A defamation claim against Merck and its in-house counsel can’t proceed because it rested on a letter stating the lawyer’s opinion, which is not capable of being defamatory, a federal judge has ruled.

The letter from Merck’s in-house lawyer to the plaintiff was copied to five other people, but fell far short of the standard for defamation, said U.S. District Judge Harvey Bartle III of the Eastern District of Pennsylvania.

"Fitzgibbon acted professionally," Bartle said, referring to Thomas Fitzgibbon, an in-house lawyer for Merck, who wrote the letter.

"Gibney’s dislike of the result of the investigation he caused to take place does not make libelous the communication of the result," Bartle said in Gibney v. Fitzgibbon.

According to the opinion, Leo Gibney had worked for a contractor for Merck, Evolution Inc., and asked that the pharmaceutical giant investigate the potential for overbilling from the contractor. After Gibney was fired from Evolution, an action he believed was motivated by his allegations of overbilling, he wrote to two Merck executives detailing the alleged fraud.

Letter in reply

The following month, he got a reply letter from Fitzgibbon — copied to the two executives, Gibney’s former lawyer, another Merck employee, and an unidentified person — explaining that the company saw no need to conduct an audit as had been requested by Gibney.

"As far as Merck is concerned, the alleged overbilling has been investigated, the allegations have been determined to be unfounded and the matter is now closed and warrants no further action by Merck," Fitzgibbon wrote, according to the opinion.

Gibney objected to the characterization of his claims as being "unfounded" and filed the current suit, alleging that he has "suffered substantial and permanent harm to his reputation as a result," Bartle said. But Bartle disagreed.

Taking a statement in its proper context, it must "harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him," according to Pennsylvania law, Bartle said. Fitzgibbon’s letter didn’t rise to that level, he held.

"Fitzgibbon was simply answering Gibney’s letter," Bartle said. "He did so in a thoughtful and temperate manner."

The contents of Fitzgibbon’s letter expressed, essentially, his opinion, which is only actionable if it alludes to undisclosed and defamatory facts, Bartle said, looking to the Restatement (Second) of Torts.

"No such implication exists here," Bartle said.

Even if Fitzgibbon’s characterization of Gibney’s claim as "unfounded" had been stated as a fact, the letter still wouldn’t rise to the level of defamation, Bartle said.

Nothing defamatory

When taken in context, the letter doesn’t lower Gibney’s status in the community nor does it dissuade people from dealing with him, personally or professionally, Bartle said.

The judge likened Gibney’s case to the 1980 Pennsylvania Superior Court opinion in Beckman v. Dunn, which held that a university’s history department hadn’t defamed a graduate student by describing the oral portion of his examination to be "inadequate."

There, "the Superior Court concluded that the communication was not capable of being defamatory," Bartle said.

Similarly, he held that Fitzgibbon’s classification of Gibney’s allegations as unfounded "was not capable of a defamatory meaning as a matter of law."

Gibney brought the case pro se, and Heather Ritch of Reed Smith, who represented Fitzgibbon and Merck, couldn’t be reached for comment.

Saranac Hale Spencer writes for the Legal Intelligencer, a Daily Report affiliate.