4/14/23, Defendant's Motion To Dismiss Plaintiff's Complaint, LifeVac LLC v. States Newsroom Inc. Et Al

MER-L-000049-23 04/14/2023 11:58:28 AM Pg 1 of 2 Trans ID: LCV20231275082
PASHMAN STEIN WALDER HAYDEN, P.C.

CJ Griffin (031422009)
Court Plaza South
21 Main Street – Suite 200
Hackensack, NJ 07601
(201) 488-8200
Attorneys for Defendants
States Newsroom, Inc. and Dana DiFilippo
LIFEVAC, LLC,
SUPERIOR COURT OF NEW JERSEY
Plaintiff, LAW DIVISION: MERCER COUNTY
v. Docket No.: MER-L-000049-23
STATES NEWSROOM, INC., d/b/as the New NOTICE OF MOTION TO DISMISS

Jersey Monitor, DANA DIFILIPPO, JOHN PLAINTIFF’S COMPLAINT
DOES 1-10, and ABC CORPS 1-10,
Defendants.
TO: Jyoti M. Halsband, Esq.

Quintairos, Prieto, Wood & Boyer, P.A.
233 Broadway, Suite 2120
New York, New York 10279
Attorneys for Plaintiff
PLEASE TAKE NOTICE that, on May 12, 2023, at 9:00 a.m. or as soon thereafter as
counsel may be heard, Pashman Stein Walder Hayden, P.C., counsel for Defendants States
Newsroom, Inc., d/b/a the New Jersey Monitor and Dana DiFilippo (collectively, “Defendants”),
will move pursuant to R. 4:6-2(e) to the Superior Court of New Jersey, Law Division, Merce
County, to dismiss Plaintiff’s Complaint in this action.
PLEASE TAKE FURTHER NOTICE that, in support of this motion, Defendants will
rely upon the accompanying brief and certification of CJ Griffin, Esq. A proposed form of Order
is annexed.
PLEASE TAKE FURTHER NOTICE that oral argument is requested if opposition is
filed.
By: /s/ CJ Griffin

CJ Griffin, Esq.
Dated: April 14, 2021
2

Court Plaza South
(201) 488-8200
LIFEVAC, LLC,
STATES NEWSROOM, INC., d/b/as the New [PROPOSED] ORDER

Jersey Monitor, DANA DIFILIPPO, JOHN
Defendants.
THIS MATTER having been brought before the Court by way of motion pursuant to Rule
4:6-2(e), filed by Pashman Stein Walder Hayden, P.C., attorneys for Defendants States Newsroom,
Inc., d/b/a the New Jersey Monitor and Dana DiFilippo (collectively, “Defendants”), and the Court
having considered the submissions and arguments of the parties, for good cause shown;
IT IS ON THIS ____________ DAY OF ______________, 2023
ORDERED that:
1. Defendant’s Motion to Dismiss Plaintiff LifeVac, LLC’s Complaint for failure to
state a claim pursuant to Rule 4:6-2(e) is GRANTED;
2. Count I of Plaintiff’s Complaint is dismissed with prejudice;
3. Count II of Plaintiff’s Complaint is dismissed with prejudice;
4. Count III of Plaintiff’s Complaint is dismissed with prejudice; and

5. A copy of the within Order shall be deemed served upon all counsel of record upon
filing on eCourts.
__________________________________
, J.S.C.
____ Opposed
____ Unopposed
2

Marc M. Yenicag (201892017)
Court Plaza South
(201) 488-8200
LIFEVAC, LLC,
STATES NEWSROOM, INC., d/b/as the New

Jersey Monitor, DANA DIFILIPPO, JOHN
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS

TABLE OF CONTENTS
PRELIMINARY STATEMENT .................................................................................................... 1

FACTUAL ALLEGATIONS ......................................................................................................... 3
A. The Alleged Defamatory Statements .................................................................................. 3
LEGAL STANDARD..................................................................................................................... 3
LEGAL ARGUMENT .................................................................................................................... 5
I. COUNT I (DEFAMATION) AND COUNT III (TRADE LIBEL) FAIL TO STATE A
CLAIM BECAUSE THEY ARE PREMISED ON STATEMENTS OF OPINION,
HYPERBOLE, OR ARE OTHERWISE NON-ACTIONABLE SPEECH ........................ 5
A. Paragraph 126(b)—“Like a Toilet Plunger” .............................................................. 6
B. Paragraph 126(e)—“Hand Held Manual Plungers Promoted As [ACDs]” ............... 7
C. Paragraph 126(j)—“It Didn’t Clear the Obstruction . . .” .......................................... 8
D. The Statements Relating to Scientific Studies in Paragraph 126 (c), (d), (g), (h), and
(i) are Non-Actionable Because They Constitute Opinions, Do Not Have a
Defamatory Meaning, and Are Substantially True .................................................. 10
1. Paragraph 126(c)—“None Tested the Devices on Live Humans”...................... 11
2. Paragraph 126(d)— “Real Science” ................................................................... 12
3. Paragraph 126(g)—"One Study . . . is Problematic” .......................................... 13
4. Paragraph 126(h) and (i)—“In their Throats” & “Injuring the Tongue” ............ 14
E. Paragraph 126(a) and (f)—FDA Registration.......................................................... 18
II. PLAINTIFF FAILS TO STATE A CLAIM FOR DEFAMATION (COUNT I)
BECAUSE PLAINTIFF ALLEGES ONLY THAT THE DEFENDANTS CRITICIZED
PLAINTIFF’S PRODUCT. .............................................................................................. 20
III. PLAINTIFF’S CLAIMS FOR DEFAMATION (COUNT I) AND TRADE LIBEL
(COUNT III) MUST ALSO BE DISMISSED BECAUSE IT HAS NOT ADEQUATELY
PLEAD ACTUAL MALICE. ........................................................................................... 22
IV. PLAINTIFF’S CLAIM FOR TRADE LIBEL (COUNT III) MUST BE DISMISSED
BECAUSE IT HAS NOT ADEQUATELY PLEAD SPECIAL DAMAGES ................. 28
V. PLAINTIFF’S CLAIM FOR TRADE LIBEL (COUNT III) MUST BE DISMISSED
BECAUSE IT CANNOT, UNDER ANY CIRCUMSTANCE, SHOW THAT THE
ALLEGED DEFAMATORY STATEMENTS CAUSED DAMAGES........................... 29
VI. PLAINTIFF’S CLAIM FOR TORTIOUS INTERFERENCE FAILS TO STATE A
CLAIM BECAUSE IT IS DUPLICATIVE OF THE DEFAMATION AND TRADE
LIBEL CLAIMS. .............................................................................................................. 33
CONCLUSION ............................................................................................................................. 34
i

