Opposition Brief — Immuno, AG v. Moor-Jankowski

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4) (Supreme Court, US.

Cj ce. & D

No. 90-1579

biy—tf) 1991

IN THE te oF TH THE CLERK

Supreme Court of the United

OcTOBER TERM, 1990

IMMUNO, A.G..,

Petitioner.

VS.

DR. JAN MOOR-JANKOWSKI,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE NEW YORK STATE COURT OF APPEALS

BRIEF OF RESPONDENT DR. JAN

MOOR-JANKOWSKI IN-OPPOSITION TO

IMMUNO A.G.’S PETITION FOR A

WRIT OF CERTIORARI

Puitip A. BYLER

Counsel of Record and Attorney for

Respondent Dr. Moor-Jankowski

STULTS BALBER HorTON & SLOTNIK

1370 Avenue of the Americas

New York, New York 10019

(212) 246-2400

Of Counsel:

Louis LAUER

gem

Sigrid geal,

: <> ctype,

COUNTER-STATEMENT OF

QUESTIONS PRESENTED

1. Whether, when considering if a letter to the editor on a

matter of public concern is constitutionally protected under

Milkovich v. Lorain Journal Co., 497 US. , 110 S.Ct. 2695,

11] L.Ed.2d 1 (1990), a substantial federal question is presented

by the determinations of a state court, in a state common law

libel action, that the letter does not contain any exnress or im-

plied false defamatory statement of fact?

2. Whether under Michigan v. Long, 463 U.S. 1032 (1983),

this Court has jurisdiction to review a state court decision dismiss-

ing a state common law action for libel, when the state court

decision indicates clearly and expressly that it is based on bona

fide separate, adequate, and independent state constitutional or

common law grounds?

COUNTER-STATEMENT OF THE

PARTIES TO THE PROCEEDING

Petitioner Immuno Aktiengesellschaft fiir Chemisch-

Medizinisch Produkte (“Immuno A.G.”) is a commercial corpora-

tion organized and existing under the laws of Austria, having its

principal office in Vienna, Austria, and having affiliated com-

panies in approximately 30 different countries. Immuno A.G.

manufactures, for commercial sale, biologic products derived from

human blood. (Pet. App. 2, 60)!

Respondent Dr. Jan Moor-Jankowski is a professor of medical

research at the New York University Medical School, the Direc-

tor of the New York University Medical School’s Laboratory for

Experimental Medicine and Surgery in Primates (“LEMSIP”),

the Director of the World Health Organization Collaborating

‘Immuno A.G.'s description of itself (Pet. i, 4) makes certain claims about its

AIDS research that are not found in the record below, that are not otherwise

known by respondent and that, to respondent's knowledge, have not been

published in refereed scientific literature.

Center for Hematology of Primate Animals and the unpaid

editor-in-chief of the Journal of Medical Primatology. (Pet. App.

2, 60) Dr. Moor-Jankowski (M.D., Berne University, Switzerland)

is, as noted by the New York Appellate Division, a “universally

acknowledged authority on the use of primates in biomedical

research” (Pet. App. 60) and, specifically, is the recipient of the

Geneva University “Prix Arthur de Claparde,” a citation and

medal from the Soviet Academy of Medical Sciences, the

Trumpeldor Medal from the Prime Minister's Office of the State

of Israel, the G. Bude Medal of the College de France in Paris

and the French National Order of Merit for his scientific

achievements and his Resistance activities during World War II.

(Resp. App. 3-7)?

? Immuno A.G.'s contrived statement of the parties mischaracterizes Dr. Moor-

Jankowski as a businessman-competitor of Immuno A.G. and ignores Dr. Moor-

Jankowski’s full-time university position and the fact that the laboratory directed

by him, LEMSIP, is an integral part of the New York University Medical Center,

a not-for-profit educational institution.

TABLE OF CONTENTS

COUNTER-STATEMENT OF QUESTIONS

Stes yy ee ys hind a kaw a dv a a dvs

COUNTER-STATEMENT OF THE PARTIES

OO tee PRUGEEOING ...................

7tApEe OF CONTENTS.................

COUNTER-STATEMENT ON JURISDICTION . .

CONSTITUTIONAL AND STATUTORY

COUNTER-STATEMENT OF THE CASE ...

EI eee

Il. The Proceedings ....................

SUMMARY OF ARGUMENT.................

ES en a

I. Immuno A.G. Fails To Raise A Substantial

Federal Question In Attacking the

Conclusion Of The New York Court Of

Appeals That The Letter To The Editor

Was Constitutionally Protected Under

Milkovich v. Lorain Journal Co. ..........

A. The Court of Appeals Majority

Cautiously Stated And Applied

Milkovich v. Lorain Journal Co. ...

B. Immuno A.G. Does Not Raise A Federal

Question Concerning The Reading By

The New York State Appellate Courts

Of The Letter To The Editor........

Page

C. Immuno A.G. Does Not Raise A Federal

Question Concerning The Correct

Determination of the New York State

Appellate Courts That There Is No

Triable Issue of Falsity ............... 15

1. This Is An Appropriate Case For

This Court To Defer To The State

Court Review Of The Record ...... 16

2. The Ordinary Rules Of Summary

Judgment In New York Were

grayed ies de ake vl, ee tare ge 16

3. The New York Appellate Courts

Correctly Treated the Record ...... 17

(a) The “Core Premise” ........... 18

(b) Events Prior To Publication .... 20

II. Certiorari Is Not Proper Under Michigan v.

SOLE OA Ua a ene kK Le eae Cees

A. This Case Involves A Clear Application

A ee ee eee 22

B. Immuno A.G.’s Arguments To Avoid

Application Of Michigan v. Long Are

RI so pal eaah se cases ues wks. 23

C. Immuno A.G.’s Argument That

Certiorari Should Be Issued To Stop A

“Judicial Stampede” Away From

Milkovich Is In Substance An

Unprecedented And Unwise Attack On

State Constitutions And State Law In A

Pomeraiiet System ... 2... cen. 27

CONCLUSION ............. cc cee ccceecceeuee 29

Page

RESPONDENT'S APPENDIX

A. Constitutional And Statutory Provisions:

Article III of the United States Constitution;

First Amendment to the United States

Constitution; Fourteenth Amendment to the

United States Constitution; Title 28 of the

United States Code, Section 1257(a); Article

I, Section 8 of the New York State

Constitution; Section 3212 of the New York

Civil Practice Law and Rules............. A-]

B. Dr. Jan Moor-Jankowski’s Curriculum Vitae A-3

C. Excerpts of Testimony on Dr. Shirley

Ns canon Sanna eanceukeh rea ees A-8

D. Letter to the Editor by Dr. Andrew Rowan A-10

E. Excerpt of Dr. Alfred Prince’s Deposition . . A-11

F. Excerpt of Dr. Jan Moor-Jankowski’s

eer ere errr eee: A-12

G. Excerpt of Dr. Jan Moor-Jankowski's

fo Peerrerr gre Tee rere eee ee A-14

H. Excerpt of Dr. Jan Moor-Jankowski's

Pere Teer er re eee A-15

I. Excerpt of Dr. Gerard Eder’s Deposition .. . A-18

J. Excerpt of Dr. Johann Ejibl’s Deposition ... A-19

vil

TABLE OF AUTHORITIES

Cases Page

Alvord & Swift v. Steward M. Muller Constr.

Co., 46 N.Y.2d 276, 385 N.E.2d 1238, 413

Pe Pe EE ok. 640 as exe pees bane ek 17

Anderson v. Liberty Lobby, 477 U.S. 242 (1986) 17

Arcara v. Cloud Books, Inc., 68 N.Y.2d 553, 503

N.E.2d 492, 510 N.Y.S.2d 844 (1986)....... 25

Aronson v. Wiersma, 65 N.Y.2d 592, 483 N.E.2d

1138, 493 N.Y.S.2d 1006 (1965) ............... 14

Bose Corp. v. Consumers Union of United States,

Inc, 466 U.S. 485 (1064) ............... are 16

Celetex Corp. v. Catrett, 477 U.S. 317 (1986).... 17

Cohn v. NBC, 50 N.Y.2d 885, 408 N.E.2d 672.

430 N.Y.S.2d 265, cert. denied, 449 U.S. 1022

or wh kbs osh cae kA eee eek ee 14

Coleman v. MacLennan, 78 Kan. 711, 98 P. 281]

SES i Seka c hanes wee kee ees arr ete Ce ee . 24

Erie Railroad Co. v. Tompkins, 340 U.S. 64

(SR ne ee eK Re i oe ree 95

Fontenot v. Upjohn, 780 F.2d 1190 (5th Cir.

ye rer ee Pr rres sre re 17

Gertz v. Robert Welch, Inc., 418 U.S. 323 (i974) 12, 2)

25, 2

Immuno A.G. v. Moor-Jankowski, 74 N.Y.2d 548,

559, 549 N.E.2d 129, 549 N.Y.S.2d 938 (1989) . 7, 20

Immuno A.G. v. Moor-Jankowski, 75 N.Y.2d 866,

552 N.E.2d 179, 552 N.Y.S.2d 931 179 (1990) . 7, 20, 21

Vill

Cases

Immuno A.G. v. Moor-Jankowski, 77 N.Y.2d 235,

567 N.E.2d 1270, 566 N.¥.S.2d 906 (1991) ...

Immuno A.G. v. Moor-Jankowski, 145 A.D.2d

114, 537 N.Y.S.2d 129 (Ist Dep't 1989) ..

Michigan v. Long, 463 U.S. 1032 (1983) ..

Milkovich v. Lorain Journal Co., 497 U.S. :

110 S.Ct. 2895, 111 L. Ed.2d 1 (1990).

Mullaney v. Wilbur, 421 U.S. 684 (1975). .

Murdock v. City of Memphis, 87 U.S. (20 Wall.)

590 (1875) . ,

New York Times v. Sullivan, 376 U.S. 254 (1964)

Paul v. Davis, 424 U.S. 693 (1976) .

Pennekamp v. Florida, 325 U.S. 331 (1945).

People v. Duncan, 124 Ill.2d 400, 530 N.E.2d

423 (1988)

Philadelphia Newspapers v. Hepps, 475 U.S. 767

(1986) ....

Scripto, Inc. v. Carson, 362 U.S. 207 U.S. 207

(1960)

Silsdorf v. Levine, 59 N.Y.2d 8, 449 N.E.2d 716,

462 N.Y.S.2d 822, cert. denied, 464 U.S. 831

ER rere ee ORT TL, TER D CANE ee ee Dae ree

Steinhilber v. Alphonse, 68 N.Y.2d 283, 501

N.E.2d 550, 508 N.Y.S.2d 901 (1986) . .

Page

passim

16, 25,

26-27, 29

27-28

26-27

“i!

Cases

Time, Inc. v. Firestone, 424 U.S. 448 (1976)

Winters v. New York, 333 U.S. 507 (1948)

Zuckerman v. City of New York, 49 N.Y.2d 557,

404 N.E.2d 718, 429 N.Y.S.2d 595 (1980)

Constitutional Provisions, Statutes and Rules

28 U.S.C. § 1257(a) (1990) ....

Fed. R. Civ. P. 56

N.Y. Const. art 1, § 8

N.Y. CPLR 3212

U.S. Const., art. III

U.S. Const., amend. |

U.S. Const., amend. 14

U.S. Supreme Court Rule 15.1

Other

Hellman, “Granted, Vacated and Remanded -

Shedding Light On A Dark Corner Of Supreme

Court Practice,” 67 Judicature 389 (1984)

. Madison, “The Virginia Report of 1799-1800",

reprinted in The Mind of the Founder. M.

