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Dr. Jan Moor-Jankowski (1924-2005)

William J. Brennan, Jr. Defense of Freedom Award Recipient, 1994

Editor-in-Chief, Journal of Medical Primatology

Dr. Jan Moor-Jankowski is a medical research professor at New York University Medical School, the Director of the Laboratory for Experimental Medicine and Surgery in Primates ("LEMSIP") which he founded in 1965, the Director of the World-Health Organization Collaborating Center for Hematology of Primate Apes, and the unpaid editor-in-chief of the Journal of Medical Primatology.

Dr. Moor-Jankowski is the author and editor of books, monographs and periodicals, and more than 200 papers on human genetics, hemophilia, blood groups, immunology and medical experimentation in primates. He has consulted for numerous governmental agencies here and abroad, including the US. Air Force, National Institutes of Health, British Medical Research Council, German Science Foundation, U.S.S.R. Academy of Medical Sciences, and World Health Organization.  Dr. Moor-Jankowski has been awarded the Trumpeldor medal by the Israeli Prime Minister's Office, Life Sciences Division in 1971, and the G. Bude medal by the College of France in 1979.  In 1984, he was presented with the Knight of the French Order "Ordre National du Merite" for Resistance activity in World War II and for scientitic achievements.

Dr. Moor-Jankowski was born in Poland. He received his medical training in Switzerland and began his medical research career in Switzerland and England.  He first came to the United States in 1959 to work at Columbia University in New York City.

Immuno A.G. v. Moor-Jankowski: The Case History

Immuno A.G. v. Moor-Jankowsski began in 1983 with a letter to the editor of the Journal of Medical Primatology, an international specialized scientific journal with just 300 subscribers. The letter was submitted to the Journal by Dr. Shirley McGreal, chairwoman of the International Primate Protection League. The unpaid editor was Dr. Jan Moor-Jankowski, a professor of medical research at New York University School of Medicine and Director of the Laboratory for Experimental Medicine and Surgery in Primates (EMSIP).

In her letter, Dr. McGreal expessed serious concern about a proposal of Immuno A.G., a multi-national drug company based in Austria, to undertake hepatitis research in Sierra Leone, West Africa, using chimpanzees captured fiom the wild. She strongly questioned Immuno A.G.'s position that its program would not diminish the already dwindling wild chimpanzee population.

Dr. McGreal noted that: (1) the capture of wild chimpanzees ordinarily entailed first killing their mothers; (2) the Immuno proposal to "rehabilitate" the chimpanzees and return them after the experiments back to the wild was of doubtful validity based upon past experience with rehabilitation programs; and (3) because there was no viable, scientifically reliable test for determining whether animals used in the experiments would be carriers of hepatitis upon their return to the wild, a significant portion of the African wild population could be at risk of infection.

Dr. McGreal suggested that the Immuno A.G. proposal was in violation of the World Health Organization statement of principles on the procurement of primates for biomedical research, and that the establishment of the research facility in Sierra Leone proposed by Immuno was an attempt to avoid the strictures of international laws and treaties on the movement of live animals belonging to endangered species.

Prior to publication of the letter, Dr. Moor-Jankowski forwarded the letter to Immmo A.G., requesting comments and/or a reply (to be published along with the letter).  Immuno A.G., through its lawyers, rejected the offer and, without identifying any specific factual errors or libelous statements in the letter, threatened litigation. Dr. Moor-Jankowski suggested Immuno A.G. contact Dr. McGreal for further underlying documentation of the material in the letter, but when no further word was heard from Immuno A.G. the letter was published in the December 1983 issue of the Journal.

Immuno A.G. brought a four million dollar libel action against Dr. Moor-Jankowski, the Journal publisher, Dr. McGreal, and the publisher of the British publication New Scientist, which had written a news story about the Irnmuno A.G. plan quoting Dr.Moor-Jankowski's comment in an interview that the plan for the chimpanzees was "scientific imperialism."

