Filed in Supreme Court May 12, 2003
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
| Amy Jo Kjolsrud, f/k/a Amy Jo Mattson, | |
| Plaintiff - Appellant, | Case No.: 20030023 |
| District Court No.: 99-C-03734 | |
| v. | |
| Response to Plaintiff's Appeal and | |
| MKB Management Corporation | |
| Defendant's Cross-Appeal from Final | |
| d/b/a Red River Women's Clinic, | |
| Judgment Entered by Cass County | |
| Defendant Appellee/Cross-Appellant. | |
| District Court | |
BRIEF FOR DEFENDANT-APPELLEE/CROSS-APPELLANT
| Joseph A. Turman | Linda Rosenthal* | |||||
| Bar Number 03128 | ||||||
| Janet Crepps* | ||||||
| DeMars & Turman, Ltd. | The Center for Reproductive | |||||
| Community First Tower, Suite 600 | Rights | |||||
| 520 Main Avenue | 120 Wall Street | |||||
| Fargo, ND 58124 | New York, NY 10005 | |||||
| (701) 293-5592 | (917) 637-3600 | |||||
| *Non-Resident Attorneys | ||||||
ATTORNEYS FOR DEFENDANT-APPELLEE/CROSS-APPELLANT
T
ABLE OF CONTENTS
TABLE OF AUTHORITIES | iii |
| RESTATEMENT OF ISSUE PRESENTED FOR REVIEW | |
| ¶ 1 | |
| STATEMENT OF ISSUE PRESENTED FOR REVIEW ON CROSS APPEAL | |
| ¶ 2 | |
| STATEMENT OF THE CASE | ¶ 3 |
| STATEMENT OF FACTS | ¶ 9 |
| Ms. Kjolsrud's Standing | |
| ¶ 9 | |
| The District Court's Ruling on the Merits | |
| ¶ 12 | |
| The Court's Ruling is Supported by the Evidence | |
| ¶ 19 | |
| 1.There is No Epidemiological Evidence of a Direct Relationship between Abortion and Breast Cancer. | |
| ¶ 19 | |
| 2.There is No Biological Evidence of a Direct Relationship Between Abortion and Breast Cancer | |
| ¶ 33 | |
| The Clinic Acted With Reasonable Care | |
| ¶ 42 | |
| ARGUMENT | ¶ 48 |
| A. STANDARD OF REVIEW | |
| ¶ 48 | |
| B. THIS CASE SHOULD BE DISMISSED FOR LACK OF STANDING | |
| ¶ 52 | |
| C. The district court correctly held that plaintiff did not satisfy her burden of proof that clinic engaged in false advertising | |
| ¶ 60 | |
| 1. The District Court Correctly Found The Clinic's Brochures are Neither Untrue Nor Misleading | |
| ¶ 62 | |
| a. "Some anti-abortion activists claim that having an abortion increases the risk of developing breast cancer" is a True Statement That is Not Misleading | |
| ¶ 66 | |
| b. "A substantial body of medical research indicates that there is no established link between abortion and breast cancer" is a True Statement That is Not Misleading | |
| ¶ 67 | |
| c. "In fact, the National Cancer Institute has stated '[t]here is no evidence of a direct relationship between breast cancer and either induced or spontaneous abortion'" is a true statement that is not misleading | |
| ¶ 69 | |
| 2. The District Court's Decision to Credit the Testimony of the Clinic's Experts Over that of Dr. Brind is Not Clearly Erroneous | |
| ¶ 71 | |
| 3. The District Court Correctly Found that the Clinic Exercised Reasonable Care to Ensure its Brochures are True and Not Misleading | |
| ¶ 76 | |
| D. The District Court Correctly Denied Plaintiff's Request for Affirmative Injunctive Relief | |
| ¶ 82 | |
| CONCLUSION | |
| ¶ 89 | |
TABLE OF AUTHORITIES
| Cases | |
| Billey v. North Dakota Stockmen's Assoc., 579 N.W.2d 171, 1998 ND 120, ¶7 (N.D. 1998) | |
| ¶ 53 | |
| Christ's Bride Ministries, Inc. v. Southeastern Pennsylvania Transportation Auth., 148 F.3d 242 (3d Cir. 1998) | |
| ¶ 80 | |
| City of Carrington v. Foster County,166 N.W.2d 377 (N.D. 1969) | |
| ¶ 53, ¶ 56 | |
| Ellis v. State, -- N.W.2d --, 2003 N.D. 72, 2003 WL 21006292 (N. | ¶ 48 |
| Fargo Women's Health v. Larson, 381 N.W.2d 176 (N.D. 1986) | |
| ¶ 61, ¶ 83 | |
| Federal Trade Comm'n v. National Comm'n on Egg Nutrition, 517 F.2d 485 (7th Cir. 1975) | |
| ¶ 69 n.7 | |
| Freeman v. Time, Inc., 68 F.3d 285 (9th Cir. 1995) | |
| ¶ 50 | |
| Gosbee v. Bendish, 512 N.W. 2d 450 (N.D. 1994) | ¶ 76 n.8 |
| Greenville Women's Clinic v. Bryant, 222 F.3d 157 (4th Cir. 2000) | |
| ¶ 77 n.9 | |
| Hall GMC, Inc. v. Crane Carrier Co., 332 N.W.2d 54 (1983) | |
| ¶ 48, ¶ 72 | |
| Harbeson v. Parke Davis, Inc., 746 F.2d 517 (9th Cir. 1984) | |
| ¶ 80 | |
| Herrick v. Churchill, 29 N.W. 129 (Minn. 1886) | |
| ¶ 55 | |
| Huber v. Oliver County, 602 N.W.2d 710, 1999 N.D. 220 (N.D. 1999) | |
| ¶ 49 | |
| Langer v. State, 284 N.W. 238 (N.D. 1939) | |
| ¶ 56, ¶ 59 | |
| O'Malley v. Chrysler Corp., 160 F.2d 35 (7th Cir. 1947) | |
| ¶ 83 | |
| Park v. Forest Serv. of the United States, 205 F.3d 1034 (8th Cir. 2000) | |
| ¶ 51 | |
| Rebel v. Nodak Mut. Ins. Co., 585 N.W.2d 811, 1998 ND 194 (N.D. 1998) | |
| ¶ 51, ¶53 | |
| Richland County Water Res. Bd. v. Pribbernow, 442 N.W.2d 916 (N.D. 1989) | |
| ¶ 56 | |
| Shaw v. Burleigh County, 286 N.W.2d 792 (N.D. 1979) | |
| ¶ 56 | |
| Spaeth v. Eddy Furniture Co., 386 N.W.2d 901 (N.D. 1986) | |
| ¶ 61, ¶ 64 | |
| Sposato v. Sposato, 570 N.W.2d 212, 1997 ND 207 (N.D. 1997) | |
| ¶ 76 n.8 | |
| State v. Carpenter, 301 N.W.2d 106 (N.D. 1980) | |
| ¶ 54 | |
| State v. Eddy Furniture, 386 N.W. 2d 901 (N.D. 1986) | |
| ¶48 | |
| State v. Rosenquist, 51 N.W.2d 767 (N.D. 1952) | |
| ¶ 55 | |
| State Bd. of Funeral Dirs. & Embalmers v. Mortuary in Westminster Mem'l Park, 271 Cal. App. 2d 638, 76 Cal. Rptr. 832 (1969) | |
| ¶ 50 | |
| Union State Bank v. Miller, 358 N.W.2d 222 (N.D. 1984) | |
| ¶ 59 | |
| United Indus. Corp. v. The Clorox Co., 140 F.3d 1175 (8th Cir. 1998) | |
| ¶ 63 | |
| Winkjer v. Herr, 277 N.W.2d 579 (N.D. 1979) | ¶ 85 n.11 |
| Statutes and Regulations | |
| N.D. Cent. Code § 14-02.1-02, et seq. | ¶ 85 |
| N.D. Cent. Code § 28-26-31 | ¶ 58 n.6 |
| N.D. Cent. Code § 51-12-08 | |
| passim | |
| N.D. Cent. Code § 51-12-14 | |
| passim | |
| N.D. R. Evid. 201 | |
| ¶ 46 n.5 | |
| N.D. R. Civ. P. 52(a) | ¶ 48, ¶ 72 |
| Miscellaneous | |
| Kenneth J. Rothman, Inferring Causal Connections Habit, Faith, or Logic?, in Causal Inference (Kenneth J. Rothman ed.) (1988) | |
| ¶ 72 | |
| Federal Judicial Center, Reference Manual on Scientific Evidence (2d ed. 2000) | |
| ¶ 72 | |
| 43 C.J.S. Injunctions, § 5 | ¶ 83 |
| 28 Am.Jur., Injunctions, 20 | ¶ 83 |
| High on Injunctions (3rd ed.), Sec. 2 | ¶ 83 |
| http://cis.nci.nih.gov/fact/3_75.htm | ¶ 46 n.5, ¶ 78 |
RESTATEMENT OF ISSUE PRESENTED FOR REVIEW
1. Whether the District Court's determination that the Clinic is not in violation of North Dakota Century Code Sections 51-12-08 and 51-12-14 because the statements in the Clinic's brochures are neither false nor misleading and because the Clinic exercised reasonable care is clearly erroneous.
