Petition for Writ of Certiorari — Cranberg v. Consumers Union of United States, Inc.
Supreme Court brief1985
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~~
/ Supreme Court, U.S.
. 4
eee Le FILED
85-247 AUG 13 1985
No. _ JOSEPH F. SPANIOL. JR. |
Clerk |
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1985
Lawrence Cranberg
Petitioner
Vv.
Consumers Union of United States, Inc.,
Respondent
and
Lawrence Cranberg
Petitioner
Vv.
Associated Press
and
Austin American-Statesman
Respondents
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
LAWRENCE CRANBERG, pro se
1205 Constant Springs Dr.,
Austin, Texas 78746
Telephone: (512) 327-1794
oU4
QUESTIONS PRESENTED
In Cranberg v. Consumers Union of U. S. Inc.:
1. Whether the district court, in a trial segment
lasting a day and a half, did so violate due process as
to preclude orderly and proper adjudication of the
numerous issues of libel, slander and product dispar-
agement in the pleadings, which included for the first
time in judicial history the complex, confused, but pub-
licly vital issues of the efficacy and safety of wood
burning for domestic heating (The Anti-Fireplace
Hoax) ; and whether the Court of Appeals erroneously
condoned said violations of due process and erroneous-
ly endorsed said hoax and a fraudulent “test” of peti-
tioner’s fireplace inventions, and violations of the
Lanham Act.
In Cranberg v. Associated Press and
Austin American-Statesman:
2. Whether the district court, in a trial segment
lasting a few hours, did so violate due process during
the trial, and did make such errors in its decisions on
discovery before trial, as to preclude proper adjudica-
tion of the libels of an AP story which multiply de-
famed the petitioner on the pretext of reporting his
paper to the American Physical Society, “Encounter
with Consumers Union”; and whether the Court of
Appeals erroneously condoned said defamations, in-
cluding the validation of a spurious media event—an
alleged “physical struggle” between petitioner and a
- Consumers Union representative, which the district
court called “childish and irresponsible’.
In both cases:
3. Whether any U. S. court can designate an in-
dividual a “public figure” for purposes of an action
for libel and slander, and thereupon apply a distinctive
ej-
rule of law to fix liability or damages, absent evidence
that the parties have comparable media access on the
issues, without violating due process of law and im-
pairing free speech.
4, Whether reference in legal argument to the pro
se status of a party by any court or by an officer of
any court is inherently as improper and prejudicial as
reference to the race, religion, etc., of any party, when
made solely for the purpose of justifying abridgment
of statutory or constitutional rights, such as trial by
the Federal Rules of Evidence, and violates due process
and equal protection of the laws.
5. Whether equal justice prevail. in our federal
court system when the petitioner in this case argued
a concurrent case for 18 days in the U. S. Claims
Court, and received careful, courteous, patient due
process in meticulous accord with the Federal Rules
of Evidence, while in the instant cases the Rules of
Evidence were deliberately discarded and the Federal
Rules of Civil Procedure were repeatedly ignored or
abridged.
6. Whether the Judge who was the trier of fact in
these cases was an Article III judge, considering his
announcement of impending resignation before issue
of Final Judgment in these cases, and his public dis-
closure that he had secretly negotiated his departure
from the bench prior to trial of these cases.
THE PARTIES
It is essential to this Petition that careful account
be given of the parties, and in particular of the re-
spondents. They are very well known to the general
public. But their relationships with one another, which
are important to this litigation, are not well known,
although the information herein is from public sources.
1. Dr. Lawrence Cranberg, who is acting pro se in
this case for pe el reasons, is a Fellow of the
wie
American Physical Society with a prolific record of
publication, invention and public-interest activity. He
was Senior Physicist at the Signal Corps Engineering
Labs during World War II, Staff Member at the Los
Alamos Scientific Laboratory during the Korean War
and thereafter, until taking the positions of Professor
of Physics at the University of Virginia, and Director
of its Physics Accelerator Laboratory in 1963. Since
1971, he has been in the private sector and is presently
owner of Texas Fireframe Co., which manufactures
and distributes his patented fire-making apparatus,
the Texas Fireframe grate, that is the means of
maintaining “The Physicist’s Fire’”—a patented means
of fire-making, based on the first-time application of
basic physics principles to the ancient log fire. His
public interest activities include co-founding of the
Virginia Affiliate of the American Civil Liberties
Union (ACLUVA). He is currently a spokesman for
what have come to be called “Traditionalist” views in
the ACLU, and is often critical of "Activism".
2. Consumers Union is a complex, diversified non-
profit operation (i. e., it pays no taxes and is not
answerable to stockholders), which heavily advertises
its Consumer Reports magazine in the mass media. The
magazine anonymously reports “tests” on products in
the marketplace and often recommends its own varia-
tions of those products to its readers. It permits no
access to its pages by advertisers who might wish
to correct its errors. Its legal representative is Kar-
patkin, Pollet, Perlmutter and Beil, a firm established
by Mrs. Rhoda Karpatkin, who has been Executive
Director of CU since 1974. Headquartered on the
premises of the law firm is the Libel Defense Resource
Center (LDRC), a non-profit (i. e., pays no taxes
and is not answerable to stockholders) which enrolls a
Who’s Who of American media and their libel insurers,
including that of AP (Employers Reinsurance Corp-
- lil -
oration) and of Cox Enterprises (Mutual Insurance
Company Limited of Hamilton, Bermuda), the two
other respondents in these cases. An open LDRC
brochure states that its meetings may be closed to
plaintiff lawyers and that it maintains “secret” in-
formation files.
3. AP is the “world’s largest news organization.”
It has a de facto dominance of wire service in the U. S.
which is comparable to CU’s dominance in the field of
consumer-product testing. Like CU it is non-profit,
and like CU, AP operates on a collective bargaining
agreement with New York locals of the Newspaper
Guild, AFL-CIO. It controls a worldwide network of
214 bureaus from a headquarters in New York City,
where its libel law firm exerts great influence on the
media bar through the Practicing Law Institute. AP’s
control of news is greatly augmented by its exclusive
right to local news which originates with its sub-
scriber media. It was represented by Rogers and Wells
of New York City and i.y Brown, Maroney, Rose,
Barber and Dye of Austin, Texas.
4. The AA-S is the sole daily newspaper serving
the metropolitan area of Austin, the state capitol of
Texas, and is the major AP subscriber in the Austin
area. It is owned by Cox Enterprises of Atlanta,
Georgia. The libel insurer for Cox, Mutual Insurance
Co. of Hamilton Bermuda, operates under the highly
secret conditions permitted by Bermuda law, and is in
addition a supporting member of the Libel Defense
Resource Center (LDRC). AA-S and CU were repre-
sented in this action by the same Texas law firm,
Graves, Dougherty, Hearon & Moody of Austin.
en
iV -
Citations to Opinions Below
The opinion of the United States District Court for
the Western District of Texas, on the issue of liability
in the two cases which were consolidated for trial and
are herein appealed, is given in Appendix Al. The
Final Judgments of the District Court taxing plaintiff
for costs are given in Appendix A2. The Order of the
District Court denying plaintiff’s Motion to File Sup-
plemental Complaint relating to violations of the
Lanham Trademark Act by Consumers Union (CU)
is given in Appendix A3.
The opinion of the Court of Appeals is reported in
756 F.2nd 382 (1985), and is appended as A4. The
order denying request for rehearing en banc is A5d.
Jurisdiction
The judgment of the Court of Appeals was entered
on April 1, 1985. A timely petition for rehearing sug-
gesting rehearing en banc was denied on May 14, 1985,
and this petition for certiorari is being filed within
90 days of that date. The jurisdiction of this Court is
invoked under 28 U. S. C. §1254(1).
Constitutional Provisions Involved
Congress shall make no law. . . abridging the free-
dom of speech, or of the press...
U.S. Const. Amend. I
No person shall . . . be deprived of . . . property
without due process of law...
U. S. Const. Amend. V.
“« .. nor shall any State deprive any person of life,
liberty or property without due process of law, nor
deny to any person within its jurisdiction the equal
protection of the laws”.
U. S. Const. Amend. XIV.
“The judges, both of the Supreme and inferior
courts, shall hold their offices during good be-
havior...”
U. S. Const. Article ITI.
TABLE OF CONTENTS
Page
Questions Presented ........... cc cece ee eee eee ee eee i
RE be iwd os ip 0666068080 4600004060080 0068088 ii
Citations to Opinions Below ..... 2.2... 0... cc cece eee Vv
EE oo. 104 no od 06 04668 6050065 046666.046666695-040K04 Vv
Constitutional Provisions Involved .................... Vv
Table of Authorities ............. 0... cece cee eee vi
Federal Statutes Involved ............. ccc cece eens viii
Federal Rules of Civil Procedure Involved ............ viii
Federal Rules of Evidence Involved .................. viii
Code of Judicial Conduct Involved .................... viii
EE? «od nas gba hbO46GR4OES 5 6646456406050 56RR0K5 ix
EY on cv kn 66 00k 044460000 60066405 0000 080005650088 1
Reasons for Granting Writ ............... 0. cece ee ees 14
Summary and Conclusion ............... 0. eee eens 30
TABLE OF AUTHORITIES
CASES
Bose v. Consumers Union of U. S. Inc., 508 F. Supp.
2 eS %. .) epee 10, 11, 18, 15, 18, 26
Cranberg v. United States, U. S. Claims Court,
Cees BR, Ss COD in n.k vn ccneecccsccnccassss 28
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,
The United States Law Week, 53LW4872, 6-25-85 ... ix, 25
Gertz v. Welch, 418 U. S. 8328 (1974) ............2200. 24
Herbert v. Lando, 441 U. S. 153 (1979) .......... 20, 21, 23
McNabb v. United States, 318 U. S. 332 (1942) .......... ix
Nader v. General Motors Corp., 208 N. Y. S. 2d 187 ...... 30
New York Times v. Sullivan,
ee ee Sy PE a ha 04 Kuck ke es owes CAs KORE ix, 24, 25, 26, 30
Northern Pipeline Construction Co. v. Marathon
Pipeline Construction Co. and U. S., U. S. Sup. Ct.
Rep. 78, L. Ed. p. 598, and especially Note 10 ......... 29
Ruiz v. Estelle, 679 F.2d 1115, 1129, modified 688
C.2nd 266 (5th Ci.. 1982), cert. denied, 460 U. S.
1042, 108 S. Ct. 1488, 75 L.Ed. 795 (1983) ............ 21
Williams v. Lee, 868 U. S. 217, 218 ........ cece eee ees 19
Appendices and Cross References:
Appendix Al, District Court Decision .................. 31
Appendix A2, District Court Final Judgments .......... 41
-Vi-
enti AED hl Hi ect batts tata ee PO iret OBR 0 ~
Appendix A3, Order Denying Lanham Act
Supplemental Complaint ............... 0.0 e cee eens 43
Appendix A4, Circuit Court Decision .................. 44
Appendix A5, Circuit Court Denial of
Request for en banc consideration ................... 69
Cross References (Petition-to-Appendix, Page Numbers)
15 to 65; 17 to 47; 18 to 33, 34, 36; 20 to 41, 43; 21 to
65; 22to 33; 23 to 33, 33, 34,59; 26 to 65,66; 28 to 65;
29 to 64.
Constitutional Provisions
Page
Rati Tie, BOGOTA A. og kc cnc ccccceccccnccesecss i, vi, 28, 29
IE cc VébGO 606% 6006600650 SesReeeReROES i, vi, 30
SE En cnc owes 6s Gesndes i, vi, 15, 19, 21, 25, 26, 27
REE MED 2g 0.n.0.06 0056660 6bceenneceeseeesee i, vi, 22
BE FEE. oo 0 0.00tbbbneeeecece cess 66ecnen ties 30
Statutes
Se We ND onc cicnccncecccocnecadesesccesccsccnc 27
Be He Be GB Bee 8 dec eccce eh cescedcciecsesecccess vii
Tex. Rev. Civ. Stat. Ann. Art. 5480 (Vernon 1958) ...... 1
Federal Rules of Civil Procedure
SD NEED 6 6.0.66 00660606 60006600000 6nd sc cone neeenes 20
BE PGE nc ccd bch t ew ecctbubhbe 6o00 N66 05600066000 20
Federal Rules of Evidence
ED. << sdk 6bkS 606 KEARER EREBRS CBRE E66 EASES REE 26
DE 40 + ct Ge ctu ts Ges oetbe ths ihaweunbesetsheakas 1
Pr CE ss veces knee bheeeebebbbeeesanasdee6eesess 16, 18
Code of Judicial Conduct
a ia. eee eee eee ee can Cu dals babu eae viii, 29, 30
NEE 44d 446 one debs 0b6565000400R0450020% ii, viii, 17, 23
Federal Statutes Involved
“In all courts of the United States the parties may
plead and conduct their own cases personally...”
28 USCS §1654.
Federal Rules of Civil Procedure Involved
“If . party or his attorney fails to participate in
good faith in the framing of a discovery plan by agree-
ment as is required by Rule 25(f), the court may,
after opportunity for hearing, requir> such party or
his attorney to pay to any other party tie reasonable
expenses . . . caused by the failure”.
Rule 37(g).
Federal Rules of Evidence Involved
“These rules govern proceedings in the courts of
the United States and before United States magist-
rates, to the extent and with the exceptions stated in
rule 1101.”
Rule 101.
“The judge presiding at the trial may not testify
in that trial as a witness. No objection need be made in
order to preserve the point.”
Rule 605.
Code of Judicial Conduct
“A judge must avoid all impropriety and appear-
ance of impropriety.”
Canon 2.
“A judge should be patient, dignified, and court-
si.”
Canon 3.
- viii -
“The history of liberty has largely been the history of ob-
servance of procedural safeguards.” Justice Frankfurter, Me-
Nabb v. U. S., 318 U. S, 347 (1942).
“IT have also become convinced that the Court struck an
improvident balance in the New York Times case between the
public’s interest in being fully informed about public officials
and public affairs and the competing interest of those who
have been defamed in vindicating their reputation.” Justice
White in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,
U. S. Law Weck, 53LW4871, June 25, 1985.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1985
No.
Lawrence Cranberg
Petitioner
v.
Consumers Union of United States, Inc.,
Respondent
and
Lawrence Cranberg
Petitioner
v.
Associated Press
and
Austin American-Statesman
Respondents
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Petitioner, Lawrence Cranberg, respectfully prays
that a writ of certiorari issue to review the judgment
and opinion of the United States Court of Appeals
for the Fifth Circuit entered in this proceeding on
April 1, 1985.