TABLE OF AUTHORITIES
Page(s)
Cases
Bainhauer v. Manoukian,
215 N.J. Super. 9 (App. Div. 1987) ........................................................................................ 34

Costello v. Ocean Cnty. Observer,
136 N.J. 594 (1994) ................................................................................................................ 25

Dairy Stores, Inc. v. Sentinel Pub. Co.,
104 N.J. 125 (1986) ......................................................................................................... passim

Darakjian v. Hanna,
366 N.J. Super. 238 (App. Div. 2004) ...................................................................... 4, 5, 24, 25

Dello Russo v. Nagel,
358 N.J. Super. 254 (App. Div. 2003) ................................................................................ 5, 16

Dijkstra v. Westerink,
168 N.J. Super. 128 (App. Div. 1979) .................................................................................... 10

Durando v. Nutley Sun,
209 N.J. 235 (2012) ............................................................................................................ 4, 23

Durski v. Chaneles,
175 N.J. Super. 418 (App. Div. 1980) ................................................................................ 9, 13

G.D. v. Kenny,
205 N.J. 275 (2011) ................................................................................................ 6, 12, 17, 19

Garrison v Louisiana,
379 U.S. 64 (1974) .................................................................................................................. 23

Gillon v. Bernstein,
218 F.Supp.3d 285 (D.N.J. 2016) ........................................................................................... 29

Gnapsinsky v. Goldyn,
23 N.J. 243 (1957) .................................................................................................................... 9

Henry V. Vaccaro Const. Co. v. A. J. DePace, Inc.,
137 N.J. Super. 512 (Law. Div. 1975) .................................................................................... 28

Hill v. Evening News Co.,
314 N.J. Super. 545 (App. Div. 1998) ...................................................................................... 5

ii

James v. N.J. Manufact. Ins. Co.,

216 N.J. 552 (2014) ................................................................................................................ 31

Kotlifkoff v. Community News,
89 N.J. 62 (1988) ........................................................................................................ 4, 5, 7, 13

Lawrence v. Bauer,
89 N.J. 451 ........................................................................................................................ 23, 24

Lutz v. Royal Ins. Co. of Am.,
245 N.J. Super. 480 (App. Div. 1991) (dismissing ................................................................. 34

Lynch v. New Jersey Educ. Ass'n,
161 N.J. 152 (1999) ......................................................................................................... passim

Maressa v. N.J. Monthly,
89 N.J. 176 (1982) .................................................................................................................... 4

Masson v. New Yorker Magazine, Inc.,
501 U.S. 496 (1991) ................................................................................................................ 17

Mayflower Transit, LLC v. Prince,
314 F. Supp. 2d 362 (D.N.J. 2004) ................................................................................... 28, 29

McQuoid v. Springfield Newspapers,
502 F.Supp. 1050 (W.D.Mo.1980) ......................................................................................... 27

New York Times Co. v. Sullivan,
376 U.S. 254 (1964) ............................................................................................................ 4, 23

Nunes v. NBCUniversal Media, LLC,
__ F.Supp.3d __ (S.D.N.Y. 2022)…………………………………………………………...15

ONY, Inc. v. Cornerstone Therapeutics, Inc.,
720 F.3d 490 (2d Cir. 2013).................................................................................................... 10

Pacira BioSciences,
__ F.4th __ (3d Cir. 2023) ........................................................................................... 6, 10, 20
Pacira Biosciences, Inc. v. Am. Soc'y of Anesthesiologists, Inc.,

583 F. Supp. 3d 654 (D.N.J. 2022) ......................................................................................... 10

Papasan v. Allain,
478 U.S. 265 (1986) ................................................................................................................ 27

Patel v. Soriano,
369 N.J. Super. 192 (App. Div. 2004) ............................................................................. passim
iii


Printing Mart-Morristown v. Sharp Electronics Corp.,
116 N.J. 739 (1989) .................................................................................................................. 4

Rieder v. State, Dep’t of Transp.,
221 N.J. Super. 547 (App. Div. 1987) ...................................................................................... 4

Romaine v. Kallinger,
109 N.J. 282 (1988) .................................................................................................................. 5

Ryan v. Brooks,
634 F.2d 726 (4th Cir.1980) ................................................................................................... 27

Schultz v. Reader's Digest Ass'n,
468 F.Supp. 551 (E.D.Mich.1979).......................................................................................... 27

Sedore v. Recorder Pub. Co.,
315 N.J. 137 (App. Div. 1998)................................................................................................ 19