STATEMENT OF ISSUE PRESENTED FOR REVIEW ON CROSS-APPEAL
2. Whether the District Court erred in concluding that Amy Jo Kjolsrud (née Mattson) had standing to maintain an action for injunctive relief pursuant to North Dakota Century Code Section 51-12-14 when she suffered no injury or threat of injury from the Clinic and had never seen the advertisements she alleged to be untrue when she filed her complaints.
STATEMENT OF THE CASE
3. On December 15, 1999, Amy Jo Kjolsrud (née Mattson) (hereinafter "Plaintiff" or "Ms. Kjolsrud") filed a claim under North Dakota's false advertising statute, N.D. Cent. Code § 51-12-14, against MKB Management Corporation, doing business as Red River Women's Clinic (hereinafter "Defendant" or "the Clinic"). See AT App. 1-3. The Clinic provides reproductive health care services to women, including abortions. TR:Bov. 58:1-5.(1) Ms. Kjolsrud alleged in her complaint that statements in a Clinic brochure to the effect that abortion does not increase the risk of breast cancer were false and misleading.
4. On July 17, 2000, Plaintiff moved for a temporary injunction and for permission to file a supplemental complaint on the grounds that the Clinic was no longer using the original challenged brochure, but had replaced it with revised language regarding abortion and breast cancer. See AE App. 4-7.(2) In her supplemental complaint, Plaintiff averred that she was "a pro-life woman who lives in Fargo, North Dakota. She regularly counsels women seeking abortion about the risks of abortion . . ." AE App. ¶ 4. The supplemental complaint was permitted, but Plaintiff's motion for temporary injunction was denied. Dock. # 39.
5. The Clinic deposed Ms. Kjolsrud in March, 2001.(3) At the deposition, the Clinic learned that Plaintiff was no longer living in Fargo or engaging in anti-abortion counseling and that those statements in her supplemental complaint had been false at the time the complaint was filed in July 2000. See AE App. (Mat. Dep.) 33, 103-04. Plaintiff also testified at her deposition that she had not seen the Clinic's original brochure before the original complaint was filed and, at the time of her deposition, that she had never seen the revised brochure that was the basis for the supplemental complaint. AE App. (Mat. Dep.) 71-72, 81. Plaintiff acknowledges that she has not been harmed in any way by the Clinic's brochures. AT Br. ¶¶ 2, 69.
6. The Clinic moved for summary judgment on various grounds, including that Ms. Kjolsrud lacked standing to seek injunctive relief pursuant to Section 51-12-14. Dock. # 62. In denying the Clinic's motion, Judge Michael O. McGuire, in the East Central Judicial District of Cass County, ruled that the language of Section 51-12-14 permitting "any person" to maintain an action for injunctive relief was explicit, and therefore Ms. Kjolsrud had standing to maintain the suit, even though it was "unusual" that Plaintiff had not seen the brochures prior to filing her claims. Dock. # 116; AE App. 14-15. On May 1, 2001, Plaintiff filed an "Amended Supplemental Complaint," which replaced the statements averring that she lived in Fargo and engaged in sidewalk counseling with the statement that she "is a citizen of North Dakota." AT App. 11, ¶ 2.
7. A bench trial was held on March 25-28, 2002. At the conclusion of the case, the district court ruled in favor of the Clinic. See AT App. 20-28. The court found that "there is no direct link to show that abortion or induced abortion or miscarriage increases the risk of cancer or changes it," and that the information contained in the Clinic's brochures "is not untrue or misleading in any way." AT App. 21:9-11; 22:10-13. The court denied Ms. Kjolsrud's request for injunctive relief. AT App. 23:4-7.
8. Ms. Kjolsrud filed her notice of appeal on January 4, 2003. AT App. 32. On January 28, 2003, the Clinic filed a notice of cross-appeal seeking review of the district court's ruling that Ms. Kjolsrud has standing to maintain a claim for injunctive relief under N.D.C.C. § 51-12-14. See AE App. 20-21.
STATEMENT OF FACTS
Ms. Kjolsrud's Standing
9. Plaintiff is a North Dakota citizen who has never had an abortion. See AT App. 11, ¶ 2; AE App. (Mat. Dep.) 28:21-22. At the time this lawsuit was initiated, Plaintiff was employed at the North Dakota Life League, an anti-abortion organization. AE App. (Mat. Dep.) 32, 57. It was through her position at the Life League that Plaintiff learned about the possibility of suing the Clinic. See AE App. (Mat. Dep.) 57-59. Plaintiff's lead counsel approached her after approaching a number of other individuals to discuss the possibility of filing a suit. See AE App. (Mat. Dep.) 115-17. Ms. Kjolsrud agreed to be the plaintiff in this action although she had not seen the Clinic's brochure and had never previously heard about a connection between abortion and breast cancer. AE App. (Mat. Dep.) 55-58, 67.
10. At the time that she filed her complaint, Plaintiff had still not seen the Clinic's brochure that she alleged was false and misleading. See AE App. (Mat. Dep.) 72 (stating that it was "[p]robably a few months" after the complaint was filed that she first saw Defendant's original brochure). On or about July 17, 2000, Plaintiff's attorneys filed a supplemental complaint in this action and requested an expedited and emergency temporary injunction. AE App. 4-7; Dock. # 22. Plaintiff had not seen the Clinic's revised brochure at that time. AE App. (Mat. Dep.) 74. At the time of her deposition, on March 1, 2001, Plaintiff had still never seen the Clinic's revised brochure. See AE App. (Mat. Dep.) 74, 81.
11. In her Supplemental Complaint, Plaintiff alleged that she lived in Fargo, North Dakota, where the Clinic is located, and that "she regularly counsels women seeking abortions about the risks of abortion. . . . " AE App. 4, ¶ 2. At the time that the supplemental complaint was filed, however, Plaintiff was no longer a so-called "sidewalk counselor" and she no longer lived in Fargo. AE App. (Mat. Dep.) 33. During the first eight months of this litigation when Plaintiff was, in fact, engaged as a sidewalk counselor, she handed out more than 500 brochures that purported to describe the risks associated with abortion in order to dissuade women from obtaining abortions. AE App. (Mat. Dep.) 40-41. For seven out of those eight months during the pendency of this litigation, Plaintiff did not advise women of the alleged risk of breast cancer. AE App. (Mat. Dep.) 55-56.