Oe eet ye .
sts
Statement of the Cases
The civil action against Consumers Union (CU)
was filed in the U. S. District Court for the Western
District of Texas, Austin Division, on November 30,
1981, under Texas Statute 5430 against libel, slan-
der, and product disparagement, in consequence of the
publication of a defamatory report on Dr. Cranberg’s
fireplace inventions in the January, 1981, number of
Consumer Reports, a magazine wholly owned by CU,
and of the slanders later directed at Dr. Cranberg by
CU employees. The report was captioned “And Some-
times You Lose” (R1).*
The civil action against the Associated Press (AP)
and the Austin American-Statesman (AA-S) was
filed on April 16, 1982, in the same court, in consequ-
ence of the publication of a defamatory article in the
AA-S on April 24, 1981 (R2), based on a defamatory
AP wire story, (R38), with defamatory AA-S addi-
tions. Both actions were filed only after all efforts to
obtain corrections came to naught.
The AA-S story purported to be about a scientific
paper presented to the American Physical Society by
Dr. Cranberg at its regular Spring Meeting in Balti-
more on April 23, 1981. The paper, titled “Encounter
with Consumers Union” (R4) dealt in detail with the
scientific and legal history and modus operandi of Con-
sumers Union, and was fully documented. The AA-S
story was captioned “Fire-grate Inventor fights with
Consumer Group Official”. It included none of the
scientific and legal content of the paper. The headline
referred to a “physical struggle” which allegedly took
place between Dr. Cranberg and CU’s spokesman,
* All references to the record below, including docket record,
exhibits, transcripts, and any other material to which judicial
notice is appropriate under Rule 201, Federal Rules of Evid-
ence, are designated R1, R2... etc. in this Petition.
a.
journalist D. C. Berliner, who showed up unexpectediy
at the Meeting, with assistant Sylvia Helm. Each had
a tape recorder concealed on their persons
Federal jurisdiction was based on diversity of citi-
zenship in both cases. They were consolidated for trial
under Judge Garcia and in March, 1983, were re-
assigned to Judge Shannon in San Antonio, who pre-
sided over a two-day trial on September 13-14, 1983.
Supplementation of the record was permitted until
September 26, 1983. On the following day Judge Shan-
non told the Chief Judge that he was resigning from
the bench effective January 1, 1984.
The Facts in the Cases
In December, 1974, prompted by the energy crisis
precipitated by the oil embargo, Dr. Cranberg ad-
dressed the problem of applying basic physics prin-
ciples to understanding and improving the domestic
log fire. He discovered (R11) a new combustion phen-
omenon he called “Slot-flame Stability”, which is ob-
served in a fire produced in a log cavity. The cavity
is created by having a large back log, with two smaller
logs in front and an upper log independently supported
above the front logs, all logs parallel, of similar length,
and adjacent logs in contact with each other.
Viewed in profile the cavity is “C-shaped. In three
dimensions the cavity is slot-shaped. Dr. Cranberg
discovered that when kindling is ignited in that slot-
shaped cavity or furnace, a number of novel pheno-
mena are observed. These include remarkable ease of
ignition of the logs. Unsplit oak logs can be ignited by
putting a match to a few sheets of newspaper stuffed
in the cavity. Steady burning ensues with the follow-
ing features: flames are rooted in the lower front logs,
but are confined from above by the upper log; the side
of the back log facing the cavity becomes a wall of
uniformly red-hot coals readily visible through the
deen! nk ral fe
es
flames on the front logs; and the flames and coals
exhibit remarkable left-right uniformity shortly after
starting. That uniformity is self-maintained until the
front logs are consumed—hence the term slot-flame
stability. Most dramatic of all is the intense beam of
radiant energy which streams from the open end of the
cavity into the room in which the fireplace is located.
Its directionality can be readily sensed by passing one’s
hand across the beam.
All the foregoing phenomena are readily observed
and duplicated, but not one of them is alluded to in
CU’s report of Dr. Cranberg’s work in the January,
1981, number of Consumer Reports, (R1).
In Dr. Cranberg’s first experiments, the upper log
was supported by wooden chocks or bricks. Recognizing
that slot-flame stability could be maintained inde-
finitely, given some means of supporting and replacing
logs without materially interrupting the fire, a proper
means was devised for doing so called the “Texas Fire-
frame grate’. This is a grate-like device mace of weld-
ed steel bars. It has a lower level for supporting the
back and front logs, and an upper level whose height
above the lower level is adjusted by means of friction-
locking arms. The arms attach to two vertical mem-
bers welded to the front of the grate.
The arms support the upper log at a prescribed
height, and make it possible to replace the back log by
allowing it to drop in place from above. Thus what was
dubbed the “Slot Fire” can be maintained indefinitely,
and becomes a practical, inexpensive means of fire-
making which requires no tending other than replacing
logs sequentially as they burn out. Further, it is ob-
vious that because the fire is capped from above, the
risk of chimney fires—the nightmare of all fire-using
homeowners—is greatly diminished (R12). One of the
key documents in this case which was completely
ignored by both lower courts was a letter (R13) from
ei.
the petitioner’s liability insurer stating that he had
never had a claim against him!
The grate and fire-making method were introduced
into the marketplace in September, 1975, and a patent
was applied for. It duly issued: “Apparatus and
Method of Combustion,” U. S. Patent No. 4069808
(R14)—the only U. S. patent ever issued on a method
as well as an apparatus for fire-making. It now has
only ten more years to run, and its life is ebbing while
this court battle is being waged to defend it from the
slurs of totally incompetent critics who have gravely
injured it in the marketplace.
The first media account of the slot fire appeared
in a very favorable eye-witness description in AA-S
for September, 1975 (R15). The first scientific ac-
count was given to the American Physical Society at
its regular Fall Meeting in October, 1975 (R16). So
enthusiastic was the response, that a month later Dr.
Cranberg introduced himself to the science staff of
Time magazine at its New York headquarters, to
whom he repeated the account of the slot fire he had
given to his colleagues. “The Physicist’s Fire” ap-
peared (R17) in the science section of the interna-
tional edition of Time for Dec. 22, 1975.
That launched the product in the marketplace, and
there was extensive media coverage thereafter, all of it
favorable (R18). In 1978, Dr. Cranberg fought off
(R19) an attempt by Sears, Wards and Penneys to
pirate his invention. The only detractor to appear on
the scene was a Dr. Jay Shelton, who has since become
famous as “The Guru of the Woodstove Industry”,
and the most persistent promoter of what Dr. Cran-
berg calls “The Anti-Fireplace Hoax”—or “The Hot
Air Hoax’”—the contention that a fireplace is energy
counter-productive because of the large amount of
warm air it allegedly consumes from the house (R20).
To counter that propaganda (no numbers were being
BBDPOOED BARBS OF Chews & anne 64
oie
given), in 1979 Dr. Cranberg designed and intro-
duced the Ventabox (R21)—an accessory which per-
mits use of outside air with the Texas Fireframe grate.
At the same time, the Ventabox permits easy ash-re-
moval, so that with a fifty-dollar grate and a forty-
dollar Ventabox one has the best of all worlds, in a
combination not even approached by any other product
on the market.
The Ventabox brochure was made a part of the in-
struction package (R22) accompanying every model
of the Texas Fireframe grate, model U-25, sold there-
after, and it was part of the package purchased on the
market by CU when it obtained two units for test in
mid-1980. That such purchase was made and that a
report was impending was learned in October, 1980,
(R23), when a CU representative called Dr. Cran-
berg to ask for confirmation of pricing data.
Dr. Cranberg then sent CU a number of documents,
including a special trade release (R24) emphasizing
the benefits of the slot fire with a glass screen, and a
preprint of a paper, “Domestic Fire and its Improve-
ment: Some qualitative insights” (R25), which had
been accepted for publication in the American Journal
of Physics. When this article appeared in June, 1981,
it was the first publication on the log fire in a refereed
scientific journal in modern times. The article also
gave all the quantitative data then available, including
that of Dr. Shelton, which showed that a slot fire 25
inches long had about a 30% efficiency for converting
energy of wood combustion to useful radiant energy
for home heating, or about 2.6 times greater than a
conventional fire, with an estimated efficiency of 42%
for a much longer fire, or one with reflecting ends.
The business of Texas Fireframe Co., which was
operated by Dr. Cranberg and his wife, with all manu-
facturing done on contract, prospered until January,
1981. With the publication by Consumer Reports of
eA
a feature on fireplace add-ons in which the Texas Fire-
frame grate was singled out for special criticism in a
separate, specially captioned article ‘““And Sometimes
you Lose” (R1), the business of Texas Fireframe Co.
plummeted (R25a) and has not recovered to this day.
The article claims that the Texas Fireframe grate,
albeit an improvement on the conventional grate, is
still a “loser”, since it delivers only 5000 BTU per
hour but causes a loss of 7500 BTU per hour in
warmed air, for a net loss of 2500 BTU per hour. It
was also compared unfavorably with CU’s own log
configuration (R26), nowhere clearly described,
which it called its “Standard Fire”, which it claimed
was a break-even proposition in terms of heat loss-
gain, and required no grate of any kind.
CU’s report included a sketch which accurately pre-
sented the Texas Fireframe grate and log arrange-
ment described above. But testimony at trial by CU’s
“engineer”, R. Stube, (R26a), and the evidence of
CU’s notebook (R26b) showed that there was a single
run cn heat output by a student, Steven Hertzberg,
who evaded subpoena. The notebook’s two-page entry
of Aug. 1, 1980, shows that Hertzberg used smoothly
sawn, 4-inch-square wood blocks of irregular lengths
that were about half the length of the grate, in a con-
figuration that crudely approximated the slot geo-
metry of petitioner’s invention. Testimony by CU
“engineer” Greenhaus (R26c), who was responsible
for heat loss measurements, showed that no heat loss
measurements were ever made on petitioner’s inven-
tions, or on any fire made with a conventional grate.
A single heat loss measurement was made on CU’s
Standard Fire. That heat loss was proven (R27) to be
huge—about half a ton an hour. And Greenhaus at-
tributed that same heat loss to all fireplace fires made
with usual grates and the Texas Fireplace grate!
The facts, proven beyond dispute at trial by mea-
- ee eee eee a
. -
surements by Terralab (R27), an industrial test
laboratory with ten years of pertinent experience, are
that the slot fire delivers 12,000 BTU per hour on a
steady basis, that it consumes warm air at a rate of
500 BTU per hour, for a net gain of 11,500 BTU per
hour, compared to CU’s net loss of 2500 BTU per hour.
CU’s “error” in attributing the heat loss of the Stan-
dard Fire to the slot fire was a whopping 2200%!
When the secrecy and confusion which surrounded
the actual configuration tested by CU as its grateless
Standard Fire were finally penetrated by discovery,
tests by Terralab showed (R28) that it was a “two-
hour bonfire” with dangerously high flue-tempera-
tures, that consumed fuel at 5 times the rate of the
slot fire and air at a 23 times higher rate. Expert
testimony (R29) compared the fuel arrangement of
the standard fire to one used by our forces during the
Vietnam war to destroy enemy stores. Its peacetime
use is best described by calling it “The Arsonist’s
Fire” (R30).
Thus, an efficiently warming fire representing an
important advance in fire-making technology was
represented by CU as a chilling device, and was com-
pared unfavorably to what is essentially an instru-
ment of destruction.
What is genuinely chilling, however, is the accept-
ance of CU’s results as “accurate” by the lower courts,
(Al, A4), and in particular by the Court of Appeals,
which accepted them without reservation.
The data on air loss provided by Terralab (R27)
on the slot fire demolishes once and for all the conten-
tion of the media and CU that the fireplace is a voraci-
ous consumer of warm air. In fact, it has now been
shown (R27a) that the slot fire consumes air at a
substantially lesser rate than the so-called “air-tight”
wood stove.
CU’s article made no mention at all of the Venta-
wits
box, and the benefits of use of the slot fire with glass
screens were converted into a negative, with an in-
scrutable comment that the Texas Fireframe grate
could not be used at all with glass screens! The abund-
antly proven ease of operation (R31) was converted
into a claim that the fire needed much tending. Not a
word was said about safety, ease of starting, distinc-
tive aesthetics, etc. In fact there was not a single posi-
tive word in the entire article. Dr. Cranberg identified
28 different defects in the article and the list was
quickly compiled. They are part of the pleadings in
this action, (R32).
Dr. Cranberg immediately made contact with CU
in early January, 1981, to determine how the tests
were run and what the configuration of the Standard
Fire actually was (R33). An appointment to visit
CU’s lab was made and then was quickly broken by
CU, with all matters referred to its attorney, Michael
Pollet of Karpatkin, Pollet, Perlmutter and Beil. A
letter of Jan 6, 1981, to Pollet, (R34), urged prompt
action to limit damage, and requested compensation
of $1,000 per day for damage already done “to cause
minimum damage to CU as well as myself”, and re-
fers to Dr. Cranberg’s “long involvement in liberal
causes”.
Dr. Cranberg then tried to reach the media (R35),
which had previously published information widely at
variance with CU’s report. But by the end of January,
it was obvious that all access to media and to CU were
closed off, and that the only open channel of communi-
cation was a contributed paper to the American Physi-
cal Society. Its Spring Meeting was scheduled for April
in Baltimore, and the deadline for submission of Ab-
stracts was imminent. On Jan. 19, Dr. Cranberg wrote
a letter (R36) to Pollet telling of his intentions un-
less he had a reply to his previous letters and several
phone calls. Not having a reply by the deadline date,
pi,
Dr. Cranberg sent to the American Physical Society
his two-hundred word Abstract, R37, as prescribed
by the Society, entitled “Encounter with Consumers
Union’. It emphasized the vagueness of CU’s anony-
mous report with respect to the Standard Fire, and
CU’s refusal to clarify it or to permit access to its
laboratory. The Abstract said nothing about CU’s at-
tack on the Texas Fireframe grate. It began “Anony-
mous CU inventor(s) claim a ‘standard fire’ with fuel
arranged on the floor makes all existing grates ob-
solete’’.
Copies of the Abstract were quickly sent off to em-
ployees and officers of CU, with a letter of invitation,
(R38), to attend the Meeting and to participate in
public discussion. The Abstract was duly published in
the April, 1981, number of the Bulletin of the Amer-
can Physical Society, (R39), where the place and time
of presentation were fixed for the Baltimore Conven-
tion Center on Apr. 23, 1981.
Arriving in New York City in early February for
a variety of purposes, Dr. Cranberg sought and ob-
tained an interview with CU’s lawyer, Michael Pollet,
in the latter’s office on Feb. 12, 1981. Pollet obligingly
supplied a sketch of the CU’s “Standard Fire’, (R40).
Dr. Cranberg promptly labeled it inoperative, and
alerted Pollet to the fact that the CU employee who
supplied the sketch, Richard Greenhaus, was not a
member of either of the professional societies in which
he had claimed membership during a phone conversa-
tion with Dr. Cranberg on Jan. 5, 1981, of which a
contemporary record was supplied to Pollet (R41).
With the sketch as clear evidence that CU’s tests
were meaningless, Dr. Cranberg brought it to the at-
tention of several media reporters, but none ever used
it or referred to it in any way, including the Wall
Stree? Journal, which on April 9, 1981, published a
short article (R42) on the controversy, on the impend-
«20.
ing presentation of a paper to the American Physical
Society about it, and stating that CU would not send
a representative to the Meeting.
