's Mold Update: Kelman v. Kramer

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for those who've been following the libel suit against Sharon Kramer:

COURTROOM NEWS

Date: 17 November 2006

Court Allows Defense Expert’s Defamation Case to Proceed

Related Document: Opinion - MOL-0612-01 (PDF format)

SAN DIEGO — A California appellate panel has affirmed a trial court order denying a mold activist’s bid to dismiss a defamation suit filed over a remark she made in an online posting about trial testimony by a toxicologist who co-authored a widely cited research paper on the effects of mold exposure. Kelman v. Kramer, No. D047758 (Calif. Ct. App., 4th Dist.).The 4th District Court of Appeals rejected appellant Sharon Kramer’s contention that Bruce Kelman’s suit violated the state’s anti-SLAPP statute ('strategic lawsuit against public participation,'§ 425.16) and concluded that a reasonable jury could find for Kelman.At issue in the case is Kramer’s statement that Kelman 'altered his under oath statements on the witness stand' when he testified for defendants at Haynes v. Adair Homes, Inc. (No. CCV0211573, Ore Cir. Ct., Clackamas Cty.; See ’s Columns: Mold, March 2005). Kelman was one of the authors of a peer-reviewed position paper on mold, 'Adverse Human Health Effects Associated with Molds in the Indoor Environment' for the American College of Occupational and Environmental Medicine.He also authored what the Court of Appeals termed a 'nontechnical version' for the Manhattan Institute.At his deposition in an Arizona case (Kilian v. Equity Residential Trust, D. Ariz., No. CIV 02-1272; See ’s Columns: Mold, August 2004), he was asked, 'And that new version that you did for the Manhattan Institute, your company, GlobalTox, got paid $40,000, correct?'Kelman answered, 'Yes. The company was paid $40,000 for it.'Later, at a trial in Oregon, Kelman was questioned about his testimony in the Kilian case and took umbrage when counsel referred to the paper written for the Manhattan Institute as a 'revision.' 'What revision?' Kelman asked. Kelman denied that he said he and colleagues 'wrote a revision' of the ACOEM paper, but added, 'To help you out I said there were revisions of the position statement that went on after we had turned in the first draft.' Counsel: 'And you participated in those revisions?'Kelman: 'Well, of course, as one of the authors.'Counsel: 'All right. And, isn’t it true that the Manhattan Institute paid GlobalTox $40,000 to make revisions in that statement?'Kelman: 'That is one of the most ridiculous statements I have ever heard.'Counsel: 'Well, you admitted it in the Killian [sic] deposition, sir.'Kelman: 'No, I did not.'Referencing that exchange in Haynes, Kramer charged in an online posting, 'He admitted the Manhattan Institute, a national political think-tank, paid GlobalTox $40,000 to write a position paper regarding the potential health risks of toxic mold exposure.'After Kelman sued her for defamation, Kramer moved for dismissal. In denying that motion, the trial court found that Kramer’s statement could be seen as accusing Kelman of perjury and of accepting a bribe to falsify a peer-reviewed position paper, the Court of Appeals said.In affirming, the Court of Appeals said that Kelman is a limited public figure, which means he must not only show that the statement published by Kramer was false, but that it was made maliciously.The court said a reasonable jury could conclude that Kramer’s statement was false.'In context,' the court said, 'the question about being paid to ‘make revisions in that statement’ was ambiguous and a reasonable jury could conclude Kelman interpreted the question as asking whether he had been paid $40,000 by the Manhattan Institute to make revisions in the ACOEM paper itself, a suggestion Kelman found offensive.'Later in the transcript, after noting that the two projects were different, the differences between the two projects,Kelman 'readily admitted he was paid' to write the Manhattan Institute paper, the court said.As for malice, the trial court’s decision that Kelman had made a prima facie showing was reasonable, the Court of Appeals said.The court cited the fact that Kelman testified for the defense in a mold case brought by Kramer, and referenced emails she sent in January 2005 criticizing a decision by the American Industrial Hygiene Association to invite Kelman to participate in a seminar. Brown of Encinatas, Calif., represents Kramer. Scheuer of Marina Del Rey, Calif., represents Kelman and GlobalTox (now Veritox).Document is AvailableCall orSearch www.harrismartin.comOpinion Ref# MOL-0612-01

full text is available here:

www.courtinfo.ca.gov/opinions/nonpub/D047758.DOC

regards,

Wane