The District Court's Ruling on the Merits
12. The false advertising claims in this case challenged statements in two brochures distributed by the Clinic. The first brochure stated:
Anti-abortion activists claim that having an abortion increases the risk of developing breast cancer and endangers future childbearing. None of these claims are supported by medical research or established medical organizations.
TR:Bov. 32:18-33:18, Ex. 1 (emphasis in original). The Clinic's administrator, Jane Bovard, testified at trial that the Clinic was no longer using this brochure and had no plans to do so in the future because she felt that there was "better language" available. TR:Bov. 61:16-21.
13. The Clinic's current brochure states:
Some anti-abortion activists claim that having an abortion increases the risk of developing breast cancer. A substantial body of medical research indicates that there is no established link between abortion and breast cancer. In fact, the National Cancer Institute has stated "[t]here is no evidence of a direct relationship between breast cancer and either induced or spontaneous abortion."
TR:Bov. 38:5-39:16, Ex. 3.
14. Over the course of the trial, the district court heard testimony from three expert witnesses: one on behalf of plaintiff, Dr. Joel Brind, an undergraduate biochemistry professor at Baruch College; and two on behalf of the Clinic, Dr. Julie Palmer, an epidemiologist at the Slone Epidemiology Unit at Boston University, and Dr. Gil Mor, the Director of the Reproductive Immunology Unit at the Yale School of Medicine. The Clinic's administrator, Jane Bovard, testified that in creating the brochures the Clinic relied on statements from the National Abortion Federation, the National Cancer Institute, the World Health Organization, the American College of Obstetricians & Gynecologists, and the American Cancer Society, all to the effect that having an abortion does not increase a woman's risk of breast cancer.
15. In ruling on the false advertising claim, the court considered whether Plaintiff had established a case of false advertising under Section 51-12-08. AT App. 19:22-20:5. The court, noting that it had judged the credibility of the evidence and the demeanor of the witnesses, made findings of fact in the Clinic's favor on each of the false advertising elements. See AT App. 19:18-21.
16. In concluding that the statements in the brochures were not untrue or misleading, the court found that the claim that there is "direct biological connection of an increased risk of breast cancer due to induced abortion or miscarriage," is not proven, but is only a hypothesis being studied by top scientists in the field, such as Dr. Mor. AT App. 20:8-17. He further found that "the woman who has the abortion . . . does not per se increase (sic) in risk for breast cancer." AT App. 21:18-20.
17. Citing the National Cancer Institute, the court found that "the current body of science suggests that women who had either induced or spontaneous abortions have the same risk as other women for developing breast cancer. And I think that's what I have indicated the experts have demonstrated proof to this court." AT App. 22:1-9.
18. In its ruling, the court also found that, "it does appear that the Clinic and Ms. Bovard had the intent to put out correct information and their information is not untrue or misleading in any way. They did exercise reasonable care." AT App. 22:10-13. The court noted that in creating the brochure, the Clinic "went to the organizations that pull these studies together, such as the National Cancer Institute and the several other organizations that would provide this information. There is no epidemiologist employed at the Clinic and there is no biological expert employed at the Clinic, so it is necessary to go to organizations and perhaps even some individuals, somebody who has pulled these studies together and has the expertise in it to obtain that which one should put in the brochure." AT App. 22:14-22.
The Court's Ruling is Supported by the Evidence
1. There is No Epidemiological Evidence of a Direct Relationship between Abortion and Breast Cancer.
Dr. Palmer explained that although the results of earlier studies looking at the association between abortion and breast cancer were inconsistent, several recent well-conducted studies have found no association. In support of her opinions, Dr. Palmer described a study of women in Denmark (the "Melbye" study), published in 1997 that found no association between breast cancer and abortion. TR:Pal. 466:1-468:13, Ex. 23. This study, considered authoritative by Dr. Palmer, involved over one million women and did not suffer from concerns about bias that have been raised with other studies. TR:Pal. 466:1-468:13; 472:23-473:2. She also discussed several other recent methodologically sound studies that showed no association. TR:Pal. 473:9-475:20, Ex. 24.(4)
Dr. Palmer testified that most of the earlier studies found no association or a very weak association between abortion and breast cancer. She described in detail, however, why the results of those studies that found a positive association, including the 1994 Daling study very heavily relied on heavily by Dr. Brind, are not persuasive. TR:Pal. 477:9-478:7. She explained that all of these case-control studies suffered from possible
"recall bias," which occurs when cases (women with breast cancer) and controls (women
without breast cancer) differentially report their exposures to abortions. TR:Pal. 455:11-456:12; 464:15-20. Due to the stigma associated with abortion, there is concern that women in the control group are less motivated to report abortions than women with breast cancer, and therefore underreport their abortion experience. TR:Pal. 456:13-20. This underreporting, or "recall bias," can result in a spurious positive association. TR:Pal. 455:7-456:20.
15. There is No Biological Evidence of a Direct Relationship Between Abortion and Breast Cancer.
16. To further support his opinion that abortion increases the risk of breast cancer, Dr. Brind offered his opinions as to what biological mechanisms could account for the alleged risk. The court, however, upon reviewing the evidence and judging the credibility of the witnesses, found that no link between abortion and breast cancer has been established, and that there is no scientific evidence to support Dr. Brind's theories they are simply hypotheses currently under investigation. AT App. 20:6-21:25. Dr. Brind himself acknowledged that his opinions about the "independent effect" that abortion has on breast cancer risk due to a woman's exposure to a large amount of estrogen is "not universally recognized." TR:Bri. 122:5-15. The district court's decision is soundly supported by the evidence and is not clearly erroneous.
17. To address the theories regarding a biological relationship between abortion and breast cancer, the Clinic presented the testimony of Dr. Gil Mor, the Director of the Reproductive Immunology Unit at the Yale University School of Medicine and an assistant professor of obstetrics and gynecology. TR:Mor 284:8-14, Ex. 18 (Mor c.v.). Dr. Mor holds an M.D. and Ph.D. in reproductive immunology. TR:Mor 285:7-286:3. Reproductive immunology studies the interaction of sex hormones and the immune system. TR:Mor 284:15-285:2. Dr. Mor is engaged in several areas of research, including the role of sex hormones and the immune system in breast cancer. TR:Mor 288:1-8; 290:1-17. Dr. Mor is also conducting research into the causes of miscarriages. TR:Mor 291:21-292:4. Dr. Mor was accepted as an expert in the fields of obstetrics and gynecology and reproductive immunology and endocrinology. TR:Mor 293:16-22.
18. Dr. Mor reviewed the statement in the Clinic's current brochure which states that "a substantial body of medical research indicates that there is no established link between abortion and breast cancer." He believes that the statement is true because "there is no biological evidence to support any hypothesis linking abortion to breast cancer." TR:Mor 345:10-17.
19. In Dr. Brind's opinion, abortion increases the risk of breast cancer in two ways. First, Dr. Brind believes that carrying a pregnancy to term provides a long-term protective effect against breast cancer. Therefore, when a woman terminates a pregnancy by abortion she loses that protective effect. TR:Bri. 119:21-120:6. As to the second biological mechanism, what Dr. Brind refers to as the "independent effect," he testified that breast cell proliferation caused by high levels of estrogen during pregnancy result in women ending up with more breast cells that are vulnerable to cancer. Therefore, Dr. Brind claimed, a woman who has an abortion is at higher risk of breast cancer than a woman who has not been pregnant. TR:Bri. 122:9-19.