Myers ed. (rev. ed. 1981)

Moor-Jankowski, Letter to the Editor, The

New York Times, p. A28 (Jan. 25, 1991)

Page

11-22

7, 8-9

22-29

15-17

28-29

22-29

11-22

]

10-] 1]

J. Moor-Jankowski, Letter to the Editor The Wall

Street Journal, p. AQ (March 1, 1991) ........

J. Moor-Jankowski, Letter to the Editor, The

New York Law Journal, p. 2 (Jan. 31, 1991) ..

Note, “Developments In The Law — The

Interpretation of State Constitutional Rights,”

US cearv. L. Rev. 13346 (1962). ...............

Restatement of Torts (Second), § 561 ...........

Page

COUNTER-STATEMENT ON JURISDICTION

Immuno A.G. fails to raise a substantial federal question as

required under 28 U.S.C. § 1257 in its arguments attacking the

determinations of the New York Court of Appeals that the Let-

ter to the Editor in this case does not contain any express or im-

plied false defamatory fact, and therefore is constitutionally pro-

tected under Milkovich v. Lorain Journal Co., 497 U.S. :

110 S.Ct. 2695, 111 L.Ed.2d 1 (1990); and this Court lacks jurisdic-

tion under Article III because the New York Court of Appeals

expressly decided the case on a bona fide separate, independent

and adequate state constitutional ground, see Michigan v. Long,

463 U.S. 1032 (1983).

CONSTITUTIONAL AND STATUTORY PROVISIONS

Article III of the United States Constitution, the First Amend-

ment to the United States Constitution, the Fourteenth Amend-

ment to the United States Constitution, 28 U.S.C. § 1257(a), Sec-

tion 8 of Article I of the New York State Constitution, and Sec-

tion 3212 of the New York Civil Practice Law and Rules (“CPLR”)

are set forth in pertinent part in Respondent’s Appendix. (Resp.

App. 1)

COUNTER-STATEMENT OF THE CASE

I. The Facts.

Immuno A.G.’s petition, avoiding quotation of the Editorial

Note and the Letter to the Editor here involved, brazenly distorts

the Letter and misstates the pre-publication facts contrary to the

determinations of the New York Appellate Division and Court

of Appeals after their careful review of the record. See Supreme

Court Rules 15.1.°

Dr. McGreal’s Letter to the Editor and a prefatory Editorial

Note by Dr. Moor-Jankowski were published in the December

1983 edition of the Journal of Medical Primatology.* In view of the

’ See pp. 17-22, infra.

‘Immuno A.G‘'s petition fails to acknowledge that the author of the Letter to

the Editor, Shirley McGreal, is respected by prominent scientists and U.S.

Government officials. (See Resp. App. 8-9)

importance of the complete texts of these documents in consider-

ing “general tenor” as a matter of federal law (Milkovich v. Lorain

Journal Co., 497 U.S. at , 110 S.Ct. at 2707), and “the con-

tent of the whole communication” as a matter of state law (Pet.

App. 17), the entire texts are here presented.

The Editorial Note states: _

In January 1983, the Editors of the Journal of Medical

Primatology received a letter from Dr. Shirley McGreal,

Chairwoman of the International Primate Protection

League, alerting the biomedical community to a new at-

tempt to establish another chimpanzee research laboratory

in Africa. This was seen by Dr. McGreal as a violation of

the World Health Organization’s 1982 statement on the pro-

curement of primates for biomedical research, and as a way

to avoid the Convention on International Trade in En-

dangered Species (CITES).

The Editors submitted Dr. McGreal’s letter for “comments

or reply” to IMMUNO A.G. in Vienna, Austria which had

been mentioned as the company interested in establishing

the laboratory. IMMUNO acknowledged the receipt of the

letter on February 17, 1983, but provided no comments, refer-

ring the matter to their lawyers in New York. The lawyers

requested that the Journal of Medical Primatology provide

them with the documents on which Dr. McGreal’s accusa-

tions were based; they termed the statements to be wholly

inaccurate and reckless. They further stated (March 3rd, 1983,

letter from Goldschmidt, Fredericks & Oshatz, New York):

“We would also like to advise you that our review of Dr.

McGreal’s letter indicates that it is not a fair comment regar-

ding our client’s activities, and should you proceed with

publication, without giving us the opportunity for a mean-

ingful response, we shall be compelled to take whatever ac-

tions we deem necessary to redress our client's rights.”

The Editors advised the law firm that Dr. Shirley McGreal

should be. contacted directly for access to the original

documents, and they extended the period for receiving the

rebuttal to April 20, 1983. During that period no additional

information was received from IMMUNO or from their

lawyers, but in the meantime, the matter was discussed in

the Austrian press, and Dr. McGreal feels that these

newspaper articles confirmed the contents of her letter. The

final text of Dr. Shirley McGreal’s letter of March 23, 1983,

reflects the discussion in the Austrian press which occurred

after her initial letter of January 30th was submitted for

publication and this final letter is printed below.

(Pet. App. 149-150)

Dr. McGreal’s Letter to the Editor was entitled “A Project With

Potential to Spread Non-A Non-B Hepatitis in West Africa.” It

states:

The International Primate Protection League has learned

with concern of proposals submitted by the Immuno A.G.

Company of Austria to the Government of Sierra Leone,

West Africa, regarding the company’s plans to establish a

chimpanzee research facility in Sierra Leone, West Africa.

According to a statement dated August 23 1982, submit-

ted to the Government of Sierra Leone by Klaus Bieber,

Austrian Consul in Sierra Leone, the animals would be used

in hepatitis non-A, non-B research and testing of hepatitis

B vaccine. The purpose of establishing the facility in Africa

was stated to be “to avoid the problems involved with the

importation of live chimpanzees.” Presumably, these “prob-

lems” include national and international laws and treaties

regarding the movement of live animals belonging to en-

dangered species. The chimpanzee Pan troglodytes is listed

in Appendix I of the Convention of International Trade in

Endangered Species.

Besides getting round restrictions on the international

movement of chimpanzees, cheapness of wild-caught chim-

panzees appears to be a motivating factor for the Immuno

Company. According to the Austrian newspaper Presse

(February 3, 1983), Immuno official Johann Eibl stated that

captive breeding of chimpanzees was not an economically

viable proposition.

The proposed facility would procure 60-80 chimpanzees

per year, to be obtained from the wild. However, according

to Bieber’s statement, “it must be emphasized that the

research will not bring about a decimation of chimpanzees:

on the contrary, their numbers would remain stable.”

Readers familiar with the destructive method by which

chimpanzees are caught (killing of mothers in most cases)

may be surprised at this statement. However, Bieber cheer-

fully explains the nondetriment theme by saying: “Because

after going through a research circle of about 3 years, the

animals will be in perfect condition and ready for rehabilita-

tion into the wild.”

The International Primate Protection League is concerned

over Immuno’s plans on many grounds; to cite just a few

of them:

1. Release of chimpanzee “veterans” of hepatitis non-A,

non-B research would be hazardous to wild populations,

as there is no way to determine that an animal is definitely

not a carrier of the disease. Should release of carrier animals

occur, hepatitis could well spread among wild chimpanzees

over large parts of Africa. Thus chimpanzees could well

become a reservoir for hepatitis just as bats are a reservoir

for rabies. The result might be increased human persecu-

tion of chimpanzees.

2. Although chimpanzee rehabilitation has acquired a cer-

tain “chic,” it is known that wild chimpanzees attack in-

troduced newcomers. For this reason, chimpanzees in the

Mount Asserik project in Senegal directed by Stella Brewer

had to be recaptured and released on islands in the river

Gambia with no resident chimpanzees. As yet, no perma-

nent home has been located for these animals. The

rehabilitation procedures take many years per animal and

are extremely costly and hence not feasible on the scale that

would be required to start 60-80 animals per year on

rehabilitation. Assuming a 5-year training per animal, there

could be up to 400 animals undergoing rehabilitation at any

given time, at the cost of millions of dollars annually. It is

questionable whether, in spite of the most dedicated efforts,

any rehabilitated chimpanzees will become totally normal,

since they are usually removed from the wild at 1-2 years

of age and thus miss the most critical vears of their social

development.

3. Capture of wild chimpanzees for research is in clear

violation of the World Health Organization's 1982 statement

on the procurement of primates for biomedical research.

Chimpanzees are listed in the Red Data Book of the Inter-

national Union for the Conversation of Nature as vulnerable.

The WHO statement “strongly recommends” that

endangered, vulnerable, and rare species be considered

for use in biomedical research projects only if they are

obtained from existing [emphasis added] self-sustaining

captive breeding colonies (i.e., captive-breeding all

animals required to at least the F-2 generation).

4. Currently, there are over 1,000 chimpanzees in US

laboratories, as well as large numbers in the Netherlands,

Poland, Liberia, etc. These animals should be enough to

supply any legitimate requirements for chimpanzees.

The International Primate Protection League shares the

scientific community’s concern over hepatitis. However, we

feel that a way can and must be found to solve this prob-

lem without recourse to the dwindling populations of wild

chimpanzees. Therefore, we appreciate the opportunity to

draw this situation to the attention of interested parties.

Shirley McGreal, M.D.

Chairwoman

International Primate

Protection League

P.O. Drawer X

Summerville, SC 29483

(Pet. App. 150-152)°

II. The Proceedings.

On December 14, 1984, Immuno A.G. served its complaint

alleging libel and prima facie tort against Dr. Moor-Jankowski

(and others no longer in this case) complaining about the McGreal

Letter and an article in the New Scientist. After extensive

discovery, Dr. Moor-Jankowski moved for summary judgment.

In an opinion dated August 6, 1987, the motion court granted

the motion as to the prima facie tort claim but denied it as to

the libel claim.

The Appellate Division reversed in an opinion and order dated

January 17, 1989. (Pet. App..59-88) “After a thorough review”

of the record, the Appellate Division concluded “that the

statements contained in the [McGreal] letter and New Scientist

article are not actionable and that the defendant [Dr. Moor-

Jankowski] is entitled to summary judgment dismissing the com-

plaint.” (Pet. App. 64-65) The Appellate Division reasoned that

the Letter’s:

. . . ultimate objective was to express certain opinions which,

while highly critical of plaintiff's proposal, did not rise to

the level of outright accusations of wrongdoing. It was,

moreover, the case that the factual assertions upon which

McGreal’s opinions rested were evidently true. . .

* A couple of months after the publication of Dr. McGreal's Letter, Dr. Alfred

Prince, the Director of Virus Research at the New York Blood Center and the

discc er of hepatitis non-A/non-B, wrote a letter to the editor of the Journal

of Mcaical Primatology concerning Immuno A.G.’s proposed Sierra Leone

project. Dr. Prince called the Immuno A.G. plan “unrealistic” in proposing to

take 60 to 80 animals annually from the wild, because wild chimpanzee popula-

tions were dwindling and capture of chimpanzee infants inevitably resulted

in death of chimpanzee mothers, and in proposing to return to the wild the

chimpanzees used in hepatitis non-A/non-B research. Like Dr. McGreal, Dr.