Senna v. Florimont,
196 N.J. 469 (2008) ................................................................................................................ 23

State v. Cherry Hill Mitsubishi, Inc.,
439 N.J. Super. 462 (App. Div. 2015) .................................................................................... 33

Sys. Operations, Inc. v. Sci. Games Dev. Corp.,
555 F.2d 1131 (3d Cir. 1977).............................................................................................. 3, 28

Tannerite Sports, LLC v. NBCUniversal News Grp.,
864 F.3d 236 (2d Cir. 2017).................................................................................................... 15

Vitamin Energy, LLC v. Evanston Ins. Co.,
22 F.4th 386 (3d Cir. 2022) .................................................................................................... 13

Ward v. Zelikovsky,
136 N.J. 516 (1994) ........................................................................................................ 5, 7, 33

Yourman v. People’s Sec. Life Ins. Co.,
992 F.Supp. 696 (D.N.J. 1998) ............................................................................................... 10

Zoneraich v. Overlook Hosp.,
212 N.J. Super. 83 (App. Div. 1986) ...................................................................................... 22
Statutes
N.J. Const., Art. IV, Section IV, Para. 6 ....................................................................................... 31
iv

Rule 4:6-2(e) .................................................................................................................................. 3
Other Authorities
5 McCarthy on Trademarks and Unfair Competition § 27:101 (5th ed.) ..................................... 21
A. 3778 (2022) .............................................................................................................................. 32
Airway, BRITANNICA DICTIONARY ............................................................................................... 16
Airway, CAMBRIDGE DICTIONARY ................................................................................................ 16
Bill S3630, NEW JERSEY LEGISLATURE, https://www.njleg.state.nj.us/bill-

search/2020/S3630 (last accessed Apr 11, 2023) .................................................................. 30
Explainer: How a Bill Becomes a Law in the Garden State,

NJ SPOTLIGHT NEWS (April 1, 2014), https://www.njspotlightnews.org/2014/04/14-03-31-
explainer-how-a-bill-becomes-a-law-in-the-garden-state/ ..................................................... 31
Glossary of Terms, NEW JERSEY LEGISLATURE, https://www.njleg.state.nj.us/glossary (last

accessed Apr 11, 2023) .......................................................................................................... 30
Model Jury Charges (Civil),

“Defamation Damages (Private or Public)” (rev. Nov. 2022) ............................................... 33
N.J. Lawmaker Tries to Limit New Bills . . . By Introducing a New Bill,

NJ ADVANCE MEDIA (Oct. 6, 2014),
https://www.nj.com/politics/2014/10/bills_bills_bills_nj_assemblyman_wants_to_limit_on_h
ow_much_legislation_lawmakers_can_introduced.html ........................................................ 31
Restatement (Second) of Torts § 623A, comment g (1977) ......................................................... 22
Robert Michael Ey,

21 Causes of Action 245 (Feb. 2023 Update; Originally published in 1990) ........................ 22
Rules of the Senate, R. 17:1 ……………………………………………………………………..31

Rules of the Senate, R. 17:5 ……………………………………………………………………..31
S. 3630 (2021)............................................................................................................................... 32
S. 73 (2022) ................................................................................................................................... 32
W.P. Keeton, Prosser and Keeton on Torts, 965 (5th ed. 1985)…………………………………21
v

PRELIMINARY STATEMENT
Defendant, States Newsroom Inc., is the publisher of the New Jersey Monitor, a non-profit
daily news site that strives to be a watchdog for all New Jerseyans. On January 7, 2022, Defendant
published an article about anti-choking devices (ACDs) and pending legislation that would require
an ACD to be placed in every school for the State to reimburse the costs. Plaintiff, who produces
the LifeVac Device—one of the ACDs discussed in the Article—alleges that the Article contains
false and defamatory statements. The Complaint alleges defamation, tortious interference with
prospective economic advantage, and trade libel.
The New Jersey Supreme Court has recognized that defamation-related claims infringe
upon free speech and are costly to defend. Thus, courts are strongly encouraged to dismiss
meritless actions early, prior to discovery. This Court should grant Defendant’s motion to dismiss
for at least four compelling reasons:
First, although Plaintiff cherry picks statements it alleges are false and defamatory, the
Article must be read as a whole and in context from the perspective of a person of ordinary
intelligence. Because the Article discusses a matter of public concern, Plaintiff must ultimately
prove Defendants acted with actual malice—i.e., that Defendants actually knew the statements in
the Article were false or acted with reckless regard of whether they were true or false. The
Complaint not only fails to plead facts to meet that standard (Point III), but Plaintiff’s claims also
are premised upon mischaracterized non-actionable statements of opinion, hyperbole or otherwise
non-defamatory speech. Moreover, the law does not require speech to be perfect or free of any
mistakes. When viewed in context, the Article is substantially true and fairly presents both sides
of the debate over the efficiency of ACDs. (Point I).
Second, Plaintiff’s defamation claim must be dismissed because its Complaint alleges only
1