20. Dr. Brind further claimed that there is an increased risk of breast cancer following abortion, but not miscarriage. He claimed that this differential is explained because 90% of miscarriages are "characterized by very low levels of estrogen." TR:Bri. 123:2-23. Therefore, he contends that these women are not exposed to the high level of estrogen that he believes leaves women who have induced abortions with a larger number of vulnerable breast cells. TR:Bri.123:24-125:2.
21. In response to these theories, Dr. Mor explained that the idea that full term pregnancy and lactation provides a protective effect against breast cancer is only a hypothesis. TR:Mor 316:25-371:11; 323:11-324:5. First, the Russo study published in 1980 and relied upon by Dr. Brind, does not support the theory that abortion has an independent effect on the risk of breast cancer based on the fact that there would be more undifferentiated cells remaining in the breasts. TR:Mor 333:25-334:8. In fact, Dr. Mor is currently engaged in research to determine the validity of the hypothesis, and at the time of trial was seeking funding with Dr. Russo for a study attempting to demonstrate that pregnancy and lactation protect against cancer by removing malignant and damaged cells. TR:Mor 317:11-16; 323:11-324:5.
22. Second, Dr. Mor further testified that the breasts of a woman who has had an abortion are not different than the breasts of a woman who has never been pregnant. TR:Mor 324:13-21. When a pregnancy is terminated by abortion or miscarriage, the cells present as a result of proliferation die and are removed, and the breast returns to the state it was in before pregnancy. TR:Mor 325:6-326:8. Dr. Mor's testimony thus established that Dr. Brind's opinions as to the existence of a protective effect are not based on scientific evidence, and that his opinions as to how such a protective effect might operate are based on incorrect assumptions.
23. Finally, evidence from the Clinic's expert refuted the lynchpin of Dr. Brind's theory that women who have miscarriages are not exposed to large amounts of estrogen and therefore have no increased risk. Dr. Mor testified that miscarriages are primarily caused by anatomical defects, autoimmune diseases, and for endocrinological reasons. TR:Mor 335:25-336:7. Dr. Mor explained that progesterone is the hormone necessary to maintain pregnancy and insufficient levels of progesterone account for 15 to 20% of all miscarriages; low levels of estrogen have not been associated with miscarriages due to other causes. TR:Mor 338:25-343:3.
24. Plaintiff incorrectly suggests that Dr. Palmer's testimony supports a finding that there is a biological link between abortion and breast cancer. Dr. Palmer noted that although such a link might be "biologically plausible," she could not offer an opinion on how plausible those theories were. TR:Pal. 530:10-18; 539:19-540:5; 547:1-5; 548:21-549:1. Even the quotation from Dr. Palmer's study, relied on by Plaintiff, states only that "it has been postulated that interruption of a pregnancy before differentiation takes place may increase the risk of breast cancer in humans." TR:Pal. 884:11-19 (emphasis added).
The Clinic Acted With Reasonable Care
25. The court found that the statements in the Clinic's brochures were not untrue or misleading. AT App. 22:10-13. As a result, it was not necessary for the Court to consider whether the Clinic knew, or with "the exercise of reasonable care" should have known, the statements to be untrue or misleading. Nonetheless, the court found that the Clinic exercised reasonable care. AT App. 22:10-13.
26. In addressing this issue, the court noted that the Clinic does not employ an epidemiologist or a biological expert, and that it "is impossible to put in every study." AT App. 22:17-23. As a result, it was necessary for the Clinic to rely on organizations that have reviewed the studies, such as the National Cancer Institute, to determine what should go into the brochure. AT App. 22:14-22. In conjunction with his finding that the Clinic reasonably relied on these organizations, the court also noted that the Clinic's position "is with the majority at this time." AT App. 22:24-25.
27. Evidence at trial supports the court's conclusion that the Clinic acted reasonably. The Clinic decided to address abortion and breast cancer in the brochure in direct response to what it felt was misleading information being given to prospective patients by anti-abortion protestors. TR:Bov. 41:18-24; 59:3-18. In drafting the first brochure, the Clinic directly relied on information from the National Abortion Federation, a national accrediting organization that sets performance standards for abortion clinics. TR:Bov. 34:4-11; 59:19-60:8.
28. Once the lawsuit was filed, the Clinic reevaluated the first brochure. TR:Bov. 61:9-15. At that time it reviewed additional statements from organizations such as the National Cancer Institute. TR:Bov. 63:24-66:5. Based on what it felt was "more up to date and better language," the Clinic revised the brochure, and does not intend to use the language of the first brochure again. TR:Bov. 61:16-21. The Clinic endeavored to find the most current statement from the National Cancer Institute on abortion and breast cancer when it revised its original brochure. TR:Bov. 54;17-55:17.
29. The National Cancer Institute language quoted in the Clinic's brochure has remained consistent with the National Cancer Institute's position on abortion and breast cancer at all times (see TR:Bov. 64:17-69:8; TR:Pal. 514:19-517:11), including the new statement on abortion published this spring.(5) At the time of trial, the National Cancer Institute's statement on abortion and breast cancer was that, "[t]he current body of scientific evidence suggests that women who have had either induced or spontaneous abortions have the same risk as other women for developing breast cancer." See TR:Pal. 514:23-515:9 (quoting Ex. 6).
30. In drafting and continuing to distribute the current brochure, the Clinic also relied on statements by the American Cancer Society, the World Health Organization, the American College of Obstetricians & Gynecologists, and the National Abortion Federation to assess whether the brochure is true and not misleading. TR:Bov. 34:1-11; 604:6-605:20 (Ex. 35); 606:4-609:23 (Ex.'s 36, 37); 618:4-620:23 (Ex.'s 35 and 38).
ARGUMENT
A. STANDARD OF REVIEW
31. Contrary to Plaintiff's contention that this Court should review the trial court's findings de novo, the trial court's findings should only be set aside if they are "clearly erroneous." See N.D. R. Civ. P. 52(a); see also Ellis v. State, -- N.W.2d --, 2003 N.D. 72, ¶ 6, 2003 WL 21006292, at *2 (N.D. May 6, 2003) ("[A]finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if it is not supported by any evidence, or if, although there is some evidence to support it, a reviewing court is left with a definite and firm conviction a mistake has been made."); State v. Eddy Furniture, 386 N.W. 2d 901, 902 (N.D. 1986) (appellate review of factual issues in false advertising case governed by Rule 52(a)); Hall GMC, Inc. v. Crane Carrier Co., 332 N.W.2d 54, 60 (1983) ("Findings of fact made by the trier of fact upon conflicting evidence are not subject to reexamination by this Court").
32. Similarly, "[t]he granting or denying of injunctive relief rests within the sound discretion of the trial court, and the court's ruling will not be reversed on appeal unless there has been an abuse of discretion." Huber v. Oliver County, 602 N.W.2d 710, 716, 1999 N.D. 220, ¶ 20 (N.D. 1999); see also N.D. Cent. Code § 51-12-14 (a person who has engaged in false advertising "may be enjoined") (emphasis added).
33. Plaintiff does not attempt to argue that the district court's findings were clearly erroneous or that its judgment was an abuse of discretion. Instead, Plaintiff incorrectly asserts that there is a de novo standard of review of this appeal because the "facts relevant to the issues presented for review are not in dispute." See AT Br. ¶ 35. The facts in this case were very much in dispute. After considering evidence from three expert witnesses over the course of a three and a half day trial, the district court made findings of fact necessary to resolve the issue of whether the Clinic's brochures contained false or misleading statements. Therefore, these findings are not subject to the de novo review that governs a dismissal based solely on the pleadings or where the facts are undisputed. See Freeman v. Time, Inc., 68 F.3d 285, 288 (9th Cir. 1995) (citing State Bd. of Funeral Dirs. & Embalmers v. Mortuary in Westminster Mem'l Park, 271 Cal. App. 2d 638, 642, 76 Cal. Rptr. 832 (1969)).
