METABOLIFE INTERNATIONAL, INC., Plaintiff, vs. SUSAN
WORNICK, GEORGE BLACKBURN, AND HEARST-ARGYLE TELEVISION,
CIVIL NO. 99-CV-1095 R (RBB)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT
213 F. Supp. 2d 1220; 2002 U.S. Dist.
July 19, 2002, Decided
July 19, 2002, Filed
PRIOR HISTORY: Metabolife Int'l v. Wornick, 264 F.3d
832; 2001 U.S. App. LEXIS 19676; 57 Fed. R. Evid. Serv.
(Callaghan) 347; 51 Fed. R. Serv. 3d (Callaghan) 235;
29 Media L. Rep. 2505; 2001 Cal. Daily Op. Service 7816;
2001 Daily Journal DAR 9651.
COUNSEL: [**1] For METABOLIFE INTERNATIONAL, INC., plaintiff:
Thomas P McLish, Michael L Converse, Akin Gump Strauss
Hauer and Feld LLP, Washington, DC. Stephen A Mansfield,
Akin Gump Strauss Hauer and Feld, Los Angeles, CA.
For SUSAN WORNICK, HEARST ARGYLE TELEVISION, INC., defendants:
Steven J Comen, Goodwin Procter and Hoar Exchange Place,
JUDGES: John S. Rhoades, Sr., United States District
OPINIONBY: John S. Rhoades, Sr.
ORDER GRANTING DEFENDANT GEORGE BLACKBURN'S APPLICATION
FOR ATTORNEY FEES
The Court dismissed Defendant George Blackburn from
this case on November 17, 1999. The Ninth Circuit affirmed
the dismissal on September 5, 2001. Blackburn applied
for attorney fees and costs pursuant to subsection c
of the anti-SLAPP statute, California Civil Procedure
Code § 425.16 ("§ 425.16"). The
Court grants the application in full.
On November 17, 1999, the Court entered a Judgment of
Dismissal in favor of the Defendants, including Blackburn.
Blackburn then filed a timely application for reimbursement
of attorney fees and expenses pursuant to § 425.16(c),
which the Court stayed on January 13, 2000, pending
resolution [**2] of Metabolife's appeal of the Judgment
of Dismissal. The Ninth Circuit affirmed the dismissal
of Blackburn on September 5, 2001. Blackburn then filed
a timely request for appellate attorney fees and expenses.
On February 5, 2002, the Ninth Circuit granted Blackburn's
request to transfer the application for appellate fees
and expenses to the Court.
Metabolife opposes Blackburn's application, contending
that § 425.16 provides for recovery of "reasonable"
attorney fees and costs to a prevailing defendant on
a motion to strike, and that Blackburn's fees and costs
are not reasonable.
A. Legal standard and public policy of California's
anti-SLAPP statute: California Civil Procedure Code
California's anti-SLAPP ("Strategic Lawsuit Against
Public Participation") statute provides a mechanism
for a defendant to strike civil actions brought primarily
to chill the exercise of free speech. § 425.16(b)(1).
The California Legislature passed the statute recognizing
"'the public interest to encourage continued participation
in matters of public significance . . . and [finding]
that this participation should not be chilled through
abuse of the judicial [**3] process.'" Metabolife
Int'l, Inc. v. Wornick, 72 F. Supp. 2d 1160, 1165 (S.D.
Cal. 1999) (quoting 5 Witkin, California Procedure,
§ 962, at 422 (4th ed. 1997)), reversed on other
grounds by 264 F.3d 832 (9th Cir. 2001) (affirming the
dismissal of Blackburn and reversing and remanding as
to the other Defendants).
Thus, to deter such chilling, "a prevailing defendant
on a special motion to strike shall be entitled to recover
his or her attorney's fees and costs." § 425.16(c)
(emphasis added). The California anti-SLAPP statute
should be applied in federal court as it is in state
court. See United States v. Lockheed Missiles &
Space Co., Inc., 190 F.3d 963, 972-73 (9th Cir. 1999).
The prevailing party "bears the burden of submitting
detailed time records justifying the hours claimed to
have been expended." Chalmers v. City of Los Angeles,
796 F.2d 1205, 1210 (9th Cir. 1986).
An award of attorney fees and costs must be reasonable.
