# Appendix — Romero v. Buhimschi

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_0885%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2011
- **Citation:** 562 U.S. 1288

## Text

i
APPENDIX

TABLE OF CONTENTS

Appendix A Opinion
U.S. Ct. App. 6" Cir.
ems. 16, Bees)... 2. ewes la

Appendix B Opinion and Order re summary
judgment
US. Dist. Ct. E.D. Mich.
Oe er 29a

Appendix C Opinion and Oder Denying
Plaintiff's Motion for
Reconsideration of the entry of
summary judgment
U.S. Dist. Ct. E.D. Mich.
(Atm. 50, ZO) - wwe ce ee 60a

Appendix D Order re objections to Report and
Recommendation
U.S. Dist. Ct. E.D. Mich.
oo a ff 9la

Appendix E Report and Recommendation
U.S. Dist. Ct. E.D. Mich.
(RESY 22, BUT)... 22.2. 105a

Appendix F Order re rehearing
U.S. Ct. App. 6” Cir.
(LPP Be ee 8 ses 149a

Appendix G

Appendix H

Appendix I

Appendix J

Appendix K

Appendix L

Appendix M

Appendix N

Appendix O

Appendix P

ll

OO 15la
U.S. Const., amend. V ...... 152a
U.S. Const., amend. VII ..... 152a

Excerpt from Investigating
Committee Report ......... 153a

Excerpt from September 24, 2003
Memorandum from Lockwood to
ee 158a

Excerpt from Affidavit of Harvey
ee 162a

Email re: priority of
Ro... ee... 167a

Excerpt from October 16, 2002
To Whom It May Concern Letter
UR es ks ws 168a

Excerpt from May 22, 2001
letter, Romero to Liotta ..... l71la

Abstract of SELDI research
submitted to Society of Maternal-
Fetal Medicine ............ 173a

Manuscript Submitted to The
Lancet on November 3,
Cs 175a

Excerpt from WSU’s Invention
Disclosure Form ........... 178a

Appendix Q

Appendix R

Appendix S

Appendix T

Appendix U

Appendix V

Appendix W

Appendix X

Appendix Y

Appendix Z

ll

May 14, 2002 email notifying
Romero of Buhimschi’s request
torun ELISAs ............ 180a

September 27, 2002, email
correspondents between Romero

and Buhimschi ............ 18la

Cohen’s May 4, 2005 letter to
SOMOUOTO .... si ccnccwacucws 183a

Excerpt from Affidavit of Yoram
Sorokin regarding Catalin

el. :| .... 186a
Revised Lancet Manuscript ..192a
Bers MRGIEM 6 wi ces ss 195a

May 22, 2005 letter from
Director of Intramural Research
of NICHD to Stinson ....... 197a

Romero’s June 2, 2003 letter
notifying WSU officials of

Buhimschi’s actions ........ 200a

Stinson’s Misconduct Inquiry

MUGES baa vc eee ee Chenere) 204a

September 3, 2003 letter
notifying Buhimschi of
imvestiation . 2... 1c ees c es 208a

Appendix AA

Appendix BB

Appendix CC

Appendix DD

Appendix KE

Appendix FF

Appendix GG

Appendix HH

Appendix I]

Appendix JJ

iV
Romero’s June 30, 2003 letter

agreeing to act as
complainant ..............210a

Excerpt from affidavit of John
WR ee eek ea . Z13a

Buhimschi’s October 30, 2002
email to John Storella ...... 216a

Excerpt from Romero’s October
14, 2003 letter to Buhimschi . 218a

Lockwood’s email to Romero,
(Jetener 2u. ZOUs 5 cw ee es 222a

Lockwood’s email to Buhimschi,
December 27, 2003 ......... 223a

BJOG’s Statement of Disputed
PUOTARAD on ee es 224a

Buhimschi’s March 14, 2005
letter to Thornton ......... 226a

Nov. 22, 2004 email notifying
Buhimschi that ORI has no
WIFI. ww we es

November 12, 2004 email re
electronic publication of BJOG
SE ee ~229a

Appendix KK

Appendix LL

Appendix MM

Appendix NN

Appendix OO

Appendix PP

Appendix QQ

Yale’s Press Release announcing
the publication of the SELD!I

research

231.

Oliver’s January 31, 2005 letter

to Thornton

234:

Thornton’s February 24, 2005

reply to Oliver 237
lexcerpt from Appellant’s
Principal Brief 240:

le xcerpt from Petition foren banc

review.

Iixcerpt from Reply Brief

249;

261;

August 29, 2002 email exchange

between Romero and
Suhimschi

cpg»)
26:3:

i

la

APPENDIX A

NOT RECOMMENDED FOR
FULL-TEXT PUBLICATION
File Name: 10a0606n.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

No. 09-1195
[Filed September 13, 2010]

ROBERTO ROMERO, M_D.,

Plaintiff-Appellant,
IRINA BUHIMSCHI, M.D.; YALE UNIVERSITY,

Defendants-Appellees,
and
CARL WEINER, M.D.; ROYAL COLLEGE OF
OBSTETRICIANS AND GYNAECOLOGISTS;
JOHN DOE, A-G,

Defendants.

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN

2a
OPINION

BEFORE: NORRIS, MOORE, and McKEAGUE,
Circuit Judges.

McKeague, Circuit Judge. Roberto Romero,
M.D., filed suit in federal district court against
numerous defendants in connection with the
publication of a manuscript in the British Journal of
Obstetrics and Gynaecology. The portion of the suit
relevant to this appeal involves Irina Buhimschi, M.D.,
the primary author of the manuscript, and her
employer Yale University. Romero alleged that both
Buhimschi and Yale defamed him through statements
made about his contribution to the manuscript and his
involvement in other research. Romero also alleged
that Buhimschi breached an implied contract when
she published the manuscript without listing Romero
as a co-author. Finally, Romero alleged that both
Buhimschi and Yale violated the Lanham Act by
failing to acknowledge that Romero had contributed to
the research underlying the manuscript. The district
court dismissed the Lanham Act claim and granted
summary judgment in favor of the defendants on the
defamation and contract claims. Romero now appeals
these decisions. After carefully considering Romero’s
arguments, we AFFIRM the decisions of the district
court.

I.

Roberto Romero is a physician with a sub-speciality
in maternal-fetal medicine and works as chief of the
Perinatology Research Branch of the National
Institute of Child Health and Human Development.
Romero also holds a tenure position with the National

3a

Institute of Health (“NIH”). At the time relevant to
this litigation, Romero was a full-time employee with
the federal government; he held no_ outside
employment. Though he was employed directly by the
federal government, Romero’s position was part of a
contract awarded to Wayne State University whereby
the NIH provided funds and advice to Wayne Sate
University. Romero served as the project officer under
the contract, which required him to provide technical
direction, review performance, provide advice, and
review invoices. In addition to his duties as a project
officer, Romero had duties associated with his role as
branch chief of the Perinatology Research Branch.
Specifically, Romero developed a research plan for the
Perinatology Research Branch, developed scientific
projects, mentored faculty and fellows, drafted
manuscripts, and evaluated projects. These research
and drafting activities were part of Romero’s federal
job responsibilities.

Irina Buhimschi, M.D., was recruited by Wayne
State University in late 2000 to work as an assistant
professor in the Division of Maternal-Fetal Medicine.
Buhimschi was employed directly by Wayne State
University and not the federal government. At the
time she was recruited, Buhimschi and Romero
discussed the possibility of collaborating on research
together. Romero admits that this collaboration with
Buhimschi was part of his federal job responsibilities.
However, he nonetheless alleges that an
implied-in-fact contract existed between himself and
Buhimschi beginning in March of 2002, whereby the
two would collaborate on research. According to
Romero, the terms of this contract specified that
Buhimschi would run the experiment while Romero
would assist with experimental design, provide

4a

comments, and aid with the preparation of a
manuscript. In addition, Buhimschi would include
Romero as a co-author on any article for which Romero
met authorship criteria.

Romero began collaborating with Buhimschi before
she arrived at Wayne State University. The initial
collaboration included working with Buhimschi to
conduct blood analysis for the presence of a specific
enzyme and providing reagents, antibodies, and
standards. Romero and other individuals at the
Perinatology Research Branch continued to collaborate
with Buhimschi during her time at Wayne State
University. Specifically, Romero and another physician
designed the criteria for the second phase of the study.
Romero also suggested that Buhimschi submit the
manuscript to The Lancet, a medical journal. The
manuscript included work on which Romero had
collaborated, and Romero was listed as a co-author on
the submission. Soon after the manuscript was
submitted, Romero’s relationship with Buhimschi took
a turn for the worse. Communication between the two
became almost non-existent. During this time
Buhimschi also relocated to Yale University.

Romero then became aware that Buhimschi had
removed his name as a co-author on The Lancet
manuscript. At this point, Romero wrote a letter to the
vice president of Wayne State University, and a formal
complaint was filed with the university regarding the
removal of Romero and other contributors’ names. In
response to the complaint, the university held a
hearing into whether Buhimschi had committed
scientific misconduct, and Romero testified at this
hearing. In addition to his Wayne State complaint,
Romero also discussed the matter with The Lancet,

5a

which prompted the journal to decline publishing the
piece. Romero then became concerned that Buhimschi
would seek to publish the manuscript in a different
journal, so he urged Wayne State University to
prepare a plan of action to respond to this possibility.
He also notified Wayne State that if Buhimschi
published the manuscript without proper authorship
credit, the publication could create a problem with the
contract between the Perinatology Research Branch
and Wayne State University.

The investigative committee at Wayne State issued
a report of its findings in 2004. The report concluded
that Buhimschi had committed misconduct on two of
the counts but that there was insufficient evidence as
to one of the counts. Romero objected to the
committee’s findings on this last count, and he
attempted to forward additional evidence to the
committee in an effort to change the committee’s
findings. Romero also objected to the committee's
recommended remedy, which included providing a two
year period of oversight of Buhimschi’s publications.
After learning of the committee’s findings, Buhimschi
appealed the decision in a letter dated January 20,
2005. Further, in accordance with Wayne State policy,
Yale University was notified of the committee’s
findings, though Yale declined to take action until
Wayne State considered Buhimschi’s appeal.

At around this same time, Romero became aware
that the British Journal of Obstetrics and Gynaecology
(“BJOG”) intended to publish a modified version of the
manuscript; a version which did not include Romero as
a co-author. Romero then notified officials at Wayne
State University and suggested that the university
contact BJOG about the authorship dispute. He

6a

continued to follow up with Wayne State officials about
their contact with BJOG, and he assisted Wayne State
officials in their communications with BJOG staff by
comparing The Lancet manuscript with the BJOG
manuscript. In correspondence between BJOG and
Wayne State officials, BJOG staff indicated that they
were aware of the authorship dispute and that they
had been in contact with Buhimschi. BJOG officials
stated that they intended to publish a correction if it
was later found that Romero deserved authorship
credit.

Through communications with BJOG staff, Romero
also became aware of a thirty-one page appeal letter
that Buhimschi had sent to the Wayne State
University investigative committee. In the letter,
Buhimschi denied wrongdoing and criticized Romero
and Wayne State University. Buhimschi also sent this
letter to BJOG, which in turn provided a copy to
Romero. This letter forms part of Romero’s defamation
claim against Buhimschi and Yale University. Romero
contends that this letter contains twenty-nine separate
defamatory statements.

In spite of Romero’s protests, BJOG published the
manuscript, without giving credit to Romero or his
team at Wayne State University, in early 2005.
Immediately thereafter, Yale University issued a press
release crediting Yale researchers and a Yale team
with the results of the research. The press release did
not contain any mention of Romero or researchers at
Wayne State University. This press release, along with
the manuscript itself, forms the basis of Romero’s
Lanham Act claim.

Ta

In the meantime, Wayne State University denied
Buhimschi’s appeal from its finding of scientific
misconduct on February 16, 2005, which prompted
Yale to appoint an ad hoc committee to evaluate the
matter. In connection with Yale’s ad hoc committee
investigation, Buhimschi supplied Yale officials with
an email sent by her former supervisor Carl Weiner,
M.D., to BJOG staff regarding her submission of the
manuscript. In the email, Weiner described the
background of the research and manuscript and
explained his position that Romero was not involved
with the research in a manner that entitled him to
authorship credit. Buhimschi’s republication of this
email to a deputy general counsel at Yale University
forms a second portion of Romero’s defamation claim.
Also in connection with the Yale ad hoc committee,
Lawrence Cohen, M.D., an Integrity Officer at Yale
University, sent a letter to committee members
providing background information on the dispute and
giving the committee instructions. This letter forms
the final portion of Romero’s defamation claim.

Romero was apparently dissatisfied with the
outcome of the investigations at Wayne State
University and Yale University, and he filed the
instant action in federal district court in February
2006. An amended complaint was filed in June 2006,
which contained seven counts of wrongdoing against
eleven named and unnamed defendants. Of the seven
counts and eleven defendants, only two defendants and
three counts are relevant to this appeal. Specifically,
this appeal involves: (1) Romero’s claim of violation of
the Lanham Act against Buhimschi and Yale;
(2) Romero’s claim of breach of an implied-in-fact
contract against Buhimschi; and (3) Romero’s claim of
defamation against Buhimschi and Yale. These claims

8a

were disposed of in the district court under different
procedural postures.

