Doctor's Data, Inc. v. Barrett (170 F. Supp. 3d 1087, 2016)

United States District Court for the Northern District of Illinois 2016-03-21

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

John J. Tharp, Jr., United States District Judge

The plaintiff, Doctor’s Data, Inc. (“DDI”), brings a claim under § 43 of the Lanham Act, 15 U.S.C. § 1125, as well as state law claims for defamation and related torts against Stephen J. Barrett, M.D. (“Barrett”), the National Council Against Health Fraud, Inc. (“NCAHF”), and Quackwateh, Inc. (“Quackwateh”). This opinion addresses DDI’s motion for partial summary judgment (“PMSJ,” Dkt. 242) and the defendants’ motion for summary judgment on all counts (“DMSJ,” Dkt. 248). For the reasons stated below, the Court denies DDI’s motion for partial summary judgment, grants the defendants’ motion for summary judgment in part, and denies the defendants’ motion for summary judgment in part.

BACKGROUND

Pursuant to Rule 56, a court shall grant summary judgment if the moving party shows “that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). On a motion for summary judgment, the Court construes all genuinely disputed facts in the light most favorable to the nonmoving party and draws all reasonable inferences in that party’s favor. Scott v. Harris, 550 U.S. 372, 378-80, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Majors v. Gen. Elec. Co., 714 F.3d 527, 532 (7th Cir.2013). The facts in this background section, and the further details that will subsequently be introduced as needed, are primarily drawn from the undisputed (or not properly disputed) facts in the parties’ Local Rule 56.1 statements and responses. See generally Senske v. Sybase, Inc., 588 F.3d 501, 503 n. 1 (7th Cir.2009) (party must cite to evidence that directly contradicts opponent’s assertions to demonstrate a genuine fact dispute); Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 237 (7th Cir.1991) (“[T]he non-movant in a summary judgment action may not rest on general denials or lack of knowledge.. .to contest the movant’s evidence.”); Ortega v. Chi. Pub. Sch. of the Bd. of Educ., No. 11 C 8477, 2015 WL 4036016, at *2 (N.D.Ill. June 30, 2015) (responses that claim “insufficient knowledge” or otherwise “neither admit nor deny” certain statements of facts are insufficient to create a genuine dispute).

The plaintiff, DDI, is a clinical laboratory that is organized as a corporation under Nevada law and has its principal place of business in Illinois. See DSOF, Dkt. 250, ¶ 4; PSOAF, Dkt. 273, at 12, ¶ 12; Third Amended Complaint (the “Complaint” or “TAC”), Dkt. 224, ¶4. DDI’s business involves analyzing urine, blood, and other samples for health care practitioners. One of the tests that DDI performs is designed to assess the levels of heavy metals present in a patient’s urine. For this test, physicians submit urine samples to DDI which are either “provoked” or “non-provoked”; a provoked sample is one the physician collects after administering a “che-lating agent,” which temporarily increases the patient’s excretion of heavy metals. DDI uses the same form to report the test results for both provoked and non-provoked samples. See DSOF, Dkt. 250, ¶ 4; PSOAF, Dkt. 273, at 12-14, ¶¶ 12-14, 19, 23; see also DMSJ Mem., Dkt. 249, at 2; Resp. to DMSJ, Dkt. 274, at 3. See generally Ex. 56 to DSOF, Dkt. 273-59 at 2-3 (explaining the effects of chelation on metal levels in urine). The form reports the heavy metal levels in the patient’s urine, lists “reference ranges” of typical heavy metal levels in non-provoked samples, and graphically classifies each of the patient’s levels as “within reference range,” “elevated,” or “very elevated” based on those non-provoked reference ranges. See Pl.’s DMSJ Ex. 11, Dkt. 273-21 (blank DDI report form); Ex. 11 to PSOF, Dkt. 244-11 (DDI report form with sample entries); Ex. 3.15 to' DSOF, Dkt. 250-16, at 2 (article displaying a DDI report form for a patient’s provoked sample); see aisoPSOAF, Dkt. 273, at 13-14, ¶¶ 21-22; PMSJ Mem., Dkt. 243, at 6-7,10; DMSJ Mem., Dkt. 249, at 2-3.

Defendant Barrett is a retired psychiatrist who owns and operates numerous health care consumer advocacy websites, including www.quackwatch.com, www. quackwatch.org, www.ncahf.com, www. ncahf.org, www.casewatch.org, and www. autism-watch.org; he has criticized heavy metal urine testing and DDI’s report form on his websites and related email listservs. See DSOF, Dkt. 250, ¶¶ 1, 4; DMSJ Mem., Dkt. 249, at 1; Answer to TAC, Dkt. 225, ¶¶ 9, 16, 26-28. Defendants NCAHF and Quaekwatch were not-for-profit corporations that focused on health care consumer advocacy; NCAHF dissolved after the instigation of this lawsuit, while Quaekwatch dissolved before the case began. NCAHF was organized under California law and headquartered in California, while Quack-watch was organized under Pennsylvania law and had its principal place of business in Pennsylvania. See DSOF, Dkt. 250, ¶¶ 2-3; PSOAF, Dkt. 273, at 10-12, ¶¶ 4, 7, 10; Answer to TAC, Dkt. 225, ¶¶ 10, 14. Barrett resides in, and is a citizen of, North Carolina. See Answer to TAC, Dkt. 225, ¶¶ 7-8.

DDI sued Barrett, NCAHF, and Quackwatch in June 2010, alleging that the defendants disseminated misleading and defamatory statements about DDI, as exemplified in seven articles included with the complaint. See Original Complaint, Dkt. 1. DDI eventually filed a Second Amended Complaint (“SAC,” Dkt. 24) which appended the same seven articles and contained the following counts: restraint of trade, deceptive business practices, and trademark dilution under the Lanham Act (Count I); trademark dilution under the Illinois Trademark Registration and Protection Act (“ITRPA”), 765 ILCS 1036/65(a) (Count II); unfair competition under the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2 (Count III); unfair competition under the Illinois Uniform Deceptive Trade Practices Act, 815 ILCS 510/2 (Count IV); defamation per se (Count V); defamation per quod (Count VI); tortious interference (Count VII); fraud (Count VIII); civil conspiracy (Count IX); corporate officer and board member personal liability (Count X); and “injunctive relief’ (Count XI). The defendants filed an answer to the SAC asserting affirmative defenses based on the Illinois statute of limitations for defamation actions and the doctrine of laches. See Answer to SAC, Dkt. 25, at 39-40. Subsequently, the defendants moved to dismiss the SAC. See Mtn. to Dismiss SAC, Dkt. 38.