"Section 425.16 [*1222] authorizes an award of
reasonable attorney fees to the prevailing party, irrespective
of whether the prevailing party is the plaintiff or
the defendant. The right [**4] of prevailing defendants
to recover their reasonable attorney fees under section
425.16 adequately compensates them for the expense of
responding to a baseless lawsuit." Robertson v.
Rodriguez, 36 Cal. App. 4th 347, 362, 42 Cal. Rptr.
2d 464 (1995) (emphasis in original).
A prevailing defendant is also entitled to appellate
attorney fees and costs. See Church of Scientology of
California v. Wollersheim, 42 Cal. App. 4th 628, 659-60,
49 Cal. Rptr. 2d 620 (1996). The Ninth Circuit and the
California Supreme Court have held that counsel should
be compensated for time reasonably spent establishing
a fee award. See Davis v. City and County of San Francisco,
976 F.2d 1536, 1544 (9th Cir. 1992), vacated in part
on other grounds, 984 F.2d 345 (1993); Serrano v. Unruh,
32 Cal. 3d 621, 639, 186 Cal. Rptr. 754, 652 P.2d 985
B. The Court has broad discretion
The Court has broad discretion in determining the reasonable
amount of attorney fees and costs to award to a prevailing
defendant. See Dove Audio, Inc. v. Rosenfeld, Meyer
& Susman, 47 Cal. App. 4th 777, 785, 54 Cal. Rptr.
2d 830 (1996) (citing Robertson, 36 Cal. App. 4th at
362). [**5] The Court must have "substantial evidence"
to support the fee award. Macias v. Hartwell, 55 Cal.
App. 4th 669, 676, 64 Cal. Rptr. 2d 222 (1997) (citing
Church of Scientology, 42 Cal. App. 4th at 658-59).
"The appropriate test for abuse of discretion is
whether the trial court exceed[s] the bounds of reason."
Dove Audio, 47 Cal. App. 4th at 785 (quotations and
"The experienced trial judge is the best judge
of the value of professional services rendered in his
court, and while his judgment is of course subject to
review, it will not be disturbed unless the appellate
court is convinced that it is clearly wrong." Ketchum
v. Moses, 24 Cal. 4th 1122, 1132, 17 P.3d 735, 104 Cal.
Rptr. 2d 377 (2001) (quotations and citation omitted).
The Court has fifty years of experience as a trial attorney
and judge, and has applied this experience in determining
the reasonableness of the requested attorney fees and
C. Blackburn's attorney fees and costs are reasonable
As an initial matter, the Court notes that in the present
case, it does not need to review Metabolife's attorney
fees and costs to determine the reasonableness of Blackburn's
attorney fees and [**6] costs. The Court notes that
Metabolife retained experienced counsel at a large,
well-respected law firm who, with vigor and persistence,
prosecuted the action.
The Court finds that Blackburn has met his burden of
establishing the reasonableness of his attorney fees
and costs. Metabolife chose to file suit in San Diego
-- either to harass Blackburn or for its own convenience
-- although Blackburn lives and works in Boston and
the relevant news interview and broadcast occurred in
Boston. Additionally, Blackburn's Boston counsel has
expertise in the medical issues relevant to the litigation,
while his San Diego counsel is a specialist in First
Amendment law. Thus, Blackburn's retention of counsel
in both Boston and San Diego was reasonable.
1. Success of the attorneys' efforts
Metabolife contends that Blackburn's arguments were
not dispositive grounds for the Court's and the Ninth
Circuit's rulings in Blackburn's favor. The Court acknowledges
that an attorney fee award should be reduced if claimed
hours are "excessive, redundant, or otherwise [*1223]
unnecessary," Hensley v. Eckerhart, 461 U.S. 424,
434, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983), and that
reasonableness [**7] depends in part on "the success
of the attorney's efforts." Church of Scientology,
42 Cal. App. 4th at 659.
Hensley provides that the district court should look
to the important factor of the "results obtained."