Specifically as to the Lanham Act claim, both Yale
and Buhimschi filed motions to dismiss for failure to
state a claim under Federal Rule of Civil Procedure
12(b)(6). The motions were premised on the Supreme
Court’s decision in Dastar Corp. v. Twentieth Century
Fox Film Corp., 539 U.S. 23 (2003). A magistrate judge
evaluated the motions and issued a report and
recommendation stating that the Lanham Act claim
was barred by Dastar, and the district court adopted
this recommendation. As to the contract and
defamation claims, discovery moved forward and both
Yale and Buhimschi filed motions for summary
judgment. The district court granted summary
judgment in favor of Yale and Buhimschi on these
claims, finding that the contract claim failed because
Romero had a preexisting duty to perform the contract
and the defamation claim failed because Romero
impliedly consented to the defamations through his
initiation of the investigation. Romero appeals this
decision along with the dismissal of the Lanham Act
claim.’

" Romero has also filed a motion to expand the record on appeal
and seeks to include seventeen additional exhibits that the district
court struck from the record in evaluating his motion for
reconsideration. Because Romero has failed to argue any of the
equitable factors for expanding the record on appeal, we deny this
motion. See United States v. Murdock, 398 F.3d 491, 500 (6th Cir.
2005).

9a
II.

We begin by addressing our jurisdiction over the
issues presented in this appeal. The district court
possessed subject matter jurisdiction over the Lanham
Act claim pursuant to 28 U.S.C. § 1331. It possessed
diversity jurisdiction over the _ state-law claims
pursuant to 28 U.S.C. § 1332 because all of the parties
were diverse and Romero alleged an amount-in-
controversy greater than $75,000. We _ possess
jurisdiction over final decisions of the district court
pursuant to 28 U.S.C. § 1291.

Hil.

In evaluating Romero’s Lanham Act claim, we
review de novo the district court’s dismissal under
Rule 12(b)(6). Hensley Mfg. v. ProPride, Inc., 579 F.3d
603, 608-09 (6th Cir. 2009). “[T]o survive a motion to
dismiss, the plaintiff must allege facts that, if accepted
as true, are sufficient ‘to raise a right to relief above
the speculative level,’ and to ‘state a claim to relief
that is plausible on its face.” Id. at 609 (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
This burden is met if the pleadings contain sufficient
factual content to allow the court to infer liability for
the alleged misconduct. Jd.

The Lanham Act creates a civil cause of action in
favor of any person who is injured by false
designations of origin or false descriptions. 15 U.S.C.A.
§ 1125(a). Section 43 of the Act states:

(1) Any person who, on or in connection with
any goods or services, or any container for
goods, uses in commerce any word, term, name,

10a

symbol, or device, or any combination thereof, or
any false designation of origin, false or
misleading description of fact, or false or
misleading representation of fact, which—

(A) is likely to cause confusion, or to cause
mistake, or to deceive as to the affiliation,
connection, or association of such person with
another person, or as to origin, sponsorship, or
approval of his or her goods, services, or
commercial activities by another person, or

(B) in commercial advertising or promotion,
misrepresents the nature, characteristics,
qualities, or geographic origin of his or her or
another person’s goods, services, or commercial
activities, shall be liable in a civil action .. .

Id. This section of the Lanham Act provides broad
federal remedies beyond simple trademark protection.
Dastar, 539 U.S. at 29.

The Supreme Court interpreted this section in
Dastar Corp. v. Twentieth Century Fox Film Corp. 539
U.S. at 25. Specifically, the Court addressed “whether
§ 43(a) of the Lanham Act, 15 U.S.C. § 1125(a),
prevents the unaccredited copying of a work... .” Jd.
In Dastar, Twentieth Century Fox sued Dastar under
a theory of reverse passing off’ for Dastar’s sale of a
video series on General Eisenhower’s crusade through
Europe. Id. at 26-27. To make the series, Dastar
purchased beta cam tapes of a 1949 series, which Fox
owned the rights to but had let the copyright expire.

* Reverse passing off (also known as palming off) occurs when a
party misrepresents someone else’s goods or services as his own.
Dastar, 539 U.S. at 27, n.1.

lla

Id. Dastar then edited the series by changing the
opening and closing sequence, inserting new titles,
rearranging the “recap” section, and removing
references to a corresponding book. Jd. Dastar
advertised its series as being produced and distributed
by a Dastar-owned company and included a credit line
“DASTAR CORP presents.” Jd. at 27. The Dastar
series made no reference to the original series owned
by Fox. Id.

In determining whether Dastar’s actions violated
the Lanham Act, the Supreme Court focused its
inquiry on the meaning of origin of goods in
§ 43(a)(1)(A). Id. at 31. The Court stated that “origin of
goods” could not mean “the person or entity originating
the ideas or communications” because such a meaning
would stretch the text and purpose of the Lanham Act.
Id. at 32. Under Dastar, the Lanham Act can not be
read to encompass communicative products, whose
origins have little consequence to purchasers, because
this reading would conflict with copyright law and
would render portions of that body of law superfluous.
Id. at 33-35. “Reading ‘origin’ in § 43(a) to require
attribution of uncopyrighted materials would pose
serious practical problems.” Jd. at 35. Thus, the Court
held that the Lanham Act did not create a cause of
action for behavior that amounted to plagiarism or the
use of unprotected work without attribution. Jd. at 36.
However, the Court left open the possibility that a
cause of action could exist under the misrepresentation
prong of § 43(a)(1)(B). Id. at 38. Specifically, if Dastar
had given purchasers the impression through
advertising or promotion that its series was
substantially different from the series on which it was
based, Fox could have stated a claim under
§ 43(a)(1)(B). Id.

12a

This court has applied Dastar and held that the use
of educational materials, including workbooks and
audiotapes, without proper attribution did not violate
the Lanham Act because “taking the intellectual
property contained in [] goods and incorporating it into
your own goods does not” constitute a violation. Nat'l
Bus. Dev. Servs. v. Am. Credit Educ. & Consulting
Inc., 299 F. App’x 509, 511 (6th Cir. 2008). Similarly,
the First Circuit held that a claim for failing to
attribute authorship credit on a college textbook did
not create a cause of action under the “false origin”
section of the Lanham Act. Zyla v. Wadsworth, 360
F.3d 243, 252 (Ist Cir. 2004). The Zyla court
nevertheless noted that “(t]he Court in Dastar left
open the possibility that some false authorship claims
could be vindicated under the auspices. of
§ 43(a)(1)(B)’s prohibition on false advertising.” Id. at
252 n.8.

Other Circuits have noted that Dastar’s holding
was limited to § 43(a)(1)A), but have rejected the
claim that false designation of authorship or licensing
is actionable under § 43(a)(1)(B). See, e.g., Baden
Sports, Inc. v. Molten USA, Inc., 556 F.3d 1300, 1307
(Fed. Cir. 2009); Sybersound Records, Inc. v. UAV
Corp., 517 F.3d 1137, 1144 (9th Cir. 2008). In Baden
Sports, the Federal Circuit applied Ninth Circuit law
and rejected an argument that Molten, a manufacturer
of basketballs, violated § 43(a)(1)(B) by advertising
that dual cushion technology was a “Molten
innovation.” Jd. at 1302-03, i305. The “Molten
innovation” claim was false because another basketball
manufacturer had developed the technology. Jd. at
1302-03. However, the Federal Circuit held that the
claim was not actionable because the “Molten
innovation” advertising materials did not concern the

l3a

“origin of goods” prong under § 43(a)(1)(A) nor did the
materials concern the “nature, characteristics, [or]
qualities” prong under § 43(a)(1)(B). Jd. at 1305.
According to the Federal Circuit, “nature,
characteristics, and qualities” under § 43(a)(1)(B)
refers to the characteristics of the good itself, rather
than authorship designation. Jd. at 1307. To read the
Lanham Act otherwise would put it in conflict with
patent and copyright law. Id.

In this case, Count I of Romero’s complaint alleges
violation of the Lanham Act by reverse palming off.
The count specifically alleges that: (1) Buhimschi
passed off research and results as findings by “Yale
researchers” rather than collaboration with a Wayne
State team; (2) Buhimschi and Yale misrepresented
the research and findings in the BJOG article as being
conducted at Yale by Yale faculty; (3) Buhimschi and
Yale issued a press release that attributed the work to
Yale researchers and a “Yale team” but failed to
identify the names of collaborators; and (4) the article
contained false and misleading statements about
where and how the research was conducted and
funded. The complaint alleged that’ these
representations misled the scientific community as to
the origin of the research. In the complaint, this claim
was titled “Reverse Palming Off,” yet it did not cite
any specific provision of the Lanham Act. In
evaluating the defendants’ motion to dismiss, both the
magistrate judge and the district court held that Count
I failed to state a claim under Dastar, without
evaluating whether Romero stated a claim under
§ 43(a)(1)(B) of the Lanham Act. Romero v. Buhimschi,
2:06-cv-10859 at 4(E.D. Mich. Sept. 28, 2007); Romero
v. Buhimschi, 2:06-cv-10859 at 7-11 (E.D. Mich. May
22, 2007).

l4da

To the extent that Romero’s claim relies on
§ 43(a)(1)(A)’s “origin of goods” prong, the claim clearly
falls within the scope of Dastar. Aside from the fact
that Dastar involved a video and this case involves a
manuscript, the cases are nearly identical because
both plaintiffs alleged that the defendants used
portions of the plaintiffs’ work but failed to attribute
the work to the plaintiffs. And the Court in Dastar
made clear that origin did not refer to the person
originating the idea and could not be read to apply to
communicative products. 539 U.S. at 32, 35. Thus,
Romero’s Lanham Act claim fails in as much as it
alleges that Buhimschi and Yale failed to credit
Romero’s work in the manuscript. However, at least
one Circuit has left open the possibility that a claim
can be made for misrepresenting authorship in
promotional material or advertisements under
§ 43(a)(1)(B). See Zyla, 360 F.3d at 252 n.8. And at
least a portion of Romero’s pleadings allege that Yale
violated the Lanham Act through its press release.

Assuming that a portion of Romero’s pleadings
could fall under § 43(a)(1)(B)’s advertising prong, the
misconduct alleged in the pleadings would have to
relate to the “nature, characteristics, qualities, or
geographic origin” of the manuscript. 15 U.S.C.A.
§ 1125(a). The Federal Circuit’s decision in Baden
Sports provides guidance on this issue because that
court held that false advertising materials, which
claimed that basketball technology was a “Molten
innovation,” did not go to the nature, characteristics,
or qualities of basketbalis, but instead related to
authorship of the technology. 556 ©.3d at 13805
Similarly, any advertising or promotional claim by
Yale or Buhimschi that attributed the research to a
“Yale team” or “Yale researchers’ appears to be related

15a

to authorship, rather than the nature, characteristics,
or qualities of the research. Further, Romero’s claim in
this case does not fit within the Supreme Court’s dicta
in Dastar, which left open the possibility for claims to
be brought under § 43(a)(1)(B). Instead, comparing
Romero’s pleadings with the allegations in Dastar,
Romero’s claim closely tracks the claims made in that
case. We therefore hold that the district court properly
dismissed the Lanham Act claim.

IV.

We now turn to Romero's state-law claims,
allegingbreach of contract and defamation. This court
reviews a district court’s grant of summary judgment
de novo. 7'ravelers Prop. Cas. Co. of Am. v. Hulerich &
Bradsby Co., 598 F.3d 257, 264 (6th Cir. 2010).
“Summary judgment is appropriate when ‘the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact’ regarding any essential element of the
non-moving party’s case and the moving party is
entitled to judgment as a matter of law.” Jd. (quoting
Fed. R. Civ. P. 56(c)). A claim lacks a genuine issue of
material fact if no reasonable jury could return a
verdict in favor of the nonmoving party. Jd. Michigan
substantive law applies to both the contract claim and
the defamation claim. See Gass v. Marriott Hotel
Serus., 558 F.3d 419, 425 (6th Cir. 2009); UAl v.
Komatsu Forklift Co., 512 F.3d 294, 302 (6th Cir.
2008).

A.

Under Michigan law, consideration is an essential
element of any contract. Yerkovich v. AAA, 610 N.W.2d

l6a

542, 546 (Mich. 2000). The preexisting duty rule states
that a contract fails for lack of consideration where the
party promises something that he is already legally
bound to do. 46th Circuit Trial Court v. County of
Crawford, 719 N.W.2d 553, 568 (Mich. 2006). This rule
applies whether the preexisting duty is based on
statute or contract and whether the promise at issue
is a modification to an existing agreement or whether
it is a new agreement. Kassab v. Dennis, No. 283394,
2009 WL 763433 at *1 (Mich. Ct. App. Mar. 24, 2009).
Michigan courts have applied this rule to nullify
contracts in a variety of contexts. See, e.g., 46th Circuit
Trial Court, 719 N.W.2d at 568 (finding no contract for
county to provide a certain amount of funding to a
court where the constitution required the county to
provide “reasonable and necessary funds”); Yerkovich,
610 N.W.2d at 546 (finding subrogation agreement
between insured and insurance company lacked
consideration because the insurance company had a
preexisting duty under the policy to pay plaintiffs
medical expenses); Pawlak v. Redox Corp. , 453 N.W.2d
304, 307 (Mich. App. Ct. 1990) (per curiam) (finding no
contract between city and decedent to transport
decedent to hospital because the city had a statutorily
imposed preexisting duty to provide service);
Freiburger v. State of Mich. Dep’t of Mental Health,
409 N.W.2d 821, 822 (Mich. Ct. App. 1987) (finding no
contract between decedent and state-run medical clinic
to provide appropriate care because medical clinic had
a statutorily imposed duty to provide services).