Starting in February, 1981, Dr. Cranberg under-
took a far-ranging investigation into the history and
modus operandi of CU from its antecedent, Consumers
Research, Inc., in the late twenties to the present, for
a comprehensive presentation to the American Physical
Society. Of crucial importance was the accidental dis-
covery in late March, 1981, that CU had lost its first
libel suit to Bose Corp. of Framingham, MA. The de-
cision of Judge Julian in that case, Bose v. CU 508 F.
Supp. 1249 (D. Mass. 1981), pending since 1971, was
a revelation in at least two senses: it revealed ex-
tremely important facts about CU editorial and test-
ing policies about which very little was generally
known, and it revealed how the media had effectively
ignored the suit and its unique outcome.
The text of “Encounter with Consumers Union”
(R43)—one thousand words of CU history, the Bose
ease, CU’s work on fire-making, etc., with fifteen ex-
tended footnotes, three figures and an Appendix sum-
marizing all information to date on fireplace efficien-
cy, showed clearly how inconsistent CU’s results were
with all previous data, and it revealed a great deal
else about CU never before gathered together in one
place, and was largely unflattering. This document
was completed in early April, 1981, and a dozen copies
were made, each boldly marked at the top of the first
page: “Release Date: Apr. 23, 1981”.
After the appearance of the Wall Street Journal
article of Apr. 9, 1981, AA-S sent reporter Abrams
and a photographer to Dr. Cranberg’s home for an
interview. Abram’s response to the news about the
Bose case, and to several other features of “Encounter
with Consumers Union” was so hostile, that Dr. Cran-
berg called the AA-S city editor, Ed Crowell, and pre-
vis
vailed on him not to publish any article on the inter-
view (R44).
The Wall Street Journal article also triggered calls
from reporter Robert Kasper of the Baltimore Sun
(R45) and from Robert Klein of the Time-Life ma-
gazine Money. Both requested copies of the paper and
an interview. Copies of the paper were sent out im-
mediately. The later interviews revealed keen hostility
to the decision in Bose, and discovery in this case later
revealed that Klein sent a copy of “Encounter with
Consumers Union” promptly to CU on receiving it on
April 13, 1981 (R46).
Discovery and testimony at trial (R47) showed that
the New York City headquarters of AP also responded
to the WJ story, and directed its Baltimore Bureau to
cover Dr. Cranberg’s paper.
Discovery and testimony at trial also showed that
CU’s Assistant Director for Information D. C. Ber-
liner, and counsel Michael Pollet, on receipt of a copy
of Dr. Cranberg’s paper from Klein, proceeded to pre-
pare a seven-page rebuttal, (R48), and permission
was sought and obtained from the Executive Secretary
of the Society (R49), to make a special presentation to
the Meeting of the American Physical Society im-
mediately after Dr. Cranberg’s scheduled presentation.
Present before, during, and after the presentation
of Dr. Cranberg’s paper in Baltimore on Apr. 23,
1981, with official responsibility to maintain the
authority and decorum of the American Physical
Society, was its Deputy Executive Secretary, Dr.
David W. Kraft (R50).
Prior to the presentation of Dr. Cranberg’s paper
and Berliner’s rebuttal, Dr. Cranberg was interviewed
(R51) by C. Sullivan, an AP reporter, and J. Bready,
a senior editorial writer for the Baltimore Sun, who
was present as representative of Discover, the science
magazine of the Time-Life-Money family. Sullivan
-12-
was accompanied by AP photographer Joe Giza, and a
photographer from Discover magazine was also pre-
sent.
During the Cranberg-Sullivan-Bready interview,
Dr. Kraft (R50) called to Dr. Cranberg’s attention
a tape recorder that had been planted to record the
interview. It quickly developed that the recorder had
been placed by Ms. Helm, who quickly retrieved it. Dr.
Cranberg requested (R51) that Ms. Helm actuate the
recorder and permit him to record a message for de-
livery to Director Karpatkin of CU. As she held the
recorder, Dr. Cranberg dictated a message emphasiz-
ing the impropriety of “surreptitious recording” at
meetings of the Physical Society. A crowd gathered
as this was happening. Suddenly, on the outer fringe
of the crowd, a panic-stricken Berliner appeared, hold-
ing a second recorder aloft and shouting “Look, I’ve
got one too. So what!” (R52).
Thus, Berliner was nowhere near Helm’s tape-
recorder or Dr. Cranberg, and the later contention by
Berliner-Sullivan that there was a “physical struggle”
over a tape-recorder between Berliner and Cranberg,
as reported in the AP story that went out on the na-
tional wire that evening from Baltimore, (R3), is pure
fabrication. It was a media event devised by two media
representatives who came to the dignified premises of
a scientific meeting for purposes which had nothing to
do with science, and was for the very obvious and ef-
fective purpose of creating a distraction from “En-
counter with Consumers Union,” (R53). Fiqually false
was Su!!.van’s statement that Dr. Cranberg had re-
fused to provide a list of his objections to CU’s treat-
ment of his inventions, and that he had in effect tried
to blackmail CU by threatening exposure at the Meet-
ing. This latter blow was aimed at Dr. Cranberg by
Berliner, (R54), who shamelessly coupled statements
from letters to Pollet of Jan. 6 (R34) and Jan. 19,
i.
1981, (R55), on two different subjects, giving no in-
dication that they were wrenched not only from the
context of those two letters, but from an entire cor-
respondence (R56) whose obvious intent was to
harmonize differences by colleguial dialogue’. Sul-
livan’s story, (R38), repeated Berliner’s poisonous in-
sinuation of blackmail with no word from Dr. Cran-
berg in rebuttal. Robert Kasper’s story in the Sun
(R57) said not a word that implied blackmail or a
physical struggle or withholding of data.
One of the most remarkable features of the news
coverage of “Encounter with Consumers Union” was
that not a word appeared either in the AP story (R3)
or in Kasper’s story, published a few days later in the
Baltimore Sun, about the Bose case, which Berliner
and Cranberg had discussed at length in the meeting.
A single sentence in the seventh paragraph of the AP
story covered Dr. Cranberg’s expose of the inoperabil-
ity of the CU standard fire as disclosed by Pollet. It
was omitted from the AA-S printed version (R2) so
that essentially nothing but libels about Dr. Cranberg
appeared in his home-town newspaper as the result
of “Encounter with Consumers Union’, and not a
single word adverse to CU appeared in that paper,
—not even the fact that CU had barred Dr. Cranberg
from visiting CU’s laboratory (58).
In deposition (R59) Berliner asserted that after
leaving the Meeting in Baltimore, he went home. But
this left a gap in his story which forced him to admit
that in fact he went to the AP bureau headquarters in
‘Such dialogue did in fact take place when CU’s counsel Pol-
let gave Dr. Cranberg a sketch of the grateless fire in his
office on Feb. 12, 1981. Nothing was said or implied about
blackmail or pressure of any kind at that time. CU devised
its shabby attack two months later in order to distract atten-
tion fron: “Encounter with Consumers Union” and its dis-
closure of CU’s loss in Bose.
th.
Baltimore—there to give Sullivan a docunient which
neither of them ever identified. It is the obvious nexus
that accounts for the fact that Berliner-Sullivan are
the only people ever to surface and claim that there
was a “physical struggle” over a tape recorder on the
premises of the American Physical Society.
Nevertheless, at the end of the two day trial in dis-
trict court on Sept. 13-14, 1983, every negative state-
ment made about Dr. Cranberg and his invention by
CU, AP and AA-S was endorsed by the court as true
(Al). The only caveat entered by Judge Shannon-was
that even if CU’s numbers on the Texas Fireframe
grate were entirely wrong, there was no malice, Dr.
Cranhberg was a “public figure’’, there was no liability
and all charges were dismissed “‘with prejudice”.
The decision of the Court of Appeals was even more
sweeping (A4). There was no caveat about a possibil-
ity of errors in CU’s report, and every adverse finding
by the lower court was affirmed. All due process ob-
jections were held invalid, and Judge Shannon’s re-
signation from the bench the day after the closing of
the record in this case was not deemed relevant to his
standing as an Article III judge.
The findings of both lower courts completely ignore
the expert testimony presented, (R60), all of which
came from the plaintiff’s side, and they ignored the
crucial findings of Terralab (R28) that CU’s Stan-
dard Fire was a “two-hour bonfire” with dangerously
high flue temperatures, and that CU made an error in
its estimate of the heat loss of the slot fire of 2200% !
REASONS FOR GRANTING CERTIORARI
In Cranberg v. Consumers of U.S. Ine.
1. The basic reason certiorrari should be granted
in this case is that on the record, and indeed on the
very face of the record, it is obvious that the proceed-
- 1§-
ings of the lower court were extraordinarily hurried,
and they bore no meaningful resemblance to a trial in
the ordinary sense of the term. The case most nearly
precedential to this one, Bose v. CU, also a bench trial,
lasted 19 days. Given the greater complexity of the
technical issues in this case, and the presence of public
safety and health issues not present in Bose, 19 days
would have been a lower limit for the duration of a
trial in accordance with normal procedures.
The Court of Appeals has itself characterized the
trial procedures as “unusual,” (A4) but its enumera-
tion of those unusual features is seriously inadequate.
It will suffice to consider the following:
a. The safety hazards of fire are as old as man’s
use of fire itself. The “Physicist’s Fire” represents,
among other things, a major breakthrough in solving
(R13, R22) the major safety hazard associated with
domestic use of fire—namely, chimney fires. The fact
that the Physicist’s Fire is capped from above and its
flames cannot ignite creosote accumulated in the flue
from previous fires, is a life- and property-saving
achievement of major proportions which was complete-
ly ignored in the CU report. It was fully spelled out
in the pleadings. But such was the disorderly proceed-
ings at trial that not a word appears in the trial record
about safety!
Hence, when the court permitted supplementation
of the record, safety was a leading item in that sup-
plementation. The fact that safety is nevertheless com-
pletely absent from the decisions of both lower courts
testifies to the inadequate standard of care of the low-
er courts in dealing with this case.
b. CU did not pretend that its “engineers” were
experts, and although it said at one point that it would
call Dr. Shelton, it never did, so that it presented no
expert testimony at all. Thus, there was no valid basis
in the record to counter the criticisms of CU’s test re-
ee
sults as “meaningless” and “unreasonable” by two
experts of unquestioned standing in the fields of heat
transfer and combusion—Prof. John Howell (R62)
and Dr. Gerald Hurst (R63), respectively, not to
mention the substantial credentials (R64) of the peti-
tioner himself. How, then, can a due process decision
in favor of CU have been arrived at? The answer to
be found in the record of the trial is that Judge Shan-
non himself served as CU’s expert (R65, Tr. 2-101-
130). He testified repeatedly in the record on technical
matters relating to heat transfer and combustion in the
course of repeated attempts to control and to rebut the
plaintiff’s testimony, and in clear violation of Rule
605 of Federal Rules of Evidence. The other source of
rebuttal testimony was CU’s defense counsel, whose
brief (R66) in rebuttal of the trial experts is repeated
verbatim in the decision of the Court of Appeals—for
example, “that neither had performed any actual
tests”. This is a rebuttal opinion pregnant with com-
pletely unfounded assumptions about what constitute
proper tests and is a mere slur on the theoretical and
experimental testimony (R67, R68) of bona fide ex-
perts. Its acceptance by the Court of Appeals is tanta-
mount to testimony by the Court of Appeals and again
there is violation of Rule 605 cited above. Even more
objectionable than the mistreatment of expert testi-
mony is the astonishing neglect of the tests of Terralab
(R28) which exposed CU errors of 400% and 2200%
in measurements for which CU’s “engineers” claimed
(R69) accuracy of 3%!
When the Court of Appeals repeats defense coun-
sel’s arguments (A4) that plaintiff’s in situ tests were
invalid, they are both acting as self-appointed experts
and are giving improper testimony which is not to be
dignified by rebuttal.
c. The lower court controlled testimony (R65) in
the CU case so that it was almost entirely devoted to
4
-17-
one aspect of the domestic fire—what the Court of
Appeals calls “efficiency”. Thus the court affirmed
that “consumers’ magazine’s tests of a number of fire-
place devices to determine their efficiency as domestic
heat sources were an accurate approximation. . .”
Ad.
The closest pertinent dictionary definition of “ef-
ficiency” is “The ratio of the energy delivered by a
machine to the energy supplied for its operation.”
But when the petitioner tried to explain the sign-
ficance of “efficiency” for the problem of domestic
heating, he had uttered only the first words of a de-
finition he has given countless times in elementary
lectures when Judge Shannon interrupted (R70) with
the words “Doctor, really, I think you guys are way
ahead of me. You are only going to make things worse’”’,
and no definition of “efficiency” was ever given in the
record. Only Judge Clark and his clerk know what
they mean by the word. The decision of the Court of
Appeals (A4), is void for vagueness, as is the entire
opi.:ion of the district court in its discussion of the
Physicist’s Fire, CU’s Standard Fire, or the fire made
with an ordinary grate. Simply put, CU’s Standard
Fire is a two-hour bonfire (R28, R29), and comparison
of its heat output with that of any other fire which
burns fuel at a much different rate is meaningless so
far as “efficiency” is concerned.
No comparison between the heat loss of the Standard
Fire and of the slot fire, as defined by copyrighted,
patent-protected instructions, was possible since the
latter was never tested. And since there was not a
single run on the Texas Fireframe grate in accordance
with instructions, no meaningful report was possible,
and the data published by CU on petitioner’s invention
were fraudulent. For the lower courts to characterize
CU’s report as “accurate” is not to give ordinary words
their due meaning and is thereby a violation of due
yo
process of law.
d. The record of Dr. Cranberg’s testimony (R65)
shows that he was never cross-examined. Judge Shan-
non took on the role of examining counsel for both
sides, after Dr. Cranberg agreed to accept him as
friendly counsel for the giving of his testimony. But
instead of allowing Dr. Cranberg to testify on the
many issues defined in the pleadings which he was
prepared to address, Judge Shannon confined the
testimony to the issues selected by CU for presenta-
tion, and aggressively argued with Dr. Cranberg
(R65) on the various technical points at issue, acting
in effect as defense counsel and expert witness for the
defense, filling the void created by the absence of ex-
pert witnesses for the defense, and idling the seven de-
fense lawyers in the courtroom. In page after page of
the record, (R65), Judge Shannon acted in violation
of Rule 605, Federal Rules of Evidence, which bars
testimony by the judge. This is a rule to which excep-
tion is “automatic” and need not be taken at trial.
e. The district court exonerated CU of all malicious
intent (Al). Dr. Cranberg had characterized the re-
port on his invention as “not a report but an assault
with intent to kill” (R65a). He cited Bose, and other
sources (R43) to show that CU caters to “voyeurism”,
indulges in “muckraking” and depends, on “sarcasm
and spice” to sell its magazines. And in this particular
case, CU’s consultant Dr. Jay Shelton had a long his-
tory of ties to the wood-stove industry and of promo-
tion of the Anti-Fireplace Hoax. The lower court’s
comments about CU’s purity of motive are therefore
gratuitous and merely reflect personal bias. Also re-
flective of personal bias are adverse personal remarks
directed at Dr. Cranberg (Al) relating to his concern
for public causes. Those remarks are more understand-
able in the light of the later news that Judge Shannon
had already decided to leave public service.