In November 2011, Judge Chang (who was then presiding in this case) granted the defendants’ motion to dismiss the SAC in part. He dismissed Count I to the extent it stated a claim for false advertising and dismissed Counts III, TV, VI, VIII and XI in their entirety. Counts II, V, VII, IX, and X survived in full, while Count I survived “solely with respect to the trademark dilution claim under § 43(c).” Mem. Op., Dkt. 85, at 26-27. Discovery on the remaining counts began in December 2011. During discovery, DDI identified a number of additional publications by the defendants that allegedly contained misleading and defamatory statements about DDI. See DDI’s First Supplemental Interrogatory Responses (“First Supp. Resp.”), Dkt. 273-58; DDI’s Second Supplemental Interrogatory Responses (“Second Supp. Resp.”), Dkt. 294-1. DDI also produced new information relating to damages, in light of which the Court granted DDI leave to file another amended complaint to reinstate a revised version of its defamation per quod claim (Count VI). See 11/20/13 Order, Dkt. 223; see also Mem. Op., Dkt. 85, at 20 (dismissing Count VI for failure to plead special damages).

DDI filed the TAC in November 2013. In addition to including Count VI as contemplated by the Court’s order, DDI included three of the other dismissed counts (Counts III, IV, and VIII) in order to “preserve [its] appellate rights” with respect to those counts. TAC, Dkt. 224, at 22 n.18, 26 n.19, 34 n.20. As discussed in further detail below, DDI also included Count I without acknowledging the partial dismissal of that count or revising its text in light of that dismissal. See TAC, Dkt. 224, at 16-19. The Complaint thus purports to present active claims for violating the Lanham Act (Count I); trademark dilution under ITRPA (Count II); defamation per se (Count V); defamation per quod (Count VI); tortious interference (Count VII); civil conspiracy (Count IX); and corporate officer and board member personal liability (Count X).The defendants answered the TAC in December 2013 and asserted affirmative defenses based on the statute of limitations and the doctrine of laches (as they had in their answer to the SAC). See Answer to TAC, Dkt. 225, at 41-42.

DDI has now filed a motion for summary judgment on its defamation per se claim and the defendants’ asserted affirmative defenses (Dkt. 242), while the defendants have moved for summary judgment on all pending claims (Dkt. 248).

DISCUSSION

A. Defendants’ Motion for Summary Judgment — Count I (Lanham Act)

As noted above, Judge Chang’s 2011 memorandum opinion in this case dismissed Count I of the SAC to the extent it stated a claim for false advertising. Mem. Op., Dkt. 85, at 14. The court began by analyzing DDI’s allegations and determining that Count I appeared to assert claims based on two of the four main categories of unfair competition claims under § 43 of the Lanham Act: false advertising under § 43(a) and trademark dilution under § 43(c). Mem. Op., Dkt. 85, at 9-10. With respect to the false advertising claim, the court ruled that DDI lacked standing and could not proceed on that claim. Mem. Op., Dkt. 85, at 14. As for the trademark dilution claim, the court found that the allegations in support of the claim were “scarce” but were “sufficient to put [the defendants] on notice” of the claim, so DDI could proceed with Count I on that basis. Mem. Op., Dkt. 85, at 14-17. In summarizing its rulings, the court reiterated that “the Lan-ham Act claim survives solely with respect to the trademark dilution claim under § 43(c).” Mem. Op., Dkt. 85, at 27.

Despite Judge Chang’s clear statements on this matter, DDLs current Complaint and summary judgment filings do not acknowledge that Count I has been limited to trademark dilution. See, e.g., TAC, Dkt. 224, at 16-19 (labeling Count I as “Restraint of Trade, Deceptive Business Practices and Tradename Dilution under Lanham Act”); PSOF, Dkt. 244, ¶ 11. The defendants did not overlook the court’s 2011 ruling, however, and, accordingly, their summary judgment opening brief treats Count I as presenting a claim only for trademark dilution under § 43(c). See DMSJ Mem., Dkt. 249, at 40. In its response, DDI clarifies for the first time that it is not,claiming trademark dilution under § 43(c) of the Lanham Act, and that Count I is directed solely at false advertising under § 43(a) of the Lanham Act. See Resp. to DMSJ, Dkt. 274, at 94 (“DDI’s third amended complaint quoted [§ 43(a) ] as the basis for its claim. Inexplicably, Defendants argue summary judgment is appropriate because DDI cannot prove the elements of a violation of [§ 43(c) ].... DDI has not proceeded on this statutory basis.... ”). Given the allegations of the Complaint, and Judge Chang’s prior ruling, there is nothing “inexplicable” about the fact that the defendants’ motion is directed at § 43(c), but putting DDI’s misplaced indignation aside, the Court construes DDI’s statements in its response brief as a motion to voluntarily dismiss Count I to the extent it can be read to state a trademark dilution claim under § 43(c), and grants that motion. See generally Fed. R. Civ. P. 41(a)(2). Accordingly, since Count I has already been dismissed except to the extent it stated a trademark dilution claim, Count I is now dismissed in its entirety with prejudice and the defendants’ motion for summary judgment on Count I is denied as moot.

B. Defendants’ Motion for Summary Judgment — Count II (Trademark Dilution Under. ITRPA)

Although DDI does not advance a claim for trademark dilution under the Lanham Act, it does seek to hold the defendants liable for trademark dilution under ITRPA, which provides that the owner of a mark which is famous in Illinois is entitled to relief “against another person’s commercial use of a mark or tradename, if the use ... causes dilution of the distinctive quality of the mark.” 765 ILCS 1036/65(a). Dilution of a trademark’s distinctiveness generally occurs when consumers are led to mistakenly associate the plaintiffs famous mark with the defendant’s inferior product or service, or when a famous mark appears on different goods and services and therefore no longer serves as a unique identifier of the plaintiffs product or service. See Eli Lilly & Co. v. Natural Answers, Inc., 233 F.3d 456, 466 (7th Cir.2000); see also Ill. High Sch. Ass’n v. GTE Vantage Inc., 99 F.3d 244, 247 (7th Cir.1996), as amended (Dec. 3, 1996) (“[Antidilution statutes] protect the trademark owner from the erosion of the distinctiveness and prestige of a trademark caused by the sale of other goods or services under the same name (for example, the use of ‘Tiffany & Co.’ as the name of a hamburger stand, or simply a proliferation of borrowings that ... are so numerous as to deprive the mark of its distinctiveness and hence impact).... ”). To succeed on a trademark dilution claim, “proof of actual dilution is required, either through survey, financial, or circumstantial evidence.” Sullivan v. CBS Corp., 385 F.3d 772, 779 (7th Cir.2004).