In this case, Romero alleges that an implied-in-fact
contract existed between himself and Buhimschi
whereby Buhimschi would list Romero as a co-author
in exchange for collaboration on the research. Romero
further asserts that Buhimschi breached this contract

lva

by publishing the manuscript in BJOG without
including him as a co-author. In granting summary
judgment in favor of Buhimschi, the district court
determined that Romero’s “entire collaboration with
Buhimschi was within the scope of his [federal]
employment.” Romero v. Buhimschi, No
2:06-cv-10859, 2009 WL 92226 at *6 (E.D. Mich. Jan.
14, 2009). Therefore, any contract failed for lack of
consideration because Romero had a preexisting duty
to collaborate with Buhimschi. /d. at 13. In deposition
statements, Romero described his federal job duties as
requiring him to mentor faculty and fellows, provide
technical direction, review performance, provide
advice, develop scientific projects, and draft
manuscripts. Romero also explicitly stated that his
federal job duties required him to collaborate with
Buhimschi. Thus, the district court’s conclusion 1s
supported by the record.

Romero nonetheless argues that the district court
erred for the following reasons: (1) under Michigan law
the preexisting duty must be owed to the promisor and
not a third party; (2) the National Institute of Child
Health and Human Development expected Romero to
enter into an authorship agreement with Buhimschi;
and (3) even if no implied-in-fact contract existed,
Romero is entitled to specific performance under
equity principles. Beginning with Romero’s first
argument, his contention that the duty must be owed
to the promisor is not supported by case law. Romero
cites Yerkovich, 610 N.W.2d at 546, yet nothing in
Yerkovich discusses whether the preexisting duty rule
applies solely in the context of a promisor-promisee
relationship. Romero also cites the Restatement
(Second) of Contracts § 73, which notes in the
comments that “tlie tendency of the law has been

18a

simply to hold that performance of contractual duty
can be consideration if the duty is not owed to the
promisor.” While this section might provide support for
Romero’s argument, there is no indication that
Michigan courts have adopted it. Further, Romero’s
preexisting duty existed within the context of his
federal employment. And both Michigan courts and the
Restatement recognize that the performance of a
preexisting duty is not consideration when the legal
duty is owed by a public official. See, e.g., 46th Circuit
Trial Court, 719 N.W.2d at 568 (finding no contract for
county to provide a certain amount of funding to court
where constitution required county to provide
“reasonable and necessary funds”); Restatement
(Second) Contracts § 73, cmt. b (stating that public
duties cannot form legal consideration).

Romero also argues that National Institute of Child
Health and Human Development expected him to
enter into an authorship agreement with Buhimschi.
To support his argument, Romero cites the NIH’s
Guidelines for the Conduct of Research, which
highlights the importance of publishing scientific
research and recommends open discussions on
authorship. Romero attempts to elevate these
guidelines into explicit authority to enter into a
contract. However, this argument is unavailing
because the document which Romero cites plainly
states in the introduction that it “is not meant to codify
a set of rules, but rather to elucidate, increase
awareness and stimulate discussion .. . .” The advice
in these guidelines, recommending that “authorship
issues|| be discussed openly,” simply does not form a
legal basis on which to enforce an implied contract
between Romero and Buhimschi, given that Romero
had a preexisting duty to collaborate with Buhimschi.

19a

Finally, Romero clatms that he is entitled to
specific performance under principles of equity or
unjust enrichment.* Romero did not include this equity
theory in his pleadings. Instead, in his response to
Buhimschi’s motion for summary judgment, Romero
requested leave to amend his pleadings to include this
theory. Romero then formally filed a motion to amend,
which the district court denied in its order granting
summary judgment in favor of Buhimschi and Yale.
Thus, this issue is technically before us on review from
the district court’s denial of Romero’s motion to amend
his complaint. This court reviews a district court’s
denial of a motion for leave to amend a complaint for
an abuse of discretion. Total Benefits Planning Agency
v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 437
(6th Cir. 2008). “A motion to amend a complaint
should be denied if the amendment is brought in bad
faith, for dilatory purposes, results in undue delay or
prejudice to the opposing party, or would be futile.”
Colvin v. Caruso, 605 F.3d 282, 294 (6th Cir. 2010)
(quoting Crawford v. Roane, 53 F.3d 750, 753 (6th Cir.
1995)). When the district court denies the motion on
the basis of futility, we review the decision de novo.
Riverview Health Inst.v. Med. Mut. of Ohio, 601 F.3d
505, 512 (6th Cir. 2010).

In denying Romero’s motion, the district court
simply stated that “[b]ecause the Court concludes that
there was no consideration to support any contract
between the parties, it will not consider . .. Romero’s

* Romero vaguely labels his claim as one for quasi-contract,
without citing any specific Michigan case law. Under Michigan
law, claims for implied-in-law contracts are labeled “quantum
meruit” or “unjust enrichment ” Da:rmler-Chrysler Servs. N. Am.
v. Summit Natl Inc., 289 F. App’x 916, 924—25 (6th Cir. 2008)

20a

motion.” Romero, 2009 WL 92226 at *4. The exact
basis of this denial is not entirely clear to us. However,
it appears to be based on futility, so we review the
decision de novo. See Riverview Health Inst. , 601 F.3d
at 512. To make a case for‘ unjust enrichment, the
plaintiff must not only show that the defendant
received a benefit but that “the circumstances of its
receipt or retention are such that, as between the two
persons, it is unjust for {the defendant] to retain it.”
Dumas v. Auto Club Ins. Ass’n, 473 N.W.2d 652, 663
(Mich. 1991) (quoting Restatement Restitution § 1, cmt.
c). Romero’s brief does not contend that it would be
unjust for Buhimschi to retain the benefit of his
collaboration, rather he simply urges the court to allow
the amended complaint based on general equity
principles. Because Romero has not provided a proper
legal basis to reverse the district court’s denial, we
affirm the district court’s decision.

B.

Finally, we review the district court’s grant of
summary judgment in favor of the defendants on the
defamation claim. To establish a claim for defamation
under Michigan law, a plaintiff must show “(1) a false
and defamatory statement concerning the plaintiff,
(2) an unprivileged communication to a third party,
(3) fault amounting at least to negligence on the part
of the publisher, and (4) either actionability of the
statement irrespective of the special harm (defamation
per se) or the existence of special harm caused by the
publication.” Mitan v. Campbell, 706 N.W.2d 420, 421
(Mich. 2005) (per curiam). Michigan courts have
repeatedly recognized that a publication is absolutely
privileged if the defamed party invited or consented to
the publication. See, e.g., Hieke v. Guevara, No.

2la

09-10427-BC, 2010 WL 538300 at *5 (E.D. Mich. Feb.
9 2010); Ramsey v. Speedway SuperAmerica LLC, No.
279034, 2008 WL 3541206 at *4—5 (Mich. Ct. App.
Aug. 14, 2008); Leftwich v. Lula Belle Stewart Ctrs.,
No. 270089, 2006 WL 3304190 at *2 (Mich. Ct. App.
Nov. 14, 2006) (per curiam); Jaafar v. Sabon, No.
229992, 2002 WL 1482605 at *1 (Mich. Ct. App. July
9, 2002) (per curiam); Med. Planning Consulting v. St.
Mary’s Med. Ctr., No.214018, 2000 WL 33418859 at *5
(Mich. Ct. App. June 13, 2000) (per curiam); Hollowell
v. Career Decisions, Inc., 298 N.W.2d 915, 922 (Mich.
Ct. App. 1980); Merritt v. Detroit Mem. Hosp., 265
N.W.2d 124, 127 (Mich. App. Ct. 1978); Schechet v.
Kesten, 141 N.W.2d 641, 644 (Mich. Ct. App. 1966).
The privilege can be both express or implied. Ramsey,
2008 WL 3541206 at *4 (quoting 50 Am. Jur. 2d Libel
& Slander § 254). An _ absolutely privileged
communication is not subject to a defamation claim
even if the statement was false or malicious. Oesterle
v. Wallace, 725 N.W.2d 470, 474 (Mich. Ct. App. 2006).

A Michigan appellate court has recognized the
absolute privilege of consent in a case where the
plaintiffs attorney sent a letter to the defendant
threatening to file suit for breach of contract and
requesting a response. Med. Planning Consulting,
2000 WL 33418859 at *2. The Michigan Court of
Appeals determined that the plaintiff had invited the
defamatory statements by sending the letter. Jd. at
*4-5. Both Michigan and federal courts have also
applied the privilege of consent where defamatory
publications weresent as part of a review or
investigatory process. See Heike, 2010 WL 538300 at
*5 (holding that plaintiff impliedly consented to
defamation where defendant made statements to a
school’s appeals committee as part of an investigation

22a

into whether the defendant-coach harassed the
plaintiff-player); Schechet, 141 N.W.2d at 644 (holding
that the privilege of consent applied to letters sent to
a credentials committee at a hospital where the letters
were sent as part of the hospital’s review process for
staff privileges).

In this case, Romero bases his defamation claim on
three publications: (1) Buhimschi’s republication to
BJOG and Yale of her appeal letter originally sent to
the Wayne State University investigative committee;
(2) Buhimschi’s republication to a deputy general
counsel at Yale of Carl Weiner’s emails to BJOG
urging the journal to publish Buhimschi’s manuscript;
and (3) Lawrence Cohen’s letter to members of the
Yale ad hoc committee outlining the committee’s
duties. The district court determined that Romero
invited, and thus consented to, the defamations by
invoking Wayne State’s investigative proceedings, by
prompting Wayne State to notify BJOG of the
authorship dispute, and by having a role in Yale
forming its ad hoc committee to investigate the Wayne
State findings.

A reading of the allegedly defamatory publications
shows that the privilege of consent applies to Romero’s
defamation claim. Beginning with the first publication,
consisting of Buhimschi’s republication of her appeal
letter to BJOG and Yale, Romero’s own deposition
testimony indicates that he urged Wayne State
officials to contact BJOG about the authorship dispute.
By prompting this contact with BJOG, Romero
impliedly consented to Buhimschi’s defense of her
manuscript. See Schechet, 141 N.W.2d at 644. Moving
to the second and third publications, both of these
were sent in the context of Yale’s investigation, after

23a

that school learned of the findings by the Wayne State
committee. In hisbrief, Romero admits that Wayne
State officials notified Yale of its scientific misconduct
findings, as was required by Wayne State policy, and
that Yale appointed its own investigative committee
after the investigation at Wayne State was complete.
Further, Romero’s own deposition testimony indicates
that he initiated the investigatory proceedings at
Wayne State University, which culminated in the
findings being reported to Yale. Romero therefore

impliedly consented to Buhimschi’s response to Yale
officials. See Schechet, 141 N.W.2d at 644.

Romero nevertheless argues that the publications
were not absolutely privileged under Michigan law
because the Michigan Supreme Court has not
recognized consent as an absolute privilege. He relies
on Smutherwaite v. News Pub. Co., 83 N.W. 116 (Mich.
1900), to support his position. In Smutherwaite, the
Michigan Supreme Court specifically recognized a
privilege of “self-defense,” which arises when a
defendant answers charges against him. 83 N.W. at
119. The court found error in the trial court’s jury
instructions on this issue because the instruction did
not limit the privilege based on malice and did not
limit the privilege based on whether the statement
was related to the charges. Jd. While Smutherwaite
might appear at first blush to provide support for
Romero’s position, a careful reading of the case shows
that it does not.

To begin with, Smutherwaite does not appear to be
addressing the same privilege asserted by Buhimschi
and Yale in this case. While the trial court’s
instructions in Smutherwaite used the term “consent,”
the Michigan Supreme Court’s decision discusses the

24a

privilege as being one of “self defense.” 83 N.W. at 119.
It also describes the privilege as applying where “the
occasion is one which justifies such publication,” and
states that defendants have a “qualified privilege” to
respond to accusations. Jd. Given that the case was
published in 1900, the exact privilege at issue is
difficult to ascertain. However, a careful reading of the
opinion leads us to conclude that the Smutherwaite
court addressed a qualified occasional privilege, rather
than the privilege of consent.

Under the section on conditional privileges, the
Restatement of Torts lists “occasions making a
publication conditionally privileged” and further lists
“protection of the publisher’s interest” as a conditional
privilege. Restatement (Second) of Torts § 594. A
communication falls under this qualified occasional
privilege if the circumstances surrounding the
communication are such that a reasonable belief exists
that the communication “affects a_ sufficiently
important interest of the publisher” and “the
recipient’s knowledge of the defamatory matter will be
of service in the lawful protection of this interest.” Jd.
This occasional privilege is separate and distinct from
the privilege of consent. Because the Smutherwaite
court described the privilege as being one of “self
defense” and used the words “occasion” and “qualified”
in its analysis, we believe that the case addresses the
qualified occasional privilege of protecting the
publisher’s interest, rather than the privilege of
consent. Our reading of Smutherwaite is bolstered by
the Michigan appellate courts’ treatment of the
privilege of consent.