461 U.S. at 434. The Hensley court stated that the district
court should look to whether the [prevailing party]
failed to prevail on claims that were unrelated to the
claims on which he succeeded and whether the [prevailing
party] achieved a level of success that makes the hours
reasonably expended a satisfactory basis for making
a fee award. Here, Blackburn's defenses (lack of personal
jurisdiction, improper venue, and the anti-SLAPP motion)
were all part of his motion to dismiss, rather than
wholly separate defenses. Federal Rule of Civil Procedure
12(h) required Blackburn to raise the defenses of lack
of personal jurisdiction and improper venue in his motion
to dismiss with the anti-SLAPP motion or suffer a waiver
of those defenses.
"Litigants in good faith may raise alternative
legal grounds for a desired outcome, and the court's
rejection of or failure to reach certain grounds is
not a sufficient reason for reducing a fee. The [**8]
result is what matters." Id. at 435. Blackburn's
attorneys were undisputably successful -- the Court
dismissed Blackburn, and the Ninth Circuit affirmed
2. Blackburn can recover fees and costs "incurred
in connection with" the anti-SLAPP motion
In a similar vein, Metabolife alleges that Blackburn
cannot recover fees and costs that were not necessary
to prevail on the anti-SLAPP motions, relying primarily
on Lafayette Morehouse, Inc. v. Chronicle Publ'g Co.,
39 Cal. App. 4th 1379, 46 Cal. Rptr. 2d 542 (1996).
Lafayette Morehouse provides that the California "Legislature
intended that a prevailing defendant on a motion to
strike be allowed to recover attorney fees and costs
only on the motion to strike, not the entire suit."
Id. at 1383. This provision was recently interpreted
to "provide for an award of only those fees and
costs incurred in connection with the motion to strike,
not the entire action." Paul for Council v. Hanyecz,
85 Cal. App. 4th 1356, 1362, 102 Cal. Rptr. 2d 864 n.4
(2001) (emphasis added).
The present case is easily distinguished from Lafayette
Morehouse. In the underlying case on the merits in Lafayette
[**9] Morehouse, the anti-SLAPP motion applied solely
to the libel cause of action, which was only one of
seven causes of action in the complaint. 37 Cal. App.
4th 855, 861, 44 Cal. Rptr. 2d 46 (1995). By contrast,
here, the entire lawsuit is subject to the anti-SLAPP
motion because all causes of action against Blackburn
relate to free speech and all of the activity by Blackburn's
attorneys occurred in the context of, and were inextricably
intertwined with, the anti-SLAPP motion. n1 All of Blackburn's
attorney fees and expenses were incurred "in connection
with" the anti-SLAPP motion. Paul for Council,
85 Cal. App. 4th at 1362 n.4.
n1 As stated above, if Blackburn had not raised the
lack of personal jurisdiction and improper venue defenses
in his motion to dismiss with the anti-SLAPP motion,
he would have waived those defenses pursuant to Federal
Rule of Civil Procedure 12(h).
Additionally, the California Legislature amended the
anti-SLAPP statute in 1997, mandating that the statute
be "construed broadly. [**10] " Briggs v.
Eden Council for Hope and Opportunity, 19 Cal. 4th 1106,
1119, 969 P.2d 564, 81 Cal. Rptr. 2d 471 (1999). Lafayette
Morehouse, decided in 1995, predates the amendment mandating
[*1224] broad construction. Additionally, though in
a different factual scenario, the Court of Appeal, Third
District recently stated, in the context of awarding
attorney fees and costs, that the statute "shall
be construed broadly." Rosenaur v. Scherer, 88
Cal. App. 4th 260, 286, 105 Cal. Rptr. 2d 674 (2001).
3. Metabolife's actions caused Blackburn to incur the
attorney fees and costs
Metabolife contends that the attorney fees and costs
sought by Blackburn are unreasonable because he could
have avoided them, and the entire lawsuit, by disclosing
that WCVB-TV quoted him out of context. The Court disagrees.
Rather, the Court finds that Metabolife's actions overwhelmingly
caused Blackburn to incur the attorney fees and costs.
The following chronology is helpful to understand the
. May 11-13, 1999: Television interview with Blackburn
. May 11, 13 and June 1, 1999: Metabolife's counsel
faxed letters to three media companies designed to deter
similar broadcasts on [**11] the safety concerns surrounding
Metabolife 356. (6/21/99 Janis Decl. Exs. 8-10.)