Prince recommended use of captive or captive-bred chimpanzees for research.

(Pet. App. 153-154) Dr. Andrew Rowan, Assistant Dean of Tufts University School

of Veterinary Medicine, also wrote a letter to the editor agreeing with Dr. Prince's

statement of concerns and commenting further that establishing a laboratory

in a country where chimpanzees are naturally found “as a ploy to avoid the

barriers agaifst trade in endangered species is not... . . ethical or responsible

” (Resp. App. 10)

(Pet. App. 65) Based on a lengthy analysis, the Appellate Divi-

sion held that the statements contained in the McGreal Letter were

either constitutionally protected opinion or were factua! statements

as to which Immuno AG. had failed to come forward with

evidence to satisfy the constitutionally imposed burden of prov-

ing falsity (Pet. App. 65-88), and indeed, that the record showed

in most instances to be “demonstrably true!” (Pet. App. 88; ex-

clamation in original) The Appellate Division also held that cer-

tain complained of statements in the New Scientist attributed to

Dr. Moor-Jankowski, particularly that Immuno A.G.’s proposal

was “scientific imperialism’, were constitutionally protected

opinion. (Pet. App. 87)

The New York Court of Appeals, in an opinion by Judge Judith

Kaye and order dated December 14, 1989, unanimously affirmed

summary judgment, holding that the publications at issue were

protected under both the Federal and State Constitutions and thus

not properly the subject of a libel suit. (Pet. App. 35-44) The Court

specifically held that “the Appellate Division's extensive analysis

of the record amply established that [Immuno A.G.] raised no

triable issues of fact as to the falsity of the threshold assertions

of [the Letter to the Editor]” (Pet. App. 42), and pointed to this

case as an example of the “chilling effect” of libel litigation on

free speech, remarking: “That chilling effect can be especially

severe for scholarly journals, such as [Dr. Moor-Jankowski’s]. ...”

(Pet. App. 43-44). In the view of the Court of Appeals,

“hypertechnical parsing of possible ‘fact’ from its plain context of

‘opinion’ loses sight of the objective of the entire exercise, which

is to assure that — with due regard for the protection of individual

reputation — the cherished constitutional guarantee of free speech

is preserved.” (Pet. App. 44).

Immuno A.G. moved to reargue, principally complaining that

the Court of Appeals had erred in finding that “plaintiffs allega-

tions of a deliberate effort, or conspiracy, to smear its reputation

are entirely conclusory, and therefore do not preclude summary

judgment in defendant's favor.” (Pet App. 43) By order dated

February 15, 1990, the Court of Appeals denied that motion. (Pet.

App. 90; see also Pet. App. 99)

Subsequently, this Court granted certiorari in Milkovich to

review the grant of summary judgment by the Ohio state court

dismissing a libel action by a high school wrestling coach against

a newspaper and its columnist on the ground that complained

of statements were constitutionally protected opinion. This Court

reversed in an opinion by Chief Justice Rehnquist. Stating that

under the First Amendment there was not a wholesale exemp-

tion for anything that might be labelled “opinion”, Chief Justice

Rehnquist held that the “dispositive question” was whether “a

reasonable factfinder could conclude that the statements in the

[complained of] column imply an assertion that petitioner

Milkovich perjured himself in a judicial proceeding.” (497 U.S.

at , 110 S.Ct. at 2707) Answering in the affirmative, Chief

Justice Rehnquist reasoned (1) that as the Ohio Supreme Court

itself had observed, the clear impact of the language was an ac-

cusation that Milkovich had committed perjury; (2) that loose,

figurative, or hyperbolic language was not used; (3) that the

“general tenor” of the article did not negate the impression of

a charge of perjury; and (4) that the charge of perjury was suf-

ficiently factual to be susceptible of being proved true or false.

(Ibid.)

Shortly after Milkovich was decided, this Court granted Im-

muno A.G.'s then pending petition for certiorari, vacated the in-

itial order of the New York Court of Appeals affirming summary

judgment dismissing the complaint, and remanded this case back

to the New York Court of Appeals “for further consideration in

light of Milkovich”. (Pet. App. 92-93)

On remand, the seven judges of the New York Court of Ap-

peals unanimously re-entered the Appellate Division's grant ot

summary judgment, dismissing Immuno A.G.'s complaint. Their

reasoning was stated in Judge Kaye's majority opinion for four

judges and in three concurring opinions. We are confident that

a review of the four opinions in the Court of Appeals (Pet. App.

1-33) will lead this Court to reject Immuno A.G.'s outlandish

charges against the New York Court of Appeals. The four opin-

ions are here highlighted:

1. The majority opinion is expressly based “on independent state

constitutional grounds as well as federal review directed by the

Supreme Court.” (Pet. App. 2) After summarizing the record in

Part I of the opinion, the majority concluded (a) in Part II, that

summary judgment is proper under Milkovich because Immuno

A.G. had raised no triable issue of falsity (Pet. App. 4-11); and

(b) in Part III, after an examination of the full publishing and

political context of the Letter to the Editor and a statement of

concern about the chilling effect of libel litigation on free ex-

pression, that summary judgment dismissing the libel complaint

was proper “independently as a matter of state law.” (Pet. App.

16-20)

2. Judge Simons concurred, agreeing that summary judgment

was properly awarded on federal grounds under Milkovich, but

concluded that “the majority has rendered an interpretation of

Milkovich which is narrower than necessary to resolve the matter

before us and one which appears, from statements in the Milkovich

opinions, to be far more constricted than the Supreme Court in-

tended” (Pet. App. 21). He suggested that Milkovich arguably “did

not change the law of defamation as it was previously applied

by State and lower Federal Courts.” (Pet. App. 22) Opposing as

a matter of his judicial philosophy a decision on dual state and

federal grounds, he explained: “The Supreme Court will not review

the matter because it can no longer control the litigation; its deci-

sion would constitute merely an advisory opinion.” (Pet. App. 25)

3. Judge Hancock also agreed with the majority that summary

judgment was properly granted on federal grounds under

Milkovich, but agreed with Judge Simons (a) that under Milkovich

“context continues as a factor of undiminished significance”, and

(b) that the Court of Appeals should not proceed further to decide

the case on state grounds. (Pet. App. 32-33) Unlike Judge Simons,

Judge Hancock stated there are cases “where basing a decision

on both federal and state constitutional grounds may be entirely

appropriate,” but concluded “that this is not such a case.” (Pet.

App. 33)

4. Judge Titone also agreed that summary judgement dismiss-

ing the complaint was proper. However, while sharing the con-

cerns of Judges Simons and Hancock about deciding the case as

a matter of both federal and state law, Judge Titone concluded

that the case should not be decided on federal grounds, but should

instead be dismissed on the sole ground of the New York com-

mon law fair comment doctrine. (Pet. App. 27-32)°

* Immuno A.G. devotes over a page of its petition to a string citation of newspaper

reports on this case (Pet. 14-15 n. 12). More to the point are its real-life effects,

as described in Dr. Moor-Jankowski’s letter to the editor of The New York Times,

entitled “View from Inside a Landmark Libel Case” and published January

25, 1991:

In your report that New York State’s highest court has ruled that let-

ters to the editor and other forms of commentary deserve protection from

libel suits (news article, Jan. 16), you discuss the discrepancy in the ap-

proaches of the United States Supreme Court and the Court of Appeals

to the legal standards for libel. I am the “victorious” defendant in this

case and write to point out the real-life effects of this suit.

I am a full-time research professor at the New York University School

of Medicine and the unpaid editor of the small, international Journal

of Medical Primatology. For the last seven years (10 percent of the life

expectancy of the average American male) I have been sued by the

multinational Austrian pharmaceutical company Immuno Ak-

tiengesellschaft. So far, my legal expenses exceed $1 million.

I underwent 14 days of depositions over a year and a half in this coun-

try and was ordered by the lower court to participate in extremely costly

depositions in Austria and Sierra Leone, Africa. No wonder that I am

the only remaining defendant. In the words of the Appellate Division,

First Department, Immuno Aktiensgesellschaft “succeeded in coercing

what the motion court referred to in its decision as ‘substantial settlements’

from all but one of the original defendants for the obvious reason that

costs of continuing to defend the action were prohibitive.” [Pet. App. 72]

In one case, the insurance company settled against the protest of the author

of the letter I published.

This is, I believe, the first case where a commercial company sued a

scientific journal for debate of an environmental issue, the use of wild

chimpanzees, an endangered species, for infectious medical studies in

Africa. While successive courts of appeal confirmed the letter’s facts and

that their discussion was protected as opinion, the seven years

of proceedings consumed most of my time, curtailing my scientific

activities. .

(Footnote continued)

—

SUMMARY OF ARGUMENT

1. Immuno AG. fails to raise a substantial federal question in

its arguments attacking the conclusion of Judge Kaye's majority

opinion and the concurring opinions of Judges Simons and Han-

cock that the Letter to the Editor is constitutionally protected

under Miikovich v. Lorain Journal Co., 497 U.S. ___., 110 S. Ct.

2695 (1990).

2. The issuance of a writ of certorari in this case is not proper

under Michigan v. Long, 463 U.S. 1032 (1983), because the New

York Court of Appeals expressly granted summary judgment on

a bona fide separate, adequate and independent state constitutional

ground. Immuno A.G.’s arguments for avoiding Michigan v. Long

are without merit and reflect an unprecedented and unwise

disrespect for state constitutions and state law in a federalist system.

ARGUMENT

I. IMMUNO AG. FAILS TO RAISE A SUBSTANTIAL

FEDERAL QUESTION IN ATTACKING THE CON.

CLUSION OF THE NEW YORK COURT OF AP.-

PEALS THAT THE LETTER TO THE EDITOR WAS

CONSTITUTIONALLY PROTECTED UNDER

MILKOVICH V. LORAIN JOURNAL CO.

A. The Court of Appeals Majority Cautiously Stated

And Applied Milkovich v. Lorain Journal Co.

The majority opinion cautiously stated its understanding of

Milkovich:

Thus, if not alone from the Supreme Court's statement of

the governing rules, then from its application of those rules

The court victory may stil] not effectively protect me or other editors

of small professional journals from the chilling effect of suits by wealthy

corporations using our legal system to discourage criticism of their activities.

We need a legal deterrent to prohibitively costly, meritless libel suits that

misuse the court system to undermine our First Amendment rights.

(p. A28) Dr. Moor-Jankowski has had similar Letters ot the Editor published

in The Wali Street Journal, p. AQ (March 1, 1991) and The New York Law Jour-

nal, p. 2 (Jan. 31, 199]).

to the facts of Milkovich, it appears that the following balance

has been struck between First Amendment protection for

media defendants and protection for individual reputation:

except for special situations of loose, figurative, hyperbolic

language, statements that contain or imply assertions of prov-

ably false fact will likely be actionable.

(Pet. App. 7)’

The Court majority then applied Milkovich. After noting that

on the original appeal, a unanimous Court of Appeals had con-

cluded that “the factual review undertaken by the Appellate Divi-

sion established that plaintiff had raised no triable issue as to the

falsity of the threshold tactua! assertions of the McGreal letter”

(Pet. App. 8), the Court majority stated: “We continue to believe

that the Appellate Division review, to the extent it identified asser-

tions of fact and concluded that such assertions had not been shown

to be false, established that no triable issue of fact existed.” (Pet.