DDI contends that Barrett’s websites are commercial in nature and that the defendants violated ITRPA by referencing “Doctor’s Data” in the challenged publications and including DDI’s logo on the first page of one of the publications. See PSOAF, Dkt. 273, at 10, ¶ 2 (“Barrett ... entices readers of his blogs to send him donations”); PSOAF, Dkt. 273, at 27, ¶ 70 (“DDI’s trademark is prominently displayed in [Article A] and all of its countless re-publications, revisions, and hyperlinks.”); Resp. to DMSJ, Dkt. 274, at 37 (“[Article A] prominently displays on its first page DDI’s trademark and name.”); see also TAC, Dkt. 224, at 21, ¶ 64 (alleging that the defendants have diluted DDI’s “trade name and trademark ... by plastering Plaintiffs name on their websites and connecting Plaintiffs name to false and outrageous statements ... for their own financial gain”). The defendants argue that summary judgment on the ITRPA claim is appropriate because (1) DDI has not established that the defendants’ use of the trademarks caused dilution; (2) DDI has not established that its trademarks are famous; and (3) the defendants’ use of the trademarks was within the context of news reporting and commentary, which is not actionable under ITRPA, see 765 ILCS 1036766(b). DMSJ, Dkt. 248, at 3; DMSJ Mem., Dkt. 249, at 40-43.

The Court agrees that DDI has failed to present sufficient evidence of dilution of the distinctiveness of its trademarks to withstand summary judgment. DDI has provided no indication that any of the challenged publications led readers to confuse DDI with a different testing laboratory or to associate DDI’s name or logo with another type of product or service. In responding to the defendants’ arguments regarding dilution, DDI has pointed only to the facts that: (1) Article A contains DDI’s logo and name; and (2) the report by DDI’s damages expert, Roger Grabow-ski, stated “DDI’s Elemental Testing business unit was significantly harmed and DDI’s trademark value was diluted,” Resp. to DMSJ, Dkt. 274, at 37; PSOAF, Dkt. 273, ¶¶ 70, 76; see also Grabowski Report, Ex. 4 to DSOF, Dkt. 251-2, at 15. The inclusion of DDI’s logo and name in Article A is evidence that the defendants used DDI’s trademarks, but it does not demonstrate that their actions diluted those trademarks. And the single reference in Grabowski’s 34-page expert report to “trademark value,” unaccompanied by any discussion of that concept or any breakdown of damages estimated to be traceable to trademark dilution, is insufficient to raise a genuine issue of material fact on this question. Cf. Sullivan, 385 F.3d at 779 (affirming summary judgment for defendant where plaintiff “failed to present any evidence of actual dilution” on ITRPA and Lanham Act trademark dilution claims); Games Workshop Ltd. v. Chapterhouse Studios, LLC, No. 10 C 8103, 2012 WL 5949105, at *18 (N.D.Ill. Nov. 27, 2012) (granting summary judgment on an ITRPA trademark dilution claim where plaintiff failed to present any evidence that defendant “diluted [plaintiffs] marks through its use of them”).

Taken together, the allegations and evidence pertaining to Count II may suggest that DDI’s reputation was damaged by the defendants’ use of its trademarks and that DDI suffered financially as a result of that reputational damage. But causing consumers to think less highly of a trademarked product or service — even if accomplished through false or misleading statements — is not equivalent to diluting the distinctiveness of that product or service. Allegations solely of the former nature point not to trademark dilution but to defamation and other similar claims; those claims are discussed below. Accordingly, summary judgment on Count II is appropriate because DDI has not sufficiently established that the defendants’ use of DDI’s logo and name has diluted those trademarks.

C. Defendants’ Motion for Summary Judgment — Count V (Defamation Per Se) and Count VI (Defamation Per Quod)

During discovery, DDI identified 85 allegedly defamatory statements that were published by one or more of the defendants. See First Supp. Resp., Dkt. 273-58 (identifying 51 defamatory statements); Second Supp. Resp., Dkt. 294-1 (revising information about several previously identified statements and adding additional statements, for a total of 85 statements). DDI asserts that all 85 statements are actionable both as defamation per se (Count V) and as defamation per quod (Count VI). See, e.g., Resp. to DMSJ, Dkt. 274, at 33-34 (stating that defendants’ “numerous websites and other publications .... are subsumed in [the] per quod count”); Second Supp. Resp., Dkt. 294-1, at 7-9 (indicating that all 85 statements identified as defamatory are alleged to be defamatory per se). The defendants seek summary judgment on both of DDI’s defamation claims with respect to all 85 statements.

“A defamatory statement is a statement that harms a [party’s] reputation to the extent it lowers the [party] in the eyes of the community or deters the community from associating with [the party].” Green v. Rogers, 234 Ill.2d 478, 491, 334 Ill.Dec. 624, 917 N.E.2d 450, 459 (2009). Notably, “[t]he republisher of a defamatory statement [originally] made by another is himself liable for defamation even if he gives the originator’s name.” Brennan v. Kadner, 351 Ill.App.3d 963, 970, 286 Ill.Dec. 725, 814 N.E.2d 951, 959 (2004) (citing Owens v. CBS Inc., 173 Ill. App.3d 977, 994, 123 Ill.Dec. 521, 527 N.E.2d 1296, 1308 (1988)); see also Restatement (Second) of Torts § 578 (1977). Under Illinois law, the elements of a defamation claim for both per quod and per se actions are “that the defendant made a false statement about the plaintiff, that the defendant made an unprivileged publication of that statement to a third party, and that this publication caused damages.” Green, 234 Ill.2d at 491, 334 Ill.Dec. 624, 917 N.E.2d at 459; see also Kapotas v. Better Gov’t Ass’n, 2015 IL App (1st) 140534, ¶ 34, 391 Ill.Dec. 302, 30 N.E.3d 572, 587-88 (explaining that although “substantial truth” is an affirmative defense to defamation, the Illinois Supreme Court has repeatedly held falsity to be an element of such a claim, such that it is plaintiffs burden to plead and establish lack of truth).

The two types of defamation claims differ only with respect to the plaintiffs burden to plead and prove damages. In a defamation per se action, damage to a corporate plaintiff is presumed if the statement imputes the commission of a criminal offense, impugns the plaintiffs competence or integrity, or otherwise prejudices the plaintiff in its business. See Neuros Co. v. KTurbo, Inc., 698 F.3d 514, 519 (7th Cir. 2012); Republic Tobacco, L.P. v. N. Atl. Trading Co., 254 F.Supp.2d 985, 998-99 & n. 16 (N.D.Ill.2002). In a defamation per quod action, damage to the plaintiffs reputation is not presumed and the plaintiff must plead and prove special damages. Tuite v. Corbitt, 224 Ill.2d 490, 501, 310 Ill.Dec. 303, 866 N.E.2d 114, 121 (2006); see also Imperial Apparel, Ltd. v. Cosmo’s Designer Direct, Inc., 227 Ill.2d 381, 390, 317 Ill.Dec. 855, 882 N.E.2d 1011, 1018 (2008) (“special damages [are] actual damages of a pecuniary nature”).