-19-
f. Tne lower courts’ denial of petitioner’s motion
to try a complaint against CU for violation of the
Lanham Act was a denial of due process. The issue
was broached well in advance of trial. Although the
motion was presented just before trial, a similarly
timed motion at a preliminary pretrial conference by
the defense to remove a sanction against it was granted
on the spot with no chance for study of the motion or
rebuttal by the plaintiff. In these circumstances the
district court’s delay in responding to plaintiff’s mo-
tion is not a valid justification for its denial, particu-
larly when the issue involved an established practise
of CU of recommending its own alternatives to market-
place products.
g. Finally, we note that in Williams v. Lee, 358
U. S. 217, 218, the Court granted certiorari because
there was an “important question” and because of a
“doubtful determination” of the court below. There
can be few clearer instances of plain error than in the
embrace by the lower courts of the preposterous con-
tention that a fireplace acts in cold weat>er as the
refrigerator of the “heated” space. This is a classic
instance in which unacceptable procedures produced
an unacceptable result, and where certiorari is the
last life-line between the courts and the rational, re-
sponsible treatment of an important question. The
importance of wood-energy is to be gauged by its very
wide use in American homes, by the fact that it ac-
counts for more than 70% of all the renewable energy
sources in use in the United States, and by the fact
that its contribution (R71) to the national energy
budget is comparable to that of nuclear power.
2. In Cranberg v. Associated Press and Austin
American Statesman.
Before either of these cases came to trial it was ob-
vious that Judge Shannon was not going to permit
-20-
proper discovery of AP personnel. The Court signed a
Protective Order in AP’s favor (R72) while Dr. Cran-
berg was in New York City to take depositions at AP
headquarters which had been properly noticed. He
then suggested that Dr. Cranberg file a Rule 37 Mo-
tion (R73) to punish AP for failing to cooperate in
the formulation of a proper plan of discovery, but the
Court never acted on the motion and never permitted
any AP discovery other than that of reporter Sullivan.
The only sanctions invoked have been against Dr.
Cranberg, for costs (A2).
The refusal of discovery is in clear violation of the
precedent in Herbert v. Lando, 441 U.S. 153 (1979),
and by itself is ample grounds for remand and re-trial.
Not only is there direct evidence of the involvement of
AP headquarters in the decision to do a story on “En-
counter with Consumers Union”, but indisputable
evidence was reluctantly extracted from witnesses
Berliner ana Sullivan that they had consorted together
at AP’s Baltimore bureau. Their activities there re-
main to be discovered.
Another unresolved mystery awaiting discovery is
the content of AP’s libel insurance policy, which should
have been produced in November, 1982, under Rule
26(b) (2) of the Federal Rules of Civil Procedure. Its
discovery was ordered by the Court, (R14), but AP
simply stonewalled and the court refused to act against
it. AP has verily been a law unto itself in this case thus
far, and the only hope that it will be called to account
in this case is favorable action on this petition.
On May 7, 1985, Chief Justice Burger, in an address
to the American Society of Newspaper Publishers in
Miami,’ warned of “anarchy in the law” if the Su-
preme Court continues to be deluged with cases. He
*“Court’s caseload risks anarchy in the law, publishers are
told”, Tom Fiedler, Miami Herald, May 8, 1985, p. 17.
~
warned that the lower courts might ignore upper court
rulings in expectation they would not be overruled,
and he stated ‘some careful observers, some respons-
ible observers think this is already happening”’.
Not only has this already happened in this case with
the defiance by the district court of the discovery pre-
cedent established by Herbert v. Lando, (R75), and
the complete neglect of the issue by the Court of Ap-
peals, but “anarchy in the law” is the most eloquent
description of the trial of both of these cases.
A “trial” is by definition a trial of issues raised by a
plaintiff in pleadings. Due process requires the order-
ly process by which those issues are presented through
the stages of a) pre-trial hearing and pre-trial order,
b) opening statements, c) presentation of the case in
main by the party having the burden of proof.
All three elements were absent from the proceed-
ings in Judge Shannon’s courtroom and there was
therefore no orderiy trial of the issues, but a helter-
skelter process aptly characterized as “anarchy in the
law”, and epitomized by Judge Shannon’s ruling
“Everyone has a running objection to hearsay and
they are all overruled” (R76).
Chief Judge Clark of the Court of Appeals, in giv-
ing its decision, cited his own prior opinion in Ruiz v.
Estelle, 679 F.2d 1115, 1129, modified 688 F.2d 266
(5th Cir. 1982), cert. denied, 460 U. S. 1042, 103 S.Ct.
1438, 75 L.Ed. 795 (1988), to justify the “unusual
procedures” (A4) in this case. But none of the three
elements of fair trial identified above was absent in
the Ruiz cases, nor was there any such blanket aban-
donment of the Federal Rules of Evidence as has just
been cited from the record of these cases. In any case,
to compare the trial of Ruiz, which lasted a full year,
with these astonishingly abbreviated cases is to com-
pare a whale with a minnow. It is as disingenuous as
the finding that AP had no motive to concoct a media
- 29.
event which cloaked its fellow non-profit journalists
from embarrassment so painful as to bring them runn-
ing to a Meeting they had promised not to attend,
climaxed by their public exposure in the scardalous
“bugging” of Dr. Cranberg at the scientific meeting.
The key trial testimony devoted to the issues involving
the Austin American Statesman is (R77) as follows:
Dr. Cranberg: Mr. Crowell hasn’t testified yet.
The Court: Who?
Dr. Cranberg: Mr. Crowell, the city editor of the
Austin American Statesman.
The Court: Don’t call him on my account.
Dr. Cranberg: Well, I know the hour is late...
Thus the court was prepared to give a decision on a
case in which it had denied Summary Judgment with-
out hearing from a single witness concerning the
issues in the Austin American-Statesman case.
The few hours devoted to testimony in the AP case
showed there was no denial by the defense that Dr.
Cranberg correctly summarized Sullivan’s testimony
as follows (R80):
“You have twice refused to take a polygraph test,
you produced thiee different versions of what al-
legedly transpired, you refused to re-enact the scene
(of the physical struggle) ...”
In an era in which discriminatory reference to age
is widely deplored and is the subject of the Age Dis-
crimination in Employment Act (R81), the following
words from the decision of Judge Shannon in this case
deserve to be widely cited as an example of how judges
should not render decision:
“The young inan, I don’t know how young he is, but
the young man here from the AP, I believe the young
man, I think he is telling the truth” (A1).
It should be observed that these are the words of a
judge who had not yet reached his 41st birthday.
The “physical struggle”, according to Berliner,
Pee ae er ee ee ee
- 23.
(R86) occurred in the course of a series of pictures
taken of a mock conversation between Cranberg and
Berliner to accomodate the photographer from Dis-
cover magazine. Neither the pictures nor the identity
of the photographer was disclosed at trial. The photo-
grapher is now known and her pictures are now avail-
able. They would be an extremely important contribu-
tion to the record of a re-trial of these cases. Their
absence from the trial below is one direct result of the
refusal of the district court to permit essential AP
discovery as required by Herbert v. Lando.
Judge Shannon, in his insensitive concluding re-
marks, observed of the “physical struggle” that it made
the participants seem equally “childish and irrespons-
ible’ (Al), completely ignoring CU’s diversionary
motive and Dr. Cranberg’s senior status.
3. The scientist as public figure
The district court found the petitioner to be a public
figure and concluded as follows (Al): “Consumers
Union—if I am wrong about the truth of the article...
even to a gross extent, completely wrong, figures are
entirely reversed—lI just don’t see any malice’.
The Court of Appeals, on the other hand, found all
the contested statements true, declared (A4) that it
was “unnecessary to reach the issues of whether Cran-
berg was a public figure or actual malice existed”’.
But the reasoning of the lower court in making its
public figure determination finds its way into judicial
precedent, and that reasoning is as follows (Al):
“Dr. Cranberg, rather than depending on the Court to re-
solve this matter in a libel or slander action or disparagement
of product action, you elected to go public yourself and ad-
dress a convocation of physicists . .. and even called attention
of the press in advance. . . that made you a public figure and
their subsequent writings are to be tested by the standard of
malice, and the young man, Sullivan, was not malicious, was
not a malicious person, not toward you in this case.”
sh.
Clearly these lower court findings are a far cry from
reasonable standards of judicial competence and the
preference of the courts for non-litigative remedies.
Justice Powell, in Gertz v. Welch, 418 U. S. 344 put
the matter thus:
“The first remedy of any victim of defamation is self-help”.
But following Judge Shannon, we can expect in-
stead of polite discourse at professional meetings a
mud-slinging match unrestrained by any threat of
legal action. The courts are thus making new rules for
the entire professional community which in New York
Times v. Sullivan the Supreme Court had adopted for
journalists—namely, that in the discussion of public
questions it was desirable to be “uninhibited, robust
and wide-open.”
At the same time that the Court reviews the public
figure finding in this case, it should surely review the
argument presented by the petitioner to the lower
court (R90) that no determination of public figure
status can be even minimally faithful to the intent of
New York Times v. Sullivan without a determination
of the relative degrees of media access of parties to a
public controversy. These cases, in which a lone scient-
ist is pitted against three giants of the media, exhibit
in the starkest possible terms the absurdity of a public
figure finding whose origin was in the idea of a fair
fight between equals. The descriptions given of the
respondent parties in this Petition reveal not only how
formidably powerful each one is in its own domain, but
how interlinked they are. And there is a further, sinis-
ter aspect to the secret operations of the Libel Defense
Resource Center located on the premises of the law
firm which has long represented Consumers Union
and shares legal staff with it.
A re-consideration of New York Times v. Sullivan
should also take account of the ways in which that de-
x 2
cision may have affected the fact-finding processes of
the lower courts in media cases. Those effects are ob-
vious in that decision itself, where the Court, with un-
accustomed speed, not only overturned two hundred
years of libel law, but then proceeded to apply the new
rule of law to the facts in the case, and, finding no
actual malice, exonerated the New York Times.
It is particularly pertinent in the context of these
very expeditiously handled cases to ask what effect
New York Times v. Sullivan has had on the quality of
fact-finding in cases such as these, in which the judge
was the fact-finder. Does Times send a signal to the
lower courts that not only is a free press a precious
right, but that it is more precious than almost any
other, including the right to due process, and that “the
end justifies the means’’?
Thus, the granting of certiorari in this case would
not only open up the overt issues created by New York
Times v. Sullivan, which were recently discussed at
length in Dun & Bradstreet v. Greenmoss Builders,
Inc., but it would focus on a contagion which has
spread into due process that has given the public a
cynical view of courts intent on vindicating the press
by fair means or foul. It is a contagion with an obvious
remedy: reversal of the decision in New York Times
v. Sullivan. Not only would such action put an end to
two decades of inordinate confusion in our courts over
the law of libel, but it would have a sobering effect on
our media, which, under modern technological condi-
tions, have become a fourth arm of government which
threatens to be the most powerful of all. That power
is plainly shown to extend to our lower courts in these
actions, where the evidence is entirely against the
media, but the courts were entirely for the media.
An important fact about libel clearly brought out in
these cases and overlooked in New York Times v. Sul-
livan is that libelous falsehoods do not merely affect
- 26 -
the individual who is its target, but also the collective
interests which are obscured or damaged as a consequ-
ence. Redress of such dangerous error should be prompt
and effective. Dr. Cranberg’s demand for $1,000 per
day until a retraction appeared was a prudent and
responsible action considering the stakes involved both
for him and for the public, which was being grossly
misinformed and being led toward products (wood-
stoves in this case) which were clearly dangerous.
New York Times represented a risky compromise
with truth in exchange for benefits which have never
been shown to be substantial. The “chill” of First
Amendment rights that was feared from libel suits
against the media had the same kind of factual founda-
tion as the myth that the fireplace itself is a chilling
device.
4. Pro Se Rights in the Fifth Circuit
At no time did the district court fault the compe-
tence of the pro se party before him for any defect of
scientific or legal knowledge. On the contrary, Judge
Shannon asked the plaintiff to explain the precedential
ease, Bose v. CU (R91) and the judge asked several
questions which revealed complete ignorance of the
case, although it had been cited numerous times in
pre-trial briefs. There is no evidence in the record
that the presiding judge had any greater command of
the law or of courtroom procedure than the plaintiff.
Nevertheless, the Court of Appeals justified “un-
usual procedures” by stating (A4): “the judge’s par-
ticipation and evidentiary rulings tended to assist
Cranberg, a pro se litigant who represented himself
well, though he lacked familiarity with procedural
rules”. And again in discussing the irregularity of the
trial, the Court of Appeals asserted, (A4):
“When a pro se litigant, even one as skillful as Cran-
berg, goes to trial against a party represented by a
member of the bar, the responsibility of the trial judge
-27-
may warrant participation which differs markedly
from what would be appropriate to a trial between
adversaries represented by counsel.”
The foregoing justifications for unusual procedures
are not an exculpation of them but an aggravation of
them, unsupported as they are by a word of justifica-
tion from statutes or cases, or the record of the cases.
They are a bitter pill to swallow in the light of the
fact that all has been given to the respondents and the
petitioner has been taxed for costs, while his livelihood
has been damaged and his reputation has been be-
smirched by both lower courts. If this decision stands,
a precedent will have been established that renders
worthless the right of self-representation in any court.
In singling out the pro se status of the petitioner as
a pretext for “unusual procedures’, the court followed
an argument in the brief of AA-S’ counsel to the
Court of Appeals (he was also counsel to CU)—name-
ly, that what happened at trial “was appropriate with
a pro-se party and in a non-jury context” (R93). That
statement, in all its self-serving arrogance, unsup-
ported by a single relevant precedent, is a further clear
warning that this case is a fundamental threat to the
hallowed right of self-representation in our courts.
Self-representation is a statutory right (28 USCS
§ 1654) deeply rooted in our own history and in the
common law. It is vital to. “Equal Justice under Law”
in an era when only the very wealthy and the very
poor can afford professional legal representation. In
an age of expanding literacy and ever-increasing stan-
dards of education, it is ever more likely to be com-
petently exercised.
The pro se party, who is most familiarly sharacter-
ized as a “fool” within the very bosom of the legal pro-
fession, as a group is at least as deserving of proper
preservation of its legitimate rights as any other. And
to speak with obvious condescension of rights “ap-
-28.-
propriate with a pro se party” in legal arguments to a
court of law (R93) is an affront which should not bear
repetition in any proceeding before a U. S. Court.
5. Equal Justice in the U. S. Claims Court.
It was the remarkably good fortune of the petitioner
in these cases to plead a cause (Cranberg v. The United
States, Case No. 417-81C) before Judge Robert M. M.