that Defendants disparaged Plaintiff’s product. Defamation and trade libel are two distinct torts.
Defamation remedies harm to one’s reputation; trade libel remedies harm to the reputation of one’s
product. Unless the disparaging statement explicitly imputes fraud, deceit, dishonesty, or
reprehensible conduct to the corporation, defamation cannot be sustained simply because the
defendant criticized the company’s product. (Point II).
Third, the trade libel count must be dismissed because Plaintiff failed to adequately plead
special damages—it has not stated the names of lost customers or the amount of lost sales. (Point
IV). Additionally, although Plaintiff asserts that the bill “effectively stalled” because of the Article
and thus it lost $600,000 in contracts, this is far too speculative to support a claim for special
damages. (Point V). Thousands of bills are introduced each session. Very few ever become law.
The bill at issue here was pending for approximately nine months before the Article was published.
It never even had a committee hearing. Moreover, every bill expires at the end of a legislative
session, which means this bill expired two business days after the Article was published. Given
the process by which a bill becomes law, there is no legal way the bill could have passed before it
expired even if the Article were never published. It has since been reintroduced and is pending
without a committee hearing, leaving it in the same position it was in before the Article was
published. Dismissal is required because no amount of discovery could ever prove that but for the
Article, the bill would have passed through committee, would have been approved by a majority
of both chambers, and would have been signed by the Governor in an unaltered form that
guaranteed Plaintiff $600,000 in sales (and that the State would not have negotiated lower prices).
A similar bill failed in Wisconsin in 2019—there is never a guarantee that legislation will pass.
Finally, courts routinely dismiss tortious interference claims where corresponding
defamation and trade libel claims are dismissed or duplicative. This Court should do so as well.
2

FACTUAL ALLEGATIONS
A. The Alleged Defamatory Statements
Per Paragraph 126 of the complaint, these are the allegedly defamatory statements:
 “[t]he devices are not regulated by the federal Food and Drug Administration, which
worries some watchdogs who say they should be.”
 “Like a toilet plunger”
 “[w]hile both companies list studies endorsing their devices, none tested the devices
on live humans.”
 Such studies are not “real science”
 “hand held manual plungers promoted as anti-choking devices”
 “But FDA registration merely means the FDA is aware of the device”
 “One study published in the Annuals of Emergency Medicine in 2017 is problematic”
 “Researchers in a separate study involving a cadaver found the devices not effective
to remove grapes and cashews lodged in their throats and injuring the tongue”
 Researchers “found the devices . . . [were] injuring the tongue.”
 “It didn’t clear the obstruction but it did ring up everything out of your stomach”
None of these statements are actionable, however. They are protected opinion or hyperbole,
substantially true, or otherwise cannot form the basis for a defamation or trade libel1 claim.
LEGAL STANDARD
In deciding a motion to dismiss pursuant to Rule 4:6-2(e), “the inquiry is confined to a
consideration of the legal sufficiency of the alleged facts apparent on the face of the challenged

1
Trade libel has also been referred to as “product disparagement” and “slander of title,” among other things,
but for consistency, we will use the term trade libel. See Dairy Stores, Inc. v. Sentinel Pub. Co., 104 N.J.
125, 131 (1986); see also Sys. Operations, Inc. v. Sci. Games Dev. Corp., 555 F.2d 1131, 1138 n.6 (3d Cir.
1977) (noting the “confusing” terminology in this area of law).
3

claim.” Rieder v. State, Dep’t of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987) (internal
quotation marks and citations omitted). Under this standard, “dismissal is mandated where the
factual allegations are palpably insufficient to support a claim upon which relief can be granted.”
Id. Furthermore, a plaintiff cannot simply make a legal conclusion and then in response to a motion
to dismiss, assert that “any essential facts that the court may find lacking can be dredged up in
discovery.” Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 768 (1989).
“A free and robust press, one that does not engage in self-censorship from fear of ruinous
lawsuits, is essential to an enlightened democracy.” Durando v. Nutley Sun, 209 N.J. 235, 239
(2012). See also New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (noting our country
has “a profound national commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open . . .”). Because potential liability for defamation threatens free
speech, a court plays a particularly critical gatekeeping role because, “[a]side from the danger of
a libel judgment and the intrusiveness of discovery and sources and editorial process, the cost of
defending a libel action can itself deter free press.” Maressa v. N.J. Monthly, 89 N.J. 176, 196
(1982). “Were it otherwise, any person or entity claiming First Amendment protection would be
at the mercy of a claimant’s empty assertions unsupported even by any contentions regarding
surrounding facts.” Darakjian v. Hanna, 366 N.J. Super. 238, 248 (App. Div. 2004).
As such, the New Jersey Supreme Court has exhorted trial courts to dismiss baseless
defamation claims wherever appropriate, before discovery: “Our courts should resolve free speech
litigation more expeditiously whenever possible. The perpetuation of meritless actions, with their
attended costs, chill the exercise of press freedom.” Maressa, 89 N.J. at 196 (“To avoid this, trial
courts should not hesitate to use summary judgment procedures where appropriate to bring such
actions to a speedy end.”); Kotlifkoff v. Community News, 89 N.J. 62, 67 (1988) (“The threat of
4

prolonged and expensive litigation has a real potential for chilling journalistic criticism and
comment upon public figures and public affairs.”). This mandate applies with equal force at the
motion to dismiss stage, Darakjian, 366 N.J. at 248-49.
LEGAL ARGUMENT
I. COUNT I (DEFAMATION) AND COUNT III (TRADE LIBEL) FAIL TO STATE