While it is admittedly unclear whether the
Michigan Supreme Court has addressed the privilege

25a

of consent, Michigan appellate courts have clearly and
consistently recognized that an invited or consented to
communication is privileged.* Though the precedential
value of these cases is somewhat weakened by their
age or unpublished status, we find these cases difficult
to ignore given their numbers. We also find it difficult
to ignore these cases’ explicit description of the
privilege as being “absolute.” See, e.g., Heike,
Z2010WL538300at *5 (citing Restatement (Second) of
Torts § 583); Leftwich, 2006 WL 3304190 at *2 (“A
communication regarding a person is absolutely
privileged if the person consents to the
communication.”); Jafar, 2002 WL 1482605 at *1 (“A
communication regarding a person is absolutely
privileged if the person who is the subject of the
communication consented to it.”); Med. Planning
Consulting, 2000 WL 33418859 at *5 (“A
communication regarding a person is absolutely
privileged if the person consents to the
communication.”); Hollowell, 298 N.W.2d at 922 (“A
communication regarding a person is absolutely
privileged if it is consented to.”); Merritt, 265 N.W.2d
at 127 (“A communication regarding a person is
absolutely privileged if he consents to it.”); Schechet,
141 N.W.2d at 644 (“[T]he publication of false and
defamatory matter of another is absolutely privileged
if the other consents thereto.”). Finally, we find it
difficult to ignore the factual similarities between
these cases and Romero’s case. Because this is the

* See, e.g., Hieke, 2010 WL 538300 at *5; Ramsey, 2008 WL
3541206 at *4—5; Leftwich, 2006 WL 3304190 at *2; Jaafar, 2002
WL 1482605 at *1; Med Planning Consulting, 2000 WL 33418859
at *5, Hollowell, 298 N.W.2d at 922, Merritt, 265 N.W.2d at127;
Schechet, 141 N W 2d at 644.

26a

body of case law on which Yaleand Buhimschi rely, we
find it controlling.

Moreover, none of the Michigan appellate court
decisions listed above cites Smutherwaite, which
further supports our conclusion that Smutherwaite did
not address the privilege of consent but instead
addressed a qualified occasional privilege.” And if we
were to reverse the district court under the auspices of
Smutherwaite, we would be ignoring this large body of
Michigan case law that recognizes an absolute
privilege of consent. We would further be implying
that all of these Michigan appellate cases were
wrongly decided under Smutherwatte.
Notwithstanding this large body of Michigan appellate
court decisions, Romero makes persuasive arguments
as to how he believes the Michigan Supreme Court
would evaluate the privilege of consent. However, his
arguments are nothing more than his’ own
speculations. And we should look to the decisions of
the intermediate appellate courts unless we are
convinced that the state supreme court would decide
the issue differently. Mike’s Train House, Inc. v.
Lionell, LLC, 472 F.3d 398, 413 (6th Cir. 2006). We
therefore find the decisions of the Michigan appellate
courts, recognizing an absolute privilege of consent,
controlling in this case.

Additionally, we believe that it would be
problematic to rely on Smutherwaite given its age and

° In Merritt, the Michigan appellate court applied a qualified
occasional privilege to some of the defendants’ defamatory
publications and applied an absolute consent privilege to other
publications. 265 N.W.2d at 127. This opinion, therefore, indicates
that these are in fact separate privileges under Michigan law.

Zia

developments that have occurred in defamation law
since the decision. Smutherwaite involved defamatory
statements published in a newspaper in the context of
an election. 83 N.W. at 117. The case was decided long
before the Supreme Court’s seminal decision in New
York Times Co. v. Sullivan, 376 U.S. 254 (1964). While
Smutherwaite’s analysis on common-law privileges
might remain good law, the holding is questionable
under Sullivan. Its precedential value is therefore
dubious. Further, we note that Smutherwaite has only
been cited five times in its 110-year history, four of
which occurred prior to 1916. We therefore do not
believe that it controls the outcome of this case.

Romero offers one final argument in support of his
position. He argues that even if the privilege of consent
is absolute under Michigan law, the defendants in the
present case exceeded the scope of any consent.
Michigan courts have noted that the consent privilege
applies to those statements relevant to the purpose for
which consent was given and to those persons with a
legitimate interest in their content. Ramsey, 2008
W1L3541206 at * 4 (quoting 50 Am. Jur. 2d Libel &
Slander § 254). It is clear that Buhimschi, as well as
the parties to which she published the statements, had
a legitimate interest in the content of the statements.
Further, it is also clear from Romero’s pleadings and
a reading of the statements themselves that all of the
allegedly defamatory statements were relevant to the
purpose for which the consent was given. Specifically,
all of the statements concerned Buhimschi’s reasons
for originally including Romero as a co-author, her
reasons for removing Romero as a co-author, her views
on Wayne State’s investigatory process, and her
version of Romero’s contributions to the research.
While Romero might dispute the veracity of these

28a

statements, absolute privileges apply regardless of
whether the statements are false or malicious.
Oesterle, 725 N.W.2d at 474. We therefore hold that
defamatory statements are privileged under Michigan
law.

. -

For the foregoing reasons, we AFFIRM the district
court’s dismissal of the Lanham Act claim and grant of
summary judgment in favor of the defendants on the
contract and defamation claims. We also DENY
Romero’s motion to expand the record on appeal

29a

APPENDIX B

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Case No. 2:06-cv-10859

[Filed January 14, 2009]

ROBERTO ROMERO,

Plaintiff,

Vv

IRINA BUHIMSCHI and YALE
UNIVERSITY,

Defendants.

HONORABLE STEPHEN J. MURPHY, II]

OPINION AND ORDER GRANTING
DEFENDANTS’ MOTIONS FOR SUMMARY
JUDGMENT (docket nos. 95 & 97) AND
DENYING PLAINTIFF’S MOTION
FOR PARTIAL SUMMARY
JUDGMENT (docket no. 90)

30a

INTRODUCTION

Despite the number of controversies in that result
in litigation, there remain some disputes that fall
outside the realm of the courts, and wrongs that are
not redressable by law or equity. This case involves
such a dispute, and if any wrong was committed here,
its proper remedy should be sought outside of the
courthouse.

This suit is, at its core, a dispute over the
attribution of authorship of certain medical research,
and of scholarly articles and presentations publishing
that research. The plaintiff Dr. Roberto Romero claims
that one of the defendants, Dr. Irina Buhimschi,
published medical research on which they had
collaborated without attributing authorship to Romero.
This publication, he says, was a breach of an implicit
contract between the two of them, whereby he would
collaborate on the research and she would attribute
authorship to him. Romero also claims that after he
complained of this to various academic and scholarly
institutions, Buhimschi and her employer, Yale
University, responded with a series of libelous
accusations.’

Although Romero’s contract and defamation claims
are related to each other, they involve fairly discrete
sets of facts, each of which is relatively complex.

l

Romero’s complaint also included claims of Lanham Act
violations, neghgence, and tortious interference with
advantageous relations, as well as additional defendants. These
counts and defendants have all been dismissed, docket no. 61,
leaving only the contract claim against Buhimschi and the
defamation claims against Buhimschi and Yale.

sla

Therefore, the Court will discuss the facts related to
each claim separately.

CONTRACT CLAIM

I. Facts

The facts of the case are disputed at many points,
but the parties appear to agree on the basics. The
plaintiff, Dr. Roberto Romero, was and is the Chief of
the Perinatology Research Branch of the National
institute of Child Health and Human Development
(hereinafter “the PRB”), which at all relevant times
was housed at Wayne State University in Detroit.
Although this housing arrangement was temporary
and informal at first, in October 2002 Wayne State
was awarded a multimillion-dollar contract to be the
long-term home of the PRB.

Romero has no written employment contract with
the PRB, but the record indicates that his employment
is designated as being of “indefinite” duration, and he
has been granted tenure of a type similar to that used
by universities. Romero dep., docket no. 95, ex. A, p.
11. According to Romero, his job duties include
“participatlion] in the drafting of manuscripts,
abstracts, and other scientific endeavors of that
nature.” Jd. p. 20. He is “involved in the scientific
process on a daily basis,” zd. p. 21, and estimates that
“at least” half his time is spent planning research,
participating in projects, editing manuscripts, and
doing other science — “[a]lnd if I were to include
weekends and nights, probably that would exceed that
number.” Id.

32a

Between 2001 and 2003, defendant Dr. Irina
Buhimschi was an assistant professor in Wayne
State’s school of medicine. She took that position after
Romero recruited her to collaborate with the PRB.”
Buhimschi's husband also became involved in medical
research at Wayne State. Some time after her arriva!
at Wayne State, Buhimschi began formally working for
the PRB under a contract created pursuant to the
Intergovernmental! Personnel Act of 1970. Under this
arrangement, Buhimschi split her time evenly between
Wayne State and the PRB, but was not added to the
PRB’s payroll; instead Wayne State paid Buhimschi's
salary and the PRB compensated Wayne State for her
services. Romero acknowledges that his collaboration
with Buhimschi was part of his job responsibilities.
Romero dep., docket no. 95, ex. A, p. 21.

It was out of this relationship between Buhimschi

and the PRB that the disputed research arose. This
research used an approach known as “proteomics,” in
which researchers study the entire assortment of
proteins present in a tissue or body fluid, in hopes of
identifying specific proteins or sets of proteins that
only appear along with a given kind of medical
condition. If such a set of proteins is discovered, those
proteins can be regarded as “biomarkers” of the
condition. In the research tn question, Buhimschi was
attempting to discover proteomic biomarkers of
inflammation or infection in the amniotic fluid of
pregnant women, conditions that often lead to preterm

* When Buhimschi arrived at Wayne State it had not yet won the
long-term contract to house the PRB Romero indicated to
Buhimschi that if the PRB awarded the contract to some other
institution, he would be interested in having her move along with

the PRB.

33a

delivery.* To do so, Buhimschi and her collaborators
used a form of mass spectrometry known as SELDI* to
identify the proteomic profiles of various samples of
amniotic fluid, some of which were inflamed or
infected and others of which were uninflamed and
uninfected “control” samples. The initial phase of their
study revealed a set of four proteins that, in
combination, were always present in inflamed or
infected amniotic fluid, and never in the control
samples. In the second phase of the study Buhimschi
and the other researchers tested this conclusion by
blinding themselves to whether the fluid samples they
were studying were inflamed or infected, and
attempting to diagnose inflammation or infection
based solely on the presence of the protein biomarkers
they had previously identified. The test was highly
successful, and so Buhimschi began preparing a
manuscript for publication. Although Buhimschi
denies it, Romero claims that he was involved in this
research in several important ways. Viewed in the
light most favorable to Romero, the evidence supports
a finding that he contributed to the research as
follows. First, several years before Buhimschi’s study
was conceived of, Romero oversaw the collection of a
bank of more than a thousand samples of amniotic
fluid; in this capacity he formulated the collection
protocols and personally performed many of the
amniocenteses by which the samples were obtained.

* More specifically, the research was an attempt to discover a
proteomic profile that would indicate whether a woman
experiencing preterm labor also had inflamed or infected amniotic
fluid, which would be a sign that the preterm labor would likely
lead to a premature delivery of the baby.

* Surface Enhanced Laser Desorption Ionization.

34a

Romero dep., docket no. 95, ex. A, at pp. 233-34. It was
from this bank that all or almost all of the samples
used in Buhimschi’s study were drawn. Id.

Second, after Buhimschi proposed the study, it was
Romero who determined the “gold standards” against
which the proteomic diagnostic technique would be
tested; that is, he developed the criteria by which the
samples of amniotic fluid would be initially categorized
as infected/inflamed or not. The proteomic diagnosis
was regarded as an accurate one ifit “agreed” with the
diagnosis indicated by the gold standard. Romero
testified that based on his previous experience, he
suggested the gold standard eventually used by
Buhimschi — a white blood cell count of 100 or more.
Id. at p. 70; see also docket no. 92, ex. 13, p.5. Docket
no. 92, ex. 13, p. 5. With the help of another PRB
doctor, Romero formulated this and other specific
criteria by which he and the other doctor selected the
24 samples that were used in the blinded phase, and
categorized them as “inflamed/infected” or “control.”°

°The clinical characteristics of the pathologic cases, as selected by
Romero, were:

1) an amniocentesis because of preterm labor with intact
membranes (no PROMs)

2) intra-amnuiotic inflammation (over 100 WBC)

3) patients with inflammation delivered shortly after the
amniocentesis-preterm neonates

4) all patients had histologic chorioamnionitis

5) 50% of patients with inflammatnion had positive
amniotic fluid cultures.

Control cases were 1) patients who delivered at term were
admitted with preterm labor and intact membranes before
33 weeks; [2)] had no elevated WBC in amniotic fluid;

35a

Docket no. 93, ex. 24; docket no. 92, ex. 13, p. 5;
Romero dep., docket no. 95, ex. A, at pp. 67-68, 236.