34. Defendant's cross-appeal on the issue of standing, however, is governed by a de novo standard of review as it a question of law to be considered independent of the district court's ruling on the issue. See, e.g., Rebel v. Nodak Mut. Ins. Co., 585 N.W.2d 811, 813-14, 1998 ND 194, ¶ 8 (N.D. 1998) (reversing district court and dismissing action on ground that party lacked standing to pursue claims); see also Park v. Forest Serv. of the United States, 205 F.3d 1034, 1036 (8th Cir. 2000) (standing is reviewed de novo on appeal).
A. THIS CASE SHOULD BE DISMISSED FOR LACK OF STANDING.
35. Plaintiff seeks injunctive relief pursuant to North Dakota Century Code Section 51-12-14, which provides that "[a]ctions for injunction under this section may be prosecuted . . . by any person acting for the interests of itself, its members, or the general public." N.D. Cent. Code § 51-12-14. Plaintiff concedes that she has in no way been "personally misled or harmed" by the Clinic's brochures. See AT Br. ¶ 5, 69. Yet she maintains, and the district court held, that she has standing because Section 51-12-14 states that "any person" may pursue an injunction on behalf of the general public. See also AE App. 11-13. This holding ignores that Section 51-12-14 also requires that a false advertising claim may only be brought in a court of "competent jurisdiction." See N.D. Cent. Code § 51-12-14.
36. Under this Court's precedents, a statute may not create standing beyond the prudential restrictions placed on North Dakota courts. See, e.g., City of Carrington v. Foster County, 166 N.W.2d 377 (N.D. 1969) (finding that legislature could not expand, beyond judiciary's institutional role, scope of judges' duties to include rendering of ex parte opinions). Plaintiff does not have sufficient standing to satisfy the prudential requirements that inhere in this Court's function as a judicial tribunal. See Billey v. North Dakota Stockmen's Assoc., 579 N.W.2d 171, 173, 1998 ND 120, ¶ 7 (N.D. 1998) ("Standing is a concept utilized to determine if a party is sufficiently affected so as to insure that a justiciable controversy is presented") (internal citations omitted); Rebel, 585 N.W.2d at 813, 1998 ND 194, at ¶¶ 8-10 (party must demonstrate "standing to litigate the issues placed before the court").
37. This Court has stated:
The question of standing focuses upon whether the litigant is entitled to have the court decide the merits of the dispute. It is founded in concern about the proper and properly limited role of the courts in a democratic society. Without the limitation of the standing requirements, the courts would be called upon to decide purely abstract questions. As an aspect of justiciability, the standing requirement focuses upon whether the plaintiff has alleged such a personal stake in the outcome of the controversy as to justify exercise of the court's remedial powers on his behalf.
State v. Carpenter, 301 N.W.2d 106, 107 (N.D. 1980) (internal citations omitted).
38. Notwithstanding statutory language nearly identical to the language in the false advertising statute, this Court has previously refused to recognize standing where a plaintiff did not allege any harm. See State v. Rosenquist, 51 N.W.2d 767 (N.D. 1952). In Rosenquist, this Court considered a statute that provided that "any person" could bring an action to determine adverse claims and to quiet title. Id. at 770. The Court held that, in spite of the statutory language, prudential limitations on standing applied. Id. at 778-89. This Court stated:
"The contention of plaintiff, plainly stated, is that under the literal wording of this statute, any person who says that he claims title, without either alleging or proving that he has in fact any title to, or interest in, the real estate, may maintain an action against any other person who claims an interest in it, and compel him to prove his title, or be adjudged to have none. If the statute means this, it certainly establishes a most unreasonable and anomalous rule. We think it was never before heard of, in judicial proceedings, that one person, who has no interest whatever in property, may maintain an action against another who claims some interest in it, and compel him to prove the validity of his claim. We do not think the statute was intended to establish any such rule."
Rosenquist, 51 N.W.2d at 789 (quoting Herrick v. Churchill, 29 N.W. 129 (Minn. 1886)) (rejecting similarly broad standing provision). This Court concluded that, notwithstanding the seemingly boundless standing accorded by the statute, the plaintiff could not maintain its cause of action. See Rosenquist, 51 N.W.2d at 711.
39. The rejection of limitless standing is consistent with the fundamental separation of powers upon which North Dakota's tripartite government is founded. See, e.g., City of Carrington v. Foster County, 166 N.W.2d 377 (N.D. 1969) (discussing separation of powers); Langer v. State, 284 N.W. 238 (N.D. 1939) (North Dakota's Declaratory Judgment Act does not authorize advisory opinions: "In this state the Legislature is without power to charge the courts with the performance of non-judicial duties.") (internal citations omitted). Without a party with some connection to the claims alleged in a lawsuit, the fundamental roles of the legislature and the court are impermissibly blurred. See, e.g., Shaw v. Burleigh County, 286 N.W.2d 792 (N.D. 1979) ("it is a fundamental principle that the Legislature cannot . . . impose upon the judiciary non-judicial duties."); Richland County Water Res. Bd. v. Pribbernow, 442 N.W.2d 916, 918 (N.D. 1989) (district court's opinion was an impermissible advisory opinion "unnecessary to the determination of any controversy between the parties.").
40. This case offers an egregious example of how limitless standing may be abused to permit the harassment of a legitimate North Dakota business. Plaintiff's lead attorney approached her about bringing this lawsuit--not vice-versa; he initially educated her to the nature of her false advertising claims. See AE App. (Mat. Dep.) 57-59, 88-90. At the time that Plaintiff filed her complaint in this action, she had not even seen the brochure that she alleged was false and misleading. See AE App. (Mat. Dep.) 72. Although Plaintiff had not yet seen the Clinic's revised brochure (AE App. (Mat. Dep.) 74-75), her attorneys filed a Supplemental Complaint challenging that brochure. At the time of her deposition, on March 1, 2001--one year and nearly 3 months after she filed her original complaint--Plaintiff had still never seen the Clinic's revised brochure. See AE App. (Mat. Dep.) 74, 81.
41. Moreover, at the time that her Supplemental Complaint was filed, Plaintiff was no longer a so-called "sidewalk counselor"; in fact, she no longer lived in Fargo where the Clinic is located. AE App. (Mat. Dep.) 33, 103-04. It is uncontroverted that Plaintiff's supplemental complaint contained false statements, notably regarding her two alleged connections to the claims in this lawsuit.(6)AE App. (Mat. Dep.) 103-04. During the first seven out of eight months of this litigation that Plaintiff was a "sidewalk counselor," she was so disconnected from this lawsuit that she did not advise women of the alleged risk of breast cancer--notwithstanding that she was simultaneously suing the Clinic to require it to make affirmative disclosures regarding the so-called link. See AE App. (Mat. Dep.) 33-34, 36-37.
42. Plaintiff's only connection to the claims she advances in this lawsuit is that she is a North Dakota citizen; she has no cognizable interest in the claims she purports to advance. See AT Br. ¶¶ 5, 69. This Court has a continuing duty to ensure that Plaintiff has standing to pursue her claims. See, e.g., Langer, 284 N.W. at 245; see also Union State Bank v. Miller, 358 N.W.2d 222 (N.D. 1984). This Court should grant judgment to
Defendant on the ground that Plaintiff does not have standing to bring her claims against the Clinic.