A CLAIM BECAUSE THEY ARE PREMISED ON STATEMENTS OF OPINION,
HYPERBOLE, OR ARE OTHERWISE NON-ACTIONABLE SPEECH
“A defamatory statement is one that is false and 1) injures another person’s reputation; 2)
subjects the person to hatred, contempt or ridicule; or 3) causes others to lose good will or
confidence in that person.” Hill v. Evening News Co., 314 N.J. Super. 545, 551 (App. Div. 1998)
(citing Romaine v. Kallinger, 109 N.J. 282, 289 (1988)). Whether a statement is false and
defamatory is a question of law to be resolved by a court. Kotlifkoff, 89 N.J. at 67.
To make that determination, the alleged defamatory statements must be evaluated within
the context of the full Article and what it conveys to readers. See Lynch v. New Jersey Educ. Ass'n,
161 N.J. 152, 168 (1999) (“The context of a statement can affect significantly its fair and natural
meaning.”). Indeed, courts do not decide a defamation case based solely on the “literal words of
the challenged statement,” but rather “the impression created by the words used as well as the
general tenor of the expression, as experienced by a reasonable person.” Ward v. Zelikovsky, 136
N.J. 516, 532 (1994) (internal quotation marks and citations omitted). In this regard, first the
statement’s content is judged by its objective meaning to a reasonable person

of ordinary intelligence. Second[], only verifiable statements can be
defamatory. Finally, a statement's meaning can be affected by its context. The
focus is on the effect of the alleged defamatory statement on third persons,
that is, whether they viewed the plaintiff in a lesser light as a result of hearing
or reading the offending statement.
[Dello Russo v. Nagel, 358 N.J. Super. 254, 263–64 (App. Div. 2003)
(citations omitted).]
5

Additionally, truth is an absolute defense against defamation. See G.D. v. Kenny, 205 N.J.
275, 293 (2011). The law, however, does not require that a statement be perfectly accurate in every
conceivable way to be considered “true.” In fact, “[t]he law of defamation overlooks minor
inaccuracies, focusing instead on ‘substantial truth’” of a subject statement “so long as the
substance, the gist, the sting, of the libelous charge be justified.” Id. (internal citations and
quotation marks omitted). In other words, only the “gist” or “sting” of a statement must be correct.
A full review of the Article shows that Plaintiff has cherry-picked statements from the
Article—most of which are protected opinion or the rest substantially true—to try to bring a claim
for defamation and trade libel. When each statement is considered in context of the full Article—
which fairly portrays both sides of the public debate over the effectiveness of ACDs—there clearly
is no colorable claim of defamation or trade libel. 2 Each allegation is addressed in turn below.
A. Paragraph 126(b)—“Like a Toilet Plunger”
In Paragraph 126(b), Plaintiff argues that the phrase “like a toilet plunger” is “false and
defamatory.” The full statement is a quote by Dr. Robert Baratz,3 who questioned the use of public
funds to purchase ACDs and said: “If your child was choking, wouldn’t you rather have a trained
firefighter there than to have a teacher fumbling with this suction thing that’s like a toilet plunger?”
(Compl. ¶109 and Ex. B at p. 2). Plaintiff alleges that the statement is “clearly false as the LifeVac

2
Because the same privileges and defenses apply to defamation and trade libel cases, Defendants brief
Counts I and III together. See Pacira BioSciences, Inc. v. Am. Soc'y of Anesthesiologists, Inc., __ F.4th __
(3d Cir. 2023) (“Despite their differences, both causes of action protect similarly important interests in the
free flow of information and are thus subject to the same privileges, or limitations, that render certain
statements nonactionable.”); Dairy Stores, 104 N.J. at 226) (“[A] qualified privilege [for trade libel] should
exist wherever it would exist in a defamation action.”).
3
Plaintiff attack Dr. Baratz’s credentials, saying he is not an “expert” and “is not licensed to practice
medicine in New Jersey.” But the Article tells readers his precise credentials so that they can determine for
themselves whether to value his opinions. It accurately states that he is “a Massachusetts internist and past
president of the National Council Against Health Fraud.”
6

Device is not a toilet plunger” and that the simile is “intentionally derogatory and misleading as
no one would put something that had been used in a toilet near his or her mouth.” (Compl. ¶110).
Dr. Baratz’s statement, however, is clearly protected opinion and hyperbole regarding his
belief that there are better alternatives to address choking incidents than the LifeVac Device. See
Dairy Stores, 104 N.J. at 147 (“Statements of opinion, as a matter of constitutional law, enjoy
absolute immunity.”); Kotlifkoff, 89 N.J. at 71 (“[N]o matter how extreme, vituperous, or
vigorously expressed” a defendant’s “pejorative opinion” is, it is “entitled to constitutional
protection.”). His description of the device as being “like a toilet plunger” is “loose, figurative, or
hyperbolic language” that is protected speech. See Ward, 136 N.J. at 532; See also Kotlikoff, 89
N.J. at 72 (finding statements that the mayor engaged in a “huge coverup” and “conspiracy” to be
“protected expressions of opinion” and “rhetorical hyperbole” used in a “loose, figurative sense”).4
For these reasons, the subject statement cannot form the basis of a defamation claim.
B. Paragraph 126(e)—“Hand Held Manual Plungers Promoted As [ACDs]”
Paragraph 126(e) refers to this statement in the Article: “In recent years, two companies—
LifeVac and Dechoker—have dominated the burgeoning market for handheld manual plungers
promoted as anti-choking devices.” (Compl., Ex. B at p. 2). Although unclear, this claim perhaps
relates to Paragraphs 85 to 87 of the complaint, which state:
85. Defendants also assert in the Article that ACDs are marketed to replace
traditional anti-choking methods, such as the Heimlich maneuver and
back blows.
86. This statement is blatantly false.
87. LifeVac has never stated that traditional anti-choking methods should

4
Additionally, the opinion that the device is “like a toilet plunger” is not capable of a defamatory meaning,
especially given that the device does in fact resemble a plunger. (See Compl., p.15 and Ex. B (depicting
images of the LifeVac Device)). In fact, the Article begins by linking to a YouTube video in which Arthur
Lih, CEO and LifeVac Device inventor, states that the Device was inspired by his trip to Home Depot.

