South Korea

Paving Hell: ACTA Encourages Oppression from Friend and Foe Alike

The drafting of the Anti-Counterfeit Trade Agreement (ACTA) isn’t going so well.

Jurisdiction: 

Subject Area: 

Cha v. Flamm

Threat Type: 

Lawsuit

Date: 

08/31/2007

Party Receiving Legal Threat: 

Bruce Flamm

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of California, County of Los Angeles

Legal Counsel: 

Brian Birnie

Publication Medium: 

Print
Website

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

In 2001, Kwang Yul Cha, a Korean fertility researcher and fertility clinic operator, co-wrote a paper entitled "Does prayer influence the success of in vitro fertilization-embryo transfer? Report of a masked, randomized trial." The controversial paper, which appeared in the Journal of Reproductive Medicine, reported a higher success rate for in vitro fertilization in women who were prayed for compared to those who were not.

In March 2007, Bruce Flamm, a clinical professor of obstetrics and gynecology at the University of California at Irvine and an enduring critic of Cha's prayer study, published an article entitled "Prayer Study Author Charged With Plagiarism" in Ob. Gyn. News, a print medical news journal that is also available online. The one-page article included the following break-out text: "This may be the first time in history that all three authors of a randomized, controlled study have been found guilty of fraud, deception, and/or plagiarism." (Emphasis added.)

The allegations of fraud and deception related to Cha's co-authors, Rogerio Lobo and Daniel Wirth. The allegation of plagiarism related to Cha's co-authorship of another article, published in Fertility and Sterility in 2005. The LA Times reported in February 2007 that Alan DeCherney, editor-in-chief of Fertility and Sterility, had identified this second article as plagiarized (after it was published). DeCherney later retracted this comment when Cha threatened to sue him and the LA Times.

Cha filed a lawsuit against Flamm for defamation in California state court on August 31, 2007. Cha alleges that the implication of "found guilty" in the sentence quoted above is that he has been convicted of plagiarism by a court or administrative body, which he has not.

According to Flamm's lawyer, the meaning of the sentence, when read in the context of the article as a whole, is not that Cha has been convicted of plagiarism by a jury, but has been found by his scientific peers to have been guilty of plagiarism, an assertion which is supported by DeCherney's earlier statements. Flamm claims not to have known that DeCherney in fact retracted his statement after also receiving legal threats from Cha.

The court granted Flamm's motion to strike the complaint under California's anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16) on November 20, 2007. Cha's attorneys filed a motion to vacate the decision based on new evidence and other arguments, and the court granted that motion on January 24, 2008, reversing the dismissal.

On April 21, 2008, the Superior Court again dismissed the case.

Update:

10/25/2009 - the California Court of Appeals affirmed the dismissal.

02/2010 - The Callifornia Supreme Court declined to hear the appeal. 

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