Third, the second and blinded phase of the study —
which substantially increased its scientific value— was
Romero’s idea. Romero dep., docket no. 95, ex. A, at p.
236. Finally, Romero provided significant assistance to
Buhimschi in preparing the manuscript. Romero
testified that he and Buhimschi “went line by line in
the manuscript many times.” Romero dep., docket no.
95, ex. A, at p. 236. Copies of e-mails between
Buhimschi and Romero’s secretary were adduced in
evidence, showing that Romero reviewed a preliminary
manuscript with Buhimschi in late May of 2002, and
offered “feedback and suggestions.” Docket no. 93, ex.
26. Early in July of that year Romero sent Buhimschi
“{a] short note to tell you that I have gone over the
manuscript. I would like to propose some changes.” Jd.
Although the nature of those changes is unclear, the
e-mail records indicate that Romero set aside 10 hours
of working time later that month of that year for
further manuscript review with Buhimschi. 7d. In
August, Romero emailed a few more detailed
suggestions to Buhimschi,® and promised to read the
manuscript again and offer more feedback. Jd. In

3) had negative amniotic fluid culture and 4) delivered an
AGA infant weeks after .. . the amniocentesis (> 37
weeks).

Docket no. 93, ex. 24.

° Specifically, Romero suggested that Buhimschi “change figure 1
by replacing ‘intraamniotic infection’ and ‘intraamniotic
inflammation’ to ‘yes’ and ‘no.’ I think 1t may be a good idea to put
the western blot in figure 4 as you have it in figure 5.”

36a

October, Romero emailed Buhimschi his opinion “that
the manuscript has been improved over time and this
will work to our benefit.” Jd.

After the research was completed, however, a
dispute erupted between Romero and Buhimschi over
whether Romero’s involvement qualified him to be
credited as an author in the anticipated publication of
the results. The evidence adduced in this case includes
voluminous records of the details of this dispute, and
of the parties’ disagreements as to these details, but
these need not be recounted at length here. Instead, it
is sufficient to note the following undisputed facts.

In November of 2002, Buhimschi, as corresponding
author, initially submitted the manuscript to ‘he
Lancet, a British medical journal. This manuscript, see
docket no. 90, ex. 3, listed Romero and other PRB
doctors as authors. The Lancet responded favorably,
but asked for several revisions. Docket no. 92, ex. 17.
In the meantime, however, the relationship between
Buhimschi and Romero had deteriorated, and she
revised the manuscript without his assistance,
removed Romero’s name from authorship without his
knowledge, and re-submitted the text to The Lancet.
See docket no. 91, exs. 1 & 2. When Romero learned of
this, he contacted The Lancet, which had been under
the impression that he had agreed to the removal of
his name, and which’ subsequently informed
Buhimschi that it would not publish the work until the
authorship dispute was resolved. Buhimschi withdrew
the manuscript, and some months later submitted a
revised version to the British Journal of Obstetrics and
Gynaecology (“the BJOG”), again without Romero’s
knowledge and without listing him as an author. The
BJOG eventually published the article in February

ova

2005. Docket no. 91, ex. 9. When Romero learned of
this he requested that it add his name to authorship,
but the BJOG agreed only to print a statement of
disputed authorship. Docket no. 94, ex. 37.

II. Procedural Posture

It is the February 2005 BJOG publication that is
the basis of Romero’s contract claim in the instant suit.
He asserts that by publishing the results of the
research without attributing him as an author,
Buhimschi breached a contract between herself and
Romero. Although there is no written contract between
the parties, and Romero apparently does not contend
that there was ever an explicit oral agreement to that
effect, he asserts that his and Buhimschi’s conduct is
obvious evidence of an implied-in-fact contract between
them.

Romero and Buhimschi have both moved for
summary judgment on this contract claim; both
motions are currently before the Court. Buhimschi
bases her motion on a number of different grounds,
including preemption of an implied contract by an
express one, the void-for-vagueness doctrine, the
Statute of Frauds, lack of legally-cognizable damages,
and lack of consideration.’ Because the Court

7 Buhimschi also briefly argues that this Court has no jurisdiction
over Romero’s contract claim. Although there is complete diversity
of citizenship between the parties — Romero is a citizen of
Michigan, and Buhimschi (after her move) and Yale are citizens
of Connecticut — Buhimschi notes that Romero is not seeking
money damages on his contract claim, and instead only asks that
Buhimschi be required to correct the authorship credit. This, she
argues, fails to satisfy the jurisdictional amount-in-controversy

38a

concludes that there was no consideration to support
any contract between the parties, it will not consider
the other grounds asserted by Buhimschi, nor will it
consider Romero’s motion.

II. Analysis

A. Summary Judgment — The Legal Standard

Rule 56(c) of the Federal Rules of Civil Procedure
provides that summary judgment “shall be rendered
forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party
is entitled to judgment as to a matter of law.” Fed. R.
Civ. P. 56(c). Summary judgment is appropriate if the
moving party demonstrates that there is no genuine
issue of material fact regarding the existence of an
essential element of the nonmoving party’s case on
which the nonmoving party would bear the burden cf
proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986); Martin v. Ohio Turnpike Comm’n, 968 F.2d
606, 608 (6th Cir.1992).

In considering a motion for summary judgment, the
Court must view the facts and draw all reasonable
inferences in a light most favorable to the nonmoving

requirement of 28 U.S.C. § 1331. It appears, however, that the
damages Romero is seeking on his other remaining claim (for
defamation) could exceed $75,000. Because “[i]t is well established
that claims can be aggregated to satisfy the jurisdictional amount
requirement,” Klepp v First Am Bank, 916 F. 2d 337, 341 (6th
Cir. 1990), the Court has jurisdiction over the contract claim as
well.

39a

party. 60 Ivy St. Corp. v. Alexander, 822 F.2d 1432,
1435 (6th Cir.1987). The Court is not required or
permitted, however, to judge the evidence or make
findings of fact. Id. at 1435-36. The moving party has
the burden of showing conclusively that no genuine
issue of material fact exists. Jd. at 1435.

A fact is “material” for purposes of summary
judgment if proof of that fact would have the effect of
establishing or refuting an essential element of the
cause of action or a defense advanced by the parties.
Kendall v. Hoover Co., 751 F.2d 171, 174 (6th
Cir.1984). A dispute over a material fact is genuine “if
the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Accordingly, when a reasonable jury could not find
that the nonmoving party is entitled to a verdict, there
is no genuine issue for trial and summary judgment is
appropriate. Jd.; Feliciano v. City of Cleveland, 988
F.2d 649, 654 (6th Cir.1993).

Once the moving party carries the initial burden of
demonstrating that there are no genuine issues of
material fact in dispute, the burden shifts to the
nonmoving party to present specific facts to prove that
there is a genuine issue for trial. Anderson, 477 U.S. at
256. To create a genuine issue of material fact, the
nonmoving party must present more than just some
evidence of a disputed issue. Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986). As the United States Supreme Court has
stated, “there is no issue for trial unless there is
sufficient evidence favoring the nonmoving party for a
jury to return a verdict for that party. If the
[Inonmoving party’s] evidence is merely colorable, or is

40a

not significantly probative, summary judgment may be
granted.” Anderson, 477 U.S. at 249-50 (citations
omitted); see Celotex, 477 U.S. at 322-23; Matsushita,
475 U.S. at 586-87.

Consequently, the nonmoving party must do more
than raise some doubt as to the existence of a fact; the
nonmoving party must produce evidence that would be
sufficient to require submission of the issue to the jury.
“The mere existence of a scintilla of evidence in
support of the plaintiffs position will be insufficient;
there must be evidence on which the jury could
reasonably find for the plaintiff.” Anderson, 477 U.S.
at 252; see Cox v. Ky. Dep't of Transp., 53 F.3d 146, 150
(6th Cir.1995).

B. Consideration

The parties do not dispute that the case is governed
by Michigan law. In Michigan as in most every state,
legal consideration is a required element of all
contracts, both express and implied-in-fact. Mallory v.
City of Detroit, 181 Mich. App. 121, 127 (1989). Under
the “preexisting duty rule,” however, “it is well settled
that doing what one is legally bound to do is not
consideration for a new promise.” Yerkovich v. AAA,
461 Mich. 732, 740-41 (2000). Thus, once a person has
assumed a contractual duty to perform a certain act,
his or her subsequent promise to do the same act — or
actual performance of the act cannot be
consideration for a second contract. /d.

Here, Romero asserts that he had a contract with
Buhimschi, whereby he was to collaborate with her in
scientific research and she was to include him as an
author in any publication of that research. It does

4la

appear that in Michigan, the authorship of a research
article can be the subject of a contract. See generally
Eadara v. Henry Ford Health Sys., Nos. 238137 &
238979, 2004 WL 243402 (Mich. App. Feb. 10, 2004).
As noted above, there is evidence in this case to
support a finding that Romero was indeed closely
involved in designing the study, selecting the biological
samples for it, and revising the manuscript.°
Nevertheless, Buhimschi contends that all these
functions fall squarely within Romero’s own
description of his job duties at the PRB. Thus, she
claims that because Romero had a preexisting legal
duty (to the PRB) to engage in these activities, his
agreement to do so in with her could not form the basis
of a contract between them.

Romero does not dispute that his entire
collaboration with Buhimschi was within the scope of
his PRB employment. The Court agrees that on this
record, no reasonable jury could come to any other
conciusion. But Romero objects that, while his job
duties did include scientific research of the type he
collaborated in with Buhimschi, he was under no
preexisting duty to undertake any particular project or
collaboration. Thus, he claims, his choice to work with
Buhimschi on the proteomics project, instead of
working on a different project or with someone else,
should qualify as consideration for the contract.

° He also was directly involved in formulating the protocols by
which the samples were collected, and actually collected many of
the samples himself But this could not have been consideration
for any contract with Buhimschi, because it occurred years before
their collaboration, and there 1s no evidence in the record that
Romero and Buhimschi even knew each other at that time.

42a

This argument has significant appeal there
certainly is nothing in the record to indicate that the
PRB expected Romero to involve himself in any
particular project. Nonetheless, the Court ultimately
finds it lacking in merit. Although Romero obviously
enjoyed a great deal] of discretion in determining which
projects to work on, it must certainly have been the
PRB’s understanding that he would exercise this
discretion solely in the PRB’s interest and not for
personal gain. Thus, having determined — that
collaboration with Buhimschi and on the proteomics
research was a worthwhile project — as he clearly had,
given his personal recruitment of Buhimschi and his
obvious interest in the proteomics project - Romero
had an obligation to the PRB to pursue it.

All this is to say that a government employee who
has discretion in his work is not, as a matter of
contract law, free to make side bargains with third
parties that will control the exercise of that discretion.
For instance, ifa government scientist demanded cash
payments as a condition of agreeing to a scientifically
worthy collaboration, the preexisting duty rule would
bar his suing to collect. on such a bargain.” This
conclusion is fully supported by the Restatement
(Second) of Contracts, § 73 cmt. b., which states that
“la) bargain by a public official to obtain private
advantage for performing his duty is... unenforceable
as against public policy. And ... performance of the
duty is not consideration for a promise.”’® This

’ Such a recovery would also hkely be barred by statute, but that
is not the point here

Buhimschi also suggests that her position is reinforced by 5
C.F.R 2635 807(a), which provides that a government employce

43a

proposition does not mean that government scientists
are unable to demand authorship credit in return for
their scientific collaboration with outside researchers.
It simply means that the demand should not be
couched in terms of contractual obligations."'

Romero further states that, if he had known that
Buhimschi would refuse to acknowledge him as an
author, he would not have agreed to collaborate with
her. Thus, he suggests that it would be nonsensical]
and inequitable to construe his obligations to the PRB
as requiring him to collaborate with Buhimschi even if
she refused in advance to include him as an author.
While the Court largely agrees with this argument, it
does not find it to be relevant to the case. More
specifically, the Court is inclined to agree that if before

“shall not receive compensation from any source other than the
Government for teaching, speaking or writing that relates to the
employee’s official duties,” and defines “compensation” as “any
form of consideration, remuneration or income .. . given for or in
connection with the employee’s teaching, speaking or writing
activities,” id. § 2635.807(aX2)(ii). But the “consideration” that
Romero claims he received here — a promise of authorship of a
scholarly article — cannot be within the scope of this regulation.
Government scientists routinely receive authorship credit for their
collaborations, without anyone suggesting they are breaking the
law. Yet if, as Buhimschi suggests, authorship credit were
regarded as “consideration .. . given for or in connection with” the
writing activity, this would indeed be contrary to the regulations.

"' Although the Court’s findings would be the same in any event,
this order’s conclusions also offer some protection to the scientific
community against inappropriate intervention by the courts. It
would be an undesirable state of affairs if the courts, rather than
scientists (who are much better positioned to do it), were required
to determine whether any particular scientist’s work on a project
was worthy of authorship credit.

44a

their collaboration began Buhimschi had preemptively
declared her unwillingness to include Romero as an
author in the published results, his duties to the PRB
would not have required him to do the work with her--
because it would not in the PRB’s interest for its
scientists (and the PRB itself) to be denied the credit
they deserve for their work. But even by Romero’s
account, that is not what happened here. Although
Romero and Buhimschi apparently did not explicitly
discuss authorship until well into the project, on
Romero’s evidence it appears that they both assumed
from the outset that he would be an author if the work
resulted in publication. Under circumstances such as
these, the Court concludes that Romero’s duties to the
PRB required him to conduct the collaboration on
determining it to be worthwhile, with the presumption
that Buhimschi would comply with scientific ethics in
regard to authorship attribution.