7

be replaced.
Respectfully, Plaintiff grossly mischaracterizes the Article, which is accurate.
First, nothing in the Article states that ACDs are marketed to replace traditional anti-
choking methods. In fact, the Article directly quotes and paraphrases Plaintiff’s President
regarding how the device is not intended to be a replacement for traditional anti-choking methods:
But LifeVac President Mike Plunkett said he has heard all the criticisms before.
“I would say the LifeVac is an effective alternative to dying,” he said. “That’s

really what we’re talking about here. When you’ve tried your other protocol
and it’s failed, are you just going to stand there?”
Plunkett said the LifeVac is intended as a “last resort.”
“We’re not saying don’t call 911. You should do that right away,” Plunkett said.
“It’s not a rejection of current strategies. The abdominal thrusts and the
Heimlich work, and they work a majority of the time. But if that doesn’t work,
as a last resort then you go and try your LifeVac.”
[(Compl., Ex. B at pp. 4-5).]
Thus, Plaintiff’s allegations are plainly incorrect—Defendants made no such assertions.5
Therefore, the statement in Paragraph 126(e) is not actionable.
C. Paragraph 126(j)—“It Didn’t Clear the Obstruction . . .”
Plaintiff claims that the following statement in the article is false and defamatory: “It didn’t
clear the obstruction but it did bring up everything out of your stomach.” (Compl. ¶ 126(j)). In
support, Plaintiff alleges the following in Paragraphs 100 to 108:
100. While Defendants disparage the peer-reviewed studies on the safety of

ACDs as purely anecdotal, Defendants have no compunction trashing
ACDs with anecdotes taken from Dan Gerard, a paramedic from San

5
Plaintiff’s allegation in Paragraph 87 that “LifeVac has never stated that traditional anti-choking methods
should be replaced” is also incorrect. The Article links to Plaintiff’s Facebook post, where it stated that the
Device is “revolutionary anti choking device. More effective and safer than the Heimlich Maneuver
(abdominal thrusts) and back blows. Combined protocol is 70% effective. LifeVac is 98% effective on the
first application.” Thus, although Plaintiff did not expressly say that traditional methods “should be
replaced” by the LifeVac Device, the implication is clear.
8

Francisco.
101. The Article quotes Mr. Gerard as stating that “[e]very time we used this
device, it was an absolute nightmare. We had hundreds of these Throat E-
Vacs and we got rid of them because we had these vomiting issues.” “It
didn’t clear the obstruction but it did bring up everything out of your
stomach.”
102. Mr. Gerard’s statements are easily identifiable as lies.
103. A simple online search would have shown that the Throat E-Vac was
introduced in 1979, while Mr. Gerard was still in high school, and
produced only in small quantities.
104. Virtually none of the Throat E-Vac were distributed.
105. Mr. Gerard’s statement that he used “hundreds” of them in a hospital is

clearly false.
106. Even more blatantly false is Mr. Gerard’s statement that the Throat E-Vac
would bring up stomach contents.
107. The Throat E-Vac did not provide gastric suction and a much more
invasive device, such as a nasogastric tube inserted past the lower
esophageal sphincter to “pump the stomach,” is required to do so. Any
credible medical source would have known this fact.
108. By including Mr. Gerard’s false statements in the Article, Defendants

deliberatively intended to scare readers into believing—falsely—that
ACDs like LifeVac would bring up stomach contents when used to
dislodge an obstruction.
Even assuming for the purposes of this motion that Mr. Gerard flat out lied about his prior
experiences, the comments are not actionable because they relate to a different ACD, the Throat
E-Vac, and not the LifeVac Device. “An indispensable prerequisite to an action for defamation is
that the defamatory statements must be of and concerning the complaining party.” Durski v.
Chaneles, 175 N.J. Super. 418, 420 (App. Div. 1980) (quoting Gnapsinsky v. Goldyn, 23 N.J. 243
(1957)) (emphasis added). The Article discusses different ACDs. Although a person or product
can be defamed without expressly being named where “there is such reference to him that those
9

who read or hear the libel reasonably understand the plaintiff to be the person intended,” no
reasonable person would read the Article and conclude that Mr. Gerard was referring to any
product other than Throat E-Vac. Dijkstra v. Westerink, 168 N.J. Super. 128, 133 (App. Div.
1979). Because the comments do not concern Plaintiff, they are not actionable by Plaintiff.6
D. The Statements Relating to Scientific Studies in Paragraph 126 (c), (d), (g), (h),
and (i) are Non-Actionable Because They Constitute Opinions, Do Not Have a
Defamatory Meaning, and Are Substantially True
In Paragraph 126 (c), (d), (g), (h), and (i) of the complaint, as well as Paragraphs 61 to 84,
Plaintiff alleges that a series of statements relating to scientific studies about the LifeVac Device
and other ACDs are defamatory. Although Defendants address each statement individually below,
it is important to restate that when determining whether a statement is defamatory, it must be
viewed in its context and considered in terms of its “fair and natural meaning that reasonable
people of ordinary intelligence would give to it.” Lynch, 161 N.J. at 167-68 (emphasis added).
Moreover, the Article’s discussion of the scientific debate about the effectiveness of ACDs
and the summary of those studies are protected opinions. See ONY, Inc. v. Cornerstone
Therapeutics, Inc., 720 F.3d 490, 492 (2d Cir. 2013) (“As a matter of law, statements of scientific
conclusions about unsettled matters of scientific debate cannot give rise to liability for damages
sounding in defamation.”); Yourman v. People’s Sec. Life Ins. Co., 992 F.Supp. 696, 706 (D.N.J.
1998) (“[S]tatements . . . of opinion premised on disclosed facts [are], as a matter of law, not
defamatory.”). Similarly, “a mere summary or repetition of an otherwise protected scientific
opinion is not an independently defamatory statement.” Pacira Biosciences, Inc. v. Am. Soc'y of
Anesthesiologists, Inc., 583 F. Supp. 3d 654, 661 (D.N.J. 2022), aff'd, __ F.4th __ (3d Cir. 2023)
(applying New Jersey law and dismissing trade libel claim where podcast and editorial repeated