A. The district court correctly held that plaintiff did not satisfy her burden of proof that THE clinic engaged in false advertising.
43. The district court correctly recognized that Plaintiff was required to prove three distinct elements to establish a prima facie case of false advertising:
(1) the Clinic acted with intent to disseminate a publication to the North Dakota public;
(2) the publication contained statements that were untrue or misleading; and
(3) the Clinic knew, or with the exercise of reasonable care should have known, that the statements were untrue or misleading.
AT App. 19-20.
4. As set forth above, after reviewing the evidence and weighing the credibility of the witnesses, the district court found that the Clinic's brochures are both true and not misleading. Cf. Fargo Women's Health v. Larson, 381 N.W.2d 176, 179 (N.D. 1986) (discussing plaintiff's prima facie showing under North Dakota's false advertising statute); Spaeth v. Eddy Furniture Co., 386 N.W.2d 901, 903 (N.D. 1986) (plaintiff has burden of establishing false advertising claim by preponderance of the evidence). Plaintiff did not satisfy her burden of proof at trial as to either the second or third element of her claim and thus the district court correctly denied her request for an injunction under Section 51-12-14.
1. The District Court Correctly Found The Clinic's Brochures are Neither Untrue Nor Misleading.
5. North Dakota courts have not elaborated on what constitutes "false" or "misleading" advertising under Sections 51-12-08 and 51-12-14. Those terms have been defined by courts in other contexts, however. For example, under the Lanham Act, a federal statute prohibiting false advertising, the Eighth Circuit has stated that a plaintiff must demonstrate that a statement is "actually false, not simply unproven or unsubstantiated." See, e.g, United Indus. Corp. v. The Clorox Co., 140 F.3d 1175, 1181-82 (8th Cir. 1998).
6. Regarding statements that are alleged to be misleading, the Eighth Circuit has stated:
Where a commercial claim is not literally false but is misleading in context, proof that the advertising actually conveyed the implied message and thereby deceived a significant portion of the recipients becomes critical. If a plaintiff does not prove the claim to be literally false, he must prove that it is deceptive or misleading, which depends on the message that is conveyed to consumers.
140 F.3d at 1182-83.
7. Although this Court has not elaborated on what constitutes false advertising under North Dakota's statutes, it has previously affirmed a lower court's holding that an advertisement was not misleading:
The State contends that the consuming public was deceived and misled into believing that Eddy Furniture was conducting a liquidation, close-out sale. In support of its argument, the State makes fine distinctions between "bargain prices," "liquidation prices," and "close-out prices." In effect, the State contends that it is per se fraudulent and deceptive to represent that a sale is a "going-out-of-business sale" when new merchandise is added to existing stock for the sale. The trial court also had to consider, however, that the State stipulated that these "added" items were sold at "bargain prices," and that Eddy Furniture's Jamestown store actually went out of business following the completion of the sale.
Spaeth, 386 N.W.2d at 904-05. In other words, because the statements were in fact true, it was not sufficient for a plaintiff to simply contend they were misleading based solely on "fine distinctions." Id.
8. In this case the district court appropriately credited the testimony of the Clinic's two highly qualified experts, and rightly rejected the testimony of Plaintiff's single witness whose opinions were undermined by his lack of qualifications, inaccuracies and bias. As to each of the statements contained in the brochure, the testimony fully supports the district court's findings that the statements are true and not misleading.
a. "Some anti-abortion activists claim that having an abortion increases the risk of developing breast cancer" Is a True Statement That is Not Misleading.
9. The Clinic's administrator, Jane Bovard, testified that anti-abortion protesters were telling prospective patients that they would get breast cancer if they had an abortion. TR:Bov. 41:18-24; 59:3-18. It was in response to these statements that the Clinic decided to address the issue of breast cancer in the brochure. TR:Bov. 41:18-24; 59:3-18. This uncontested testimony alone establishes the truth of the brochure statement. In addition, however, Dr. Palmer also testified that it was a true statement. TR:Pal. 513:3-22. Moreover, both Plaintiff and her sole witness acknowledge that they are anti-abortion activists and each contends that having an abortion increases the risk of developing breast cancer. Accordingly, the evidence at trial supported the conclusion that this is a true and not misleading statement.
a. "A substantial body of medical research indicates that there is no established link between abortion and breast cancer" Is a True Statement That is Not Misleading.
10. As set forth above, the Clinic's expert witnesses, Dr. Palmer and Dr. Mor, both testified that there is an overwhelming and substantial body of medical research that indicates there is no established link between abortion and breast cancer. Dr. Palmer testified that the best epidemiological studies all demonstrate there is no link and Dr. Mor explained why any statement arguing to the contrary would at best be considered a hypothesis. TR:Pal. 458:7-459:3; 466:4-475:17; 486:1-10; TR:Mor 316:25-371:11; 323:11-324:5. Plaintiff also admitted that this statement is true. AE App. (Mat. Dep.) 93-94.
11. The evidence also supported the district court's conclusion that the Clinic's statement is not misleading, as the Clinic's experts testified that this statement would correctly lead people to believe that there is no established connection between abortion and breast cancer. TR:Pal. 513:1-514:18; TR:Mor:10-17.
a. "In fact, the National Cancer Institute has stated '[t]here is no evidence of a direct relationship between breast cancer and either induced or spontaneous abortion'" Is a True Statement That is Not Misleading.
12. Plaintiff also admitted that this final statement is true. AE App. (Mat. Dep.) 95. In addition, Dr. Palmer and Dr. Mor testified not only that the National Cancer Institute has made this statement, but also that, in fact, there is no medical evidence of a direct relationship between breast cancer and abortion. TR:Pal. 536:20-537:9; TR:Mor 345:18-346:2. The district court found that "[t]here is no direct link to show that . . . induced abortion or miscarriage increases the risk of cancer or changes it." AT App. 21:9-11.(7)
13. The district court also correctly concluded that this is not a misleading statement. The evidence at trial demonstrated that although the National Cancer Institute had made more recent statements than the one included in the Clinic's brochure, those statements did not render the Clinic's quotation misleading. Dr. Palmer testified that the statement in the current brochure was entirely consistent with the National Cancer Institute's subsequent statements. TR:Pal. 514:19-517:11. The statement is not misleading because it would correctly lead people to believe that abortion is not a direct cause of breast cancer and that there is no evidence that it is. TR:Pal. 514:8-18; TR:Mor 345:18-346:2. The evidence also demonstrated that this statement is consistent with the positions of the leading national organizations on the issue of abortion and breast cancer and, for this reason also, the statement is not misleading. TR:Bov. 34:1-11; 604:6-09:23; 618:4-620:23.
1. The District Court's Decision to Credit the Testimony of the Clinic's Experts Over that of Dr. Brind is Not Clearly Erroneous.
14. As discussed above, Plaintiff's sole witness at trial was Joel Brind, an anti-choice activist with an anti-abortion agenda. TR:Bri. 254:14-256:7. The district court did not abuse its discretion in crediting the Clinic's experts and rejecting Dr. Brind's unsubstantiated theories. The evidence at trial demonstrated that Dr. Brind's ideas are misguided, incorrect, and biased. As described above, the district court could have discounted Dr. Brind's testimony for any number of reasons, including that: 1) Dr. Brind is not an epidemiologist or reproductive immunologist, TR:Bri. 94:30-95:20; 2) his understanding of epidemiology in the area of induced abortion and breast cancer is uninformed and wrong, TR:Bri. 243:11-14; TR:Pal. 502:17-505:9; 3) he does not understand epidemiological literature as shown by the fact that he mischaracterizes studies and their results, TR:Pal. 485:20-25; 453:5-454:25; 4) his own meta-analysis is seriously flawed and not consistent with epidemiological standards, TR:Pal. 486:20-23; 489:3-493:18; 5) his understanding of biology is flawed, TR:Mor 324:13-326:8; 6) his premise regarding differences between breast cancer rates for spontaneous and induced abortion are wholly incorrect, TR:Mor 335:19-343:3; and 7) his pro-life bias directs his focus and opinions solely on abortion. TR:Bri. 210-212:22.