Seto concurrently with these cases. The trial lasted
eighteen days. A decision is being awaited. But on one
vital point—due process—the verdict has already been
entered as far as this pro se party is concerned. That
verdict is an unambiguous finding that pro se rights
are recognized by some judges and by some courts in
the federal system, and that the difference between
what happened in Judge Seto’s court in Washington,
D. C. and in the court of Judge Fred Shannon on Sept.
13-14, 1984, in San Antonio, Texas, is the difference
between due process and a “docket-clearing exercise.”
The contrast extends from pre-trial and discovery,
to a trial in meticulous accord with rules of evidence,
to post-trial briefs. The disparity in post-trial proceed-
ings is particularly noteworthy in view of the comment
of the Court of Appeals (A4) that "On the other hand,
the court also permitted the parties to make a liberal
supplementation of the record of the trial; Cranberg
admits his supplementation was ‘massive’ "'.
The facts are that petitioner made massive supple-
mentations in timely manner on Sept. 26, 1983, (R97,
R98), but so far as the records of both cases are con-
cerned (R99) both sank without a trace. What has
been neglected is veritably scandalous, including test
data, safety data, and proof of the fraudulence of De-
fense Exhibit N, attributed to Lawrence Berkeley
Laboratory.
6. Article III Judge.
On Sept. 29, 1983, local newspapers carried the story
that District Judge Shannon had unexpectedly an-
- 29 -
nounced his intention to resign from the federal bench
effective Jan. 1, 1984. Petitioner promptly prepared a
Motion for New Trial and New Judge with an extend-
ed brief (R100) arguing that Judge Shannon had
ceased effectively to be an Article III judge—i. e., a
judge serving for good behavior. This motion was filed
prior to issue of Final Judgment (A2) in these cases,
which was entered on Oct. 19, 1983. The Motion was
denied shortly thereafter by Judge Shannon.
The brief on this question gave numerous argu-
ments and cited Northern Pipeline Construction Co. v.
Marathon Pipeline Construction Co. and U. S., U. S.
Sup. Ct. Rep, 73. L. Ed.2d, p. 598, and especially Note
10. This citation was ignored by the Court of Appeals.
The number of judges leaving the federal bench has
increased dramatically in recent years (R101). It
would be eminently timely for the Supreme Court to
grant certiorari in these cases and to indicate that it
will have no tolerance for “docket-clearing” actions.
Parties with pending cases—especially those in which
the judge is fact-finder—should know that their judge
is not a lifetime judge, and should have the option of
transfer to someone who is a lifetime judge.
The Court of Appeals (A4) denied the Article ITI
argument on the ground that no substantive impropri-
ety was proved. But it ignored the issue of appearance
of impropriety which is explicit in the Code of Judicial
Conduct, Canon 2, and was surely in the minds of the
authors of Article III of our Constitution in providing
lifetime tenure for federal judges.
It disturbs appearances when a judge takes control
of a non-jury case from one judge, who has been
handling the case to the satisfaction of one side, and
then throws his weight conspicuously on the other side.
The disturbance is greater when the latter judge sur-
prises everyone by announcing intention to resign from
the bench six months later. It disturbs appearances
-30-
still more if said judge then rules against the favored
side on summary judgment, and then holds a trial in
which he is fact-finder which is the most summary
imaginable, but in full support of those denied sum-
mary judgment.
Summary and Conclusion
A suggestive analogy to these cases is that of Nader
v. General Motors, with fire-safety in place of auto-
safety, “Encounter with Consumers Union,” in place of
“Unsafe at any Speed”, and with powerful corporate
entities resorting to scandalous means to discredit
critics. The greatest difference is in the legal outcomes
thus far. Certiorari could remedy that difference.
New York Times v. Sullivan can be viewed in re-
trospect as a Noble Experiment in enlarging the dis-
cretion of the press. But like another Noble Experi-
ment—that with the Eighteenth Amendent—it has
proven flawed by a lack of realism about competing
interests, human frailty, and problems of enforcement.
It is time that both Noble Experiments met the same
fate, and certiorari is an available means.
There is a striking resemblance between the alleged
“chilling” effect of libel suits on First Amendment
rights and the alleged chilling effect of the fireplace.
Neither has any evidence to support it worth men-
tioning; both are actively promoted by the media; and
both are reckless abandonments of common-sense and
age-old principles and practices.
It would be sweet and economical justice if recogni-
tion of the truth about the fireplace were also to be -
the occasion for reversing New York Times v. Sullivan,
for preserving and vindicating the usefulness of pro
se action, and for safeguarding the integrity and con-
sistency of standards of the federal bench. Certiorari
in these cases could yield all those benefits.
Respectfully submitted,
Lawrence Cranberg
-$1-
Appendix Al
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
LAWRENCE CRANBERG
vs. A81CA496 and A82CA208 consolidated
CONSUMERS UNION
ASSOCIATED PRESS and AUSTIN AMERICAN
STATESMAN
Proeceedings Held Sept. 14, 1983:
Court’s Pronouncements and Rulings
JUDGE FRED SHANNON: Ladies and gentlemen,
do you want to know what I think about it now or in
the morning? Doctor, today or tomorrow?
DR. CRANBERG: Today.
MR. DONALDSON: On behalf of the Austin
American Statesman, we simply need to get into the
record some exhibits and some testimony from Dr.
Cranberg concerning his public figure status and also
it is important to ask a couple of questions on cross- .
examination.
THE COURT: Okay. I am ready to call it.
MR. DONALDSON: In that case, if I could merely
have the exhibits marked and introduced into evi-
dence—
THE COURT: Each side can perfect the record
however they desire to do so. I may not be able to come
to the correction decision in every case but each side of
the case can be certain that I will help you get into the
record anything you want to appeal the case.
Dr. Cranberg, you are a good man with a good in-
vention, but in my judgment you do not have a good
lawsuit, and the reasons are several:
EEE eS
> a
Start with the analysis done L, Consumer’s Union.
Could have been better, they could have done more
tests, but I did not have a test that refutes their find-
ings; so, in my limited scientific ability, I have to
assess what they have done on my own. What they have
done—although I can’t verify the figures up here, but
looking at the results of the test, it squares, it is con-
sistent with logic. Closed windows over a fireplace,
I think it is clearly demonstrated that you are going
to keep more heat in the house; everybody agrees to
that. If you burn a fireplace while you have got your
central heat running, you are wasting energy. Every-
body knows that. That is your practice as I recall from
your testimony. Either reduce your central heat or
turn it off while you are consuming the wood.
The second column, although the numbers may not
be corect exactly, demonstrate that. You don’t burn a
fireplace without windows over it while your central
heat is running. If you do, you are going to lose energy
and waste money and it will go right up the chimney.
So, the specifics of the matter. It doesr:.*t seem to be
too unreasonable—nobody has pointed out to me why
the other studies that Mr. Greenhaus said supported
his findings of 7500 BTU cast-off or whatever it is
called was unreasonable. Nobody told me why. I don’t
see why it is unreasonable.
I think if I had the authority as a judge to do it, I
might require that there be clarifications put in the
magazine with regard to certain things that were not
handled as precisely as they could have been, but I
can’t do that in the absence of a finding of liability.
That is why I suggested you ladies and gentlemen try
to settle the case.
The accuracy of the Consumers Union report, then.
The burden is on the Plaintiff to prove that it is inac-
curate and the proof fails. Therefore, the findings
must be for the defendant, Consumers Union.
>]
- 33 -
_ Just as an aside, I think it is kind of—both sides
may have missed the—well, enough said about that
subject.
The scuffle, the struggle or scuffle, fight, whatever
it is called. The young man—I don’t know how young
he is, but the young man here from the AP—I believe
the young man. I think he is telling the truth. I think
he called it like he saw it; got no motive. As a matter of
fact, my reading of the article, if it is critical to any-
one, it is just as critical to Mr. Berliner as it is to Dr.
Cranberg. It takes two to fight, if that’s what it was.
It takes two to struggle. If it implies hat Dr. Cranberg
was childish or irresponsible, it says the same thing
about Dr. Berliner or Mr. Berliner. I think what hap-
pened in the heat of the moment, that, Dr. Cranberg,
you felt wronged and I think Mr. Berliner felt wronged
over the thing. I think the dispute had grown dispro-
portionate to the possible resolution of it and became
beyond repair pretty quickly there at this convention
and that in the heat of the moment not only was there
a struggle over a tape recorder but there was provably
language used that hasn’t been revealed in court. That
is they way I see it. I don’t say that anybody has delib-
erately lied in court or been untruthful w:th me. I just
don’t think that when things happen in the heat of the
moment the participants, especially the one who seems
most aggrieved is the best able to recollect what hap-
pened.
In any event, in the final analysis, there is no ma-
lice in the case. If I am wrong about the truth of the
article, if 1 am incorect about that, even to a gross ex-
tent, completely wrong, the figures are entirely re-
versed, I just don’t see any malice. I just don’t see any
malice.
Consumers Union is not going to sell more by dis-
paraging a product than they are going to by standing
up for a product, as I understand it. They sell maga-
s
- 34 -
zines because people want information about a good
product to buy. They have a stake in being impartial.
If a newspaper would print something that is sensa-
tional and stretched the truth to the point of breaking,
they might sell more newspapers with lurid headlines
and the like, but I don’t see that is the function of Con-
sumer Reports (sic). I don’t see any evidence that any-
body with Consumers Union had it in for this product
or any product, for that matter.
One of the gentlemen testified that these things were
all done by number, that the testers didn’t know who
the products were. I believe that. They didn’t know who
these products belonged to until they got ready to write
the article, and with regard to the AP and the Austin
American Statesman, there is no malice, and that
would be the standard in my opinion, as to the AP and
the Austin American Statesman because Dr. Cranberg,
rather than depending upon the Court to resolve the
matter in a liable for slander action or disparagement
of product action, you elected to go public yourself and
address a convocation of physicists I assume from all
over the United States and even called tire attention of
the press to it in advance. So, they responded in kind.
But in any event, by you going public to the press,
asking a national organization to investigate, that
made you a public figure, and their subsequent writ-
ings, then, are to be tested by the standard of malice,
and the young man, Sullivan, was not malicious, not a
malicious person, not toward you in this case.
What else can I comment on or what else do you
want to hear from me on? Doctor? Lawyers? What
else?
MR. DYE: A deadline upon supplementing the rec-
ord so that it can be concluded. You mentioned that you
would cooperate with the parties if there was to be any
supplementation. For the record, we would just like
for there to be a deadline for it.
- 35 -
THE COURT: Deadline is 5:00 p.m. on the 26th
of September.
I don’t want to have to file any more findings of fact
or conclusions of law in this case. What else do I need
to do?
MR. GEORGE: You need to find in the slander and
the Berliner report to the Society he read there about
the $1,000 a day.
THE COURT: The $1,000 a day, he gave an accu-
rate description of what had been posted.
What else do I need comment on, Doctor?
You have got the best Fireframe. You have got the
best grate ever made, Doctor. The problem with it is—
there are no problems with your grate or your frame.
This comparison pitted it against a fire built on a
hearth; that’s all. What they should have acknowledged
—and I think they did acknowledge—they should have
been more glowing, because your fireframe is the best
that I know about, and comparing it to grates, without
a doubt, comparing it to grates that have no blowers
and whatever it is the best. It is better than the tubular
things, right? In any event, what else do you want me
to comment on?
DR. CRANBERG: I introduced a motion just be-
fore the start of this trial with respect to the violation
of the Lanham Act by Consumers Union. Have you had
an opportunity to examine that?
THE COURT: Yes, I did. I don’t see a violation of
the Lanham Act by a passing off or a disparagement,
intentional harm.
DR. CRANBERG: May I make a comment, your
Honor?
THE COURT: Yes, sir.
DR. CRANBERG: This admirable invention which
you praised is hopefully deserving of that praise by
the way in which the market responds to it, and I
think that the response of the market place—I am
- 36-
pleased that you appreciate the merits of the device,
your Honor.
THE COURT: Well, Doctor, comparing grates, you
win. My wife wanted fireplaces and in my house we
have a lot of fireplaces, and I don’t build fires on the
hearth, every one, but for people that are willing to
build a fire on the hearth, then worry with ashes and
the like, that is probably the way to get the most heat,
at least based on these tests, and I can’t say that they
are wrong, but for people who are going to use grates
in their fireplaces, I think Consumers Union said yours
is the best.
DR. CRANBERG: Your Honor, would you consider
the following possibility?
THE COURT: I will consider anything.
DR. CRANBERG: I am going to address the Na-
tional Academy of Sciences. They have taken a very
keen interest in the preliminaries of this case, and I
believe significant national interests are involved.
Wood burning—
THE COURT: Doctor, let me give you a piece of
advice.
DR. CRANBERG: Please.
THE COURT: If you will forget about national in-
terests, if you will forget about great overriding mat-
ters of policy, and go do the very simple thing—forget
about the interrelationship between Mr. or Mrs. Car-
patkin or son and daughter and the sinister overtones
of these kinds of things and go out and have your prod-
uct tested —
DR. CRANBERG: It has been your Honor.
THE COURT: Well, Doctor, I don’t know; there
has not been sufficient test in this record in my judg-
ment—to test it against a fire built right on a hearth.
Do that very simple thing, by the National Academy
of Sciences or these professional services. Who are
they? Some of them I hear about in products liability
- $7 -
cases, whatever. There are 3 or 4 basic testing com-
panies, enginering testing companies.
DR. CRANBERG: The suggestion I was going to
make, the reason I brought in the National Academy of
Sciences is not because I was trying to be highfaloot-
ing—
THE COURT: I am not saying you are being high-
falooting or anything. What I am telling you is what
has been overlooked in this case, Doctor, is the very
simplest of things. This whole case got started in per-
haps anger, misunderstanding, I don’t know, but it
comes down to trial right here and now, and your op-
ponents are the only people that have tested it and
given me the results and explained the test with engi-
neers in this court room.
DR. CRANBERG: I incurred expenses of about
$2,000 in response to your interest in tests and I re-
tained this firm in Utah—
THE COURT: Apparently, you were very disap-
pointed in them.
DR. CRANBERG: No, sir. I was extremely pleased
by the results. Perhaps I was a little too stiffnecked
with respect to the fact that the gentleman mislead me
with respect to his credentials. I’d like to introduce
those results into the record. I have no motive what-
soever to withhold them. There is nothing in the re-
sults which is unfavorable to my product in any way.
THE COURT: You may supplement the record,
each side. When you supplement the record, you need
to call my attention to what you are putting in. If it
will change my opinion, I will tell you.
DR. CRANBERG: In connection with what I men-
tioned with the National Academy of Sciences Service,
one of the great problems involved in the evaluation of
these devices is a protocol, a set of criteria for testing
which will be both verifiable and meaningful in rela-
tion to the consumer market place. Until such a proto-
- 38-
col is established, it will be possible to weaver around
the vital issues, and if I may say so, in no disrespect
to the defendants or to muddy the waters, I feel that
the important thing to do is to establish a protocol and
identify a neutral party who is thoroughly competent.