A number of affirmative defenses apply to both defamation per se and defamation per quod claims under Illinois law. Statements that do not contain verifiable facts — such as rhetorical hyperbole or opinions — are not actionable as defamation; it is a question of law whether a statement is factual in nature. Madison v. Frazier, 539 F.3d 646, 654 (7th Cir.2008). In addition, a statement that is not technically true in every respect but is “substantially true” does not constitute defamation; this is a question for trial unless no reasonable jury could find that substantial truth was not established. Global Relief Found., Inc. v. N.Y. Times Co., 390 F.3d 973, 982, 987 (7th Cir.2004). Further, statements that are privileged cannot support a defamation claim. Solaia Tech., LLC v. Specialty Publ’g Co., 221 Ill.2d 558, 585, 304 Ill.Dec. 369, 852 N.E.2d 825, 839(2006). As relevant here, the fair report privilege protects publication of defamatory statements in a report of an official proceeding, provided that the report is “complete and accurate” or is “a fair abridgement” of the proceeding; it is generally a question of law whether the fair report privilege applies. Id. at 585, 588, 304 Ill.Dec. 369, 852 N.E.2d at 842, 843; see also Missner v. Clifford, 393 Ill.App.3d 751, 763, 333 Ill. Dec. 121, 914 N.E.2d 540, 551 (2009) (indicating that applicability of a privilege is ordinarily a question of law, unless there are genuine issues of material fact); Solaia Tech., LLC v. Specialty Pub. Co., 357 Ill. App.3d 1, 7, 292 Ill.Dec. 772, 826 N.E.2d 1208, 1213 (2005) (“The question of whether a publication is privileged under the fair report privilege is generally a question of law, particularly where there is no dispute about the content of the document on which the publication is based.”), rev’d in part, 221 Ill.2d 558, 304 Ill.Dec. 369, 852 N.E.2d 825 (2006). Finally, defamation claims are subject to a one-year statute of limitations. 735 ILCS 5/13-201. Based on the single publication rule, codified at 740 ILCS 165, that statute of limitations begins to run when the communication containing the defamatory statements is first published; it is not restarted by subsequent distributions of the original communication. See Pippen v. NBCUniversal Media, LLC, 734 F.3d 610, 615-16 (7th Cir. 2013); Hukic v. Aurora Loan Servs., 588 F.3d 420, 436-38 (7th Cir.2009).

An additional affirmative defense applies solely in the defamation per se context. Even if a statement falls within one of the defamation per se categories, the statement is not actionable as defamation per se if it is reasonably capable of an innocent construction. Tuite, 224 Ill.2d at 502, 310 Ill.Dec. 303, 866 N.E.2d at 121; see also Madison, 539 F.3d at 653-54. In applying the innocent construction rule, “courts must interpret the words ‘as they appeared to have been used and according to the idea they were intended to convey to the reasonable reader.’ ” Tuite, 224 Ill.2d at 512, 310 Ill.Dec. 303, 866 N.E.2d at 123 (quoting Bryson v. News Am. Publ’ns, Inc., 174 Ill.2d 77, 93, 220 Ill.Dec. 195, 672 N.E.2d 1207, 1217 (1996)). “[I]f, as so construed, the statement may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se.” Id. at 503, 310 Ill.Dec. 303, 866 N.E.2d at 122 (quoting Chapski v. Copley Press, 92 Ill.2d 344, 352, 65 Ill.Dec. 884, 442 N.E.2d 195, 199 (1982)) (internal quotation marks omitted). The determination of whether a statement is reasonably capable of an innocent construction is a question of law. Id. at 510, 310 Ill.Dec. 303, 866 N.E.2d at 126.

The defendants’ principal arguments for summary judgment on DDI’s defamation per se and per quod claims are: (1) that DDI has failed to establish that certain statements are false; (2) that DDI has failed to establish that certain statements are about DDI; and (3) that at least one of the following affirmative defenses applies to many of the statements: lack of factual nature, the fair report privilege, the single publication rule, and substantial truth. The defendants also argue that summary judgment in their favor is appropriate on the per quod claim with respect to all 85 challenged statements because DDI has failed to establish that it suffered special damages. In addition, the defendants argue that some of the statements are not actionable as defamation per se because they are protected by the innocent construction rule or do not fall within a defamation per se category.

As an initial matter, the defendants’ reliance on the single publication rule is misplaced. The defendants contend that the rule makes subsequent distributions or republications of defamatory statements not actionable as defamation. See DMSJ Mem., Dkt. 249, at 6-8. In fact, however, the rule does not affect whether individual statements are actionable as defamation. Rather, it governs when the statute of limitations begins to run and when res judicata applies for tort claims that are based on a publication. See 740 ILCS 165/1 (“No person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication.... ”); 740 ILCS 165/2 (barring repeated suits “by the same plaintiff against the same defendant founded upon the same publication”). The Seventh Circuit has explained that the rule “provides that a claim for relief for defamation is complete at the time of first publication; later circulation of the original publication does not trigger fresh claims.” Pippen, 734 F.3d at 615-16. But although subsequent distributions of a publication “are of no consequence to the creation or existence of a cause of action,” such distributions can be relevant to the question of damages for claims that are not disposed of on res judicata or statute of limitations grounds. Blair v. Nev. Landing P’ship, 369 Ill. App.3d 318, 324-25, 307 Ill.Dec. 511, 859 N.E.2d 1188, 1193 (2006) (quoting Founding Church of Scientology of Washington, D.C. v. Am. Med. Ass’n, 60 Ill.App.3d 586, 588, 18 Ill.Dec. 5, 377 N.E.2d 158, 160 (1978)) (internal quotation marks omitted); see also 740 ILCS 165/1 (“Recovery in any action shall include all damages for any such tort suffered by the plaintiff....”). Thus, the single publication rule is of import only where res judicata or statute of limitations defenses are at issue. Here, although the defendants raised the statute of limitations as an affirmative defense when answering the Complaint, they have not sought summary judgment on that ground. Therefore, the single publication rule cannot provide a basis for granting their motion for summary judgment, and the Court need not further address the parties’ arguments on that subject.

That leaves for consideration the defendants’ four other asserted affirmative defenses (lack of factual nature, the fair report privilege, substantial truth, and innocent construction), as well as their arguments that DDI has failed to establish certain elements of its defamation claims. DDI’s response brief raises two general objections to the defendants’ asserted affirmative defenses to the defamation claims. First, DDI argues that the defendants waived those affirmative defenses by failing to assert them at the pleading stage. Second, DDI argues that, based on Judge Chang’s prior choice-of-law ruling in this case, the defendants may not rely on Illinois defenses to DDI’s defamation claims. See Resp. to DMSJ, Dkt. 274, at 1, 5-7.