. May 15, 1999: Metabolife ran a full page ad in The
Boston Globe attacking Blackburn's credibility ("Boston
physician George Blackburn is featured in a report earlier
this month where he spews out criticism about Metabolife")
and threatening litigation ("We will see Ms. Wornick
and WCVB TV in court). (8/30/99 Roper Decl. Ex. A.)
. May 20, 1999: Blackburn's counsel Robert O'Regan viewed
out-takes (unbroadcast material) with Steve Comen, counsel
for WCVB-TV and Wornick. (4/8/02 O'Regan Decl. Ex. 2
. May 24, 1999: Metabolife's counsel Stephen Mansfield
sent a letter to Blackburn, O'Regan and the Director
of the Beth Israel Deaconess Medial Center, stating:
In sum, we demand an immediate public retraction and
correction of each and every false, misleading and damaging
statement related to Metabolife 356 that you made during
the WCVB-TV broadcasts. Having put you on notice that
your statements included false, misleading and damaging
information, I inform you that Metabolife will pursue
all appropriate legal action against those involved.
(4/8/02 Metabolife Opp'n Ex. A [**12] at 7-8.)
. May 24, 1999, shortly before 6 p.m. E.S.T.: Mansfield
phoned O'Regan. According to O'Regan, Mansfield told
O'Regan that the complaint was ready for filing, named
Blackburn as a defendant, and would be filed immediately
unless Blackburn made a retraction or clarification.
O'Regan replied that he could not respond immediately
because he was completing an appellate brief due within
in the next day and requested that Mansfield hold off
filing the complaint until O'Regan could meet with Blackburn.
Mansfield refused. (4/8/02 O'Regan Decl. at 4.) According
to Mansfield, Mansfield attempted to ascertain whether
Blackburn had been the victim of unfair and deceptive
editing by WCVB-TV, proposed a meeting between Mansfield
and O'Regan and Blackburn to discuss what was conveyed
during the interview. O'Regan refused this offer and
refused a request to retract or clarify the statements
broadcast. (4/8/02 Metabolife Opp'n Ex. A at 4, Mansfield
. May 27, 1999, 2:19 p.m. E.S.T.: O'Regan faxed a letter
to Mansfield in response to Metabolife's May 24 letter,
[*1225] Dr. Blackburn will not make any retraction.
Just as your client has the right to express opinions
[**13] about its products, Dr. Blackburn has a corresponding
right to express his views regarding the dangers of
products containing ephedrine, particularly when those
views are well supported by scientific evidence. In
our view, the request by Metabolife for a retraction,
especially in the face of a growing body of evidence
concerning the danger posed by ephedrine in over-the-counter
products, is outrageous. . . . Any legal action which
you may be contemplating against Dr. Blackburn would
be entirely without merit . . . It appears to us that
any threats made against Dr. Blackburn are wrongfully
motivated by Metabolife's desire to silence those who
support the FDA's opinion on ephedrine-based products.
It is incumbent upon you to research any claims being
made by Metabolife against Dr. Blackburn very carefully
under these circumstances. If Metabolife continues asserting
that it has scientific studies to support the safety
of its product, I would welcome an opportunity to review
them. Your demand for retraction refers to none. . .
. Please send me the studies referenced in Metabolife's
website as being on file with Metabolife and all of
the other claimed studies in Metabolife's possession
[**14] concerning the safety of its product for sale
to the general public. If your client is not willing
to share this information within ten (10) days, then
I will interpret this reluctance as its acknowledgment
that the claims of safety are not supported by valid
(4/8/02 Metabolife Opp'n Ex. A at 10-12.)
. May 27, 1999, 12:51 p.m. P.S.T. (one hour and 32 minutes
after O'Regan faxed the above letter to Mansfield):
Metabolife filed complaint.
. June 8, 1999 (postponed to June 29, 1999): Blackburn
scheduled (since early spring) to testify before the
Joint Committee on Healthcare at the Massachusetts Legislature
concerning a bill that would require the Massachusetts
Department of Public Health to study the need for regulation
of over-the-counter diet supplements. (6/21/99 Blackburn
Decl. at 3, P7.)
. September 7, 1999: Metabolife conceded that "the
literal words Dr. Blackburn used ('you can die from
taking this product') cannot be proved false."