6
There is also no pleading of actual malice, which is required. See Point III below.
10

findings from scientific studies which called plaintiff’s product less effective than other products).
1. Paragraph 126(c)—“None Tested the Devices on Live Humans”
Plaintiff alleges the Article’s statement that no study “tested the devices on live humans”
is “misleading because it is unethical to test on humans.” (Compl. ¶ 126(c)). The flaw in Plaintiff’s
claim, however, is that only false statements are actionable and it is true that the LifeVac Device
has not been tested on live humans. See Dairy Stores, 104 N.J. at 134-135 (discussing requirement
for both defamation and trade libel that the statement be false). Although Defendants argue this
statement is “misleading” because “it is unethical to test on humans” (Compl. ¶62), the Article
provides that important context to the reader by quoting Plaintiff’s President, Jeffrey Plunkett. In
“defen[se] [of] the death of studies on live humans,” the Article quotes Plunkett as saying, “It’s
hard to do studies like that, when you think about it, because you are going to say: ‘Ok, lay on this
table, and we’re going to choke you with a hot dog to see if this works?’” (Compl., Ex. B at p. 5).
Moreover, to the extent that Plaintiff argues that Defendants failed to discuss two studies
that “reviewed data from actual resuscitations of live humans” (Compl. ¶63), such an omission is
not false or capable of a defamatory meaning when the context of the statement is evaluated. Not
only does the Article provide Plunkett’s explanation as to why there were not tests on live subjects,
it also contains a link to “video proof”7 that the LifeVac Device “saved choking victims” and
discusses how Plaintiff connected Defendants “with one customer who said the device saved her
son from choking on a sandwich in August.” (Compl, Ex. B) (detailing the customer’s story about
how LiveVac saved her child’s life and caused her to be an “instant believer” who thinks “it needs
to be everywhere—schools, nursing homes, day cares, restaurants”). Thus, even if the court

7
The Article links to this video: https://www.insideedition.com/choking-baby-at-restaurant-
saved-by-stranger-with-lifevac-device-71158
11

accepted that the statement that ACDs are not tested on live humans is somehow simultaneously
true and misleading, the remainder of the Article provides important context that fully negates any
claimed defamatory “sting” and clarifies any misleading. See G.D., 205 N.J. at 294 (requiring a
court to consider the “statement as a whole to determine the impression it will make on a reader”).
2. Paragraph 126(d)— “Real Science”
Paragraphs 126(d) and 63 to 66 fleshes out Plaintiff’s claim as to “real science”:
63. This statement may also be considered false because the LifeVac Device
has been the subject of six peer-reviewed studies regarding the safety and
efficacy of ACDs. Two of those studies reviewed data from actual
resuscitations of live humans.
64. Defendants assert that these studies are not “real science.”
65. This statement is false and defamatory.
66. This statement is false and defamatory because peer-reviewed papers are
a central part of the publication process for medical journals and are
considered by the medical community to be one of the best methods of
ensuring that published research is trustworthy and that any medical
treatment that is advocated is safe and effective.
[(Compl. ¶ 63-66).]
These allegations take the “real science” statement completely out of context and grossly
mischaracterize what was stated in the Article.
The “real science” statement made by Dr. Baratz does not relate to peer-reviewed medical
studies, but rather anecdotal evidence (i.e., stories by individuals who claim the device saved their
life or a relative’s life) that the companies selling ACDs tout. The Article states in relevant part:
Critics contend that the companies’ online accounts of lives saved are
anecdotal and scarce on details.
“We have a saying in the medical profession that the plural of anecdote is not
data,” Baratz said. “Just because someone says something, they don’t deserve
an equal stand on the stage with real science, unless they’re prepared to
undergo the same scrutiny science does. Show me the scientific study that
12

shows they’ve saved a lot of lives, instead of stories.”
[(Compl., Ex. B at p.4).]
Thus, contrary to Plaintiff’s allegations, the full context of the Article makes it abundantly clear to
the reader that Dr. Baratz’s “real science” statement refers to his opinion that anecdotal stories
posted on a product’s website are not “real science,” not the studies in Paragraph 63. That
opinion/hyperbole is protected by the First Amendment and is not actionable as defamation or
trade libel. Kotlifkoff, 89 N.J. at 71;8 See also Vitamin Energy, LLC v. Evanston Ins. Co., 22 F.4th
386, 394 n.11 (3d Cir. 2022) (general “claims of relative superiority” are nonactionable opinions).9
3. Paragraph 126(g)—"One Study . . . is Problematic”
Plaintiff alleges the word “problematic” in the following statement is defamatory: “One
study, published in the Annals of Emergency Medicine in 2017, is problematic because the authors
of the study who declared LifeVac devices successful are the sister, the brother-in-law, and an
employee of LifeVac inventor Arthur Lih.” (Compl., Ex. B at p. 4). This is protected opinion.
“Where an opinion is accompanied by its underlying nondefamatory factual basis . . . a
defamation action premised upon that opinion will fail, no matter how unjustified, unreasonable
or derogatory the opinion may be.” Kotlikoff, 89 N.J. at 72-73 (“This is so because readers can
interpret the factual statements and decide for themselves whether the writer’s opinion was
justified.”). That is exactly what the Article does. It not only states an opinion that the study is
“problematic,” but it also links to the study and clearly states the facts that formed the basis for the
protected opinion (i.e., the close relationship the authors of the study have with the product’s