C. Conclusion

For these reasons, Romero has failed to present
evidence that would permit a reasonable jury to find
that he undertook any contractual duty to Buhimschi
that he was not already bound to by his preexisting
contractual responsibilities to the PRB. As a result,
there are no facts in the record sufficient to establish
a contract between himself and Buhimschi, and
summary judgment will therefore be granted in favor
of Buhimschi on Romero’s contract claim.

LIBEL CLAIM

Before filing this lawsuit, Romero recounted his
version of the facts of the case in various fora, as he
attempted to prevent what he perceived as further

45a

misconduct by Buhimschi. Buhimschi responded with
her account of how the collaboration and dispute
between herself and Romero progressed, which as one
might suspect is quite different from Romero’s. Count
V of Romero’s amended complaint asserts that
Buhimschr’s version of the events, as published by her
and republished by others, is libelous as against
Romero.’ As all claims arising prior to January 28",
2005, have previously been dismissed pursuant to the
applicable statute of limitations, docket no. 61, the
Court will here discuss only publications that allegedly
occurred after that date.

A. Facts
1. Circumstances of the publications

Romero presents three separate publications that
he claims were libelous. Two of them are related, in
different ways, to a complaint of scientific misconduct
that Romero filed against Buhimschi at Wayne State
University, after she submitted the Lancet manuscript
for publication without listing Romero as an author.
Buhimschi participated in the ensuing scientific-
misconduct investigation in only a limited fashion. She
gave several reasons for this, the only one of which is

Romero has moved for leave to amend his complaint to add
additional counts of defamation against Buhimschi and other new
defendants associated with Yale. Docket no 150. The reasoning
below for the Court’s grant of summary judgment on Romero’s
existing claim, would also apply to the proposed new claims.
Because the Court thus finds that the underlying facts and
circumstances relied on by Romero would not be a proper subject
of relief, his motion to amend will be denied as futile. See Foman
v. Davis, 371 U.S. 178, 182 (1962).

46a

relevant here is that while the investigation was going
on, she and her husband were in the process of leaving
Wayne State and taking up new posts at Yale
University’s School of Medicine. After the Wayne State
investigative committee concluded that she had indeed
engaged in misconduct, however, Buhimschi (writing
now from Yale) submitted a lengthy appeal letter
setting out her side of the story in full. Romero claims
that many of the statements contained in this appeal
letter were libelous. Because this letter was submitted
on January 20", 2005 — more than one year before
Romero filed the instant suit -- his claim based on the
initial publication to Wayne State is barred by the
relevant statute of limitations. A few weeks after
Buhimschi initially sent the appeal letter, however,
the BJOG published her research, again without
attributing Romero. When Romero learned of this, he
notified Wayne State officials, who promptly
communicated with the editors and stated that
Buhimschi had improperly denied Romero a share of
the authorship. The editors told Buhimschi of
Romero’s claim, and she responded on March 14",
2005, by forwarding to the BJOG a copy of her appeal
letter. This republication is within the statute of
limitations, and is the first of the three publications
that Romero complains of here.

The defamatory statements in the appeal document
can be roughly grouped into three categories. First,
Buhimschi claims that Romero improperly took credit
for her ideas and research, and then published them
and applied for a patent under his own name, in
competition with her. #.g., Buhimschi appeal letter,
docket no. 119, ex. 2, at §§ 1.3 (Romero proposed
Buhimschi’s research ideas to another researcher as
his own); 1.5 (based on progress reports from

47a

Buhimschi, Romero secretly undertook research
parallel to hers “so that he could take credit for my
work”); 1.7 (Romero passed off Buhimschi’s work as his
own to the NICHD); 1.8 (Romero delayed submission
of Buhimschi’s manuscript, and halted further work by
Buhimschi because she would not make him the
principal investigator, for fear that it might
“contradict{] his lifetime theory”); 1.20, 2.8 (Romero
plagiarized Buhimschi’s work, then “rushed” it to
publication without peer review in a journal on which
he was on the editorial board, in order to publish
ahead of Buhimschi); 4.16 (“Dr. Romero filed a
competitive patent application which includes figures,
text and data analysis from my work .. . .).

Second, Buhimschi stated that Romero frequently
pressured her to confer authorship recognition in the

article on persons who had made little or no
contribution to the research. Id. at § 1, passim; see also
id. §§ 1.9 (Romero engaged in “inappropriate physical
contact” with her in an attempt to persuade her to
include as an author a researcher whe had made no
contribution, and to falsely admit that she had learned
proteomics from that researcher); 5.6.1, 5.6.5 (Romero
pressured her to include other members of the PRB as
authors even though their research contributions were
insufficient).

Finally, Buhimschi claimed that in response to her
unwillingness to acquiesce to his inappropriate
demands, Romero engaged in a general campaign of
hai assment against her, often by playing up the PRB’s
contractual leverage with Wayne State to get Wayne
State employees to do Romero’s bidding. E.g., id. §§ 1.9
(Romero told Buhimschi and her husband “that we had
to give him all our research projects in exchange for

48a

his institutional ‘protection,” and that if they refused
“he would take this as a personal offense rising to the
level of ‘his career against my career”); 1.13, 1.15 (at
Romero’s request, Wayne State officials blocked
Buhimschi’s husband’s access to biological samples
and engaged in other harassment to impede her
research). According to Buhimschi, some of this
harassment was also designed to secure for Romero
valuable patent information that belonged to her. /d.
§ 3.1 (“Dr. Romero filed a bogus complaint of
misconduct,” and at his bidding WSU officials locked
Buhimschi out of her office and cut her email access, in
order to secure and photocopy information related to
their competing patent applications).

Buhimschi’s appeal was eventually denied, and
Wayne State’s finding that she had committed
scientific misconduct thus became final.” The
investigative committee had recommended that
Buhimschi’s future publication submissions’ be
monitored to ensure that she was crediting authorship
properly. Since Buhimschi was now at Yale, Wayne
State forwarded the findings of its investigative
committee to Yale, and requested Yale’s help in
implementing the committee’s recommendation. In
response, Yale convened an ad hoc committee to
consider whether to accept the Wayne State
committee’s findings, and whether Yale should take

'? The accuracy of this finding is not at issue in this case
Therefore, the Court notes, but expresses no opinion on,
Buhimschi’s allegations that there were numerous deficiencies in
the Wayne State proceedings that rendered them fundamentally
unfair. In particular, she claimed that Romero’s personal contacts
and institutional influence at Wayne State rendered the
proceedings rife with conflicts of interest.

49a

any action with respect to that committee’s
recommendations.

The second publication of which Romero complains
here is a letter sent on May 4", 2005, from Lawrence
Cohen, the special adviser to the Dean of Yale Medical
School, to each member of the ad hoc committee.
Docket no. 119, ex. 4A. This letter summarized the
dispute and explained what the committee was to do.
Thus, it included a summary of Buhimschi’s
contentions with respect to Romero's pressuring her to
bestow “gift authorships” and attempts to steal
Buhimschi’s research. Id.

Finally, before she ever submitted the disputed
manuscript to the BJOG, Buhimschi had become
concerned that its publication might be delayed
indefinitely by the dispute with Romero. As a result,
she contacted a former mentor of hers, Dr. Carl
Weiner, and requested that he explain her perspective
on the manuscript’s provenance to the BJOG editorial
staff. Weiner agreed, and in a series of emails to one of
the BJOQ’s editors he stated, among other things, that
Romero had rushed Buhimschi’s_ research to
publication under his own name even though he had
not been involved in it, and that he was engaged ina
“ploy over authorship” in an attempt “to justify the
claims to the patent.” Docket no. 119, ex. 3. Weiner
concluded that “[iJt seems clear to me that Roberto is
trying to leverage the position of the NIH to claim
work that is definitively not his. My guess is that he
mislead [sic] his superiors about his [sic] origins and is
now in a position he cannot admit.” Jd. Although
Weiner sent the last of these emails in October 20038,
well before the applicable limitations period in this
case, Buhimschi republished them via_ facsimile

50a

transmission to Susan Carney, a deputy general
counsel at Yale, on May 4", 2005 (the same date that
Lockwood mailed his letters to the members of the ad
hoc committee). This fax was within the limitations
period, and is the third publication of which Romero
complains.

B. Procedural Posture

Romero claims that each of these publications
amounts to defamation per se, entitling him to
judgment against Buhimschi and also against Yale on
a theory of respondeat superior. Buhimschi and Yale
have moved for summary judgment, offering a number
of defenses to liability. These include Michigan’s
common-law privilege in favor of communications
made during quasi-judicial proceedings, its statutory
privilege in favor of accurate reports of public
proceedings, the First Amendment’s protections for
statements about public figures and public officials,
and Michigan’s privilege in favor of communications
between persons having an interest in their subject
matter. Yale also separately argues that on these facts,
it cannot be hable in respondeat superior for any
tortious conduct Buhimschi may have engaged in. The
Court will not consider these legal theories, however,
because it finds all the communications in question to
be protected by yet another privilege advanced by
Buhimschi and Yale: that of consent, as implied by
Romero’s conduct.

C. Analysis

“A communication regarding a person is absolutely
privileged if it is consented to.” Merritt v. Detroit
Memorial Hospital, 81 Mich.App. 279, 265 N.W.2d 124

5la

(1978). In Michigan, a plaintiff need not have approved
or even been aware of the exact contents of a
defamatory statement in order to consent to its
publication. Indeed, in previous cases the Michigan
courts have found that a plaintiffs invocation of an
employer’s administrative or disciplinary proceedings
was effective as consent to the publication of the other
side of the story. In Schechet v. Kesten, 3 Mich. App.
126 (1966), an osteopath working at a hospital was
placed under supervision by the chairman of the
department of surgery, who cited unnamed concerns
about the doctor’s judgment Jd. at 129. The doctor
responded by invoking his contractual rights to “the
specific list of charges” on which the decision was
based, and to raise the issue before the hospital’s
executive committee. Jd. at 130. He requested the list
of charges from the executive committee as well. Jd. at
131. In response to this, the chairman sent the
committee a letter listing a long series of alleged
deficiencies in the plaintiffs performance. In
conclusion, the letter stated that “Dr. Schechet is so
obsessed with insecurity, hate, fear and frustration
that has so warped his judgment, that his activities
have become dangerous to the Staff, Hospital and
Osteopathic Profession.” Jd. at 131-32. The court held
that by demanding the list of charges, the doctor had
consented to its publication, which was therefore
privileged against lability for defamation. /d. at 133.

Similarly, in Hollowell v. Career Decisions, Inc., 100
Mich. App. 561 (1980), the plaintiff alleged that one of
the defendants “slandered plaintiff in a board of
directors meeting,” id. at 574, by accusing her “of
having lied about her employment and business
background and experience and accused plaintiff of
incompetence in her profession,” id. at 574 n.3. The

52a

court noted, however, that “plaintiff acknowledged in
her deposition that she requested the board of
directors to discuss defendant Brown’s dissatisfaction
with her performance.” Jd. at 574. Thus, the court
concluded, “[p]laintiff requested the very conversation
which she alleges slandered her. . . . Under the
circumstances, we find plaintiff consented to the
slander of which she complains.” Jd. at 575.

An explicit solicitation of the defamatory
statements is not required before a court will find
plaintiff to have consented to them. Instead, Michigan
courts have found plaintiffs to have consented to
defamatory statements simply by making accusations
of impropriety or wrongdoing to which the defendant
responded with the complained-of publication. For
instance, in Medical Planning Consulting, Inc. v. St.
Mary’s Medical Ctr., No. 214018, 2000 WL 33418859

(Mich. App. June 13, 2000), the plaintiffs attorney
sent a letter to the defendant, threatening to file suit
over the defendant hospital’s termination of the
parties’ previous business dealings. The letter further
stated that the plaintiff had

agreed with my recommendation that I should
offer the hospital one last opportunity .. . to
satisfactorily resolve this situation [before
litigating]. It is my understanding that Medical
Planning Consulting, Inc., has _ provided
valuable services to the hospital over the last
ten years without complaint by the hospital,
and to the hospital’s great financial benefit, and
it is surprising to me that the hospital would
terminate such a longstanding relationship
without so much as any written notice to a
company that they had done business with

53a

successfully for so many years, let along [sic]
the one year written notice required by the
“Memorandum Agreement.”

Id. at *5 n.4 (alteration in original). In response, one of
the defendants wrote to the attorney, stating that the
plaintiffs sole employee and _ shareholder had
“retrospectively altered patient billing records in an
attempt to gain financial benefit” for herself. Jd. at *5.
The plaintiff sued, claiming that these statements
were defamatory. But the court held that through her
attorney’s initial letter, the plaintiff had “requested a
response” as to why the business relationship had been
terminated, and thus “invited the alleged defamatory
statements,” rendering them absolutely privileged. /d.

In this case, the record permits only one conclusion:
like the plaintiffs in Schechet, Hollowell, and Medical
Planning, Romero invited the statements by
Buhimschi that he now alleges defamed him. Similarly
to Schechet and Hollowell, it was Romero who invoked
the Wayne State disciplinary proceedings to which
Buhimschi’s original appeal letter was a response. It
was Romero who prompted Wayne State to notify the
BJOG of the investigatory committee’s findings, to
which Buhimschi responded — analogously to Medical
Planning — by forwarding her appeal document to the
BJOG. When the committee’s findings were forwarded
to Yale Medical School — as Romero surely had
intended, given his stated desire to protect himself
from Buhimschi’s improper publication of any more of
the data he says they generated together — Yale
responded by forming a committee of its own, and
having the special advisor to its Dean summarize
Buhimschi’s side of the story to the committee.
Buhimschi herself responded, on the same day, by

54a

forwarding Weiner’s articulation of her side of the
story to Yale’s deputy general counsel.