App. 8).

_ To “illustrate the enduring soundness of that analysis,” the Court

majority specifically applied Milkevich to what Immuno A.G. had

on remand called the “core libel,” or “core premise,” or “core fac-

tual statement” of the McGreal Letter — namely, that “[rJelease

of chimpanzee ‘veterans’ of hepatitis non-A/non-B research would

be hazardous to wild populations, as there is no way to deter-

mine that an animal is definitely not a carrier of the disease”. Judge

Kaye's opinion on this point follows:

Applying Milkovich, we discern two assertions of fact, one

express and one implied. First, the statement asserts that there

is no scientific method for determining if a chimpanzee

"Immuno A.G. asserts (Pet.9) that the New York Court of Appeals heard the

second oral argument “apparently believing that Milkovich was just saving, ‘look.

don't apply this Gertz dictum with a heavy hand. Just don't apply it willy-

nilly. but analyze each case.” The petition then refers to “A 98 (Hancock, J.).”

which discloses that Judge Hancock was questioning Immuno A.G’'s counsel

about the meaning of Milkovich, not stating what his six colleagues “believed”

Milkovich was “saying”. In fact, the differences between the discussions of

Milkovich in Judge Hancock's concurring opinion and the majority opinion show

that his question did not reflect what at least four of his colleagues believed.

exposed to the non-A/non-B virus is not a carrier of the

disease. Second, the statement implies that plaintiff will

release possible carrier-chimpanzees who may endanger the

wild population... .

As for the express assertion of the absence of a test, plain-

tiff has pointed us to no proof establishing a scientific test

in the relevant period that could conclusively determine the

carrier state in chimpanzees or, more specifically, could

definitely rule out that a veteran chimpanzee was not a car-

rier of the virus. When considered against the extensive

record, plaintiffs effort to establish that there was a fail-proof

test, by weaving together isolated fragments of the testimony

of various experts (including defendant), simply does not

satisfy its legal burden.

To the contrary, what is apparent from the record is that

in the relevant period there was an ongoing process of

discovery and debate centering on the very existence of a car-

rier state of the virus, all of which was made even more in-

conclusive by ambiguity as to precisely when relevant

technology was acquired. When asked if it was possible that

the test for detecting the carrier state would yield negative

results even though the chimpanzee carried the virus, plain-

tiffs Dr. Johann Eibl replied “[t]here is no proof on that.”

Finally, even if the express assertion of the “core premise” had

been shown to be false, that assertion would not itself libel

plaintiff, because it does not “stat[e] actual facts’ about [that]

individual.” (Milkovich v. Lorain Journal Co., 497 US. at

, 110 S.Ct. at 2706, supra; see also King Prods. v.

Douglas, 742 F.Supp. 778, 784 [SDNY)).

Similarly, as the Appellate Division concluded, there was

no proof of falsity of the implied assertion of fact — that

plaintiff in the relevant period planned to release chimpanzees

with no means of definitely determining that they were not

carriers of the disease, thus endangering the wild popula-

tions. It is clear from the record that plaintiff, in 1983, was

considering the option of rehabilitating chimpanzees used

at the projected Sierra Leone facility, for return to a

natural state (see, 145 A.D.2d, at 136). With no proof of the

falsity of the express assertion that there was a conclusive test

of carrier status available in 1983, it follows that there was

also no proof of the falsity of the implied assertion that plain-

tiff planned to return its veteran test animals with no means

of definitely determining that they were not hepatitis carriers.

(Pet. App. 8-10) The Court also considered “[a]s an additional mat-

ter,” the Appellate Division’s findings concerning the lack of any

practical test for determining infectiousness (as opposed to the car-

rier status). (Pet. App. 10)

B. Immuno A.G. Does Not Raise A Federal Question

Concerning The Reading By The New York State

Appellate Courts Of The Letter To The Editor.

To avoid the conclusion that summary judgment is proper under

Milkovich, Immuno A.G. does not quote the Letter to the Editor

from which any “implications” are to be derived, but complains

that the Court of Appeals, because it did not find false defamatory

implications, “misconstrued and trivialized” Milkovich. (Pet. App.

17-18) This complaint does not raise a substantial federal question.

What implications of fact may be drawn from an express state-

ment, and whether any such implications are defamatory, are in-

itially issues of state law. (See p. 25, infra.) In New York, there

is a developed body of libel law on (a) whether a statement may

be implied from a publication, Cohn v. NBC, 50 N.Y.2d 855, 887,

408 N.E.2d 672, 673, 430 N.Y.S.2d 265 (published language must

be given a fair reading and courts not to strain to find untenable

defamatory interpretations), cert. denied, 449 U.S. 1022 (1980);

and (b) if it may, whether such statement may be found

defamatory, Aronson v. Wiersma, 65 N.Y.2d 592, 593-94, 483

N.E.2d 1138, 1139, 493 N.Y.S.2d 1006, 1007 (1985) (issue of law

for the Court to determine whether there is a reasonable basis

for drawing a defamatory meaning from a statement).

The federal constitutional issue is whether implications permissi-

ble under the states’ libel laws are in conflict with the First Amend-

ment. Milkovich ruled that, as a matter of federal constitutional

law, Ohio (a) “could conclude” that the complained of article

contained an implied defamatory accusation of perjury, and (b)

if it did, could subject the implied defamatory statement to Ohio

libel law. Milkovich did not require Ohio, as a matter of federal

constitutional law (or as a matter of Ohio libel law), to find

an implied charge of perjury. Put somewhat differently, the First

Amendment does not require the states to find implications that,

2s a matter of state law, are not present.

It therefore follows that in this case, nothing in Milkovich

requires New York to find any implication in the Letter to

the Editor that the Court of Appeals did not determine was

present.’

C. Immuno A.G. Does Not Raise A Federal Ques-

tion Concerning The Correct Determination Of

The New York State Appellate Courts That There

Is No Triable Issue Of Falsity.

Also to avoid the conclusion that summary judgment is proper

under Milkovich, Immuno A.G. complains that the New York

Appellate Division and Court of Appeals erred in concluding

that there is “no triable issue of falsity” (the summary judgment

standard under the New York CPLR 3212). Again, however, Im-

muno A.G. fails to raise a “substantial federal question.” Falsi-

ty is an element of the state law cause of action for libel, and

it is with regard to that element Immuno A.G.’s proof failed on

summary judgment under the New York CPLR 3212. Ac-

cordingly, Immuno A.G.’s request for this Court to review the

record on proof of falsity is wholly without merit for three

reasons.

Immuno A.G. cites Judge Simons, responding to footnote 3 in the majority

opinion, that if there were a defamatory implication frorn the Letter to the

Editor under Milkovich, the Court majority should identify it. (Pet. App. 17-18)

Immuno A.G. ignores that the Court majority and Judge Simons both agreed

that summary judgment was proper under Milkovich and that Immuno A.G.'s

argument on remand failed to show to either the Court majority or to Judge

Simons that there were any such false defamatory implications.

1. This Is An Appropriate Case For This Court

To Defer To The State Court Review of the

Record.

The customary rule for this Court is to defer to state court deter-

minations of fact based on the state court’s examination of the

record. See, €.g., Pennekamp v. Florida, 325 U.S 331, 345 (1946)

(“we are accustomed to adopt the result of the state court’s ex-

amination”); Time, Inc. v. Firestone, 424 U.S. 448, 463 (1976)

(Rehnquist, J.) (“Even where a question of fact may have con-

stitutional significance, we normally accord findings of state courts

deference . . .”). Not applicable here is the review required by

New York Times v. Sullivan, 376 U.S. 254, 285 (1964), and Bose

Corp. v. Consumers Union of United States, Inc., 466 U.S. 485,

499 (1984), because those precedents establish that “in cases rais-

ing First Amendment issues, an appellate court has 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’ ” (emphasis supplied). Here,

the New York Court of Appeals decision, upholding summary judg-

ment dismissing the libel complaint, does not present any risk of

a judgment constituting a forbidden intrusion on the field of free

expression. In fact, Immuno A.G. seeks to turn New York Times

v. Sullivan on its head and have this Court (a) independently ex-

amine the record de novo to review the determinations of the New

York State appellate courts (which themselves made an in-

dependent examination of the whole record), and (b) reverse the

state court appellate courts’ judgment that the corporate plain-

tiff does not have a state common law cause of action. There is

no federal interest in this case justifying this Court to engage in

such review.

2. The Ordinary Rules Of Summary Judgment

In New York Were Applied.

This case involves the application of the ordinary rules of sum-

mary judgment in New York, which provide that a party oppos-

ing a properly made summary judgment motion cannot rest on

the conclusory allegations of the complaint, but must come for-

ward with competent proof creating “triable issues of

fact.” Zuckerman v. City of New York, 49 N.Y.2d 557, 560, 404

N.E.2d 718, 720, 427 N.Y.S.2d 595, 598 (1980); Alvord ¢-> Swift

v. Steward M. Muller Constr. Co., 46 N.Y.2d 276, 281-82, 385

N.E.2d 1238, 1240-41, 413 N.Y.S.2d 309, 311-12 (1978). Similarly,

federal law imposes the burden on a party opposing a properly

made summary judgment motion to come forward with com-

petent evidence, and not rest on conclusory statements, with

respect to an issue as to which the party bears the burden of proof

(as Immuno A.G. does here on falsity). Celetex Corp. v. Catrett,

477 US. 317 (1986); Fontenot v. Upjohn, 780 F.2d 1190, 1195-96

(5th Cir. 1986). Summary judgment was properly granted in this

case because, as determined by the New York State appellate

courts, Immuno A.G. simply did not have proof creating “triable

issues” under the New York CPLR 3212 — or what presumably

would be discussed as “genuine issues of material fact” under

federal law. To use the Appellate Division’s words, Immuno A.G.'s

case was “ill-focused” (Pet. App. 87). Consequently, contrary to

Immuno A.G.’s argument (Pet. 20-21), the granting of summary

judgment here is consistent with Anderson v. Liberty Lobby, 477

U.S. 242 (1986), where this Court reversed the denial of sum-

mary judgment in a libel case, stating:

.. . the mere existence of some alleged factual dispute be-

tween the parties will not defeat an otherwise properly sup-

ported motion for summary judgment; the requirement is

there be no genuine issue of material fact.

As to materiality, the substantive law will identify which

facts are material. Only disputes over facts that might af-

fect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment. Factual

disputes that are irrelevant or unnecessary will not be

counted.

477 U.S. at 247-248.

3. The New York Appellate Courts Correctly

Treated The Record.

If this Court were to depart from its customary practice of

deferring to state court determinations of fact in the absence of

federal constitutional interest and instead duplicate the work of

the New York appellate courts, this Court would see for itself

that Immuno A.G.’s arguments have been thoroughly dealt with

and properly rejected by the New York appellate courts.

(a) The “Core Premise”.