15. Nowhere in her brief does Plaintiff attempt to argue that the district court's findings of fact are clearly erroneous. Rather, she resorts to relying on evidence not before the court at trial, apparently in an attempt to insinuate that bias tainted the testimony from the Clinic's experts. See AT Br. ¶¶ 40-44 (quoting from Kenneth J. Rothman, Inferring Causal Connections Habit, Faith, or Logic?, in Causal Inference (Kenneth J. Rothman ed.) (1988) & Federal Judicial Center, Reference Manual on Scientific Evidence (2d ed. 2000)). But this argument is just that--argument; it is not evidence and the district court was in the best position to assess the credibility of the Clinic's experts. AT App. 19:18-21. Having assessed the credibility and demeanor of each of the witnesses first-hand, the district court's judgment to credit the Clinic's witnesses was not clearly erroneous. See N.D. R. Civ. P. 52(a) (requiring "due regard" be accorded to trial court's opportunity "to judge the credibility of witnesses."); see also Hall GMC, Inc., 332 N.W.2d at 60.
16. Plaintiff also argues that abrogation of the alleged protective effect of carrying a pregnancy to term (by having an abortion) is a "cause-in-fact" of breast cancer. See AT Br. ¶ 50. She maintains that because the district court judge was confused about the duration of a long-term protective effect, it did not have adequate opportunity to consider this argument. Id. But Plaintiff ignores clear findings by the district court. To start, after the district court issued its ruling from the bench, Plaintiff's attorney argued exactly this point to the court. See AT App. 24:16-19. The district court was very clear that it had not misunderstood the evidence and that, furthermore, a woman who has an abortion "still carries the same protection they had before, their protection isn't decreased." AT App. 24:20-25:14. Moreover, the evidence from the Clinic's experts directly refuted Plaintiff's contention, establishing that a woman who terminates a pregnancy is left in exactly the same position as if she had never been pregnant. TR:Pal. 510:20-25; TR:Mor 324:13-21. The Clinic's evidence at trial demonstrated that having an abortion does not "cause" anything in regards to breast cancer and that losing the possibility of a possible long-term benefit is simply not the same thing as causing a long-term negative. The district court correctly apprehended and credited this evidence.
17. Plaintiff also ignores that the evidence regarding a long-term benefit that may be conferred after a first full-term pregnancy is not a straightforward or established scientific fact. To start, Dr. Mor testified that the whole idea is hypothetical--not proven scientific fact. TR:Mor 334:14-22. Second, Dr. Palmer testified that there may actually be a sharp increase in a woman's risk of getting breast cancer that occurs in the first several years following every pregnancy--not solely following a first pregnancy. TR:Pal. 481:25-483:1. Finally, the evidence also demonstrated that by focusing exclusively on the alleged long-term protective effect against breast cancer, Plaintiff focuses her lens too narrowly. Dr. Palmer testified, for example, that a younger age of first pregnancy is associated with an increased risk of heart disease. TR:Pal. 483:6-484:11. Thus, the evidence demonstrated that the relationship between pregnancy and a woman's long-term health is complicated at best and Plaintiff's concentration on a hypothetical long-term protective effect is not just simplistic, but in itself misleading.
18. In short, nothing in the Plaintiff's arguments changes the district court's careful and correct finding that the Clinic's brochures were neither untrue nor misleading. The district court's ruling is supported by the credible evidence presented at trial and accordingly its judgment should be affirmed.
1. The District Court Correctly Found that the Clinic Exercised Reasonable Care to Ensure its Brochures are True and Not Misleading.
In order to establish her case, Plaintiff had to prove not only that the statements in the brochures were untrue or misleading, but also that the statements are either known to be or, by the exercise of reasonable care, should be known to be untrue or misleading. See N.D. Cent. Code § 51-12-08. As discussed above, the district court correctly found that Plaintiff's evidence did not establish that the Clinic's brochures were either untrue or misleading. As a result, it was not necessary for the district court to consider whether the Clinic acted with reasonable care. The district court nevertheless found that, at all times, the Clinic in fact exercised reasonable care.(8)
Plaintiff presented no evidence to establish that the Clinic knew that its statements regarding abortion and breast cancer were either false or misleading. The district court correctly found that the Clinic exercised and continues to exercise reasonable care by relying on statements from leading national organizations, including the National Abortion Federation, the National Cancer Institute, the American Cancer Society, the World Health Organization, and the American College of Obstetricians & Gynecologists Committee on Gynecologic Practice.(9) TR:Bov. 243:16-249:4. The district court concluded that the Clinic reasonably relied and continues to rely on these organizations in assessing the accuracy of the information contained in its brochure. AT App 22:14-23:3.
Plaintiff argues that the "relevant inquiry is not what the Clinic knew or should have known in the past, but what 'is known, or . . . by the exercise of reasonable care should be known' in the present." See AT Br. ¶ 55. But the district court found that the evidence presented at trial demonstrated that the Clinic had exercised reasonable care and, in fact, that finding has only been reinforced by the National Cancer Institute's most recent statement refuting the existence of any connection between abortion and breast cancer. See http://cis.nci.nih.gov/fact/3_75.htm.
Plaintiff also contends that, if an advertisement is untrue or misleading, this Court may enjoin its use pursuant to Section 51-12-14, regardless of whether the Clinic knew or should have known that it was false. See AT Br. ¶ 55. But, that is clearly an incorrect interpretation of Section 51-12-08 which, as the district court correctly recognized, requires that a defendant know or should have known that an advertisement was untrue or misleading in order to be liable for injunctive relief pursuant to Section 51-12-14.
Finally, the only two cases Plaintiff cites regarding reasonable reliance (see AT Br. ¶¶ 56, 63) are either inapposite or actually support the district court's finding that the
Clinic exercised reasonable care in drafting its brochures. For example, in Christ's Bride Ministries, Inc. v. Southeastern Pennsylvania Transportation Auth., 148 F.3d 242 (3d Cir. 1998), the Third Circuit reversed the district court's finding that it was reasonable for a municipal railway to find that an advertisement stating that "women who choose abortion suffer more and deadlier breast cancer" was "misleading" and "unduly alarming" on First Amendment grounds. The court did not rule on the basis that the district court's findings that the advertisements were misleading or unduly alarming were incorrect; it held that it was unreasonable for the transit system to apply inconsistent standards when considering the accuracy of advertising statements. See 148 F.3d 242, 257 (3d Cir. 1998); see also Harbeson v. Parke Davis, Inc., 746 F.2d 517, 522-23 & 525 (9th Cir. 1984) (stating that for informed consent a physician is not required to disclose every remote risk, only those that are material, i.e., if "expert testimony can establish its existence, nature, and likelihood of occurrence").
The weight of the evidence established that the Clinic exercised reasonable care in regard to its brochure statements and, accordingly, the judgment of the district court should be affirmed for this reason also.
A. The District Court Correctly Denied Plaintiff's Request for Affirmative Injunctive Relief.
24. In addition to seeking an injunction prohibiting the Clinic from further distribution of its brochures, Plaintiff seeks affirmative injunctive relief. At trial and on appeal, she has asked that the Clinic be forced to tell all women considering an abortion at the Clinic "at least 24 hours before the procedure that 'having a first full-term pregnancy before age 30 is protective against breast cancer later in life,'" and "that a number of studies have been published providing scientific evidence that aborting any pregnancy increases the risk of developing breast cancer later in life." AT Br. ¶ 70. Additionally, she requests that the Clinic be "enjoined from stating or implying that the evidence of a causal relationship has been refuted." AT Br. ¶ 70.