(9/7/99 Metabolife's Resp. to Ct.'s Order on Preparation
for Sept. 8 Hr'g at 6.) (See also 9/20/99 Metabolife's
Supp. Br. Re: WCVB's Deceptive Editing at 3.)
. September 15, 1999: Metabolife received the Declaration
[**15] of Steven Comen (counsel for WCVB-TV and Wornick),
revealing the context (i.e., abuse/misuse of the product)
surrounding Blackburn's "you can die" statement.
(6/14/02 Metabolife's Supp. Submission; 9/14/99 Comen
Decl. at 2.)
. September 20, 1999: Metabolife concedes that "if
discovery shows that Dr. Blackburn was simply a victim
of WCVB's editing, Metabolife will dismiss voluntarily
its claims against Dr. Blackburn." (9/20/99 Metabolife's
Supp. Br. Re: WCVB's Deceptive Editing at 6 (emphasis
added) (characterized in Metabolife's 4/8/02 Opp'n at
4 as "stating that, with a modicum of discovery,
Blackburn might be dismissed from the case" (emphasis
. November 17, 1999: District court dismissed Blackburn.
. November 30, 1999: Metabolife appealed the district
court decision, including the dismissal of Blackburn.
[*1226] . May 9, 2001: Oral argument before the Ninth
Circuit where Mansfield stated in response to questioning
by Judge Rymer: "What was broadcast [was] a false
depiction significantly of Dr. Blackburn's conclusion.
. . . We are fully prepared upon remand with adequate
discovery with Dr. Blackburn to consider removing him
from this case" (emphasis [**16] added). (4/9/02
O'Regan Supp. Decl. Ex. 2 at 3.)
. September 5, 2001: Ninth Circuit affirmed dismissal
In sum, the Court finds that Metabolife's actions speak
louder than its words. As early as September 7, 1999,
in response to the Court's questions, Metabolife acknowledged
that it could not prove that Blackburn's "you can
die" statement was false. Metabolife did not dismiss
Blackburn at that time. Eight days later, on September
15, 1999, Metabolife knew that Blackburn's "you
can die" statement had been taken out of context.
Metabolife did not dismiss Blackburn at that time. On
November 17, 1999, the Court dismissed Blackburn from
the suit. Metabolife did not accept Blackburn's dismissal
at that time. Rather, Metabolife appealed the decision.
On May 9, 2001, at oral argument before the Ninth Circuit
in response to questioning by Judge Rymer, Metabolife
conceded its belief that what was broadcast was a false
depiction of Blackburn's statement. (4/9/02 O'Regan
Supp. Decl. Ex. 2 at 1-2.) Metabolife did not dismiss
Blackburn at that time. Finally, on September 5, 2001,
the Ninth Circuit affirmed the Court's dismissal of
Blackburn -- almost two years after Metabolife [**17]
acknowledged the truth of the "you can die"
statement and knew that the statement was taken out
of context. Thus, the Court finds that Metabolife never
intended to dismiss Blackburn from the lawsuit, and
any actions Metabolife alleges that Blackburn could
have or should have taken were deminimus in comparison
to Metabolife's legal and public relations blitzkrieg
of Blackburn (and anyone else who questioned, or was
considering questioning, the safety of Metabolife 356).
This legal and public relations campaign also consisted
of the faxed letters to three media companies designed
to deter similar broadcasts on the safety of Metabolife
356 (e.g., "We are currently reviewing subsequent
news stories to determine if legal action is necessary").
(6/21/99 Janis Decl. Ex. 9.) It also included the full
page ad in The Boston Globe attacking Blackburn's credibility
and threatening litigation. Also included were Metabolife's
phone and faxed warnings of litigation to Blackburn's
counsel if Blackburn did not make a full public retraction
and correction of the statements he made during the
broadcasts. Finally, it included the filing of the Complaint
on May 27, 1999 in San Diego -- across the [**18] country
from Blackburn's home of Boston -- less than two weeks
before Blackburn was scheduled to testify before the
Massachusetts Legislature. n2
n2 The Court notes that it has addressed Metabolife's
motives for filing the lawsuit, finding that "Metabolife
has sued Defendants for their public contributions to
[the debate over the safety of ephedrine-based dietary
supplements]." See Metabolife, 72 F. Supp. 2d at
1163. However, although the issue of motive is currently
being considered by the California Supreme Court, at
this point, a SLAPP defendant has no burden of proving
that "the plaintiff was motivated by an improper
purpose." Equilon Enterprises LLC v. Consumer Cause,
Inc., 85 Cal. App. 4th 654, 102 Cal. Rptr. 2d 371, 376
(2000), petition for review granted, 106 Cal. Rptr.