Contrary to Immuno A.G.’s argument (Pet. 21), the New York

appellate courts, in upholding summary judgment dismissing the

complaint, determined that a reasonable factfinder could not find

falsity with respect to the statement that “[rJelease of chimpanzee

veterans of hepatitis non-A non-B research would be hazardous

to wild populations, as there is no way to determine that an

animal is definitely not a carrier of the disease.” (Pet. App. 151];

emphasis supplied)

The Appellate Division stated:

It is quite clear that Dr. McGreal was correct in her obser-

vation that there is no way of definitely determining whether

an animal is a non-A/non-B carrier. Dr. Alfred Prince, the

discoverer of non-A/non-B hepatitis and widely regarded as

the preeminent authority on that form of hepatitis, . . . ex-

pressly confirmed that, as Dr. McGreal had stated, there

is no test to identify the viral agent which causes non-A/non-

B hepatitis, and indeed Immuno’s own Dr. Eder co-authored

an article acknowledging that the virus lacks generally ac-

cepted serological and morphological markers (4 Hepaiology

Magazine 510 [1984]). There is then no real issue as to the

accuracy of the factual premise underlying McGreal’s con-

cern that undetected non-A/non-B carriers might be releas-

ed.

(Pet. App. 84) Indeed, Immuno A.G.’s counsel, referring to the

McGreal statement “there is no way to determine that an animal

is definitely not a carrier of the disease”, admitted in his last oral

argument to the Court of Appeals: “That is not a misstatement

of fact. There is no way to determine if an animal is a carrier.”

(Pet. App. 97)

Having conceded there is no test of the carrier state, Immuno

A.G. argues in its petition that there is nevertheless a procedure

——_—

for determining “infectiousness” (Pet 6). That argument, however,

had been rejected by the New York Appellate Division (Pet. App.

84-85) and was rejected again on remand by the New York Court

of Appeals:

As an additional matter, the Appellate Division considered

infectiousness as well as carrier status (the “core premise” refers

only to carriers [see, 145 AD2d, at 139]). Although there was

testimony that infectiousness might be tested by inoculating

a healthy chimpanzee with the blood of a potentially infected

animal to see whether the healthy animal developed hepatitis

symptoms, plaintiff produced no proof that it would in fact

be implementing that procedure at its facility. That procedure

was described by Dr. Alfred Prince, a leading expert, as “ex-

pensive,” “laborious” and “wasteful,” in that it involved the

deliberate infection of healthy chimpanzees to test the in-

fectiousness of animals that had been exposed to the virus.

As the Appellate Division noted, “McGreal can hardly be

faulted for not assuming that Immuno would necessarily per-

form the inoculation procedure on every one of the many

chimps it intended to return to the wild.” (i145 AD2d, at 140)

(Pet. App. 10)

Now, in this Court, Immuno A.G. again claims that Dr. Moor-

Jankowski knew “how to tell that chimpanzees exposed to hepatitis

non-A/non-B were infectious” (Pet. 5, 16, 21), and that his “sworn

testimony . . . proved the falsity of the libel.” (Pet. 16) Dr. Moor-

Jankowski’s testimony, however, did no such thing. The testimony

of Dr. Moor-Jankowski establishes: (1) that it was not possible to

determine that a chimpanzee exposed to hepatitis non-A/non-B

definitely is not a carrier—which is the statement made in the

McGreal Letter — but it was possible, based on the test history of

laboratory animals, to presume that a chimpanzee exposed to

hepatitis non-A/non-B is a carrier (Resp. App. 14); and (2) that an

inoculation procedure could be used to identify infectiousness. A

presumption that a chimpanzee is a carrier does not contradict the

statement “there is no way to determine definitely that an animal

is not a carrier of the disease.” An inoculation procedure, which

Drtniatne etenie

involves the injection of a healthy chimpanzee with tire serum

of a chimpanzee exposed to hepatits non-A/non-B, is not a test

“to identify the viral agent which causes non-A/non-B hepatitis”

(Pet. App. 84) and is neither “fool-proof” (Pet. App. 9) nor prac-

tical for the purpose of screening the possible annual release of

60 to 80 chimpanzee veterans of hepatitis non-A/non-B research.

(See Pet. App. 10, 84-85, 106-108; Resp. App. 11)

(b) Events Prior To Publication.

Immuno A.G. also misstates events that occurred before Dr.

Moor-Jankowski published the McGreal Letter to the Editor. For

example:

First, Immuno A.G. repeats its argument that Dr. Moor-

Jankowski deliberately incited Dr. McGreal to write the Letter

to the Editor (Pet. 15), even though the Court of Appeals rejected

that contention three times (Pet. App. 43, 90, 4). The record, sum-

marized by the New York Appellate Division and Court of Ap-

peals, makes clear that the Letter was “provoked by a particular

state of affairs” (Pet. App. 42); and that state of affairs included

(a) the CITES treaty, which restricts the transnational movement

of endangered species such as chimpanzees and was ratified by

Austria in April 1982, and (b) the August 23, 1982 document by

Klaus Bieber, Immuno A.G’s representative in Sierra Leone, which

describes the Immuno A.G. proposal for a Sierra Leone research

facility using captured chimpanzees. (Pet. App. 74-75) The Let-

ter to the Editor criticizes the proposal reflected in the Bieber docu-

ment, and one of the Letter’s criticisms is that the proposal is a

way of “getting round [CITES] restrictions on the international

movement of chimpanzees” (see p. 3, supra).

Second, Immuno A.G. complains that Dr. Moor-Jankowski

allowed the Letter’s comment that “readers familiar with the

destructive method by which chimpanzees are caught (killing of

mothers in most cases) may be surprised” by the August 23, 1982

Bieber statement that Immuno A.G’s proposal would not adversely

impact the numbers of wild champanzees. (See p. 4, supra.) On

this point, the Appellate Division dispositively determined that

“It has not been seriously disputed in the course of this litigation

that, as Dr. McGreal stated, chimpanzees are most often caught

by killing their mothers, and it has been estimated that for every

juvenile chimps captured, 5 to 10 mothers are killed.” (Pet. App.

83)°

Third, Immuno A.G. ignores the facts concerning the oppor-

tunity to reply to the Letter, which Dr. Moor-Jankowski twice

afforded the company and which the Appellate Division observed,

“was made extraordinarily available to [the company].” (Pet. App.

82) The significance of this omission is evident in light of the Ap-

pellate Division's discussion of these facts (the “first remedy” under

Gertz v. Robert Welch, Inc.) (Pet. App. 82-3); and Judge Kaye's

references to those reply opportunities in her opinion for a

unanimous Court of Appeals (“rebuttal openly invited”) (Pet. App.

43); and, on remand, for the majority of the Court (“rebuttal open-

ly invited”) (Pet. App. 19).

Fourth, Immuno A.G. incorrectly asserts that Dr. Moor-

Jankowski “deliberately ignored conflicting evidence” that Immuno

A.G. agreed not to try to release “used” chimpanzees back to the

wild and to establish a breeding facility. (Pet. 6) The Appellate

Division rejected this assertion (Pet. App. 80). Dr. Moor-Jankowski

did review the documents in question, but concluded that they

confirmed the situation described in the McGreal Letter to the

Editor (Resp. App. 15-17)" and that Immuno A.G. could not

* Immuno A.G. has asserted, based on pre-1982 correspondence, that Dr. Moor-

Jankowski knew that Immuno A.G’'s source of chimpanzees, Franz Sitter, ob-

tained chimpanzees without employing destructive methods (Pet. 5). Not only

is the assertion irrelevant, but also the record shows that prior to the publica-

tion of the Letter, Dr. Moor-Jankowski had come to the conclusion that Sitter

was using destructive means to capture chimpanzees. (Resp. App. 12-13)

” For example, Dr. Abass Bundu, the Sierra Leone Minister of Agriculture,

reported in a memorandum that “the main reason why” Immuno A.G. was

proposing the facility was that the company “would not otherwise be able to

import chimpanzees into Austria by virtue of the Washington Agreement [the

CITES Treaty] . . . to which Sierra Leone and Austria are both signatories.”

(Pet. App. 76, 164-165) Also, the Bundu memorandum stated that Immuno A.G.'s

proposal to rehabilitate the chimpanzees after testing and to return them back

to the wild was not sound for reasons similar to those stated in the McGreal

Letter, including “a risk of transmission of viruses acquired during the experimen-

tation” (Pet. App. 76, 166).

proceed with the suggested captive breeding, as to which Die Presse

had already quoted Immuno A.G.’s director Dr. Eibl as presen-

ting “unsurmountable difficulties”. (Pet. App. 80-81; Resp. App.

15-17)"

II. CERTIORARI IS NOT PROPER UNDER MICHIGAN

v. LONG.

A. This Case Involves A Clear Application Of

Michigan v. Long.

In Michigan v. Long, supra, 463 U.S. at 1040-41, this Court

stated the standard for considering whether to issue a writ of cer-

tiorari that is applicable in this case:

Respect for the independence of state courts, as well as

avoidance of rendering advisory opinions, have been the cor-

nerstones of this Court’s refusal to decide cases where there

is an adequate and independent state ground . . . . If a state

court chooses merely to rely on federal precedents as it would

on the precedents of all other jurisdictions, then it need on-

ly make clear by a plain statement in its judgment or opin-

ion that the federal cases are being used only for the pur-

pose of guidance and do not themselves compel the result

that the court has reached . . . . If the state court decision

indicates clearly and expressly that it is alternatively based

on bona fide separate, adequate, and independent grounds,

we, of course, will not undertake to review the decision.

With this direction, Judge Kaye's opinion for the New York

Court of Appeals majority carefully complied in a number of ways:

(1) Judge Kaye expressly states at four points that the Court ma-

jority is deciding the case on independent state constitutional

grounds (Pet. App. 2, 11, 13-14, 16); (2) Judge Kaye discusses the

“ Indeed, Immuno A.G.'s argument about “conflicting evidence” is not consistent

with its own admissions: the only decision made by Dr. Eib! of Immuno A.G.

tollowing the meeting between Immuno A.G.'s employee, Dr. Eder, and Sierra

Leone government officials in April 1983, was to apply for permits for an impor-

tation of chimpanzees from Sierra Leone to Austria, not to proceed with breeding

(Resp. App. 18), and Dr. Eibl’s testimony makes it clear that taking chimpan-

zees from the wild for use in research and releasing “used” chimpanzees back to

the wild continued to be part of Immuno A.G.'s desired plan (Resp. App. 19-20).

! |

state constitutional values at stake and concludes that the state

constitutional decision is in accordance with state constitutional

core values (Pet. App. 11-12); (3) Judge Kaye expressly states that

the reference to federal cases in the state law analysis is for “the

purpose of guidance only” and does not compel the result (Pet.

App. 13); (4) Judge Kaye expressly discusses the reasons for a

separate and independent state law analysis: (a) New York’s “own

exceptional history and rich tradition” in its State Constitution

and common law concerning the liberty of the press, (b) the

responsibility of the Court of Appeals to settle the law of New

York, particularly since (in the majority's view) under Milkovich,

insufficient protection may be accorded to core values protected

by the New York Constitution, and (c) the pointlessness of defer-

ring state law review (Pet. App. 14); and (5) Judge Kaye provides

a separate state law analysis (Pet. App. 16-20). It follows that under

Michigan v. Long certiorari is not proper in this case.

B. Immuno A.G.’s Arguments To Avoid Application

Of Michigan v. Long Are Meritless.

In an attempt to avoid the clear application of Michigan v.

Long, Immuno A.G. makes six arguments. Not one has merit.