This report on cancer, a 19” color TV is generally com-
petent, and I feel that one of the ways that this could
be done would be by the appointment of a master by
the Court, perhaps with a nomination from the Acade-
my, for the purpose of generating a protocol, meaning-
ful test procedure—
THE COURT: Doctor—
DR. CRANBERG: —and report back to the Court.
THE COURT: Doctor, this case is over with; this
case is finished. You are talking about where to go
from here. It seems like you have got two options:
number one, justifiably claim that you are the best
grate around and fight Consumer’s Union with sup-
port of that fact.
DR. CRANBERG: Surely, you are jesting, your
Honor.
THE COURT: I am not jesting with you, Doctor.
That is the problem with the case. I don’t think we
really understand. Consumers Union supports your
claim that that is the best firegrate in the world. They
just say that building the fire not on the grate but on
the hearth is better. So, if you want to make the chal-
lenge, you can take this article and go forth to the
world and claim that Consumers Union supports your
firegrate. Am I right about that? Isn’t that what this
article says?
MR. GEORGE: Twice as good as the standard
grate; that is what it says.
THE COURT: And a lot better than the things that
are tubular, too, unless they have a blower in them.
MR. GEORGE: Better than that, too; that’s what
the numbers say.
-39-
THE COURT:So, here is the choice, Doctor. Here
is the way I see it. You have a basic choice. You can
march forward with Consumers Union as your weapon
in the sale of a firegrate to people what want to build
their fires above the hearth and you’ve got to win. It’s
a compliment.
Now, if you want to prove that your grate is better
than no grate, that is a different matter. You are still
going to knock heads with Consumers Union and this
article and other scientists. You follow me?
DR. CRANBERG: I follow you, sir.
THE COURT: The choice is yours, but as to this
case, as to this case, in a contest between a grate above
the ground and one built on the hearth, the burden has
not been carried and it is time to draw the matter to a
close. Case dismissed with prejudice. Get everything
filed by September 26th, 5:00 p.m. Point out to me
what you are filing. If it changes my mind, I will noti-
fy you.
DR. CRANBERG: Your Honor, would you be kind
enough to explain “with prejudice”?
THE COURT: That means that this issue as be-
tween these parties shall never be litigated again. If
you want to try it again, file notice of appeal and carry
the case to the Fifth Circuit, Doctor.
MR. DYE: In connection with the findings, your
Honor, can we request a finding that the story, the AP
story, in its totality is a fair and accurate rendition of
what transpired at the meeting as a finding of fact?
THE COURT: Yes, it is a fair and accurate rendi-
tion.
MR. DONALDSON: May we have that finding as
to the Austin American Statesman?
THE COURT: Yes, sir. Good luck. God bless. I wish
everybody could win. I am sorry you can’t. Court is in
recess. Make sure we have all the exhibits for this rec-
ord. If you take any out, leave a receipt.
- 40 -
Court Reporter’s Certificate
I, Blake W. Stevens, Jr., Official Court Reporter,
United States District Court, Western District of Tex-
as, do hereby certify that the foregoing pages 1
through 12 constitute a true and correct transcript
from my stenotype notes the Court’s rulings in the case
of Lawrence Cranberg vs Consumers Union/Associa-
ted Press and Austin American Statesman in A81CA-
496 and A82CA208 held Sept. 14, 1983.
Witness my signature in the city of San Antonio,
Texas this 16th day of September, 1983.
Blake W. Stevens, Jr.
Official Court Reporter
United States District Court
Western District of Texas
San Antonio Division
BGT
Appendix A2
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
LAWRENCE CRANBERG
vs. A-81-CA-496
CONSUMERS UNION
FINAL JUDGMENT
On the 13th day of September, 1983, came on to be
heard the above entitled and numbered cause and
Lawrence Cranberg, the plaintiff, appeared in person
and acting pro se and announced ready for trial and
Consumers Union, the defendant, appeared by and
through its respective representatives and attorneys
of record and announced ready for trial and no jury
having been demanded, all matters of fact and things
in controversy were submitted to the Court.
The Court, after hearing the evidence and argu-
ments of counsel, is of the opinion that the plaintiff
should take nothing by this suit.
IT IS, THEREFORE, ORDERED, ADJUDGED,
AND DECREED that the plaintiff take nothing by
this suit, that defendant be in all things discharged,
and that the above entitled and numbered cause be,
and hereby is, dismissed with prejudice to the refiling
of same. All costs of court are taxed against the plain-
tiff for which let execution issue.
All relief not expressly granted herein is denied.
SIGNED this 19 day of Oct., 1983.
Fred Shannon
United States District Judge
Da
YS
Approved as to Form:
Lawrence Cranberg, pro se
Graves, Dougherty, Hearon
& Moody
2300 InterFirst Bank Tower
Austin, Texas 78701
By: R. James George, Jr.
Attorneys for Defendant
Consumers Union
By: Todd N. Wade
for telephone authorization
2115J
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
LAWRENCE CRANBERG
vs. A-82-CA-208
ASSOCIATED PRESS and
AUSTIN AMERICAN STATESMAN
FINAL JUDGMENT
On the 13th day of September, 1983, came on to be
heard the above entitled and numbered cause and Law-
rence Cranberg, the plaintiff, appeared in person and
acting pro se and announced ready for trial and Asso-
ciated Press and Austin American-Statesman, the de-
fendants, appeared by and through their respective
representatives and attorneys of record and announced
ready for trial and no jury having been demanded, all
matters of fact and things in controversy were sub-
mitted to the Court.
- 43 -
The Court, after hearing the evidence and argu-
ments of counsel, is of the opinion that the plaintiff
should take nothing by this suit.
IT IS, THEREFORE, ORDERED, ADJUDGED,
AND DECREED that the plaintiff take nothing by
this suit, that defendants be in all things discharged,
and that the above entitled and numbered cause be,
and hereby is, dismissed with prejudice to the refiling
of same. All costs of court are taxed against the plain-
tiff for which let execution issue.
All relief not expressly granted herein is denied.
SIGNED this 19 day of October, 1983.
Fred Shannon
United States District Judge
Approved as to Form:
Lawrence Cranberg, pro se
Brown, Maroney, Rose, Baker
& Barber
1300 American Bank Tower
Austin, Texas 78701
By: Charlie D. Dye
Attorneys for Defendant,
Associated Press
Graves, Dougherty, Hearon,
& Moody
2300 InterFirst Bank Tower
Austin, Texas 78701
By: R. James George, Jr.
Attorneys for Defendant,
Austin American-Statesman
By: Todd H. Wade
per telephone authorization
21143
-44-
Appendix A3
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
LAWRENCE CRANBERG
vs. CIVIL ACTION NO.
CONSUMERS UNION OF USS., Inc. A-81-CA-496
ORDER
Came on for decision plaintiff Lawrence Cranberg’s
Motion to File Supplemental Complaint. Having con-
sidered such motion and the fact that a trial on the
merits of said cause has been held and a decision by
_this Court rendered, and being of the opinion that the
plaintiff’s Motion should denied, it is accordingly
ORDERED, ADJUDGED and DECREED that
plaintiff plaintiff’s Motion to File Supplemental Com-
plaint is hereby DENIED. |
Signed this 21 day of Sept., 1983.
Fred Sheanon
United States District Judge
- 45 -
Appendix A4
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 83-1912
D. C. Docket Nos. CA-A-81-496 and CA-A-82-208
Lawrence CRANBERG,
Plaintiff-Appellant,
Vv.
CONSUMERS UNION OF USS., INC.,
Defendant-Appellee.
Lawrence CRANBERG,
Plaintiff-Appellant,
Vv.
ASSOCIATED PRESS and
Austin American Statesman,
Defendants-Appellees.
Appeal from the United States District Court for the
Western District of Texas
Before CLARK, Chief Judge, WISDOM, and
HIGGINBOTHAM, Circuit Judges.
JUDGMENT
This cause came on to be heard on the record on ap-
peal and was argued by counsel and Dr. Cranberg;
ON CONSIDERATION WHEREDOF, It is now here
ordered and adjudged by this Court that the judgment
of the said District Court in this cause be, and the
same is hereby, affirmed;
IT IS FURTHER ORDERED that plaintiff-ap-
~ 46-
pellant pay to defendants-appellees the costs on ap-
peal, to be taxed by the Clerk of this Court.
April 1, 1985
ISSUED AS MANDATE: May 24, 1985
OP-JDT-9
Rev. 2/85
A true copy '
Test: GILBERT F. GANUCHEAU
Clerk, U.S. Court of Appeals, Fifth Circuit
By Della M. Jones
Deputy
New Orleans, Louisiana
MAY 24, 1985
Lawrence CRANBERG,
Plaintiff-Appellant,
Vv
CONSUMERS UNION OF US., INC.,
Defendant-Appellee.
Lawrence CRANBERG,
Plaintiff-Appellant,
v.
ASSOCIATED PRESS and
Austin American Statesman
Defendants-Appellees.
No. 83-1912.
United States Court of Appeals,
Fifth Circuit.
April 1, 1985.
Owner of manufacturer of fireplace grate brought
diversity actions for product disparagement and libel
- 47 -
against publisher of consumers’ magazine, which pub-
lished article critical of grate, and for libel against
newspaper wire service and newspaper. Cases were
consolidated for trial on issue of liability alone. The
United States District Court for the Western District
of Texas, Fred Shannon, Jr., J., entered judgment in
favor of all defendants, and owner appealed. The
Court of Appeals, Clark, Chief Judge, held that: (1)
record supported finding that both wire service ac-
count of altercation between inventor and representa-
tive of consumers’ magazine during scientific meeting
and newspaper’s published account of altercation
based on wire service account were fair and accurate;
(2) record supported finding that remarks by repre-
sentative of consumers’ magazine at scientific meeting
accurately described inventor’s communications to pub-
lisher of magazine, and thus could not be libelous; and
(3) record supported trial court’s conclusion that con-
sumers’ magazine’s tests of a number of fireplace de-
vices to determine their efficiency as domestic heat
sources were an accurate approximation of perform-
ance of fireplace add-ons for consumers, including
fireplace grate.
Affirmed.
1. Federal Courts—844
A reviewing court should respect credibility choices
made by fact-finder.
2. Libel and Slander—112 (3)
In libel suit, record supported finding that both wire
service account of altercation between inventor and
representative of consumers’ magazine during scientif-
ic meeting and newspaper’s published account of alter-
cation based on wire service account were fair and ac-
curate.
3. Libel and Slander—54
Under Texas law, truth is an absolute defense in
- 48 -
defamation actions. Vernon’s Ann.Texas Civ.St. art.
5481.
4. Libel and Slander—112(3)
In libel action, record supported finding that re-
marks by representative of consumers’ magazine at a
scientific meeting accurately described inventor’s com-
munications to publisher of magazine, and thus could
not be libelous. Vernon’s Ann.Texas Civ.St. art. 5431.
5. Libel and Slander—21
Owner of business manufacturing fireplace grate,
although not mentioned by name in consumers’ maga-
zine article critical of fireplace grate, was neverthe-
less entitled under Texas law to bring libel suit in his
own right, since those who knew or were acquainted
with owner understood from reading publication that
it referred to him. Vernon’s Ann.Texas Civ.St. art.
5430.
6. Libel and Slander—112(1)
In libel action brought against publisher of con-
sumers’ magazine by owner of business manufacturing
and selling fireplate grate, record supported trial
court’s conclusion that consumers’ magazine’s tests of
a number of fireplace devices to determine their ef-
ficiency as domestic heat sources were an accurate ap-
proximation of performance of fireplace add-ons for
consumers, including fireplace grate, and thus article
reporting results was not libelous.
7. Federal Courts—937
Mere fact that district court judge was contemplat-
ing a return to private practice at time he heard and
decided libel case was an insufficient assertion of pre-
judice, based on claim that “lame-duck” judges are
subject to outside pressures that life-time tenure un-
der Article III was designed to alleviate, to warrant
new trial. U.S.C.A. Const. Art. 3, § 1 et seq.
ig.
8. Federal Courts—941
Fact that district court judge, who announced two
weeks after disposition of instant case his intention to
leave bench and return to private practice, did not file
written findings of fact or conclusions of law did not
warrant new trial, based on concern that case was un-
fairly expedited to reduce workload of exiting judge,
where announced findings were supported by evidence,
were complete in that they addressed all questions at
issue, and were correct as to legal standards applied.
9. Federal Civil Procedure—1952
Conduct of a fair trial is vested in sound discretion
of trial judge.
10. Federal Civil Procedure—1969
Trial judge’s duty in conduct of a trial extends far
beyond ruling on objections and preserving decorum in
courtroom to affirmative obligation under Federal
Rules of Evidence to exercise reasonable control over
mode and order of interrogating witnesses and present-
ing evidenre so as to make interrogation and presenta-
tion effective for ascertainment of truth, avoid need-
less consumption of time, and protect witnesses from
harassment or undue embarrassment. Fed. Rules Evid.
Rule 611(a), 28 U.S.C.A.
11. Federal Civil Procedure—1969
As a common-law judge, district court judge has an
overall responsibility to see that trial is just and not
subject to delay; judge may question witnesses, elicit
facts, clarify evidence and pace trial.
12. Federal Civil Procedure—1969
On review, challenged conduct of trial judge will be
measured against a standard of fairness and impart-
iality.
13. Federal Civil Procedure—1969
Greater latitude should be allowed in conduct of a
- 50 -
bench trial than would be permitted in a trial con-
ducted with a jury since, in the former, there is no
possibility that judge’s actions might improperly in-
fluence jurors.
14. Federal Civil Procedure—1969
Record supported finding that judge who conducted
trial of libel action brought pro se acted skillfully and
conscientiously to develop and control the proof.
15. Federal Civil Procedure—840
In libel action, trial court did not abuse its discre-
tion in refusing to allow filing of supplemental com-
plaint requested by motion filed five days after trial
on merits was concluded.
16. Federal Civil Procedure—824, 834, 851
In exercising its discretion to grast or deny mo-
tions to amend pleadings, trial court may consider
such factors as undue delay, prejudice to opposing
parties, and futility of proposed amendment.
17. Federal Civil Procedure—834
Undue prejudice resulting from delay in seeking
leave to amend pleadings is sufficient grounds to deny
motion.
Appeal from the United States District Court for
the Western District of Texas.
Before CLARK, Chief Judge, WISDOM, and HIG-
GINBOTHAM, Circuit Judges.
CLARK, Chief Judge:
Dr. Lawrence Cranberg filed these diversity actions
for product disparagment and libel against Consum-
ers Union of United States, Inc., (Consumers Union),
the publisher of Consumer Reports magazine, and for
libel against the Associated Press (AP), and Cox En-
terprises, Inc., d/b/a Austin American-Statesman
(American-Statesman). These cases were consolidated
for trial on the issue of liability alone. In a nonjury
a.
trial, the district court found all defendants not liable.
We affirm the finding of the district court.
