatures. Id. He is “considered one of the world's leading experts on COVID-19.” Id.

Gannett, which is a Delaware corporation headquartered in McLean, Virginia, owns the BEE. Id. ¶¶ 5-6. The BEE is a “part of the USA Today network.” Id. at ¶ 6. As a result, Gannett “control[s] the process to which [the BEE's] articles [are] reported, edited and published, including the code of ethics and standard of care applicable to [the] BEE's conduct.” Id.

In October of 2021, Gannett and the BEE published an article about Dr. McCullough. The article, titled “Texas doctor critical of COVID-19 vaccines to speak at Bartlesville Community Center,” was published on October 2, 2021. Id. ¶ 11; see also Dkt. 13-2, Ex. 1 (hereinafter “October 2 Article”).^[2]That article, inter alia, quoted various individuals (including Dr. Anuj Malik) who criticized Dr. McCullough, described Dr. McCullough's involvement in COVID-19 treatment and research, and discussed the state of COVID-19 in the Bartlesville area. See generally October 2 Article.

Dr. McCullough claims that the following statements in that article are defamatory:

• In discussing the views of individuals who wanted to hear Dr. McCullough's opinions on “vaccine safety and early treatment,” Dr. Malik said that “[those] kinds of expressed views are dangerous to the public and pure quackery.” Id. at 1.^[3]

• The BEE's quotation of Dr. Malik, who says: “The governments of the world cannot get along on anything, why should they get along on vaccines? ... The World Health Organization, the CDC, the NIH, the European Centre for Disease Prevention and Control, everybody says the same thing about the vaccine. It's safe, its effective and the people who are spreading this information about it for what reason nobody can understand other than these people are pathological. These people are killing people.” Id. at 2.

Gannett and the BEE published a second article on October 6, 2021. Dkt. 1 ¶ 12. That article, titled “Doctor fired for spreading COVID misinformation finds supportive crowd in Bartlesville[,]” covered Dr. McCullough's speech in Bartlesville. Id. ¶ 11; see also Dkt. 13-2, Ex. 2 (hereinafter “October 6 Article”).

Dr. McCullough also claims that certain statements in the October 6 article are defamatory. He claims the following statements are defamatory:

• The title of the article, which states that Dr. McCullough was “fired for spreading COVID misinformation.” October 6 Article at 1.

• The article's description of Dr. McCullough, which describes him as a “Dallas cardiologist who is largely discredited by the scientific community for his assertions that the COVID-19 vaccines are unsafe and that early treatment options have been suppressed.” Id.

• A statement from Dr. Malik, who described Dr. McCullough's appearance as a “politically motivated, ideological speech by a modern-day quack.” Id. (quoting Dr. Malik).

• The article's assertion that “[t]hroughout the evening, McCullough made multiple claims that are largely uncorroborated by the scientific community.” Id. at 2.

• A paragraph in the article that reads: “One of McCullough's biggest claims of the night was that 15,937 Americans have died after taking the vaccine, which Malik said is taken completely out of context.” Id.

• A description of Dr. McCullough's speech that he “blatantly told the audience that there is not a vaccine safety board[,]” and providing Dr. Malik's view: “Malik points to the Data and Safety Monitoring Board (DSMB) that oversaw the vaccine trials.” Id.

• The article recounting Dr. McCullough “shar[ing] what he said was a threatening letter from the American Board of Internal Medicine warning that he could lose his certification for spreading misinformation[,]” and then stating that “[t]here is likely a good reason for his concern about losing certification.” Id. at 3.

• The article's publication of Dr. Malik's statement that Dr. McCullough's “claims fail to meet the standard of what is true. None of his suggestions have been submitted to a clinical trial despite the fact that we are 20 months into this pandemic[.]” Id. at 4 (quoting Dr. Malik).

Dr. McCullough claims that these statements in the two articles “held him up to scorn, shame, ridicule, and contempt, and rendered him infamous, odious, and ridiculous in the eyes of readers.” Dkt. 1 ¶ 13. He cites various tweets that, inter alia, call him a “quack,” a liar, and claim that he was fired for spreading misinformation. See id. at 6-7 (identifying critical tweets).

Dr. McCullough also claims that his “reputation and business” were injured by the allegedly defamatory statements in the two articles. He lost “numerous business opportunities, including speaking engagements[] and substantial consulting income.” Id. ¶ 14. Specifically, “[m]edia outlets cancelled appearances” and “potential businesses partners stepped back because of the reputational risk.” Id. Finally, he claims that he “continuously suffers public shame, ridicule, emotional distress, anxiety, insecurity, fear for his safety and the safety of family members, fear that the defaming remarks have reached family, friends, colleagues and other members of the public beyond the medical community, fear that he has lost standing and credibility in the community, fear that he will never be able to clear his name, and injury to his reputation.” Id.

B. Procedural Background

Plaintiff filed his Complaint on September 26, 2022. Dkt. 1. After the parties agreed to an expansion of the page limits and an expanded time for the BEE and Gannett to respond to the Complaint, Dkt. Nos. 7; 9, the BEE and Gannett moved to dismiss the complaint and for attorney's fees on December 9, 2022. Dkt. Nos. 10; 12. Plaintiff opposed both motions on December 30, 2022. Dkt. Nos. 17; 18. The BEE and Gannett replied in support of the two motions on January 13, 2023. Dkt. Nos. 19; 20.

On March 22, 2023, this Court ordered Plaintiff to show cause why the two other Defendants named in the Complaint-Dr. Anuj Malik and Ascension St. John Hospital-should not be dismissed pursuant to Federal Rule of Civil Procedure 4(m). Dkt. 28. Plaintiff did not show cause, and this Court dismissed Dr. Malik and St. John Hospital from this case on April 12, 2023. Dkt. 29. As a result, only Gannett and the BEE remain as Defendants in this matter.

II. STANDARDS OF REVIEW

A. Rule 12(b)(2) Motions

A Rule 12(b)(2) motion challenges the Court's personal jurisdiction over a party. Fed.R.Civ.P. 12(b)(2). Federal district courts are of limited jurisdiction, and as a result they can “only

exercise personal jurisdiction if such jurisdiction is authorized by the long-arm statute of the state in which it sits and the application of the long-arm statute is consistent with the due process clause of the Fourteenth Amendment.” Consulting Eng. Corp. v. Geometric Ltd., 561 F.3d 273, 277 (4th Cir. 2009).

Virginia's “long-arm statute” allows courts to “extend[] personal jurisdiction to the extent permitted by the Due Process Clause,” meaning that the statutory inquiry and constitutional inquiry are one and the same. Young v. New Haven Advocate, 315 F.3d 256, 261 (4th Cir. 2002). To “satisfy the constitutional due process requirement, a defendant must have sufficient ‘minimum contacts' with the forum state such that ‘the maintenance of the suit does not offend traditional notions of fair play and substantial justice.'” Geometric Ltd., 561 F.3d at 277 (quoting Int'l Shoe Co. v. Wash., 362 U.S. 310, 316 (1945)).

A plaintiff can establish personal jurisdiction in accordance with the Due Process Clause in two ways. First, the plaintiff can allege that the Court has “general jurisdiction” over a defendant “whose activities in the forum state have been continuous and systematic.” ESAB Grp., Inc. v. Centricut Inc., 126 F.3d 617, 623 (4th Cir. 1997). Second, a plaintiff can allege “specific jurisdiction” which would be jurisdiction “based on conduct connected to the...