1. Immuno A.G. falsely asserts that the Court of Appeals ma-

jority has “disguised” a federal constitutional determination as a

matter of state constitutional law. (Pet. 12) When the Court of

Appeals originally decided the case, it held that the Letter to the

Editor was privileged opinion under both the Federal and State

Constitutions (Pet. App. 38, 43) and treated the opinion privilege

as the successor to the state common law fair comment doctrine

(Pet. App. 38-39, 43). On remand, for “further consideration in

light of Milkovich,” the majority not only upheld summary judg-

ment under Milkovich (because there was no triable issue of falsi-

ty), but also independently adhered to its original state constitu-

tional decision on the basis of New York State constitutional con-

cerns and values:

It has long been recognized that matters of free expres-

sion in books, movies, and the arts generally, are particular-

ly suited to resolution as a matter of State common law and

State constitutional law, the Supreme Court under the Federal

Constitution fixing only the minimum standards applicable

throughout the Nation, and the State courts supplementing

those standards to meet local needs and expectations .. . .

[New York] State, a cultural center for the Nation, has long

provided a hospitable climate for the free exchange of ideas

... . That tradition is embodied in the free speech guarantee

of the New York State Constitution, beginning with the ring-

ing declaration that “[e]very citizen may freely speak, write

and publish . . . sentiments on all subjects.” (N.Y. Const., art

i. aw

Thus, . . . the “protection afforded by the guarantees of

free press and speech in the New York Constitution is often

broader than the minimum required by” the Federal Con-

stitution. ...

(Pet. App. 11-12) The Court of Appeals accordingly affirmed its

original state constitutional decision becavise it was in accordance

with core values protected by the State Constitution (Pet. App.

12-13, 16-20). Indeed, the majority opinion could be described as

stating New York’s current state constitutional fair comment

doctrine” :

2. Immuno A.G. mistakenly asserts, without citation of any

authority, that the New York Court of Appeals “exceeded” the scope

of the remand in deciding the case on independent state constitu-

tional grounds (Pet. i, 9). What the remand order required was

“further consideration in light of Milkovich”; it did not dictate

how Milkovich was to be considered. The majority complied by

considering Milkovich at length and concluding (a) that summary

judgment was mandated under the mode of analysis indicated

® The reliance by the Court of Appeals on the state constitutional free speech

guaranty in this context is not novel. To the contrary, a leading state common

law fair comment case, Coleman v. MacLennan, 78 Kan. 711, 98 P. 281 (1908),

contained an extensive discussion of the Kansas State Constitution's free speech

guaranty, as well as a consideration of the adverse effects of libel litigation on

free expression.

in Milkovich, and (b) that summary judgment was separately and

independently mandated under its original state constitutional

analysis and decision. The majority thus acted consistently with

the terms of the remand order. People v. Duncan, 124 IIl.2d 400,

530 N.E.2d 423 (1988); Arcara v. Cloud Books, Inc., 68 N.Y.2d

553, 503 N.E.2d 492, 510 N.Y.S.2d 844 (1986); Hellman, “Granted,

Vacated and Remanded - Shedding Light On A Dark Corner Of

Supreme Court Practice,” 67 Judicature 389 (1984).

3. Immuno A.G. is also mistaken in asserting that ever since

New York Times v. Sullivan, 376 U.S. 254 (1964), “the U.S. Supreme

Court has set national policy in the development of defamation

law.” (Pet. 12; emphasis in the original) There is no general federal

law of libel. See Erie Railroad Co. v. Tompkins, 340 U.S. 64 (1938)

(Brandeis, J.). The legal remedy for protection of reputation is

entrusted to the states, see Paul v. Davis, 424 U.S. 693 (1976) (Rehn-

quist, J.); defamation has always been, and continues to be, a state

law cause of action, in existence because of state legislative recep-

tion of such common law (see James Madison, “The Virginia

Report of 1799-1800,” reprinted in The Mind of the Founder, M.

Meyers ed., pp. 245-46 (rev. ed. 1981)), and subject, as is all state

law, to state constitutional law. What this Court has done ever

since New York Times v. Sullivan is to articulate constitutional

limits on the states’ libel laws, not to dictate the development of

the states’ libel laws within those limits. See, e.g., Gertz v. Robert

Welch, Inc., 418 U.S. 323 (1974) (states to set standard of liability

for public concern/private figure cases so !ong as not strict liability).

Furthermore, these federal constitutional restrictions on the states’

libel laws do not foreclose the state courts from applying addi-

tional state constitutional (and common law) restrictions on their

own state law cause of action to safeguard freedom of expression.

See Arcara v. Cloud Books, Inc., 68 N.Y.2d 553, 557-558, 503

N.E.2d 492, 494, 510 N.YS.2d 844, 846 (1986). See Note,

“Developments In The Law - The Interpretation of State Con-

stitutional Rights,” 95 Harv.L.Rev. 1324 (1982).

4. Immuno AG. also wrongly claims that the Court of Appeals

“misused” Michigan v. Long “to ward off’ U.S. Supreme Court

review, thereby risking the subordination of federal interests to

state interests. (Pet. 13) As defamation is a state law cause of action,

Immuno A.G. cannot sensibly complain about an independent

state determination in the absence of a defined federal interest

and also ignore the state court’s extensive discussion of state law

interests protecting free expression. (Pet. App. 11-14)"

5. Immuno A.G. further argues that “the next step after

Michigan v. Long ought to be a holding that this Court has

jurisdiction to review state court decisions which are prima facie

grounded on state law, but which are to a certain degree inter-

woven with or derived from federal jurisprudence.” (Pet. 13) This

proposal, however, is in substance not one to extend or even to

modify Michigan v. Long; it is a proposal to overrule Michigan

v. Long. It would call upon this Court to disregard the bona fide

express statement of the Court of Appeals made in response to

Michigan v. Long — that the decision is based on independent

state constitutional grounds and the citation of federal precedent

is for guidance only and does not compel the result.

6. Immuno A.G. also erroneously claims that the “independent

state ground” articulated in Part III of the majority opinion is “a

pure invention” because it is founded on this Court’s decision in

Philadelphia Newspapers v. Hepps, 475 U.S. 767 (1986). (Pet. 16-17)

Nowhere is Hepps cited or applied in Part III of the majority opi-

nion, which discusses the majority’s separate, adequate and in-

dependent state constitutional ground of decision. In fact, the only

place where Hepps is cited in the majority opinion is in Part II

containing its federal law discussion, at which point the Court

of Appeals majority also cites its own New York precedent for the

libel plaintiffs burden of proving falsity, Silsdorf v. Levine, 59

N.Y.2d 8, 449 N.E.2d 716, 462 N.Y.S.2d 822, cert. denied, 464 US.

® Instead, Immuno A.G. charges the New York Court of Appeals with “glibly

saying that Immuno should not consider ‘any trip to Washington”. (Pet. 15)

What the Court of Appeals majority stated was “In view of the costly, sizable

record already amassed, including hundreds of pages of briefs, no purpose is

served by compelling these parties, on this record and these briefs, to consider

another trip to Washington, with the prospect that State law review before this

Court would ultimately be available” (Pet. App. 14; emphasis in the original

and footnote omitted).

831 (1983), and Steinhilber v. Alphonse, 68 N-Y.2d 283, 501 N.E.2d

550, 508 N.Y.S.2d 901 (1986) (see Pet. App. 8). Furthermore, even

if the libel plaintiffs burden of proving falsity under state law

had in theory originated in Hepps, the Court of Appeals majori-

ty expressly states that in the “state law analysis reference to Federal

cases is for the purpose of guidance only, not because it compels

the result”-(Pet. App. 13).

C. Immuno A.G.’s Argument That Certiorari Should

Be Issued To Stop A “Judicial Stampede” Away

From Milkovich Is In Substance An Unprecedented

And Unwise Attack On State Constitutions And

State Law In A Federalist System.

Immuno A.G. further argues that this Court should grant cer-

tiorari in order to prevent “a judicial stampede” away from

Milkovich, which petitioner says will result from the decision of

the Court of Appeals in this case. (Pet. 18-22) Immuno A.G. may

well be presuming an understanding of Milkovich that this Court

did not intend, but in any event, Immuno A.G. is asking this Court

to disallow, in an unprecedented and unwise manner, the separate

and independent application of a state's constitution and a state's

laws.

1. Immuno AG. first criticizes the reasoning of the New York

Court of Appeals under the New York Constitution:

The Court of Appeals majority ignored the teaching of

Milkovich as to the role of context. It held that one reason

the state constitution protected the libel letter was context.

(Pet. 18; emphasis in the original) Thus, Immuno A.G. is apparent-

ly claiming that in the absence of any defined federal right, this

Court can tell the New York Court of Appeals how to interpret

the New York State Constitution (and also to disregard to the con-

sideration of a publication's context required under New York com-

mon law). This Court, however, does not review state court in-

terpretations of state law in such situations. See, e.g., Mullaney

vu. Wilbur, 421 U.S. 684, 691 (1975); Scripto, Inc. v. Carson,

362 U.S. 207, 210 (1960); Winters v. New York, 333 U.S. 507, 514

(1948); Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590 (1875).

2. Immuno A.G. follows its complaint about independant state

constitutional decision-making with a non sequitur designed to

disallow appropriate state appellate law review (even though peti-

tioner is suing on a state common law clairn):

This Court should grant certiorari once more in this case,

announce its jurisdiction to review independent state grounds

to the extent interwoven with federal law, and send this case

directly to the trial judge for a trial.

(Pet. App. 19-20) Obviously, “independent state grounds” are by

definition not “interwoven with federal law” and under Michigan

v. Long not appropriate for review. Furthermore, this Court's prac-

tice has been, consistent with due respect given to state courts in

a federalist system, to remand the case to the state appellate court

whose decision is under review for proceedings not inconsistent

with this Court’s opinion. See e.g., New York Times v. Sullivan,

supra, 376 U.S. at 292; Milkovich, supra, 110 S. Ct. at 2708. This

practice is especially appropriate here, where a state's highest court

has already held that a state law action should be dismissed under

the state's provisions for summary judgment on independent state

constitutional law grounds and that such state grounds are separate

and independent of federal law (Pet. App. 11-16)"

“ In addition, the state appellate process should not be bypassed (a) because

as shown in Judge Titone’s concurring opinion, the Letter is privileged under

the New York common law doctrine of fair comment and the Court of Appeals

should be free to determine this matter, and (b) because, as shown in Part III

of Dr. Moor-Jankowski’s brief on remand to the New York Court of Appeals,

there are alternative grounds for dismissing this case which have not been

necessary to reach but which are also dispositive: (i) there was no defamation

as a matter of state law; (ii) there was no “actual malice” as a matter of federal

law or “gross irresponsibility” as a matter of state law — the opportunity given

to Immuno AG. to reply to the Letter and the existence of confirming documents

and press articles would seem to render absurd Immuno A.G.'s argument about

culpable falsity; and (iii) there were no actual pecuniary damages, which a

corporate plaintiff must have in order to proceed with a libel cause of action

in New York and elsewhere, see Second Restatement of Torts § 561, and must

establish in order to satisfy Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

3. Immuno AG. finally asserts that certiorari should be granted

in this case in order to provide guidance as to the treatment of

the burden of proof of falsity under Hepps in the context of a sum-

mary judgment motion. (Pet. 20-22) The request is misconceived

because guidance already exists (see p. 17, supra) and the Court

of Appeals majority has made it clear that federal cases such as

Hepps are not controlling (Pet. App. 13). Given the precedents

of the Court of Appeals on point, see pp. 26-27, supra, the libel

plaintiff's burden of proving falsity in New York must be considered

independent of Hepps.