2d 80, 21 P.3d 758.
a. Discovery would not have helped Metabolife prove
Despite Metabolife's motion to compel discovery, the
Court ultimately imposed a stay on discovery. However,
[**19] discovery [*1227] would not have helped Metabolife
prove its case.
Two of Blackburn's statements in the broadcast were
at issue in the district court: (1) the "you can
die" statement, and (2) the statement that Metabolife
lacks "credibility." Regarding the "you
can die" statement, the Court held: "(1) Metabolife
has not provided admissible prima facie evidence that
this statement is false, and (2) Blackburn's statement
is entitled to First Amendment protection as a 'rational
interpretation' of a conflicting and ambiguous source."
Metabolife, 72 F. Supp. 2d at 1166-67, 1170. n3 Regarding
the statement that Metabolife lacks "credibility,"
the Court held: "this statement is non-actionable
opinion." Id. at 1175. Importantly, the Court did
not base its decision on whether there was actual malice.
Id. at 1166, 1171 n.13.
n3 Although, as stated, the result is what matters,
the Court points out that contrary to Metabolife's assertion
that the Court did not base its decision on grounds
raised by Blackburn or the other Defendants, the Court
ruled, in part, on Blackburn's arguments that his statements
were substantially true and protected opinion.
In affirming the dismissal of Blackburn, the only issue
addressed by the Ninth Circuit on appeal was the "you
can die" statement. Metabolife Int'l, Inc. v. Wornick,
264 F.3d 832, 837 (9th Cir. 2001). The Ninth Circuit
found that "Metabolife does not dispute the validity
of [Blackburn's "you can die" statement, viewed
in its entirety] anywhere in its pleadings. Accordingly,
the dismissal of the causes of action against Dr. Blackburn
is affirmed." Id. at 847. The Ninth Circuit also
held that "the district court's alternative free
speech rulings are REVERSED as to all defendants except
Dr. Blackburn. The dismissal of the causes of action
against Dr. Blackburn is AFFIRMED in light of his complete
statement." Id. at 850.
Based on these rulings, any discovery that the Court
could have permitted Metabolife to take would not have
"discovered" anything that would have helped
it prove its case against Blackburn. First, regarding
the falsity of the "you can die" statement,
Metabolife conceded that "the literal words Dr.
Blackburn used ('you can die from taking this product')
cannot be proved false." (9/7/99 Metabolife's Resp.
to Ct.'s Order [**21] on Preparation for Sept. 8 Hr'g
at 6.) (See also 9/20/99 Metabolife's Supp. Br. Re:
WCVB's Deceptive Editing at 3.) Metabolife was aware
that it could not establish a prima facie case on the
issue of falsity as to Blackburn's statement; no amount
of discovery could have proved otherwise.
Second, regarding Blackburn's First Amendment rights,
the Court found that the "you can die" statement
was unactionable First Amendment speech. Metabolife
conceded that "'the safety of products intended
for human consumption is a matter of public concern'
and agrees that the statements challenged were made
in a public forum." Metabolife, 264 F.3d at 840;
see also Metabolife, 72 F. Supp. 2d at 1165. Thus, discovery
on this issue would not have proved anything, as Blackburn
had a protected First Amendment right to make the statement.
Third, regarding the "credibility statement,"
the Court found that it was an unactionable opinion,
and this ruling was not addressed on appeal. Therefore,
this statement is not provable as true or false, and
discovery as to this issue would not have proved anything
Finally, as the case was not decided on the issue of
[**22] actual malice, any discovery on this topic would
have been inconsequential as well.
b. Any failure to mitigate by Blackburn was deminimus
compared to Metabolife's actions
The Court recognizes that Blackburn's counsel viewed
the out-takes (unbroadcast [*1228] material) on May
20, 1999. Metabolife harps on the fact that Blackburn
waited a year, until the case was on appeal, before
disclosing that his statements were taken out of context.