With respect to DDI’s waiver argument, although Rule 8(c) requires affirmative defenses to be raised in the pleadings, “a delay in asserting an affirmative defense waives the defense only if the plaintiff was harmed as a result.” Curtis v. Timberlake, 436 F.3d 709, 711 (7th Cir. 2005). Here, there is no indication that DDI suffered any harm from the fact that the defendants did not assert the affirmative defenses they now rely on at the pleading stage. DDI has had an opportunity to substantively respond to those affirmative defenses in its response to the defendants’ motion for summary judgment, and has taken advantage of that opportunity. See Resp. to DMSJ, Dkt. 274, at 10-26, 32-33. In addition, DDI was aware of most of the defendants’ affirmative defenses when it filed the current Complaint, since the defendants had raised those same defenses in previous filings and court-ordered communications. See, e.g., Resp. to DDI’s Settlement Demand, Ex. H to Reply to DMSJ; Dkt. 292-1, at 33-36 (summarizing the defendants’ defenses of lack of factual nature, substantial truth, and the innocent construction rule in a December 2011 letter to DDI’s counsel); Mtn. to Dismiss Mem., Dkt. 55, ¶ 14 (“[Everything alleged in the suit to be false is either absolutely true, substantially true, or a clearly non-actionable statement of opinion.”); Mtn. to Dismiss Mem., Dkt. 55, ¶ 73 (“There is no libel per se if the alleged statement is true, substantially true, capable of an innocent construction, or an expression of opinion.”); see aisoResp. to Mtn. to Dismiss, Dkt. 56, at 15 (acknowledging defendants’ motion to dismiss arguments that “truth, innocent construction, and expressions of opinion are defenses to libel”):

Accordingly, the defendants have not waived the affirmative defenses they assert in seeking summary judgment on DDI’s defamation claims. Cf. Curtis, 436 F.3d at 711 (“Curtis was not prejudiced; he was aware of the [affirmative defense] issue even when he filed his complaint, and he confronted the defense in responding to the motion for summary judgment.”); Williams v. Lampe, 399 F.3d 867, 871 (7th Cir.2005) (“[Wjhere the plaintiff has an opportunity to respond to a late affirmative defense, he cannot establish prejudice merely by showing that the case has progressed significantly since the defendants answered his complaint.”).

DDI’s choice-of-law argument is based on Judge Chang’s prior ruling that the defendants’ statements are not protected by Illinois’ anti-SLAPP statute. See Mem. Op., Dkt. 85, at 4-8. The court reasoned that although Illinois law governs DDI’s defamation claims, different state law could govern the defendants’ affirmative defenses to those claims since Illinois courts follow the doctrine of depecage, which involves subjecting each issue in a case to a separate choice-of-law analysis. Judge Change also noted that in Illinois, “a choice-of-law determination is only necessary when there is a conflict of laws and the difference will affect the outcome of the case.” Mem. Op., Dkt. 85, at 5 (citing Townsend v. Sears, Roebuck & Co., 227 Ill.2d 147, 155-56, 316 Ill.Dec. 505, 879 N.E.2d 893, 898-99(2007)). Since DDI had identified an outcome-determinative conflict between North Carolina law and Illinois law (namely, that North Carolina does not have an anti-SLAPP statute), the court proceeded to perform a choice-of-law analysis to determine if Illinois’ anti-SLAPP statute applied, ultimately determining that it did not. Based on that ruling, DDI now argues that the defendants’ motion for summary judgment on DDI’s defamation claims should be denied because, inter alia, the defendants failed to cite North Carolina law in support of their asserted affirmative defenses. See Resp. to DMSJ, Dkt. 274, at 1, 5.

Notably, DDI has only identified a difference between North Carolina law and Illinois law with respect to one of the four affirmative defenses under consideration— the innocent construction rule. See Resp. to DMSJ, Dkt. 274, at 27 (“North Carolina law does not recognize the Innocent Construction Rule.”). Since the party seeking a choice-of-law determination bears the burden of demonstrating that there is an outcome-determinative difference, Bridgeview Health Care Ctr., Ltd. v. State Farm Fire & Cas. Co., 2014 IL 116389, ¶ 14, 381 Ill.Dec. 493, 10 N.E.3d 902, 905, the Court need not perform a choice-of-law analysis regarding the defendants’ affirmative defenses of lack of factual nature, fair report privilege, and substantial truth. And since none of the Court’s rulings on DDI’s defamation claims rely on the innocent construction rule, see infra, the choice-of-law issue regarding that affirmative defense is moot.

With these initial matters resolved, the Court can proceed to analyze the defendants’ specific arguments for summary judgment regarding the 85 challenged statements. In general, the fundamental dispute between the parties concerns the manner in which DDI presents the results of urine tests of provoked specimens. DDI maintains that it accurately states that the comparisons it reports are to non-provoked samples and that physicians understand the differences between provoked and non-provoked samples. Barrett contends, however, that referring patients who have provided provoked samples to standards applicable to non-provoked tests is highly misleading and permits unscrupulous physicians and other purported health care practitioners to convince patients to undergo expensive, but unnecessary, detoxification treatments. The disputes in this case center primarily on the extent to which the defendants’ statements assert that Doctor’s Data is a witting participant in these schemes. DDI contends that the characterizations of the role it plays in the diagnosis and treatment of metals toxicity are defamatory. But, as will be seen, for the most part the statements that are likely to cause reputational harm concern the doctors (rather than DDI) or appear in reports which are protected by the fair report privilege (e.g., reports of lawsuits filed against DDI and others). And most of the remaining statements are either true descriptions of the report form or expressions of opinion about the form. Accordingly, the Court concludes that most of the allegedly defamatory statements are not actionable. But since context is an important consideration in evaluating an allegedly defamatory statement, the specific challenged statements are grouped by publication and considered in detail below.

1. Article A — Statements (a), (b), (c), (d), (e), (f), (g), (h), (i), and (j)

Article A is an article published on www. quackwatch.com titled “How the ‘Urine Toxic Metals’ Test Is Used to Defraud Patients”; Barrett is credited as the author, and a line at the bottom indicates that the article was revised on March 14, 2010. See Article A, Dkt. 24-1. As printed out for purposes of this lawsuit, Article A spans six pages, including approximately one page of footnotes. An image of a redacted DDI urine toxic metals report appears on the first page of the article, next to the following introductory text:

Many patients are falsely told that their body has dangerously high levels of lead, mercury, or other heavy metals and should be “detoxified” to reduce these levels. This article explains how a urine test is used to defraud patients.

The report pictured to the right is a “urine toxic metals” test from Doctor’s Data, a Chicago-based laboratory that caters to nonstandard practitioners. The patient who gave it to me was told that his mercury and lead levels were high and should be reduced with EDTA che-lation therapy.

The report classifies the man’s lead and mercury levels as “elevated[”] because they are twice as high as the upper limit of their “reference ranges.” However, this classification is misleading because:

• The report states that the specimen was obtained after patient was given a “provoking agent,” but the reference range is based on non-provoked tests.

• The levels, whether provoked or not, are not high enough to conclude that the patient has a problem that requires attention.

• Even if a problem exists, chelation may not be the best course of action.

Article A, Dkt. 24-1, at 1.