CONCLUSION

Immuno A.G_’s petition is without merit because (1) it does not

present a federal question requiring this Court’s attention, and

(2) the case has been decided on bona fide separate, adequate and

independent state constitutional grounds. In this 200th year of

the First Amendment (written by James Madison) and this 170th

vear of the current New York Constitution's free speech guaranty

(inspired by Alexander Hamilton), it is time for this case to end.

Dated: May 10, 199]

Respectfully submitted,

PHILIP A. BYLER

Counsel of Record and Attorney

for Respondent Dr. Moor-Jankowski

Of Counsel: STULTS BALBER HORTON *& Siornik

1370 Avenue of the Americas

Louis LAUER New York, New York 10019

(212) 246-2400

APPENDIX

A-1

A. Constitutional And Statutory Provisions.

Article III, section 2, clause 1 of the United States Constitu-

tion provides in pertinent part:

The judicial Power shall extend to all Cases, in Law and

Equity, arising under this Constitution, the Laws of the

United States, and Treaties made, or which shall be made,

under their Authority, . . . to Controversies . . . between

a State, or the Citizens thereof, and foreign States, Citizens

or Subjects.

The First Amendment to the United States Constitution pro-

vides in pertinent part:

Congress shall make no law . . . abridging the freedom

of speech, or of the press... .

The Fourteenth Amendment to the United States Constitu-

tion provides in pertinent part:

No state shall . . . deprive any person of life, liberty or

property, without due process of law.

Title 28 of the United States Code, section 1257(a) provides:

Final judgments or decrees rendered by the highest court

of a State in which a decision could be had, may be reviewed

by the Supreme Court by writ of certiorari where the validi-

ty of a treaty or statute of the United States is drawn in ques-

tion or where the validity of a statute of any State is drawn

in question ont he ground of its being repugnant to the Con-

stitution, treaties, or laws of the United States, or where

any title, right, privilege, or immunity is specially set up

or claimed under the Constitution or the treaties or statutes

of, or any commission held or authority exercised under,

the United States.

Article I, Section 8 of the New York State Constitution pro-

vides in pertinent part:

Every citizen may freely speak, write and publish his sen-

timents on all subjects, being responsible for the abuse of

A-2

that right: and no law shall be passed to restrain or abridge

the liberty of speech or of the press . . .

Section 3212 of the New York Civil Practice Law and Rules

(“CPLR”) provides in pertinent part:

A motion for summary judgment . . . shall be granted if,

upon all the papers and proof submitted, the cause of ac-

tion or defense shall be established sufficiently to warrant

the Court as a matter of law in directing judgment in favor

of any party.

A-3

B. Dr. Jan Moor-Jankowski’s Curriculum Vitae (A

4035-37).

CURRICULUM VITAE

JAN MOOR-JANKOWSKI

Born: 5th February, 1924, Poland

U.S.A. Citizen, naturalized 1963

WWII Polish Home Army (Underground):

disabled war veteran

Education:

1945 Matriculated at Fribourg University Medical

School, Switzerland

1954 M.D. Berne University Medical School,

Switzerland

Honors:

1956 Geneva University Prize “Prix Arthur de

Claparde” for research work on demography

and population genetics of Swiss mountain

populations.

197] Trumpeldor medal, Prime Minister’s Office,

Life Sciences Division, Israel for consulta-

tions on developing new research programs.

1978 Medal, USSR Academy of Medical Sciences,

Institute of Experimental Pathology and

Therapy, for consultations on medical use of

primate animals.

1979 G. Bude medal, College de France, Paris.

1984 Knight of the French Order “Ordre National

du Merite” awarded by the French President

for resistance activity in WWII and for

scientific achievements.

—————ee

A-4

Major Research Interest:

Experimental medicine; immunology; use of

primate animals in research; Conservation.

Research and Professional Experience:

1979-present Research Collaborator in the Medical

Department, Brookhaven National Labora-

tory, Associated Universities, Inc., Upton,

New York 11973.

1980 Lecturer, WHO International Course (2

weeks) on the Utilization of Non-Human

Primates in Cancer Research, Sukhumi,

U.S.S.R.

1979 Professeur invite, College de France, Paris

1975-present Director, WHO Collaborating Centre for

Haematology of Primate Animals at the

Laboratory for Experimental Medicine and

Surgery in Primates (LEMSIP), New York.

1965-present Director, Laboratory for Experimental Med-

icine and Surgery in Primates (LEMSIP), of

New York University Medical Center - 50

employees including 5 full-time and 2 part-

time faculty members; average 120 colla-

borating or visiting scientists per year;

average annual operating budget $2.5

million.

1965-present Research Associate Professor, then Professor

(since 1969). Department of Forensic

Medicine, New York School of Medicine.

1965-1970 Director, LEMSIP division, On-Site at

Holloman Air Force Base, New Mexico.

— ee

1959-1975

1964-1965

1962-1964

1959-1962

1953-1957

1952-1953

A-5

Associate, Seminar on Genetics and Evolu-

tion of Man, Columbia University, New

York.

Chief, Division of Experimental Im-

munogenetics and Oncology, Yerkes Regional!

Primate Research Center of Emory Univer-

sity, Atlanta, Georgia.

Visiting Scientist, Human Genetics Branch,

NIDR, NIH, Bethesda, Maryland.

Special Research Fellow of the United States

Public Health Service, National Heart and

Lung Institute: At Blood Group Research

Unit, Lister Institute, London, and at the

Department of Pathology, University of

Cambridge, England.

Research Associate at the Institute de Geneti-

que Humaine, Medical School of the Univer-

sity, Geneva, Switzerland.

Fellow of the De Giacomi Foundation, Swiss

Society of Natural Sciences.

Membership in Professional Societies:

The American Society for Advancement of Science

The American Society of Human Genetics*

The American Association of Immunologists*

American Tissue Culture Society (charter member)

Society for Cryobiology (charter member)

New York State Society for Medical Research

(1965-1973, Director 1970-1973)

The Society for Immunology (British) *

The Swiss Genetic Society

The Swiss Society for Natural Sciences

* Only candidates with considerable scientific achievement are accepted for

membership by the Admission Committee.

ltteer

A-6

The International Primatological Society

The Transplantation Society (charter member) ’*

International Society for Biological Standardization

Physicians’ Scientific Society (limited to 100 members

who vote on new admissions)

Publications:

Author of a monograph in human genetics and of more

than 200 papers in the fields of human genetics, im-

munology, medical experimentation in primate

animals, and research administration.

1967-1978 Editor, Series “Primates in Medicine’,

Karger, Basel/New York (10 volumes)

1967-1972 Editor, Proceedings of Conferences on “Ex-

perimental Medicine and Surgery in

Primates” (Three Conferences, 5 volumes,

3,000 pages).

1968-1973 Advisory Board of “Experimentation

animale’, Vigor Freres, Paris.

1971-present Editor-in-Chief, “Journal of Medical

Primatology”, Karger, Basel/New York. Since

1982 published by Alan R. Liss, Inc., New

York.

1983-present Editorial Board Member “Monographs in

Primatology”, Alan R. Liss, Inc., New York

1984-present Special Advisor to the Editor, “American

Journal of Primatology”, Alan R. Liss, Inc.,

New York.

Consultancies:

1963-1970 USAF Holloman Air Force Base, White

Sands Proving Grounds, New Mexico.

*Only candidafes with considerable scientific achievement are accepted for

membership by the Admission Committee.

’

A-7

1966-1967 Deutsche Forschumgsgemeinschaft (German

Science Foundation) and Volkswagenwerk

Stiftung (Volkswagen Foundation) - plans for

the German Primate Center.

1967 Bundesgesundheitsministerium (Department

of Health, German Federal Republic) and

Robert Koch Institute, Berlin, on contain-

ment of Marburg virus in monkey colonies.

1969-1974 INSERM (National Institute for Medical

Research) and CNRS (National Center for

Scientific Research) France.

1969-1979 Chief Medical Examiner, New York City.

1970-1974 National Council for Research and Develop-

ment, Life Sciences Division. Prime

Minister's Office, Israel.

1977-1980 U.S.S.R. Academy of Medical Sciences, In-

stitute of Experimental Pathology and

Therapy, Sukhumi, U.S.S.R.

1978 & 1985 Member, NIH Task Force on the Use of and

Need for Chimpanzees in Medical Research.

1979 French and Gabon (Africa) authorities, for

the Gabon Primate Center.

1978-1979 Pierre Micaux Parliamentary Committee,

(France) on Animal Experimentation.

1986-present Pan American Heaith Organization, for

Peruvian Primate Project Iquitos, Peru.

A-§

C. Excerpts of Testimony on Dr. Shirley McGreal.

Dr. Jane Goodall, internationally renowned for her research

on chimpanzees in the wild (A3938):

In her capacity as Chairwoman of IPPL, Shirley McGreal

has, in my opinion, acted in a responsible and often highly

courageous way in pursuit of the goals of IPPL - the con-

servation of non-human primates in the natural habitat and

the humane treatment of non-human primates in captivi-

ty throughout the world. . .

Dr. Vernon Reynolds, Oxford University Lecturer in Physical

Anthropology and prominent scientist (A3987, A3989-90):

Dr. Shirley McGreal edits the IPPL Newsletter and con-

tributes articles toward it. I have always been impressed by

the high level of accuracy and research involved in this

newsletter which I believe gives good coverage of malprac-

tice toward primates. . .

In my personal dealings with Dr. McGreal, | have the

highest regard for her dedication and honesty.

Earl B. Baysinger, Chief of the Federal Wildlife Permit Of-

fice, United States Department of Interior's Fish and Wildlife

Serv.ce (A3939, A 3947-48)

I have known Dr. Shirley McGreal professionally and

casually personally for over 15 years. . . . I have found Dr.

McGreal and the IPPL to be consistent sources of reliable

information of significant value to me and my various vf-

fices in carrying out our legally mandated tasks or ensur-

ing the continued survival of all species of wild fauna and

flora, including nonhuman primates. . .

I have never known her deliberately to spread false in-

formation nor to engage in what could be considered

malicious or libelous acts. While she frequently uses descrip-

tive adjectives and adverbs and has a tendency to vigorously

A-9

pursue her points to the chagrin of those who would prefer

the points to remain unpursued, I have never found her to

go beyond the point of reasonable enquiry.

Dr. Richard Mitchell, Staff Zoologist in the Office of the Scien-

tific Authority under CITES for the United States Fish and

Wildlife Service (A3969, A 3971-72):

I have known Dr. Shirley McGreal since 1979 and have

exchanged numerous phone calls, letters, and information

relating to trade in endangered species of wildlife and the

conservation of primates. Shirley has always maintained

herself in the utmost professional manner with the interest

of the resource foremost. . .

I depend heavily on information furnished by Dr.

McGreal to insure that no illegal primates are imported into

the United States in violations of CITES and the laws of

foreign Nations. My office’s scientific findings are

documented and are subject to scrutiny by the public.

Therefore, I have to be certain beyond doubt that the in-

formation that I base my decisions on is accurate and can

withstand any legal scrutiny.

I will continue to depend on the confidential informa-

tion that is provided by Dr. McGreal and the IPPL in order

to regulate the trade in endangered species of primates and

other wildlife. . .