25. Having completely failed to establish her false advertising claim, Plaintiff is not entitled to any form of injunctive relief. Mandatory injunctions are rarely issued and only upon the clearest equitable grounds. See, e.g., O'Malley v. Chrysler Corp., 160 F.2d 35, 36 (7th Cir. 1947) (citing 43 C.J.S. Injunctions, § 5, pp. 410, 411, 412; 28 Am.Jur., Injunctions, 20; High on Injunctions (3rd ed.), Sec. 2); see also Fargo Women's Health, 381 N.W.2d at 179 (reversing district court in false advertising case solely on ground that court ordered anti-abortion "fake" clinic to inform patients that it did not perform abortions, stating that order was "unduly broad restriction, the imposition of which constituted an abuse of discretion"). Plaintiff has made no showing that would entitle her to this extraordinary relief.
26. Plaintiff's reliance on principals of informed consent does not support her claim for affirmative injunctive relief. The statutes and cases that govern informed consent address wholly different concerns than those addressed by the false advertising statute. This Court should decline to import informed consent principals into Section 50-12-14 as to do so would establish a subset of false advertising claims governed by standards outside of the statute.
27. Moreover, nothing in either the general medical informed consent statute, N.D. Cent. Code § 14-02.1-02, et seq., or the North Dakota statute specific to informed consent for abortion, N.D. Cent. Code § 14-02.1-02, establishes a right to affirmative injunctive relief.(10) Thus, even if it were the standard of care for health care professionals to address breast cancer when obtaining informed consent for abortion,(11)neither Plaintiff nor any other person would be entitled to an affirmative injunction for a failure to do so. In denying the request for affirmative injunctive relief concerning the protective effect of pregnancy, the court noted that the request for language going only to purported benefits of carrying a pregnancy to term was an attempt to "bootstrap" into the case something that had nothing to do with false advertising. AT App. 25:3-14.
28. In addition, the facts at trial demonstrate that the requested injunctive relief is not appropriate. As explained above, Dr. Mor testified that the idea that pregnancy confers a protective effect is a hypothesis which has not been proven. He stated that "it's a hypothesis that pregnancy (sic) lactation confers resistance to breast cancer. It's a hypothesis. We don't have enough biological evidence." TR:Mor 354:21-355:2.
29. Plaintiff's statement that her proposed language comes "verbatim" from the Clinic's response to a request for admission, is misleading by omission. In fact, the Clinic denied the request and made the following statement: "Defendant states that it understands the weight of evidence indicates that having a full term pregnancy before age 30 is protective against breast cancer in later life. However, there may be an increase in breast cancer risk for several years after first pregnancy before age 30 and after any pregnancy." TR:Mor 379:5-12.
30. The remainder of Plaintiff's requested language is similarly contrary to the evidence at trial and the district court's findings of fact. Therefore, as a matter of law and fact, the request for affirmative injunctive relief was properly denied.
CONCLUSION
31. The Clinic respectfully requests that this action be dismissed on the grounds that Plaintiff does not have standing to seek injunctive relief under North Dakota Century Code Section 50-12-14. Alternatively, the judgment of the trial court that the Clinic's brochures were neither untrue nor misleading and that the Clinic exercised reasonable care at all times should be affirmed.
| Dated: May 12, 2003 | Respectfully submitted, | ||
| /s/ | |||
| Joseph A. Turman | |||
| Joseph A. Turman | |||
| Bar Number 03128 | |||
| DeMars & Turman, Ltd. | |||
| Community First Tower, Suite 600 | |||
| 520 Main Avenue | |||
| Fargo, ND 58124 | |||
| (701) 293-5592 | |||
| Linda Rosenthal* | |||
| Janet Crepps* | |||
| The Center for Reproductive Rights | |||
| 120 Wall Street | |||
| New York, NY 10005 | |||
| (917) 637-3600 | |||
| *Non-Resident Attorneys | |||
| ATTORNEYS FOR | |||
| DEFENDANT-APPELLEE/CROSS-APPELLANT | |||
1 References to the trial transcript are indicated by "TR," followed by the abbreviated name of the witness (e.g., TR:Bov.), followed by page and line designations where appropriate.
2 References to Appellee's Appendix are indicated by "AE App."; references to Appellant's Appendix are indicated by "AT App." References to Appellant's Opening Brief are indicated by "AT Br." followed by paragraph designations.
3 The complete transcript of Plaintiff's deposition was entered into evidence at trial without objection as Trial Exhibit 33. See TR 598:18-20.
4 Dr. Brind's criticisms of the Melbye study are unpersuasive. In fact, the author of the study, noted epidemiologist Mads Melbye, has described Dr. Brind's arguments as "self-contradictory and based on fundamental misunderstandings" of epidemiology. TR:Bri. 243:11-14. Dr. Palmer explained that Dr. Brind's criticisms of the Melbye study overlook accepted epidemiological methodology. TR:Pal. 502:17-505:9.
5 The National Cancer Institute has, on at least three occasions, made revisions to its statement on abortion and breast cancer contained in the Clinic's brochure, the latest issued in March of this year. See http://cis.nci.nih.gov/fact/3_75.htm (National Cancer Institute fact sheet, dated Mar. 21, 2003) ("newer studies consistently showed no association between induced and spontaneous abortions and breast cancer risk."). This fact sheet was not before the district court, but this Court may consider it through judicial notice. See N.D. R. Evid. 201 ("A judicially noticed fact must be one not subject to reasonable dispute in that it is . . . capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.").
6 In response to the Clinic's motion for summary judgment, Plaintiff filed an amended supplemental complaint to correct what she deems "immaterial changes." See AT Br. ¶ 4; cf. N.D. Cent. Code § 28-26-31 (1999).
7 This distinguishes the case at bar from the situation addressed in Federal Trade Commission v. National Commission on Egg Nutrition, cited by Appellant (see AT Br. ¶ 49), where the district court explicitly found that "it had reason to believe that the challenged advertisements were materially misleading." See 517 F.2d 485, 487 & 489 (7th Cir. 1975).
8 The evidence demonstrated that the Clinic stopped using its original brochure in December 1999 and it has no intention of using that version of the brochure again. TR:Bov. 61:16-21. Although the Clinic argued that claims regarding the first brochure were moot, the district court held that it did not need to address the issue because it held that the Clinic's brochures were true and not misleading and that at all times the Clinic had exercised reasonable care. AT App. 23:13-24:9; see also Sposato v. Sposato, 570 N.W.2d 212, 213-14, 1997 ND 207, at ¶ 9 (N.D. 1997); Gosbee v. Bendish, 512 N.W.2d 450, 452-53 (N.D. 1994).
9. 9 See also Greenville Women's Clinic v. Bryant, 222 F.3d 157, 167-69 (4th Cir. 2000) (stating that it is reasonable for states to rely on National Abortion Federation and American College of Obstetrician & Gynecologists standards since these organizations are recognized as establishing standards of care).
10 The fact that Ms. Kjolsrud's counsel cites his own law review comment written when he was a law student does not make his arguments any more persuasive. See AT Br. ¶¶ 60-61.
11. 11 The evidence in this case overwhelmingly established that abortion does not affect the risk of breast cancer. Even if it had not, it would not automatically follow that health care providers would be required to address the issue in obtaining informed consent for abortion. See Winkjer v. Herr, 277 N.W.2d 579, 588 (N.D. 1979).