However, even if Blackburn had provided the out-takes
to Metabolife in May, n4 it is undisputed that Metabolife
knew, as early as September 15, 1999, the context of
Blackburn's statements, and still chose not to dismiss
Blackburn. Any mitigation that Blackburn could have
accomplished would have been deminimus compared to Metabolife's
actions. Moreover, based on Metabolife's conduct throughout
this litigation, the Court is skeptical that even if
Metabolife had viewed the out-takes in May, Metabolife
would not have filed the case against Blackburn.
n4 The out-takes were the privileged material of WCVB-TV
pursuant to California Constitution Article 1, §
2(b) and California Evidence Code § 1070. In Massachusetts,
the reporter's privilege is not statutory but is recognized
as a First Amendment issue. See, e.g., Sinnott v. Boston
Retirement Bd., 402 Mass. 581, 586, 524 N.E.2d 100 (1988).
Moreover, Metabolife filed a broad complaint against
Blackburn, going beyond the context of the "you
can die" statement. (Compl. PP28, 29, 30, 32 and
45, containing allegations that go beyond context and
implication; Compl. PP38-39, containing allegations
regarding the "credibility" statement.) Therefore,
any possible full explication by Blackburn of the out-takes
would not have defeated Metabolife's charges, as the
Complaint does not limit the allegations against Blackburn
to the context and implications of the "you can
die" statement. However, even if Blackburn somehow
knew that the only charges against him relied on the
context and implications of the "you can die"
statement, Metabolife knew the context of the "you
can die" statement on September 15, 1999 and chose
to continue pursuing the litigation against Blackburn.
Metabolife also alleges that a defendant has a duty
to mitigate damages even if the plaintiff is not completely
blameless in bringing the case. See Pollution Control
Industries of America, Inc. v. Gundy, 21 F.3d 152, 156
(7th Cir. 1994). Although the Court acknowledges the
validity of this principle, Pollution Control is easily
distinguishable, [**24] as the Seventh Circuit characterized
the conduct of defense counsel in that case as "egregious."
Defense counsel in Pollution Control failed to inform
the plaintiff of the simple fact of defendant's citizenship,
and instead chose to pursue a more complicated and costly
lack of personal jurisdiction defense. By contrast,
here, as stated, the Court finds that any failure to
mitigate by Blackburn was deminimus when compared to
Metabolife's aggressive litigation strategy and did
not contribute to the fees and costs incurred by Blackburn.
The Court grants Blackburn's application for attorney
fees and costs in full for a total of $ 318,687.99,
. For Luce Forward -- billed fees of $ 90,270, unbilled
fees of $ 4,410, expenses of $ 3,893, fee application
fees of $ 13,680, for a total of $ 112,253.
. For Burns & Levinson -- fees of $ 136,302.50,
expenses of $ 5,415.61, appellate fees of $ 39,636.25,
appellate expenses of $ 8,859.89, fee application fees
of $ 16,220.74, for a total of $ 206,434.99.
IT IS SO ORDERED.
John S. Rhoades, Sr.
United States District Judge
Metabolife International, Inc., Plaintiff, [**25] v.
Susan Wornick, George Blackburn, and Hearst-Argyle Television,
AND RELATED COUNTER-ACTIONS
Case No.: 99-CV-1095 R (RBB)
The Hon. John S. Rhoades
MONEY JUDGMENT FOR GEORGE BLACKBURN'S ATTORNEY FEES
Pursuant to the Order Granting Defendant George Blackburn's
Application for Attorney Fees, entered July 19, 2002,
Money Judgment in the total amount of $ 318,687.99 is
hereby granted in favor of George Blackburn against
Metabolife International, Inc. as follows:
. For Luce Forward -- billed fees of $ 90,270, unbilled
fees of $ 4,410, expenses of $ 3,893, fee application
fees of $ 13,680, for a total of $ 112,253.
. For Burns and Levinson--fees of $ 136,302.50, expenses
of $ 5,415.61, appellate fees of $ 39,636.25, appellate
expense of $ 8,859.89, fee application fees of $ 16,220.74,
for a total of $ 206,434.99.
IT IS SO ORDERED, ADJUDGED AND DECREED.
DATED: July 29, 2002
John S. Rhoades, Sr.
United States District Judge