Romero argues that Wayne State submitted its
report to Yale and the BJOG on its own initiative, and
that there was no privity between it and Romero.
Thus, he says, he cannot be held to have invited
Buhimschi’s and Lockwood’s responses to the BJOG
and Yale. The Court finds this to be an impossibly
strained reading of the facts. Romero’s scientific
misconduct complaint was much more than a request
for purely declaratory relief that would remain
internal to Wayne State. Rather, it was an attempt to
protect Romero’s scientific reputation and his right to
recognition for research, the results of which were
intended to follow Buhimschi wherever she went.
Indeed, Romero himself identified to Wayne State a
number of persons outside the university who he
wished to have notified of the results of the
investigation. Romero dep., docket no.95, ex A, at p.
166. The report was actually sent to scientists and
other persons in the medical field across the entire
country, including five individuals at Yale.’* Docket no.
95, ex. A-30. Given this evidence, no reasonable jury
could find that Romero did not invite not only
Buhimschi’s attempts to clear her name before the
Wayne State committee, but also her presentation of
her side of the story to Yale and to the BJOG. There is

'* This transmission occurred in October 2004, before the BJOG
article was published or known to Romero. As a result, no
representative of the BJOG was on the initial list of persons to be
notified of the report. Nonetheless, it is clear that the notification
that eventually occurred was motivated by the same purposes,
protecting Romero’s reputation and research, as the orginal
notices.

ba

no evidence to contradict the record support for any of
these conclusions, and accordingly the Court concludes
that no reasonable jury could find otherwise. Under
these circumstances, each of these responses was
invited — and thus consented to — by Romero's various
complaints about Buhimschi’s conduct. As a result,
each of them is privileged, and none of them can be the
basis for libel liability for either Buhimschi or Yale.

CONCLUSION AND ORDER

Romero claims that he had a contract with
Buhimschi, whereby he would collaborate with her on
proteomics research and she would include him as an
author in any resultant publication. Because, however,
the evidence dictates the conclusion that Romero’s
entire collaboration with Buhimschi was simply a part
of his preexisting employment duties, there could
never have been a legally enforceable contract between
the two doctors.

Romero also claims that various publications by
Buhimschi and Yale libelled him. The record evidence,
however, compels the conclusion that all these
publications respond to complaints and reports of
Buhimschi’s misconduct made by Romero himself. As
a result, under Michigan law, Romero consented to
these publications through his conduct, and they are
therefore privileged and cannot form the basis of a
libel claim.

As the record shows, the scientific and academic
communities have invested considerable resources in
establishing their own institutions and procedures for
dealing with claims of this type. Although these
doubtless have their own flaws, in many cases they

56a

will likely prove superior to the judicial system in
resolving this sort of dispute. As the facts of this case
have failed to properly present the scientific
controversy at its core for judicial] resolution, it is the
Court’s responsibility to enter summary judgment for
the defendants.

WHEREFORE, it is hereby ORDERED that:

the defendants Buhimschi’s and Yale’s motions for
summary judgment (docket nos. 95 & 97) are
GRANTED, and Komero’s motion for partial
summary judgment (docket no. 90) is DENIED;

Romero's motion for leave to amend his complaint,
docket no. 150, is DENIED as futile, for the

reasons articulated in this opinion; and

Romero’s motion tin limine, docket no. 145 is

DENIED AS MOOT.

Judgment as to all remaining claims will be entered in
favor of defendants, and the case will be closed.

SO ORDERED.
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge

Dated: January 14, 2009

I hereby certify that a copy of the foregoing document
was served upon the parties and/or counsel of record
on January 14, 2009, by electronic and/or ordinary
mail.

s/Alissa Greer
Case Manager

we

58a

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CASE NO. 06-cv-10859

[Filed January 14, 2009]

ROBERTO ROMERO,
Plaintiff,

V.

UNIVERSITY,

Defendants.

)
)
)
)
)
)
IRINA BUHIMSCHI and YALE )
)
)
)
)

HONORABLE STEPHEN J. MURPRY, Il
JUDGMENT

The above entitled matter having come before the
Court, the Honorable Stephen J. Murphy, III
presiding, the issues having been fully presented, the
Court being fully advised in the premises, and a ruling
having been duly rendered granting the defendants’
motion for summary judgment, IT IS ORDERED
AND ADJUDGED that the plaintifftakes NOTHING
from the defendants, and that the action against the
defendants be DISMISSED WITH PREJUDICE.

Dated at Detroit, Michigan, this 14th day of
January, 2009.

59a

DAVID WEAVER
Clerk of the Court

BY: s/A.Greer
Deputy Clerk

APPROVED:

s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge

APPENDIX C

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Case No. 2:06-cv-10859

[Filed August 10, 2009]

ROBERTO ROMERO,
Plaintiff,
Vv.

IRINA BUHIMSCHI, YALE UNIVERSITY,
CARL WEINER, ROYAL COLLEGE OF
OBSTETRICIANS AND
GYNAECOLOGISTS, and JOHN DOES A
through G,

Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

HONORABLE STEPHEN J. MURPHY, III

OPINION AND ORDER DENYING PLAINTIFF’S

MOTION FOR RECONSIDERATION (docket no.

154) OF THE COURT’S ENTRY OF SUMMARY
JUDGMENT IN FAVOR OF DEFENDANTS

6la

This case centered around a disagreement between
two research physicians, plaintiff Roberto Romero and
defendant Irina Buhimschi, as to whether Romero was
entitled to be credited as an author in a research
article that Buhimschi submitted for publication
without giving him such credit. Buhimschi was a
professor of Obstetrics and Gynecology at Wayne State
University’s medical school; Romero is chief of the
Perinatology Research Branch (“PRB”) of the National
Institute of Child Health and Human Development.
The PRB is housed at Wayne State. Buhimschi has
since left Wayne State to take a position at Yale
University, and Romero named Yale as an additional
defendant in this lawsuit.’

On January 24th, 2009, the Court entered
summary judgment as to all the surviving claims in
Romero’s complaint. One of these claims was for
breach of an implied contract, by which Romero
allegedly agreed to collaborate with Buhimschi, and
she in return promised to include him as an author if
he merited it. The Court concluded that Romero had a
preexisting duty to his employer to identify and pursue
the most worthy scientific collaborations available, and
that any agreement by Romero to collaborate with
Buhimschi therefore could not constitute consideration
of the type necessary to support a contract. The other
remaining count was for libel. Buhimschi had
submitted documents to Yale and to the medical
journal in which she sought publication, alleging that
Romero had engaged in various types of misconduct.

' As the caption indicates, Romero named other defendants as
well, but the claims against those defendants have been disposed
of and are not subjects of this motion

62a

Romero asserted that this amounted to libel, but the
Court granted summary judgment on this count as
well, holding that Romero had first accused Buhimschi
of wrongdoing and thus had implicitly consented to her
response.

In the instant motion, Romero requests that the
Court reconsider its grant of summary judgment on his
defamation claim. For the reasons that follow, the
Court will deny the motion.

FACTS

Most of the relevant facts are set forth in the
Court’s Opinion and Order of January 24th, which is
incorporated herein by reference. As the Court noted
in that Opinion and Order, after the statute of
limitations is taken into account, three publications

remain that could potentially result in libel lability for
Buhimschi. To explain its denial of reconsideration,
the Court will catalog their contents in more detail
here.

I. The Appeal Document

The first publication is Buhimschi’s letter of appeal
to the Dean of Wayne State University’s Graduate
School. See docket no. 103-8. The circumstances of the
original submission of this document, and of
Buhimschi’s re-publication of it to the British Journal
of Obstetrics and Gynaecology, are detailed in the
Court’s Opinion and Order of January 14th. Liability
for Buhimschi’s original submission of the letter to
Wayne State is barred by the statute of limitations,
but her submission of the same document to the

63a

BJOG, in response to Wayne State’s communication to
it of the results of Wayne State’s investigation, is not.

The letter is indeed replete with accusations of
serious wrongdoing by Romero. These come under four
main headings: (1) that Romero “stole” Buhimschi’s
work and used it as the basis for his own publication
and patent application, (2) that Romero pressured her
to attribute authorship credit to those who did not
deserve it, (3) that Romero improperly used his
institutional position to pressure Buhimschi to commit
research misconduct, and (4) that Romero was
personally abusive and unpleasant.

First are the accusations that Romero improperly
tried to take credit for Buhimschi’s research. The
Appeal Document states that Romero “duplicated and
published part of the [proteomics] data” that
Buhimschi had generated “without peer-review in a
journal where he serves in the Editorial board, without
including or acknowledging me.” Appeal doc., p. 9.”
Buhimschi states that less than 48 hours after she
first told Romero of her plan to look for proteomic
biomarkers in amniotic fluid -- which was the subject
of the disputed article - Romero secretly submitted a
proposal including aspects of this work to another
doctor. Id. J 1.3. While Buhimschi’s research was
being conducted and while she was drafting her
manuscript, she provided Romero with periodic
updates on the work, and maintains that he was
secretly “conducting parallel experiments” based on

? Most of Buhimschi’s Appeal Document 1s divided into numbered
paragraphs The portions that are not will be cited to by page
number.

64a

this information “for the purpose of competing against
me so that he could take credit for my work.” /d. J 1.5.
These parallel studies, according to Buhimschi, were
“aimed to quantify some of the biomarkers I
discovered.” Id. J 1.9. Romero told the other doctors he
was working with to keep this research secret from
Buhimschi and her husband. /d. After Buhimschi
assisted Romero in preparing a_ proteomics
presentation for the NIH leadership, she claims that
he presented the work as if it had been done by him
instead of her, and that he obtained funding by doing
so. Id. ¥ 1.7. Eventually, Buhimschi claims that
Romero “rushed to publish” his competitive research
“ahead of our joint manuscript.” Jd. 4 1.20. Romero’s
publication, according to Buhimschi, plagiarized a
diagnostic scoring method from her manuscript and
duplicated some of her data and “reported [it] as
original research.” Jd.; see also id. { 5.6.2. Ultimately,
Buhimschi claims, “Dr. Roberto Romero filed a
competitive patent application which includes figures,
text and data analysis from my work along with the
figures and results incorporated in his duplicative
manuscript already published.” Jd. {| 4.16; see also id.
p. 26.

The second category of assertions in the appeal
document are Buhimschi’s claims that Romero tried to
convince her to give authorship credit to researchers
who were clearly not entitled to it. The appeal letter
asserts that Romero has “a tendency . . . to attribute
authorship based on his personal relationships,
provision of test materials or funds and not necessarily
upon actual contributions to the subject matter of the
work.,” and that “[this flagrantly contravenes
authorship policies,” id. p. 9; see also id. J 5.5, as well
as “practices commonly accepted in the scientific

65a

community for proposing[,] conducting or reporting
research,” id. p. 24. Buhimschi claims that when the
research was nearly complete, she gave in to pressure
from Romero to draft a document stating that several
doctors had made contributions to the research, even
though in fact some of those doctors did not merit
authorship. Jd. {4 5.6.1, 5.6.5. After the manuscript
was finished, Buhimschi states that Romero “insisted]”
that she add as an author another doctor who “had not
been involved in any way on the project”. Id. J 1.6.
Romero “pressured [Buhimschi] numerous times” to
that effect. /d.; see also id. 91.11. Buhimschi also
stated that Romero “request[ed]” that she “modify
experimental data” in some unspecified way. Id. J 1.6.
Other portions of the appeal letter seem to indicate
that the modification Romero allegedly requested was
that Buhimschi state that the research took place later
than she really did, so as to make it appear as if she

had learned the proteomics techniques from the doctor
who Romero wanted to be an additional author (or
from one of that doctor’s associates). Id. J 1.9; see also
id. pp. 9-10.

Third, as the dispute deepened, Buhimschi’s appeal
document accuses Romero of using his “administrative
power,” id. p. 10, to try to coerce her into agreeing to
his demands by needlessly delaying submission of her
manuscript and halting the progress of her other work,
td. J 1.8. Buhimschi’s husband was also a doctor
involved in medical research at Wayne State; she
claims that at Romero’s request, WS took “actions
aimed to stop my husband from having access to
biological samples, and implicitly progress on the
prospective study I initiated and thus on my grants.”
Id. JY 1.13, 3.1. Romero also got WS to harass
Buhimschi in order to “directly impinge” her

66a

presentation of the proteomics work to the Society for
Maternal-Fetal Medicine. Jd. J 1.15. Buhimschi was
told, she alleges, that if she would accede to Romero’s
improper requests her “issues” with Wayne State
would “disappear.” Id. J 4.2. After the inquiry into
Romero’s allegations of scientific misconduct began,
Buhimschi alleges that Wayne State officials “began
‘securing’ the experimental data and my laboratory
books in the interest of Dr. Romero,” in an attempt to
procure patent data for him. 7d. { 3.1. Buhimschi
claims that correspondence between Romero and
Wayne State officials proves this allegation. Id.

