No Liability for Scientific Publisher (Elsevier) in Defamation Lawsuit by Air Purifier Company

From Judge Kenneth Bell (W.D.N.C.) today in Global Plasma Solutions, Inc. v. Elsevier Ltd Inc.:

In this action, now spanning over four and a half years and nearly 400 docket entries, Plaintiff Global Plasma Solutions, Inc. (“GPS”) contends that its air purifier business was greatly harmed by a defamatory article published in Building and Environment (“BAE”), a scientific journal owned by Defendant Elsevier …. Specifically, GPS alleges that several critiques of its “bipolar ionization” technology were false and Elsevier’s advertisement of BAE’s articles as “peer reviewed” violated the Lanham Act….

The law provides strong protection for scientific inquiry and debate on matters of public concern. This includes the allegedly defamatory article, which was published in March 2021 at the height of the COVID-19 pandemic when air purification technologies were under intense scrutiny.

Because the Court finds that GPS was a limited purpose public figure with respect to the safety and efficacy of its bipolar ionization technology and cannot establish by clear and convincing evidence that Elsevier published the article with “actual malice,” Elsevier is entitled to summary judgment on GPS’s defamation claim. Similarly, a reasonable jury could not find that Elsevier is liable for false advertising under the Lanham Act, where there is insufficient evidence that a substantial portion of the intended audience would be misled by the truthful statements that the article was “peer reviewed” or that an Elsevier advertisement was a proximate cause of GPS’s claimed diminution in its corporate value….

[V]iewing the evidence in the light most favorable to GPS, the conduct alleged here—while in several respects falling well short of being fabricated or fraudulent data—might possibly justify limiting the full, dispositive First Amendment protection for scientific opinion urged by Elsevier. However, the Court need not (and will not) reach a definitive conclusion on the scope of the Article’s “scientific opinion” protection because, as discussed below, GPS has not shown evidence of actual malice sufficient to support its defamation claim, which independently resolves GPS’s defamation claim in Elsevier’s favor….

There’s a lot more, which you can read here; and there’s something at the end about public access to court records:

As explained by the Court at the hearing on these motions and in its earlier order on the Parties’ various motions to seal, the Parties have excessively filed memoranda, documents, and other exhibits under seal in violation of the strict legal principles applicable to publicly filed motions, in particular dispositive motions at summary judgment (including, incredibly, press releases and other obviously public documents).

Under the governing First Amendment standard, a “denial of access” to publicly filed documents “must be necessitated by a compelling … interest and narrowly tailored to serve that interest.” Accordingly, a party moving to seal documents filed in support of summary judgment in a civil case bears a heavy burden. Having reviewed the Parties’ summary judgment submissions, the Court finds that all memoranda and exhibits filed under seal should be refiled in unredacted form and linked to the original filed sealed exhibit on the schedule described below. The Court will allow the Parties a short period of time to file very limited and narrowly tailored requests to maintain the sealing or partial sealing of specific filings and exhibits, other than the Parties’ memoranda of law and any exhibit specifically cited in this order….

The Parties are directed to refile—on or before October 26, 2026—an unredacted copy of any memoranda in support of or in opposition to the Parties’ Summary Judgment motions and any exhibit specifically cited in this Order that were filed under seal. All refiled documents must be linked to the originally sealed filing. All remaining sealed exhibits filed in connection with the Parties’ Motions for Summary Judgment must be similarly refiled and linked on or before 14 days from the date of this Order, unless otherwise ordered by the Court. The Parties may file under seal very limited and narrowly tailored requests to maintain the sealing of any of the remaining sealed exhibits on or before 10 days after the date of this Order ….

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