I
This law suit was sparked by an article that ap-
peared in the January 1981 issue of Consumer Re-
ports magazine. Dr. Cranberg claims this article libel-
ed him and disparaged his product, the Texas Fire-
frame. Cranberg is the sole proprietor of the Texas
Fireframe Company, which manufactures and sells
the Texas Fireframe, a grate he invented for use in
building the “slot fire.” Cranberg, a physicist, discov-
ered and patented the slot fire, also known as the
“physicist’s fire.” This fire is built by stacking logs
in a double-decked arrangement with a larger log in
the back. This “C” formation creater a cavity that
faces the room and acts as a natural radiator, generat-
ing intense heat which is directed out into the room
rather than up the chimney. The Texas Fireframe is
a doubledecked grate developed and patented by Cran-
berg to hold the logs in the proper stacked formation.
Along with promoting his Fireframe, Cranberg has
fervently waged a continuous battle against what he
calls the “anti-fireplace hoax’”—the belief that fire-
places are inefficient home heating sources because
they draw centrally heated air out of the room and al-
low more heated air to escape through the flue than
is sent back into the room. The record contains volumn-
nous examples of Cranberg’s activities and writings
directed toward dispelling this hoax. Throughout these
efforts, Cranberg has challenged the scientific basis
underlying the notion that fireplaces waste energy
and has asserted that his product, the Texas Fire-
frame, greatly improves fireplace efficiency.
In its January 1981 issue of Consumer Reports, Con-
sumer Union reviewed a number cf fireplace devices
to determine their efficiency as domestic heat sources.
As stated in the article, Consumers Union set out “to
a8.
see if a fireplace could be modified in order to pull its
weight as an auxiliary heat-provider.” One of the de-
vices tested and reported on was the Texas Fireframe.
To conduct its tests in a controlled environment,
Consumers Union built a calorimeter room, a room
specially designed to measure gain or loss of heat
energy. Each device was tested in this room under two
scenarios. One test estimated the net heat output in a
“log cabin” situation, where the air supplied to the
fire is not preheated. The “log cabin” output supposed-
ly shows how much heat is provided when the fireplace
is the only source of warmth. The second test dealt
with the more common situation, in which the fireplace
is operating in a centrally heated home. Unlike the
log cabin test, this scenario supposedly accounted for
the energy loss occurring from the fire’s being fueled
by air heated by another source.
As its benchmark for data comparison, Consumers
Union built what it called a simple or “standard” fire.
This arrangement had the logs placed directly on the
hearth, abutting the back wall, and the front of the
fireplace covered with a wiremesh screen. The measu-
rements collected from this base case provided a point
for relative comparison of the heat production data
collected from the ten devices Consumers Union tested
and reviewed. Upon completing its testing, Consum-
ers Union found this standard fire, without a grate or
add-on device of any kind, out-performed three of the
devices it tested, including the Texas Fireframe.
The discussion of the Texas Fireframe appeared
under a subheading “And sometimes you lose.’ The
The portion of the report discussing the Texas Fireframe
read as follows:
A few years back, science reporters gave a lot of atten-
tion to the “physicist’s fire.” A double-decked grate holds
logs stacked to form a cavity that faces the room and sup-
posedly radiates extra heat. And so it does, but not well
-53-
enough. The Fireframe’s cavity, in theory a perfect radia-
tor, proved less-than-perfect in practice. It also requires
careful tending, since logs change shape while burning.
Compared with a fire laid on an ordinary one-level grate,
the “physicist’s fire” did show a gain in the heat output—
but not enough to overcome losses introduced by the Fire-
frame itself. The Fireframe would produce an estimated
net loss of 2500 Btu an hour in a centrally heated room, we
judged. It did provide a gain of 5000 Btu per hour under
“unheated house” conditions, but that’s still less than you’d
get from a plain open fire built directly on the hearth.
discussion noted that the Texas Fireframe, while bet-
ter than ordinary grates, was not as good as Consum-
ers Union’s standard fire built directly on the hearth.
The article stated the Texas Firefraine would increase
the efficiency of a fireplace as compared to a regular
one-level grate, but would decrease the efficiency of a
fireplace in a centrally heated home as compared to a
fireplace with no grate and no device.
Cranberg believed the Consumer Reports article to
be completely in error, the testing procedures wholly
inaccurate and Consumers Union a perpetrator of the
anti-fireplace hoax. F alleged the article disparaged
his product and libeled his business and himself.
Cranberg attempted to rectify the perceived injus-
tice perpetrated by Consumers Union against him and
his grate. Cranberg prepared a paper disputing Con-
sumers Union’s findings and testing methods and em-
phasizing that the grateless fire, touted by Consumers
Union as more energy efficient, would not even ignite
and burn efectively. Cranberg wrote to Consumers
Union on January 19, 1981 to inform them he planned
to present his paper, tentatively titled “Plagarism,
Suppression of Evidence, and Misrepresentations in
Consumer Reports, January 1981,” at the April meet-
ing of the American Physical Society in Baltimore.
Cranberg further stated in his letter to Consumers
Union that if he did not receive an appropriate re-
-54-
sponse he would mail the paper to the Society with
copies to representatives of the media. When Cran-
berg had not received what he deemed an appropriate
response by January 27, he sent an abstract of his
paper to news organizations and media personalities
to publicize his side of the dispute with Consumers
Union. In a letter accompanying the abstract, Cran-
berg indicated he was challenging the publication and
intended to ask the Society to initiate a a thorough stu-
dy of Consumers Union. Dr. Cranberg’s express pur-
pose in sending these abstracts, and later the full text
of his paper, to these news organizations was to en-
courage the broadcast of his paper “at least as widely
as the story that had been written about [his] product
by Consumers Union, [and], preferably much more.”
Prior to the convening of the American Physical So-
ciety, Cranberg continued his media campaign with
mixed success.’? On the day of the Society meeting, be-
fore his presentation, Cranberg was interviewed by
various news representatives. As one of these inter-
view sessions was being conducted in the hallway out-
side the main meeting room, David Berliner, Director
of the Office of Public Information for Consumers
Union, approached Cranberg. Consumers Union had
sent Berliner to the meeting to respond to Cranberg’s
paper. A verbal confrontation began between Cran-
?In February 1981, Dr. Cranberg was in New York and con-
tacted various media representatives seeking to discuss his
dispute with Consumers Union. He met with editors from
The Wall Street Journal and Time magazine. The Wall Street
Journal ran a story entitled “A Burning Issue Among Physi-
cists: How to Place Logs in a Fireplace” and noted Cranberg
would appear at the American Physical Society meeting on
April 23.
After The Wall Street Journal story, Cranberg contacted
‘the American-Statesman. The American-Statesman sent a re-
porter to interview Cranberg. Cranberg was unhappy with the
interview and asked that the story not be run; it was not.
- 55 -
berg and Berliner. During the commotion, a fellow
Society member indicated that he was being tape re-
corded by Consumers Union. Although it is uncertain
whether the tape recorder was turned on, Cranberg,
believing it was, took the recorder and began recording
a message to Conumers Union denouncing surrepti-
tious recording. Berliner tried to take the recorder
away from Cranberg. Both men tugged at the ma-
chine; eventually one let go. Immediately following
this confrontation, Cranberg presented his paper to
the Society. Berliner followed with Consumer Union’s
statement. Both men were given opportunities for re-
buttal.
Associated Press reporter, Chris Sullivan, was cov-
ering the Society meeting at the request of the New
York AP ofice. Sullivan testified that he spoke to both
Cranberg and Berliner before the meeting; he wit-
nessed the struggle over the tape recorder, attended
the meeting and heard the presentations by both Cran-
berg and Berliner. He interviewed both Cranberg and
Berliner again after the meeting and was given writ-
ten copies of the presentations made by each. Sullivan’s
story went over the AP wire and was published by the
American-Statesman.
Following these events, Cranberg filed suit against
Consumers Union, the AP and the American-States-
man. These suits were consolidated for trial and heard
without a jury on the question of liability only. Dr.
Cranberg appeared-pro se at the trial and throughout
this appeal. In oral findings of facts and conclusions of
law issued at the concluion of the trial, the court credi-
ted Sullivan’s account of what occurred between Cran-
berg and Berliner. The court found that the AP story,
as written by Sullivan and reprinted by the American-
Statesman, was a fair and accurate rendition of what
occurred, that Dr. Cranberg was a public figure for
the purposes surrounding these events and that Cran-
-56-
berg failed to prove actual malice by either the AP or
the American-Statesman.
The district court also found the statements made
by Berliner before the American Physical Society were
substantially true. In addition, the district court found
Cranberg had voluntarily inserted himself into a pub-
lic controversy and had attempted to influence its reso-
lution, thus making him a public figure within the
limited context of the controversy with Consumers
Union. Because Cranberg was a public figure, the
court held he must prove actual malice which he failed
to do.
As to the claims against Consumers Union, the court
found Cranberg failed to disprove the accuracy of the
tests reporter in Consumers Report. The district court
also found there was no malice.
In addition to appealing the libel findings, Cranberg
asserts here that the trial judge was not an Article III
judge, that the court abused its discretion in denying
hi smotion to amend his complaint, and that he was
denied a fair trial. We address the libel isues first.
II
These events have spawned four ¢~parate libel claims:
1) a claim of libel and product disparagement against
Consumers Union for a review of the Texas Fireframe
in the January 1981 isue of Consumers Report; 2) a
claim of libel and slander against Consumers Union
for statements made by its representative, David Ber-
liner, before the American Physical Society; 3) a claim
of libel against the AP for its wire story about the
events at the Society meeting; and 4) a claim against
the American-Statesman for libel in reprinting the AP
story.
L.
We deal first with the claims against the AP and the
American-Statesman for the alleged libel against
Cranberg in the AP wire story. Cranberg’s complaints
. 57 -
against the articles were numerous. However, he ob-
jected most strenuously to the account of the struggle
with Berliner over the tape recorder, which Cranberg
denies ever occurred. He also objected to the headline,
“Firegrate inventor fights with consumer group offi-
cial,” added by the American-Statesman. The court
found both stories “fair and accurate rendition[s]’’ of
what transpired.
The court’s findings were based in part on credi-
bility decisions made after hearing conflicting testi-
mony as to whether a struggle over the tape recorder
actually occurred. Sullivan testified that he witnessed
a physical struggle between Cranberg and Berliner
over the tape recorder. Berliner testified that he and
Cranberg exchanged heated comments and struggled
over the tape recorder. Cranberg disputed these ac-
counts. He insisted no struggle occurred. He intro-
duced deposition testimony of a reporter from Discover
magazine and of the deputy executive secretary of the
Society to corroborate his version of the events. Al-
though both witnesses mentioned a lively verbal ex-
change, only the Society member positively stated he
never saw Cranberg’s hands on the recorder. The re-
porter from Discover said he could not recall seeing a
struggle, but it could have happened while he was
turned away. The court chose to believe Sullivan, an
impartial eyewitness, who “called it like he saw it.”
The court found Sullivan had no motive to be untruth-
ful or to distort his observations. Sullivan testified that
he received no directives as to what he would encounter
at the meeting or what to write; he had no precon-
ceived ideas, and he lacked any ties or bias for or
against Cranberg or Consumers Union. In making this
credibility choice, the court stated that “when things
happen in the heat of the moment, the participants,
especially the one who seems the most aggrieved’ is
seldom the one best able to recollect what happened.
- 58 -
Testimony from the AmericanStatesman indicated
the AP story was reprinted with only minor changes.
The city editor of the American-Statesman testified
that upon receiving the AP wire story he made some
minor editorial changes. He made no effort to contact
Cranberg to verify the story because he had an eye-
witness account from the AP, a reliable news service,
which he believed was accurate. He passed the story to
the copy desk where it was given the headline “Fire-
grate inventor fights with consumer group official.”
Cranberg objected to the word “fights” as an irksome
misrepresentation of the events. The court looked up
the word in the dictionary and found it meant, among
other things, “to oppose physically, to strive for the
mastery of . . . struggle, quarrel. . . .” The court’s ac-
ceptance of the AP article as accurate validates the al-
most identical reprinting by the American-Statesman
and the added headline.
(1,2) A reviewing court should respect credibility
choices made by the fact finder. Levine v. CMP Publi-
cations, Inc., 738 F2d 660, 672 n. 19, (1984), reh’g en
banc denied, 753 F.2d 1341 (5th Cir. 1985). “[D]ue
regard shall be given to the trial judge’s opportunity
to observe the demeanor of the witnesses.” Bose Corp.
v. Consumers Union, — U.S. —, 104 S.Ct. 1949, 1959,
80 L.Ed.2d 502 (1983). The record discloses no basis
for disturbing the credibility choice made below. Fur-
theremore, a comparison of the article with the docu-
ments on which Sullivan relied reveals no inaccuracies.
Thus, the trial court could have found the articles’ ren-
dition of the events were fair and accurate, and, there
is ample support for that conclusion. See Time, Inc. v.
Firestone, 424 U.S. 448, 457-59, 96 S.Ct. 958, 967-68,
47 L.Ed.2d 154 (1976).
(3) Under Texas law, truth is an absolute defense in
defamation actions. Tex.Rev.Civ.State.Ann. art. 5431
(Vernon 1958); Mitcham v. Board of Regents, Uni-
-59-
versity of Texas, 670 S.W.2d. 371, 373 (‘Tex.App.—
Texarkana 1984, no writ); Traweek v. Radio Brady,
Inc., 441 S.W.2d 240, (Tex.Civ.App.—Austin 1969,
writ ref’d n.r.e.) ; Gulf Construction Co. v. Mott, 442
S.W.2d 778, 784 (Tex.Civ.App.—Houston [14th Dist. ]
1969, no writ) (substantial, not literal, truth is suffi-
cient). Because the articles were found to be true, and
because truth is an absolute defense, it is unnecessary
to reach the issues of whether Cranberg was a public
figure or whether actual malice existed. We affirm the
district court’s findings as to libel by the AP and the
American-Statesman.
B
Next, we deal with the alleged defamation resulting
from Berliner’s remarks before the American Physical
Society. The complaint centers on Berliner’s statement
that “Dr. Cranberg demanded payment of $1000 a day
in damages and a complete retraction. Even before we
could respond to his claims, Dr. Cranberg warned us
that if we failed to meet his demands, he would give a
speech attacking us at this prestigious meeting.” Cran-
berg asserts this was a misrepresentation of his actions
which unfairly labeled him a blackmailer.
(4) The court found Berliner’s comments accurately
described Cranberg’s communications to Consumers
Union as shown in letters written by Cranberg and ad-
mitted into evidence. This finding is amply supported
by the evidence. A review of the record establishes that
Berliner’s comments were substantially accurate rep-
resentations of Cranberg’s written communications
with Consumers Union. Again, because the statements
were found to be true, and because truth is a defense,
Tex.Rev.Civ.State.Ann. art. 5431 (Vernon 1958), we
need not determine whether Cranberg was a public
figure or whether actual malice was proven.