Below the introductory portion of Article A is a lengthy section labeled “Why Provoked Testing Is a Scam.” It explains that small amounts of mercury and lead are commonly found in urine, that urine lead and mercury levels can be artificially raised by administering a provoking agent, and that urine levels typically are expressed as micrograms of lead or mercury per gram of creatinine (“|xg/g”) and are compared to the testing laboratory’s reference range. Article A, Dkt. 24-1, at 2. The section continues in relevant part:

Neither Mayo Clinic, nor any other legitimate national laboratory, has reference ranges for “provoked” specimens. Further, the references ranges for normal urine heavy metal levels used by Mayo Clinic and the largest national reference lab, Quest Diagnostics, are the same.

In contrast, Doctor’s Data uses reference values of less than 3 ug/g for mercury and 5 ug/g for lead. Standard laboratories that process non-provoked samples use much higher reference ranges [3,4], which means that if all other things were equal, Doctor’s Data is far more likely than standard labs to report “elevated” levels. But that’s not all. A disclaimer at the bottom of the above lab report states — in boldfaced type! — that “reference ranges are representative of a healthy population under non-challenge or nonprovoked conditions.” In other words, they should not be applied to specimens that were obtained after provocation. Also note that the specimen was obtained over a 6-hour period, not the standard 24-hour period, which raised the reported level even higher.

The management at Doctor’s Data knows that provoked testing artificially raises the urine levels and that the length of collection time greatly influences the results....

Despite all of this, Doctor’s Data’s reports classify mercury values in the range of 5-10 |xg/g as “elevated” and further state that “no safe reference levels for toxic metals have been established.” Practitioners typically receive two copies of the report, one for the practitioner and one to give to the patient. Very few patients understand what the numbers mean. They simply see “elevated” lead or mercury, and interpret the “no safe levels” disclaimer to mean that any number above zero is a problem. The patient is then advised to undergo “detoxification” with chelation therapy, other intravenous treatments, dietary supplements, or whatever else the practitioner happens to sell.

Doctors who offer chelation therapy as part of their everyday practice typically claim that it is effective against autism, heart disease and many other conditions for which it has no proven effectiveness or plausible rationale [7]. One such case was described in a 2009 decision by the U.S. Court of Federal Claims which found no credible evidence that childhood vaccinations cause autism. In that case, Colton Snyder underwent chelation therapy after a Doctor’s Data urine test report classified his urine mercury level as “very elevated.” After noting that the urine sample had been provoked (with DMSA) and that provocation artificially increases excretion, the Special Master concluded that a non-provoked test would have placed the result in the normal range....

In March 2009, Arthur Allen tried to interview an official at Doctor’s Data but received no response to his request. However, he did manage to talk with someone at the company who said that the lab was doing about 100,000 of the tests per year. When he asked about the reference range problem, he was told there was no way to establish a reference range for provoked specimens, because provocation might be done with various chelating agents, at varying doses. “The tests are ordered by physicians, so they can interpret the results,” the employee said. “They do what they want with this information.” [9]

Despite provocation, the toxic urine test report sometimes shows no elevated levels. But that doesn’t deter the doctors who are intent on chelating children. They simply tell parents that the children have trouble excreting heavy metals- and the test may not detect “hidden stores.” In other words, no matter what the test shows, they still recommend chelation.

Article A, Dkt. 24-1, at 2-3.

The next section of Article A, labeled “Regulatory Actions and Civil Suits,” contains two mentions of DDI:

Several state licensing boards have taken action against doctors who used provoked urine testing as a prelude to chelation. In some of these cases, the test was of major importance in the public documents that describe the board actions. In the rest, the board action emphasized other misconduct and the test was either briefly mentioned or I learned of its relevance through other means. There have also been at least four civil suits.

• In 2009, 43-year-old Ronald Stemp sued Caquias, CARE Clinics, the clinic’s owner, and Doctor’s Data for fraud, negligence, and conspiracy. The suit petition states that Stemp originally sought help for memory loss, inability to sleep, difficulty concentrating, and depression. After taking a urine toxic metals test and several other tests, he was falsely diagnosed with heavy metal poisoning and advised to undergo intravenous chelation therapy.

• In March 2010, James filed suit on behalf of his 7-year-old son against Anju Usman, M.D., Daniel Rossignol, M.D., and Doctor’s Data. Among other things, the complaint indicated that — based on the results of provoked urine testing — the boy was inappropriately treated for nonexistent metal toxicity for more than four years [25].

Article A, Dkt. 24-1, at 4-5.

The last section of Article A, labeled “The Bottom Line,” includes the following text:

The urine toxic metals test described above — whether provoked or not — is used to persuade patients they are toxic when they are not. I believe that several agencies can and should do something to stop this deception.

• If the FDA has jurisdiction over the software used to generate the test reports, it could ban its use. State licensing boards could prohibit the use of provoked testing and discipline practitioners who use it.

• State laboratory licensing agencies could prohibit testing of provoked specimens or order Doctor’s Data to raise its reference ranges and to stop comparing provoked test results to these non-provoked ranges.

Article A, Dkt. 24-1, at 5. The article concludes by stating: “I recommend avoiding any practitioner who uses the urine toxic metals test as described above. If this' test has been used to trick you, please send me an e-mail describing what happened and include your phone number.” Article A, Dkt. 24-1, at 5.

DDI alleges that ten portions of Article A — statements (a) through (j) — are defamatory. See First Supp. Resp., Dkt. 273-58, at 1-2 (identifying statements (a) through (j) in Article A); Second Supp. Resp., Dkt. 294-1, at 1-2 (revising information about statements (c) and (d)). For the reasons explained below, the Court grants summary judgment for the defendants on DDI’s defamation per se and defamation per quod claims with respect to all ten challenged statements.

Statements (a) and (b)

Statements (a) and (b) appear on the first page of the article. Statement (a) is the article’s title, “How the ‘Urine Toxic Metals’ Test Is Used to Defraud Patients,” while statement (b) is the article’s opening paragraph: “Many patients are falsely told that their body has dangerously high levels of lead, mercury, or other heavy metals and should be ‘detoxified’ to reduce these levels. This article explains how a urine test is used to defraud patients.” First Supp. Resp., Dkt. 273-58, at 1. The defendants argue that summary judgment in their favor is appropriate with respect to both statements because, inter alia, the statements are not about DDI. See DMSJ Mem., Dkt. 249, at 13, 29-30, 35-36. See generally BASF AG v. Great Am. Assurance Co., 522 F.3d 813, 820 (7th Cir.2008) (noting that Illinois defamation law “require[s] that a false statement by made about the plaintiff’ (citing Solaia Tech., 221 Ill.2d at 579, 304 Ill.Dec. 369, 852 N.E.2d at 839)). DDI contends that although the statements do not explicitly mention DDI, they are clearly about DDI when read in the context of Article A as a whole. See Resp. to DMSJ, Dkt. 274, at 27-30.