Clark R. Bavin, Chief of the Division of Law Enforcement,

United States Department of the Interior's Fish and Wildlife Ser-

vice (A3967-68):

Through the years I have consistently found Ms. McGreal

to be a sincere, honest, and an energetic advocate of the

cause of primate protection and a valuable source of infor-

mation to the Service about the activities of persons engag-

ed in both the legal and illegal trafficking of primates. At

no time have I ever had cause to believe that Ms. McGrea!

was providing information that she did not believe to be

true and factual.

Eee

A-10

D. Letter to the Editor by Dr. Andrew Rowan (A 2512).

J. Med. Primatol. 13:173 (1984)

Letter to the Editor:

In his letter of March 14, 1984, Dr. Alfred Prince ques-

tions the IMMUNO A.G. company’s proposal to obtain 60-80

chimpanzees annually from the wild for a proposed hepatitis

research center in Sierra Leone. Dr. Prince is correct to raise

such concerns, since the indications are that Sierra Leone

has only a small native chimpanzee population, that most

or all of the wild animals procured for the laboratory are

likely to come from neighboring countries, that the West

African chimpanzee population is declining at an alarm-

ing rate, and that the methods used to capture animals are

very wasteful and inhumane.

Dr. Prince also suggests that hepatitis studies should be

done on chimpanzees that are already captive or that are

bred in captivity. But his own laboratory (Vilab II) in

Liberia uses (or accepts ) wild-caught chimpanzees as a

source of animals for their studies. Furthermore, the Vilab

proposals for rehabilitating chimpanzees are not much more

realistic than the IMMUNO suggestions. Janice Carter and

Stella Brewer have shown how difficult it is to return chim-

panzees to the wild successfully, even with constant sup-

port and monitoring. Dr. Prince provides no data to sug-

gest that he has found a way to overcome the problems.

Establishing a laboratory in a country where chimpanzees

are (or were?) found naturally, as a ploy to avoid the bar-

riers against trade in endangered species, is not an ethical

or responsible approach to either conservation or research

using chimpanzees.

Andrew N. Rowan, PH.D.

Tufts University School of

Veterinary Medicine

Boston, MA

Excerpt of Dr. Alfred Prince's Deposition (A 1090).

MR.

Do you agree that there is no controversy about

an alleged point, that you can exclude the

possibility of a carrier state for Non-A, Non-B

hepatitis in chimpanzees?

FERSKO: Objection as to form.

I think that everyone who is involved in

research in Non-A, Non-B with chimps would

agree that you cannot exclude whether the animal

is infected.

I don’t think it is controversial among those who

work in the area... .

A-12

Excerpt of Dr. Jan Moor-Jankowski'’s Deposition (A

46-48).

Did you have an understanding that what he

[Sitter] was doing was good practice in terms of

the way he was capturing chimpanzees up until

these people that you say were reliable told you

something different?

I have to divide it in two points.

Go ahead.

I initially was not concerned how the animals

were captured. The whole biomedical community

was really not very much aware of the animal

welfare issue, as you can follow up through the

legislation.

I became attuned to it by working with these

animals and beginning in 1978 I was getting more

and more reports that the methods described by

Dr. Sitter do not work.

When Dr. Prince established his laboratory he

told me that he would be using the methods by

Dr. Sitter, recommended by Dr. Sitter. Actually,

he said that he was establishing the operation in

Liberia for humanitarian reasons, as reflected on

some letters which you have. I was repeating his

position, to get animals which were not obtain-

ed by killing mothers. He was speaking of setting

traps, of shooting the animals with tranquilizer

guns. I was skeptical of the tranquilizer guns

because I sent three expeditions and they were not

able to catch the animals that way. But I thought

maybe he had some special method. He was

speaking of a South African method. I then found

out that it didn’t work for Dr. Prince that way,

that he had to purchase the animals from native

hunters.

A-13

Q. When, if ever, did you come to an

understanding —

A. Can you repeat the beginning.

Q. When, if ever, did you come to an understan-

ding that Dr. Sitter’s capture methods were in any

respect other than what Dr. Sitter had been tell-

ing you?

A. I think in 1981 and 1982. I don’t recall the exact

time but around that time.

Q. What did you learn in this period 1981, 1982,

that led you to believe that Dr. Sitter’s capture

methods were not the way he was telling you?

A. The most signal— there were many, but the

most signal was a publication by Dr. Prince, who

has been many times in Sierra Leone and Liberia,

in which he states that the only method or the

most prevalent, or the only method, I think he

said, of capturing the animals is killing the

mothers in Sierra Leone and in Liberia, and for

each baby caught, five to ten mothers are killed.

This has been published by the National In-

stitute of Health, in a symposium which was a

considerable event devoted to this program, and

it was very authoritative.

Q. Is there anyone other than Dr. Prince who has

given you information which has caused you to

disbelieve Dr. Sitter’s rendition of his own trap-

ping methods?

| A. Yes. Dr. Prince’s report really put together all

that I was hearing over the years, beginning with

my own people who went to Sierra Leone, the

reports of Dr. McGrew, Vernon Reynolds,

Kortlandt, Harrison, Teleki, to name only a few.

eae

A-14

G. Excerpt of Dr. Jan Moor-Jankowski’s Deposition (A

253-54).

Q. In 1979, when the NIH animals were taken,

were you able to ascertain which animals that had

been exposed to N-A, N-B research were carriers?

A. Yes.

Was it your understanding that in 1979 that you

could determine whether or not a chimpanzee

that had been exposed to N-A, N-B could be

infectious?

A. The animals were — for the situation in man,

they were considered infectious by NIH. It was

infectious animals.

MR. FERSKO: I ask that my question be read back

and I would ask if we could focus on

the question.

(Question read)

A. That I could determine?

Yes.

A. I knew, I could not determine, but I knew on

the basis of history, and in several animals of the

enzyme situation, and what investigators told me.

Q. In other words, you were able to determine that

some animals, based on their histories and based

on the enzyme levels —

A. And the program.

-(1] that some animals that had been exposed

to N-A, N-B were not carriers at that point in time

and [2] some that were exposed to N-A, N-B were

carriers at that point in time?

A. The second part of your statement, not the first.

A-15

H. Excerpt of Dr. Jan Moor-Jankowski'’s Deposition (A

114-16, 124, 208, 214-15).

Q. Doctor, did you get any facts during the course

of 1983, before you published the article, that led

you to believe that maybe what you were

publishing in that letter to the editor was not fac-

tually correct?

A. Not at all.

Q. Doctor, how about when you got those minutes

that we showed you this morning, was there

anything in there that led you to believe that

maybe what you had wasn’t factually correct?

A. I said before it is not, not at all.

Q. Doctor, did you receive any information in 1983

that led you to believe that Immuno doesn’t want

to take 60 to 80 chimpanzee out of the wild but

wants to have 50 to 60 chimpanzees to start a

breeding colony? Did you see any information like

that during the course of the year before you

published it?

A. I did not receive anything which would con-

tradict what was in Dr. McGreal’s letter.

Q. Did you consider the fact that you had receiv-

ed a document that said they were going to do

breeding and not take 60 to 80 chimpanzees a vear

from the wild?

A. What is said here on the basis of what I know

they could have as well said that they will go to

the bakery and they will bake them, new chim-

panzees, once a week as much as they need them.

A-16

You cannot establish a breeding colony and

breed the animals. It takes at least eight vears to

have a breeding with the animals which you can

catch.

Since you were trying to give a truthful and

complete picture in publishing Shirley McGreal’s

letter to the editor, don’t you think that maybe

you should have explained that there were also

these minutes that we saw, and that there was also

this Bundu letter?

Don’t you think that casts a little different light

on the project?

It doesn’t cast a different light on the project

to me.

The fact is, though, you didn’t mention [pro-

posed captive breeding] and don’t you think it

would have been appropriate to even mention it

in that context, even if you wanted to be critical

of it?

I am being all the time told that I wrote the

letter. I did not write the letter. The letter by Dr.

Shirley McGreal stood as it was and the second

wave documents, which wasn’t even authenticated

by stationery, which did not go with another let-

ter, and even in its text in no way, in my ex-

perience, contradicted the first.

Did you think that in order to give a true pic-

ture of what was going on with respect to the Im-

muno Sierra Leone project to the readers of the

Journal of Medical Primatology, that it would be

_&e@r

A-17

appropriate to give them the benefit of the

amplification you had received prior to the time

of its publication?

A. The most important aspect of the situation was

that Immuno refused to answer a straightforward

question, a letter which I submitted, is true or

false, and threatened with lawyers.

This was to me a situation which I just felt I

should submit to the readers.

Here something was written. There is a letter

which I received. It was not directly rebutted by

Immuno but lawyers wrote to me letters in

legalese, the essence of which I reproduced in the

Journal.

This was my response as the Journal's editor,

as I saw it.

A-18

Excerpt of Dr. Gerard Eder’s Deposition (SA 8-9).

MR.

Doctor, yesterday we talked a lot about vour visit

to Sierra Leone in April of 1983.

When you returned to Vienna and to Immuno

after that visit, were there any decisions made at

Immuno concerning the Sierra Leone project?

The only decision which we have made when

I returned and reported to Dr. Eibl was to apply

for an importation of 20 chimpanzees from Sierra

Leone.

Did there come a time thereafter when Im-

muno did make a decision on some aspect or the

other of the project?

FERSKO: Objection as to form. You can

answer.

I don’t know how many times I have to answer

that question again.

It is not made a decision until now, because all

these negotiations never were finished.

If you finished a negotiation, you can make a

decision. But unti! now it wasn’t made.

I am not the decision-maker in our company.

Decisions are made by Dr. Eibl. I only can pro-

pose it.

A-19

J. | Excerpt of Dr. Johann Eibl’s Deposition (A 1506-08).

Q. With respect to the substance of what the [New

Scientist] article [in October 1983] alleges Mr.

Teleki wrote, that the starting population of fifty

to sixty chimps—that Immuno contemplated a

starting population of fifty to sixty chimps; is that

true or false?

A. No. It is, insofar not fully true, because I always

mention 60 to 80 more. So you could not say it

is false.

Q. It errs on the side of too low?

Right.

It is on the lower side.

Q. Had Immuno claimed that it would be in full

production [breeding] within two to three years?

A. No, because what we claimed was that we want

to have sixty to eighty chimpanzees for the first

year, and this was mainly for tests and not for

breeding purposes. So, I mean, insofar as a state-

ment of Teleki, it does not mean anything. But

I mean just to cite it. Why not?

Q. Was Immuno planning to get more chimps in

the years following the first year?

A. Right. Right.

Q. How was it planning to obtain those additional

chimps?

A. In the same way as obtaining these sixty to

eighty chimps, provided that this way would

work.

—

A-20

So, Immuno was not contemplating breeding

the chimpanzees in Sierra Leone at that time?

No. I mean the idea was not to start out with

the breeding colonies. The idea was for the im-

mediate use, to have chimps available, and then

if all these tests are carried out, we would have

then three options.

The first option is to use them for a breeding

colony.

The second option then was to release them to

a park, to an animal park.

The third option was to release them to the

wild.

To the wild?

Yes, sir.

Immuno was contemplating all three of those

options?

Certainly.

At this point in time had Immuno decided

which of the options it was going to adopt?

No, but I think all three options are running

to a certain extent parallel... .

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.