During the course of extensive and costly pre-trial proceedings and two years of discovery, settlements were reached with the uninsured publishers and, over her strong objection, Dr. McGreal's insurance carrier. By the fall of 1986, Dr. Moor-Jankowski, the sole remaining defendant, moved for summary judgment in N.Y. Supreme Court. The motion was denied.

The Supreme Court, Appellate Division, reversed the trial court in 1989 and dismissed the complaint in its entirety, holding that the statements contained in the McGreal letter were either constitutionally protected opinion or were factual statements that Immuno A.G. had failed to prove false.

The Appellate Division, expressing obvious concern with the trial court's handling of the case, stated that "[i]t is disturbing that the plaintiff, by threatening legal action, managed to delay publication of the McGreal letter for almost a year, and that it succeeded in coercing what the motion court referred to in its decision as substantial settlements from all but one of the original defendants for the obvious reason that the costs of continuing to defend thefaction were prohibitive. It is, however, particularly unfortunate the one remaining defendant was not granted the summary relief to which he was so clearly entitled, for the careful examination of the record required of us especially in libel actions, leads unavoidably to the conclusion that none of the statements about which the plaintiff complains are actionable."

Immuno A.G. appealed. The New York Court of Appeals, New York's highest court, affirmed the grant of summary judgment, holding that the letter to the editor and comments made by Dr. Moor-Jankowski in New Scientist were within the protection of the constitutional free speech gurantees under both federal and New York State law.

Acting on Immuno A.G.'s petition, the United States Supreme Court sent the case back to New York for further consideration in light of Milkovich v. Lorain Journal, decided while Immuno A.G.'s petition for Supreme Court hearing was pending. On remand, however, the New York Court of Appeals unanimously held by its judgment, dismissing Immuno A.G.'s complaint.  Judge Judith Kaye wrote for four judges, with three concurring opinions.

The issue of whether or not Dr. McGreal's statements were opinion and thus protected was foremost in the Court's decision. The majority, in reviewing Milkovch, found that the Supreme Court had applied a rather narrow set of criteria in determining what speech would be protected "except for special situations of loose, figurative, hyperbolic language, statements that contain or imply assertions of probably false fact will likely be actionable" – criteria that were especially narrow because, as the Court of Appeals observed, most statements contain or suggest factual grounding.

But the Court still found that the statements were not actionable under the First Amendment because the plaintiff was unable to meet its burden of showing that what Immuno A.G. contended were the express or implied factual statements were false. This issue may have been the meat of a hearty scientific debate, but the Court of Appeals found it quite clear that plaintiff could not prove that Dr. McGreal's concern was erroneous.

The Court of Appeals could have ended the opinion with the federal law analysis, as two of the concurring judges argued should have been done. (A third concurring opinion found that the issues could and should have been disposed of on state common law grounds.)  But the majority proceeded to a state law analysis, noting that as to matters of free expression federal constitutional law set the minimum standards, which state courts should supplement where needed to meet local law and policy concerns.  New York's history and tradition, explicitly embodied in its constitution, gave expansive protection to free expression.  More specifically, letters to the editor on issues of public concern, as the Court of  Appeals saw it, relate directly to the "marketplace of ideas" and offer a public forum that supports basic values of free expression.

Concerned that the federal protection for speech under Milkovich was too limited, the Court of Appeals offered a different, broader analysis. That analysis begins by looking at the content of the whole communication, its tone and apparent purpose, in order to determine whether a reasonable person would understand them as expressing or implying any facts, rather than an analysis that first examines the statements alone for express or implied factual assertions.

A letter to the editor from a group committed to the protection of primates that by its explicit terms presents the writer's assumptions and predictions ("appear to be," "might well be," and the like) would not be viewed, in the Court's estimation, by the readers of this technical journal as statements of fact.

Immuno A.G. petitioned once again for hearing by the U.S. Supreme Court. That petition was denied on June 3, 1991. One of the longest, most bitter and expensive libel suits was finally at a close.

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