Accordingly, the Court considers the context of statements (a) and (b). Article A provides the following information about how DDI’s urine toxic metals test is used and how patients learn of their diagnoses and treatment recommendations: (1) practitioners planning to use the test start by administering a provoking agent to their patients; (2) the practitioners then collect urine specimens from their patients after some period of time has passed since provocation (typically 24 hours); (3) the practitioners submit the provoked urine specimens to DDI for toxic metals testing; (4) DDI performs the tests and reports the results to the requesting practitioners; (5) some practitioners show a copy of the report to their patients, who generally have difficulty understanding the information in the report; (6) some practitioners advise their patients to pursue treatments for metal toxicity based on the test results; and (7) many of the treatments recommended by such practitioners are unnecessary. When read in this context, statements (a) and (b) are not about DDI; rather, they are about practitioners who order the urine toxic metals test and reference the test results when recommending treatments to their patients. This reading is strongly reinforced by the final paragraph of Article A, which reads: “I recommend avoiding any practitioner who uses the urine toxic metals test as described above. If this test has been used to trick you, please send me an e-mail describing what happened and include your phone number.” Article A, Dkt. 24-1, at 5 (emphases added). The specific language employed in statements (a) and (b) therefore speaks to the use of DDI’s test by some health care practitioners to defraud patients, not to the related, but distinct, question of whether DDI intended its reports to be used in a fraudulent manner. Summary judgment is therefore granted for the defendants on DDI’s defamation claims with respect to statements (a) and (b). Cf. Huon v. Breaking Media, LLC, 75 F.Supp.3d 747, 765 (N.D.Ill.2014) (finding that several statements were not actionable as defamation because they were not about the plaintiff); Dry Enterprises, Inc. v. Sunjut AS, No. 07 C 1657, 2008 WL 904902, at *8 (N.D.Ill. Mar. 31, 2008) (finding that statement attributed to defendant Patriquin could not support a defamation claim because it did not concern any of the plaintiffs).

Statement (c)

Statement (c) appears in the introductory section of Article A and reads as follows:

The report classifies the man’s lead and mercury levels as “elevated because they are twice as high as the upper limit of their “reference ranges.” However, this classification is misleading because:

• The report states that the specimen was obtained after patient was given a “provoking agent,” but the reference range is based on non-provoked tests.

• The levels, whether provoked or not, are not high enough to conclude that the patient has a problem that requires attention.

• Even if a problem exists, chelation may not be the best course of action.

Second Supp. Resp., Dkt. 294-1, at 1. DDI asserts that this statement is false to the extent it suggests that DDI’s report classification is misleading and that DDI compares provoked urine results to reference ranges for non-provoked specimens. See Second Supp. Resp., Dkt. 294-1, at 1; Resp. to DMSJ, Dkt. 274, at 21-22.

The defendants argue, inter alia, that the description of the report classification as misleading is non-actionable opinion. See DMSJ Mem., Dkt. 249, at 19. A statement is constitutionally-protected opinion if it cannot reasonably be interpreted as stating actual facts about the plaintiff, when viewed “from the perspective of an ordinary reader.” Imperial Apparel, Ltd. v. Cosmo’s Designer Direct, Inc., 227 Ill.2d 381, 398, 317 Ill.Dec. 855, 882 N.E.2d 1011, 1022 (2008); see also Giant Screen Sports v. Canadian Imperial Bank of Commerce, 553 F.3d 527, 535 (7th Cir.2009); Hadley v. Doe, 2015 IL 118000, ¶ 33, 393 Ill.Dec. 348, 34 N.E.3d 549, 558. To determine whether a statement is factual in nature, Illinois courts consider “whether the statement has a precise and readily understood meaning; whether the statement is verifiable; and whether the statement’s literary or social context signals that it has factual content.” Hadley, 2015 IL 118000, ¶ 41, 393 Ill.Dec. 348, 34 N.E.3d at 559 (citing Solaia Tech., 221 Ill.2d at 581, 304 Ill.Dec. 369, 852 N.E.2d at 840). If it is clear that the speaker is expressing a subjective view or interpretation, such as when the speaker discloses the facts forming the basis for the statement, the statement is not actionable as defamation. See Giant Screen Sports, 553 F.3d at 535; Republic Tobacco Co. v. N. Atl. Trading Co., 381 F.3d 717, 727 (7th Cir.2004); see also Brenner v. Greenberg, No. 08 C 826, 2009 WL 1759596, at *3 (N.D.Ill. June 18, 2009) (“[W]hen the speaker also states the factual basis for the opinion... .the speaker may be liable for any false statement of facts, but not for the statements of opinion made on the basis of those facts.”); Hadley v. Doe, 2014 IL App (2d) 130489, ¶48, 382 Ill.Dec. 75, 12 N.E.3d 75, 90-91 (“[W]hen the facts underlying a statement of opinion are disclosed, readers will understand that they are getting the author’s interpretation of those facts....”), aff'd, 2015 IL 118000, 393 Ill.Dec. 348, 34 N.E.3d 549.

Since the description of DDI’s report classification as misleading in statement (c) is immediately followed by the factual basis for that assertion, and the report under discussion is shown to the right of the statement, it is clear that the “misleading” comment is Barrett’s interpretation of the report. Accordingly, the description of the report classification as misleading is an expression of opinion and is not actionable as defamation. Cf. Minuti v. Johnson, No. 02 C 4551, 2003 WL 260705, at *4 (N.D.Ill. Feb. 5, 2003) (finding comments to be non-actionable opinion in part because the publication at issue “set[ ] out many of the facts that form[ed] the basis of’ defendant’s remarks); Ocytko v. Alliance Printers & Publishers Inc., No. 1-03-2352, 2004 WL 3761662, at *11-13 (Ill.App.Ct. Dec. 21, 2004) (finding statements that plaintiff “lied to and misled” individuals and organizations to be non-actionable opinion given the statements’ context).

As for the suggestion in statement (c) that DDI’s reports compare provoked results to non-provoked reference ranges, the defendants argue, inter alia, that there is no genuine issue of material fact as to the falsity of this aspect of statement (c). See DMSJ Mem., Dkt. 249, at 19; see also DMSJ Mem., Dkt. 249, at 4, 11-12,16-17 (disputing DDI’s theory as to the falsity of many of defendants’ statements describing DDI’s reports and reference ranges). Since falsity is one of the elements of a defamation claim, Green, 234 Ill.2d at 491, 334 Ill.Dec. 624, 917 N.E.2d at 459, it is DDI’s burden to establish that there is a genuine dispute about this question. In the section of its response brief discussing statement (c), DDI argues that it is false to state that its report “compares provoked urine results to non-provoked reference ranges .... for all the reasons explained above.” Resp. to DMSJ, Dkt. 274, at 22. Problematically, the prior arguments regarding falsity in DDI’s brief are directed exclusively at whether it is false to describe DDI’s report as fraudulent, deceptive, or misleading — not at whether it is false to describe the report as comparing provoked test results to non-provoked reference ranges. See Resp. to DMSJ, Dkt. 274, at 16-21. Nevertheless, in light of DDI’s inteiTogatory responses, which as-serf that statement (c) is false because DDI’s report “plainly states that the reference ranges do not apply,” Second Supp. Resp., Dkt. 294-1, at 1, the Court construes DDI to be arguing that it is false to describe DDI’s report as comparing provoked test results to non-provoked reference ranges because the report includes a bolded sentence noting that “[r]eference ranges are representative of a healthy population under non-challenge or non-provoked conditions.” See, e.g., Article A, Dkt. 24-1, at' 1 (showing this language at the bottom of the patient’s report); PL’s DMSJ Ex. 11, Dkt. 273-21 (blank DDI report form containing this language at the bottom); see also Resp. to DMSJ, Dkt. 274, at 16-21 (relying heavily on this “qualifying language” as evidence of the falsity of statements describing the report as fraudulent, deceptive, or misleading); 2013 Fields Dep., Ex. 5 to DSOF, Dkt. 250-17, at 75-84 (deposition testimony of DDI executive Doug Fields discussing the effect of the “caution” placed on the report).