C
(5) The claim against Consumers Union, for libel
- 60 -
and product disparagement in its review of the Texas
Fireframe, is a more complicated issue. It is uncer-
tain whether Texas recognizes a cause of action for
product disparagement or trade libel. Jetco Electronic
Industries v. Gardiner, 325 F.Supp. 80, 84 (S.D.Tex.
1971), rev'd on other grunds, 473 F.2d 1228 (5th Cir.
1973). All actions for libel in Texas are governed by
statute, which defines defamation only in terms of in-
jury to a person.* No other definition may be consid-
ered in determining whether a particular publication
is libelous. Id.; Deen v. Snyder, 57 S.W.2d 338, 340
(Tex.Civ.App.—Fort Worth 1932, no writ). Although
Cranberg was never mentioned by name in the Con-
sumer Reports article, he may still bring a defamation
action under Texas libel law. Texas courts have allowed
such suits on the grounds that a false publication con-
cerning a business or product could tend to injure the
reputation of the company’s owner by subjecting him
to financial injury. Jetco, 325 F.Supp. at 84; see also
Bell Pub. Co. v. Garrett Engineering Co., 141 Tex. 51,
170 S.W.2d 197, 202 (1943). In Newspapers, Inc. v.
Matthews, 161 Tex 284, 339 S.W.2d 890 (1960), the
Texas Supreme Court held that under Texas libel law
the owner of a business can be defamed, even though
the publication does not mention him by name, when
the asserted libel refers to some ascertained or ascer-
tainable person. Jd., 389 S.W.2d at 893. Therefore, it
is not necessary that Cranberg be named in the article -
* Texas law defines defamation as follows:
A libel is a defam. ion expressed in printing or writing, or
by signs and pictures, or drawings tending to blacken the
memory of the dead, or tending to injure the reputation of
one who is alive, and thereby expose him to public hatred,
contempt or ridicule, or financial injury, or to impeach the
honesty, integritey, or virtue, or reputation of any one, or
to publish the natural defects of any one and thereby expose
such person to public hatred, ridicule, or financial injury.
Tex.Rev.Civ.Stat.Ann. art. 5430 (Vernon 1958).
-§1-
because those who knew and were acquainted with him
understood from reading the publication that it re-
fered to him. See id., 339 S.W.2d at 894. Cranberg was
entitled to bring this libel suit in his own right. This
case is governed by Texas libel law applied pursuant
to the dictates of New York Times v. Sullivan, 376 U.S.
254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and it pro-
geny. We find no eror in the legal standard applied
below.
The district court ultimately found Consumers
Union’s tests and supporting data were reasonable;
nothing pointed to their being unreasonable. The court
acknowledged that the analysis done by Consumers
Union could have been better, and that they could have
performed more than one test for each device. How-
ever, no tests or evidence were admitted to refute Con-
sumers Union’s findings. Cranberg presented the tes-
timony of two experts, a professor at the University
of Texas and a consultant in explosives. Both said it
is extremely difficult to obtain consistent results in
measuring the heat output of fireplaces. They derided
the fact Consumers Union tested each device only one
time for each scenario. Although their testimony la-
beled Consumers Union’s test results as unreasonable
and totally meaningless, neither had performed any
actual tests with the Texas Fireframe or “standard”’
fire. Cranberg introduced. tests by an organization
called Terralab whose heat output numbers on the
Texas Fireframe were actually greater than Con-
sumers Union’s. but consistent when accounting for
alternative testing factors. The court found the results
of Consumers Union’s tests were consistent with logic
and observed that Consumers Union “are the only peo-
ple that have tested [the Texas Fireframe] and given
me the results and explained the test with engineers in
this court room.”
Although suggesting that Consumers Union could
- ¢3.
have clarified certain aspects of the article, the court
held the burden was on Cranberg to prove that the
article was inaccurate and that he failed to carry that:
burden. Examples of statements pointed out by Cran-
berg which may have warranted further clarification
include the fact Consumers Union’s results refer to
heat outputs in a log cabin type environment and in a
centrally heated home. The article does disclose that
the tests were not actually conducted in these environ-
ments, but rather under conditions which Consumers
Union claimed simulated these scenarios. Although
these conditions could have been more fully described
if presented as a precise scientific experiment, the
disclosure made in this layman’s advisory publication
obviously was considered sufficient by the trier of fact.
That conclusion of fact is supported by the record.
Cranberg criticizes the measurements obtained by Con-
sumers Union as partly the result of circumstances
it imposed. Consumers Union admitted at trial that
individual consumers may observe different results
under different circumstances, such as, using more or
bigger logs (Consumers Union only used half of the
fuel stipulated in the Texas Fireframe’s instructions),
outside temperature variations and height of the chim-
new stack. Furthermore, the “standard” fire, against
which Consumers Union compared all its data, was
never adequately described in the article so that it
could be reproduced. The court held that neither these
defects in the article, nor others mentioned in Cran-
berg’s brief, impinged on the truth of the Consumers
Report article. This ultimate finding is supported by
the evidence.
(6) The trial court had sufficient evidence before it
to conclude that Consumers Union’s tests were an ac-
curate approximation of the performance of fireplace
add-ons for consumers. Cranberg presented no scien-
tific tests to compare the Consumers Union findings
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and refute their contention that the Texas Fireframe
produces less heat than a fire built on the hearth.
Furthermore, the trial court correctely noted that the
article does not say the Texas Fireframe is a bad grate.
To the contrary, the article praises its performance in
comparison to other grates. “[F]or people who are go-
ing to use grates in their fireplaces, I think Consumers
Union said yours is the best. ... Consumers Union sup-
ports your claim that that is the best firegrate in the
world. They just say that building the fire not on the
grate but on the hearth is better.” Dr. Cranberg testi-
fied as to the energy efficiency of his device by relying
on his own reduced gas bills. This did not show that the
Fireframe performs beter than a grateless fire built
on the hearth. In this regard, the district court aptly
noted that it was Cranberg’s practice to turn down the
thermostat when using his Fireframe. The court
found: ‘There has not been sufficient test in this rec-
ord in my judgment—to test it against a fire built
right on a hearth.” No proof met this single, crucial
point.
The record supports the district court’s conclusion
that Cranberg failed to prove falsity. Whether Cran-
berg was a public figure for purposes of the Consumers
Report article is irrelevant to our review of this case,
as Texas law holds substantial truth is a defense to a
libel claim. Gulf Construction Co. v. Mott, 442 S.W.2d
778, 784 (Tex.Civ.App.—Houston [14th Dist.] 1969.
no writ); Walker v. Globe-News Publishing Co., 395
395 S.W.2d 686, (Tex.Civ.App.—Amarillo 1965, writ
ref’d n.r.e.).
III
This case was tried on September 13 and 14, 1983.
Two weeks later the trial judge announced his inten-
tion to leave the bench and return to private practice
on January 1, 1984. Final judgment was entered in
this case on October 19, 1983. Cranberg filed Motions
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for New Trial, New Judge and for Hearing of Motions
by New Judge, arguing that the judge was no longer
an Article III judge. The court denied these motions.
Cranberg’s challenge to this ruling is frivolous,
Because Cranberg is a pro se litigant, we have also
looked for the substance of his claim, rather than to
its label as an Article III concern. Cranberg argues
that “lame-duck” judges are subject to the outside
presures that life-time tenure under Article III is de-
signed to alleviate. Cranberg’s theoretical assertion is
unsupported by any proof that when the trial judge
tried this case, or when he entered final judgment, any
real conflict of interest existed.
(7) Cranberg’s claim seems to assert prejudice in
the hearing and deciding of his case due to the fact that
the judge was contemplating a return to private prac-
tice. Cranberg suggests the judge may have been prone .
to side with defendants’ lawyers in order to curry
favor with soon-to-be-colleagues of the bar. Even when
viewed as a claim of prejudice, the record is wholly de-
void of proof that the judge was false to his oath of
office for any period of his service. No specific inci-
dent of prejudice or favoritism is advanced, or can be
found, te support this assertion. Our review of the en-
tire record establishes that Cranberg lost a fairly tried
case on an honest resolution of contested fact.
(8) Cranberg’s brief also evinces an unwarranted
concern that his case was unfairly expedited to reduce
the workload of an exiting judge. The anouncement
from the bench of findings and conclusions did include
a statement that the court did not want to file written
findings of fact or conclusions of law. This is not im-
proper. The announced findings are supported by the
evidence; they are complete in that they address all the
questions at issue, and they are correct as to the legal
standards applied. Cranberg received a proper decision
promptly rendered. He is entitled to no more.
- 65 -
IV
Cranberg claims the court conducted the proceedings
so as to favor the defendants and deny him a fair trial.
A number of trial procedures were unusual. For exam-
ple, the judge requested that the two Consumers Union
engineers who conducted the tests at issue be the first
witnesses. He then directed the defendants to proceed
first in examining these witnesses. The court asked all
the witnesses a significant number of questions, at
times dominating parts of the examination. According
to Cranberg, the judge’s participation in the trial com-
prises 23% of the transcript. At one point, the court
announced, “Everyone has a running objection to hear-
say and they are all overruled.” On the other hand,
the court also permitted the parties to make a liberal
supplementation of the record upon conclusion of trial;
Cranberg admits his supplementation was “massive.”
Rather than demonstrating prejudice, however, the
record reflects that the judge’s participation and evi-
dentiary rulings tended to assist Cranberg, a pro se
litigant who represented himself well, though he lacked
familiarity with procedural rules.
(9-12) The conduct of a fair trial is vested in the
sound discretion of the trial judge. Excel Handbag Co.
v. Edison Bros. Stores, 630 F.2d 379, 388 (5th Cir.
1980). His duty extends far beyond ruling on objec-
tions and preserving decorum in the courtroom.
Though the trial judge must be neutral, he need not
be a passive spectator. Ruiz v. Estelle, 679 F.2d 1115,
1129, modified, 688 F.2d 266 (5th Cir. 1982), cert.
denied, 460 U.S. 1042, 103 S.Ct. 14388, 75 L.Ed.2d 795
(1983). He has an affirmative obligation under Fed-
eral Rule of Evidence 611(a) to “exercise reasonable
control over the mode and order of interrogating wit-
nesses and presenting evidence so as to (1) make the
interrogation and presentation effective for une ascer-
tainment of the truth, (2) avoid needless consumption
- 66 -
of time, and (3) protect witnesses from harassment or
undue embarrassment.” Furthermore, as a comon law
judge, he has an overall responsibility to see that the
trial is just and not subject to delay. Ruiz, 679 F.2d at
1129. He may question witnesses, elicit facts, clarify
evidence and pace the trial. Jd. On review, this conduct
will be measured against a standard of fairness and
impartiality. Nordmann v. National Hotel Co., 425
F.2d 1103, 1109 (5th Cir. 1970).
(13, 14) Greater latitude should be allowed in the
conduct of a bench trial than would be permitted in a
trial conducted with a jury. In the former ths is no
possibility that the judge’s actions might im,*“yerly
influence jurors. Ruiz, 679 F.2d at 1130. In certain
other cases, the trial judge may need to assume a great-
er responsibility for the direction of the trial. See Ruiz,
679 F.2d at 1130 (complex and protracted trial).
When a pro s¢ litigant, even one as skillful as Cran-
berg, goes to trial against a party represented by a
member of the bar, the responsibility of the trial judge
may warrant participation which differs markedly
from what woul’ be appropriate to a trial between ad-
versaries represented by counsel. The record of this
trial reveals a judge conscious of his duty and con-
scientious in its discharge. Rather than prejudicing
Cranberg’s position, we see the judge’s efforts as at-
tempts to enlighten it. We are satisfied that the meas-
ures taken below to develop and control the proof were
reasonable and directed towards reaching a just deci-
sion.
V
(15,16) The trial court did not abuse its discreticn
in refusing to allow Cranberg to file a supplemental
complaint against Consumers Union raising issues
under the Lanham Act. 15 U.S.C. § 1125(a). The trial
court has discretion to grant or deny motions to amend
the pleadings. Fed.R.Civ.P. 15(a). Cranberg’s motion
- 67 -
to supplement was filed five days after the trial on the
merits was concluded. In exercising its discretion, the
trial court may consider such factors as undue delay,
prejudice to the opposing parties and futility of the
proposed amendment. Foman v. Davis, 371 U.S. 178,
182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962) ; Gregory
v. Mitchell, 634 F.2d 199, 203 (5th Cir.1981).
(17) Undue prejudice resulting from deelay in seek-
ing leave to amend is sufficient grounds to deny the
motion. Cranberg’s post trial motion came more than
18 months after his original complaint, after discovery
was closed and after all evidence was presented. See
Addington v. Farmer’s Elevator Mutual Insurance
Co., 650 F.2d 668, 667 (5th Cir.), cert. denied, 454
U.S. 1098, 102 S.Ct. 672, 70 L.Ed.2d 640 (1981).
Cranberg’s Lanham Act claims do not involve issues
completely tried in the course of the trial. His motion
did not seek to conform the pleadings to the proof. In
substance, his proposed amendment would raise a new
cause of action. Moreover, the proposed amendment
apears futile as the Lanham Act requires false state-
ments of fact about one’s own product. See Bernard
Food Industries, Inc. v. Dietene Co., 415 F.2d 1279,
1282-84 (7th Cir. 1969); Markel v. Scovill Mfg. Co.,
471 F.Supp. 1244, 1253 (W.D.N.Y.), aff'd mem., 610
F.2d 807 (2d Cir. 1979). The court did not abuse its
discretion in refusing to aJlow the commencement of
another action at the conclusion of this one.
The findings of fact which support resolution of the
libel issues are supported by the record. The remain-
ing issues presented are without merit. The judgment
appealed from is
AFFIRMED.
A true copy
Test: GILBERT F. GANUCHEAU
Clerk, U.S. Court of Appeals, Fifth Circuit
LS
- 68 -
By: Della M. Jones
Deputy
New Orleans, Louisiana
Adm. Office, U.S. Courts—West Publishing Company,
Saint Paul, Minn.
- 69 -
APPENDIX A5
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 83-1912
LAWRENCE CRANBERG,
Plaintiff-Appellant,
vs.
CONSUMERS UNION OF US., INC.,
Defendant-Appellee
LAWRENCE CRANBERG,
Plaintiff-Appellant,
vs.
ASSOCIATED PRESS and
AUSTIN AMERICAN-STATESMAN,
Defendants-A ppellees.
Appeal from the United States District Court for the
Western District of Texas
ON PETITION FOR REHEARING AND SUGGES-
TION FOR REHEARING EN BANC
(Opinion April 1, 5 Cir., 1985, — F.2d —)
(May 14, 1985
Before CLARK, Chief Judge, WISDOM and HIG-
GINBOTHAM, Circuit Judges.
PER CURIAM:
(\/) The Petition for Rehearing is DENIED and
no member of this panel nor Judge in regular active
service on the Court having requested that the Court
be polled on rehearing en banc, (Federal Rules of Ap-
pellate Procedure and Local Rule 35) the Suggestion
for Rehearing En Banc is DENIED.
Charles Clark
Chief Judge
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.