Finally, and more generally, Buhimschi’s appeal
document accuses Romero of having an “abusive
professional style.” Id. ¥ 2.5. Buhimschi states that
during the course of the dispute it became “obvious” to
her that “constructive dialogue was not Dr. Romero’s
intention.” Jd. | 4.14. She states that she had “many
bizarre interactions with so many different individuals
at WS, all based on Dr. Romero’s petty politics of
power.” Id. p. 28. Buhimschi asserts that several of the
series of events just described came to a head when
she discovered Romero's secret parallel experiments
and confronted him about them. Jd. J 1.9. According to
Buhimschi, Romero belatedly offered her a chance to
be an author on his “secret” project, which she refused
because his manuscript was basically complete. Jd. As
she left Romero’s office after this incident, Buhimschi
says that he “followed me down the corridor” and
addressed her “in an abusive manner including
inappropriate physical contact.” Jd. Buhimschi states
that at this point Romero reiterated his demands that
a non-contributing doctor be made an author on her
own manuscript, that she falsely state that she had
learned proteomics techniques from _ this

67a

non-contributing doctor, that she falsify the
manuscript in regard to the dates on which the
proteomics data had been generated, and that she
disclaim any intellectual property value in the
manuscript. Jd. Buhimschi also claims that at a later
meeting, Romero demanded that “my and husband and
1... give him all our research projects in exchange for
his institutional ‘protection.” Jd. She also claims that
the charges of misconduct against her were an attempt
by Wayne State and Romero “to gain improperly in the
patent process.” Jd. p. 20.

L. Letter to Yale Ad Hoc Committee

as

The second allegedly defamatory publication took
place at Yale University, in the form of a letter from
Dr. Lawrence Cohen to members of an ad hoc
committee convened by Yale to consider whether to
implement the sanctions that the Wayne State
committee had recommended against Buhimschi.”
Cohen briefly summarized Dr. Romero’s complaints
against Buhimschi related to Romero’s removal from
authorship. Cohen then noted that Buhimschi’s
version of the events in question includes allegations
of scientific misconduct by Romero “that may not have
been addressed by the WSU investigation Committee.”
Cohen then summarizes those allegations:

[Buhimschil explains that . . . Dr. Romero
required her to add himself and three others
and their data into the manuscript for his own
professiona}! advantage; he pressured her to add

° Again, more specifics as to the circumstances of the sending of
this letter can be found in the Opinion and Order of January 14th

68a

another high ranking individual as author, one
whom she alleges made no contribution at all to
the manuscript; and he delayed her first-author
publication in order to gain personal and
professional advantage by publishing similar
material first. She argues that her professional
vulnerability at WSU as a junior faculty
member, and that of her husband, meant that
she could not advise the Romero co-authors that
their contributions (and hence their authorship)
were being deleted at the suggestion of the
journal, for fear of harmful! retaliation. Dr.
Buhimschi and Dr. Romero are also engaged in
a patent dispute concerning the subject of the
manuscript... .”

III. Emails from Dr. Weiner to Dr. Thornton

The final publication not barred by the statute of
limitations consists of a series of emails sent from Dr.
Carl Weiner, a former mentor of Dr. Buhimschi’s, to
one of the BJOG’s editors. Again, any liability based
on the original emails is barred by the statute of
limitations; Romero’s claim is predicated on these
documents’ republication by Buhimschi, in the form of
a fax to an attorney for Yale University, sent after
Yale received Wayne State’s request to monitor
Buhimschi’s publication submissions.

The email from Wiener contains many charges that
are similar to those made by Buhimschi in her appeal
document. Weiner states that “|w]hile [the proteomics
research was] under review by the Lancet, Roberto
published the same work in his journal (Perinatal and
Neonatal Medicine, the so-called Black J{ournal]) after
a 1 day review and acceptance process.” Docket no.

69a

119-5, p. 4. Weiner emphasizes that, with respect to
the Lancet article, “Roberto never saw the information
until shown the finished results,” td., and again states
that Romero’s parallel publication “contained only the
ELISA material that was with the original LANCET
submission as confirmation of the proteomic analysis.
It was then presented in the BLACK J as a ‘new
discovery,” id. at 1.‘ Weiner also states that

Roberto was claiming ownership of any patent
rights because he provided some samples,
though there is no such written agreement. The
ploy over authorship, | believe, was to obtain
the raw data so that he could justify the claims
to the patent. Several law firms have to date
concluded his claims are unfounded.

Id at 4. According to Weiner, “|[Buhimschi] fears he is
actively seeking to duplicate the data and publish the
results as his own. . . . [This] would sadly allow a
senior member of our field to rob a young investigator
of recognition of [sic] her work.” /d. Weiner’s
conclusion is that “Roberto is trying to leverage the
position of the NIH to claim work that is definitively
not his. My guess is that he mislead [sic] his superiors
about his origins [sic] and is now in a position he
cannot admit.” Jd.

‘This statement apparently originated as aclarifying comment in
a later emails, but was part of a single document that Buhimschi
faxed to Yale’s attorney.

70a

ANALYSIS

These publications are arguably defamatory. The
question here, however, is whether they were
privileged in some way. In granting summary
judgment, the Court held that by acting as
complainant in the Wayne State proceedings, Romero
consented by his conduct to a response by Buhimschi.
In moving for reconsideration, Romero takes issue
with that conclusion, arguing that there are several
limitations on the doctrine of implied consent that bar
a finding of consent here. The Court has already
rejected Romero’s argument that he did not consent to
Buhimschi’s publications because he did not know they
would turn out to be defamatory. Thus, only Romero’s
other asserted limitations on the consent doctrine
remain. Each will be discussed in turn.

A. Prior Publications

Romero argues that a plaintiffs consent to a
defamatory publication does not bar liability if the
same publication was previously made without the
plaintiff's consent. In favor of this proposition, he cites
only a single clause of a single sentence in a
45-year-old case from Missouri. Hellesen v. Knaus
Truck Lines, Inc., 370 SW 2d 341, 346 (Mo. 1963). The
Court finds no evidence that this doctrine ts part of the
law of Michigan. Nor does the Court discern any sound
rationale for this rule. An unprovoked defamatory
utterance is, and should be, grounds for liability, if no
privilege or defense applies. But once the plaintiff has
joined the fray by taking steps that invite a response
from the defendant, the defendant’s prior defamation
should not act as a muzzle, making all further
comments equally tortious. If a plaintiff wishes to

T7la

avoid immunizing future defamations by consenting to
them, he should limit himself to denying the
allegations and avoid taking steps that clearly invite
a response.

Even if this doctrine were a part of the law of
Michigan, however, it presumably would mean only
that a prior publication would negate consent to
republication to the same person or persons that
received that previous publication. It would be
preposterous if a defendant’s defamatory publication
to person A would mean that the plaintiff could bring
some sort of charge against the plaintiff in forum B,
and then sue the defendant for telling his side of the
story when invited to do so by the authorities in forum
B. But that is precisely what Romero argues here.
Buhimschi did in fact make defamatory publications
against Romero before Romero assumed to role of
complainant -- the email from Weiner to the BJOG
was dated October 10th, 2003, and he presumably was
relying on information relayed to him by Buhimschi,
whereas the Wayne State investigative committee did
not reach its conclusions until May 20th, 2004. There
would thus be some justification for a legal rule that
would permit Romero to contact Weiner (and
whomever else Buhimschi may have published her
accusations to) and try to clear his name, without
exposing himself to further defamations by Buhimschi.
But it would be remarkable if these statements by
Buhimschi to Weiner (and probably others), to the
effect that Romero stole her research, could prevent
her on pain of libel liability from later telling the same
story to Yale and the BJOG after the Wayne State
process instigated by Romero communicated his

72a

accusations to those institutions.” This is not the law,
and the Court will not disturb its earlier holding on
this basis.

B. Knowledge of Plaintiffs Disagreement

Romero’s next contention is that a plaintiff does not
consent to a publication if the defendant knows or has
reason to know, at the time of publication, that the
plaintiff disputes its accuracy. In support of this
contention, he cites Compuware Corp. v. Moody’s
Investors Seruvs., Inc., 499 F. 3d 520 (6th Cir. 2007)
(applying Michigan law). In that case, Compuware
hired Moody’s to assign an initial rating to
Compuware’s creditworthiness, and then to conduct
continued monitoring of Compuware’s financial
situation. Jd. at 522-23. About two and a half years
after issuing its initial rating, Moody’s prepared a
“proposed ratings report” that would have downgraded
Compuware’s ratings to “junk” status. Jd. at 523. The
report also explained the reasons for the downgrade.
The proposed report was sent to Compuware’s Chief
Financial Officer for prepublication review, and the
next day the CFO responded to Moody’s, taking issue
with some of the report’s account of Compuware’s
finances, and generally objecting “that the ratings
downgrade was unjustified given Compuware’s current
financial situation.” Jd. at 524. Moody’s nevertheless
issued the report, with the downgrade intact, a few

* Romero seems to take the position that Buhimschi’s submission
of her appeal letter to the BJOG was in fact merely a repetition of
the libels that Weiner had emailed to the BJOG before the Wayne
State investigatory process began. In light of the Court’s holding
that prior publication is not a bar to implied consent, there is no
need to make a determination on this question.

T3a

days later. Jd. In response, Compuware filed suit,
alleging among other things that the report was
defamatory. The trial court granted summary
judgment for Moody’s, however, holding that
Compuware had not created a question of fact as to
whether Moody’s had published the report with actual
malice, as would have been required for liability since
Compuware was a public figure. Jd. at 525. The trial
court also concluded that, by conducting prepublication
review of the report, Compuware had consented to the
publication of all its contents except those portions
that Compuware had _ specifically objected to.
Compuware Corp. v. Moody’s Investors Servs., Inc.,371
F. Supp. 2d 898, 902-03 (E.D. Mich. 2005). On appeal,
the Sixth Circuit affirmed the district court’s
conclusion as to the lack of evidence of actual malice,
Compuware, 499 F. 3d at 526-28, but found that the
district court had erred as to the question of consent.
According to the Sixth Circuit, fact questions remains
on the issue of Compuware’s consent to the publication
of most or all of the report, because the objection by
Compuware’s CFO “that the ratings downgrade was
unjustified” was an “indicat[ion] that Compuware did
not agree with substantial portions of the report and,
perhaps, that it did not want it to be published.” Jd. at
526.

Romero argues that this precedent establishes that
a defendant’s knowledge of a plaintiffs disagreement
with a publication categorically precludes the
possibility of implied consent. The Court disagrees.
According to the Restatement (Second) of Torts,
“(w]hether words or other conduct are reasonably to be
interpreted as expressions of consent to the publication
is to be determined by the reasonable inferences from
the conduct in the in the light of the circumstances

74a

surrounding it.” Restatement (Second) of Torts, § 583
cmt. (c). In the Court’s view, this is a correct statement
of the law, with the plaintiffs disagreement with a
defamatory publication being relevant to but not
usually determinative of his consent thereto. The
question of whether a plaintiff consents to a
publication is not an inquiry into whether the
publication would occur if the plaintiff had limitless
power to shape the circumstances in which he acts.
Instead, it is a question whether the plaintiffs actions
were such that, under the circumstances as they really
were, a reasonable person would regard it as only fair
to permit the defendant to respond. As a result, a
plaintiffs manifested disagreement with a statement,
standing alone, does not preclude his consent to its
publication, if he nevertheless deliberately instigates
an interaction (with either the defendant or a third
party) in the course of which the defendant would
reasonably be expected to publish the statement.

Under this rule, implied consent to a defamatory
publication will typically arise when a _ plaintiff
requests a conversation or other proceedings for the
purpose of discussing a specific topic, and the
defamatory comment is then made during those
proceedings and on that topic. Such was the case in
Schechet v. Kesten, 3 Mich. App. 126 (1966), Hollowell
v. Career Decisions, Inc., 100 Mich. App. 561 (1980),
and Medical Planning Consulting, Inc. v. St. Mary’s
Medical Ctr., No. 214018, 2000 WL 33418859 (Mich.
App. June 13, 2000), which the Court cited in its grant
of summary judgment. In the Court’s view,
Compuware is not to the contrary. In that case the
Sixth Circuit addressed only the question of whether
Compuware’s prepublication review of the credit
downgrade amounted to consent to its publication. The

75a

district court had not mentioned or considered the
overarching contractual relationship between the
parties as part of the context in which the existence of
consent should be determined, and the Court of
Appeals made no attempt to do so. When viewed
through this frame, the Sixth Circuit’s conclusion in
Compuware was clearly correct: Moody’s proposed to
publish a report on Compuware’s business and sent a
copy to Compuware, Compuware objected that the
main conclusion of the report was “not warranted,”
and Moody’s proceeded to publish the report anyway.
On that version of the facts, Compuware obviously had
done nothing to consent to the report’s publication.

By contrast, in this case the evidence does not
admit of any question of fact as to whether Romero’s
actions amounted to an initial consent to Buhimschi’s
publication of a response to his charges of scientific
misconduct, or whether he failed to effectively
withdraw that consent once given. The circumstances
unquestionably indicate that Romero consented to
some kind of response when he submitted his
complaint to Wayne State — because by doing so he
was invoking procedures that required notice to
Buhimschi and an oppor

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_0885%3A2. Public record. Not legal advice.