A reasonable jury could certainly find that DDI’s qualifying language adequately puts report recipients on notice that the reference ranges and graphical classifications displayed next to the test results should be given less weight, or possibly even no weight, if the urine sample at issue was provoked. But no reasonable jury could find that the inclusion of DDI’s qualifying language — language that provides information relevant to interpreting the comparisons in the report — makes the comparisons in the report cease to exist, such that it is false to state that the report compares provoked results to non-provoked reference ranges. And the evidence in the record amply demonstrates that DDI’s report contains the comparisons in question. DDI admits that it uses the same report format for provoked and non-provoked samples and that it therefore reports the results of provoked tests alongside the reference ranges for non-provoked samples. See Resp. to DMSJ, Dkt. 274, at 4, 18. DDI even cites testimony of its own experts referring to DDI’s “use of reference ranges for unprovoked urine” on its reports of provoked urine results. Resp. to DMSJ, Dkt. 274 at 18; see also PSOAF, Dkt. 273, at 21-23, ¶¶ 49-50, 54. Further, DDI executive Doug Fields provided deposition testimony stating that the graphing on the report reproduced in Article A “is a result of comparing the results to [the non-provoked] reference ranges” and is “a comparison of the measured amount against a reference range for non-provoked samples.” 2013 Fields Dep., Ex. 5 to DSOF, Dkt. 250-17, at 80, 84.

Providing a report form that compares provoked test results to non-provoked reference ranges and explains that the reference ranges are based on non-provoked specimens may very well be, as DDI maintains, an appropriate and non-deceptive method of reporting provoked test results. But what matters for present purposes is that there is no genuine issue of material fact that this is DDI’s method. In light of the evidence in the record, no reasonable jury could find that it is false to suggest that DDI’s provoked test reports compare provoked results to non-provoked reference ranges, and the defendants are therefore entitled to summary judgment on this aspect of statement (c). Cf. Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 698-99 (7th Cir.2006) (affirming grant of summary judgment for defendants on defamation claim where plaintiff “failed to produce evidence suggesting that the statements were false”); Bell v. Greyhound Lines Inc., No. 12 C 449, 2013 WL 5162885, at *12-13 (N.D.Ill. Sept. 13, 2013) (granting summary judgment for defendants on defamation claim since challenged statements were subject to qualified privilege and plaintiff had not “pointed to record evidence creating a genuine issue of material fact with respect to the[ir] truth or falsity”); Horrell v. Merrill Lynch, Pierce, Fenner, & Smith Inc., No. 03 C 4996, 2006 WL 2735448, at *6 (N.D.Ill. Sept. 22, 2006) (granting summary judgment for defendants with respect to allegedly defamatory statements since plaintiff “failed to put forth evidence that the statements were false”).

Since the description of DDI’s report classification as misleading is non-actionable opinion and there is no genuine dispute that DDI’s report compares provoked results to non-provoked reference ranges, summary judgment is granted for the defendants on DDLs defamation claims based on statement (c).

Statement (d)

DDI identifies the following material in the “Why Provoked Testing Is a Scam” section of Article A as statement (d):

Neither Mayo Clinic, nor any other legitimate national laboratory, has reference ranges for “provoked” specimens. Further, the reference ranges for normal urine heavy metal levels used by Mayo Clinic and the largest national reference lab, Quest Diagnostics, are the same.

In contrast, Doctor’s Data uses reference values of less than 3 ug/g for mercury and 5 ug/g for lead.

Second Supp. Resp., Dkt. 294-1, at 1-2. DDI argues that statement (d) is false to the extent it asserts that DDI has reference ranges for provoked test results and that DDI is not a legitimate laboratory. See Second Supp. Resp., Dkt. 294-1, at 2; Resp. to DMSJ, Dkt. 274, at 26-27. The defendants argue, inter alia, that the statement cannot reasonably be read to convey these accusations when considered in context. See DMSJ Mem., Dkt. 249, at 27-28 (“[I]t is frivolous for DDI to claim that Dr. Barrett accused it of being ‘illegitimate’ for having ‘provoked’ reference ranges, when Dr. Barrett actually states that they do not.”); Defenses Table, Ex. 2 to DSOF, Dkt. 250-2, at 2-3.

Notably, the last sentence of statement (d) is the opening sentence of a longer paragraph in Article A. That paragraph reads in relevant part:

In contrast, Doctor’s Data uses reference values of less than 3 ug/g for mercury and 5 ug/g for lead. Standard laboratories that process non-provoked samples use much higher reference ranges [3,4], which means that if all other things were equal, Doctor’s Data is far more likely than standard labs to report “elevated” levels. But that’s not all. A disclaimer at the bottom of the above lab report states — in boldfaced type! — that “reference ranges are representative of a healthy population under non-challenge or nonprovoked conditions.” In other words, they should not be applied to specimens that were obtained after provocation.

Article A, Dkt. 24-1, at 2. The two paragraphs containing statement (d) thus indicate: (1) that no “legitimate” laboratories have reference ranges for provoked specimens; (2) that the “3 ug/g” and “5 ug/g” figures reflect DDI’s non-provoked reference ranges for mercury and lead; (3) that DDI’s non-provoked reference ranges are lower than those used by “standard” laboratories such as Mayo Clinic and Quest Diagnostics; and (4) that a DDI report on a provoked specimen displayed DDI’s non-provoked reference ranges along with a note explaining that they were based on non-provoked specimens. Therefore, considered in context, statement (d) does not state that DDI has reference ranges for provoked specimens. As for the “legitimate laboratory” aspect of statement (d), nowhere does the statement refer to DDI as an illegitimate lab; rather, it offers comparisons (the accuracy of which are not disputed) between DDI and several other labs, as well as between labs that have reference ranges for provoked specimens and those that do not. If DDI suffers in the comparisons, that does not make the factually accurate statements defamatory. Viewed in context, statement (d) simply does not contain the accusations which DDI alleges are false. Accordingly, summ