8
Even if Dr. Baratz was referring to peer reviewed studies, Plaintiff’s claim would still fail because such
language would 1) constitute protected opinion, hyperbole, or rhetoric and 2) does not “concern” Plaintiff
since the comment would be directed at the publications themselves, not Plaintiff or its product. Durski,
175 N.J. Super. at 420 (a defamatory statement “must be of and concerning the complaining party”).
9
Even if Dr. Baratz did assert that the studies are not “real science,” that is protected hyperbole.
13

inventor). Defendants’ protected opinion cannot be actionable.10
4. Paragraph 126(h) and (i)—“In their Throats” & “Injuring the Tongue”
Paragraph 126(h) asserts the following statement in the article is defamatory: “Researchers
in a separate study involving a cadaver found the devices were not effective, failing to remove
grapes and cashews lodged in their throats and injuring the tongue.” The complaint details the
allegedly false and defamatory statements:
70. First, the cited “study” was only a presentation abstract and not a study.
71. Second, Defendants consciously and purposefully omitted that the

abstract found the use of the device successful in removing “moistened
saltines.”
72. Third, the statement is false because it misstates that grapes and cashews
were “in their throats.”
73. The abstract Defendants cite to actually states that the food was “placed
at the level of the true vocal cords” or “glottis.”
74. That location is not in the throat.
75. Rather, the throat is the front of part of a person’s neck, behind which the
esophagus, trachea or blood vessels serving the head are situated.
76. Defendants knew, or should have known, that their statement as to the
location of the food was false.
77. The significance of lying about the location of the objects is grave. That
an obstruction in the glottis, or “true vocal cords,” of a cadaver cannot,
and will not, be removed by suction devices is expected because the upper
and lower sphincter muscles are no longer functioning in a cadaver. Since
the muscles cannot contract, the suction just displaces into the esophagus.
Therefore, Defendants’ false statement about food not being disclosed in
the cadavers has absolutely no bearing on the performance of the ACDs
on a live person.
78. A peer reviewed study by the American Journal of Emergency Medicine

found that the LifeVac Device was successful in removing a bolus in the

10
Nevertheless, the Article also states that this study declared the LifeVac Device to be “successful,” which
bolsters its claims about its effectiveness, negates any defamation claim, and further demonstrates that
Defendants sought to portray both sides of the debate.
14

airway of a cadaver.
79. Defendants’ statement that researches found the LifeVac Device injured
the tongue is also false and defamatory.
80. The paper Defendants purport to cite to clearly states that “[u]use of the
[third party’s ACD device] resulted in gross in jury to the tongue.”
81. Nothing in the paper indicates that the LifeVAc Device injured the
cadaver’s tongue.
82. Therefore, Defendants statement that both “devices” injured the tongue is
false.
None of these alleged falsities are actionable defamation or trade libel.
As to the first alleged falsity—that the “study” the Article cites is really a “presentation
abstract and not a study”—Plaintiff is splitting hairs. That hyper-technical distinction between
linking to the actual study and linking to an abstract of the study cannot be considered a “falsity,”
let alone one conveying a “defamatory” meaning. See Tannerite Sports, LLC v. NBCUniversal
News Grp., 864 F.3d 236, 242–43 (2d Cir. 2017) (“When the truth is so near to the facts as
published that fine and shaded distinctions must be drawn and words pressed out of their ordinary
usage to sustain a charge of libel, no legal harm has been done.”) (citation omitted); Nunes v.
NBCUniversal Media, LLC, __ F.Supp.3d __ (S.D.N.Y. 2022) (rejecting any factual distinction
between “intelligence community” and “Intelligence Committee” as “hyper-technical” and non-
actionable). Whether the linked document is labeled a “study” or an “abstract” does not change its
importance to readers, which is that researchers tested the devices on cadavers and formed
scientific conclusions that were explained in the Article.
As to the second alleged falsity, Plaintiff asserts that Defendants “omitted that the abstract
found the use of the device successful in removing ‘moistened saltines.’” (Compl. ¶ 71 (emphasis
added)). The abstract, however, states no such thing. It concludes only that, “[a]lthough the devices
15

did make appreciable progress in dislodgment of moistened saltines, they were not effective in
removing solid food material from the glottis and may result in injury.” (See Certification of CJ
Griffin, Esq. (Griffin Cert.), Ex. A at p. 31).11 Thus, the Article was not false. It correctly stated
that the study did not remove grapes and cashews from the cadaver. The failure to mention the
moistened saltines is hardly an omission that is defamatory or harmful. No reader would view the
LifeVac Device more favorably by knowing that if they choked to death on something as soft as
wet crackers, at least the Device would have made “appreciable progress” in moving the materials
from one part of their airway to another.
Regarding the third alleged falsity, Plaintiff asserts that Defendants “lied” by calling the
“glottis” the “throat” and it explains the alleged scientific differences between the two. Again,
Plaintiff is splitting hairs. While the study does refer to the true vocal folds and glottis, the “results”
clearly state: “Both the LifeVAc and Dechoker failed to remove the cashews and grapes from the
airway in all trials.” (Id.). The Article thus accurately described the study’s results because
“airway” and “throat” are synonymous. See Airway, CAMBRIDGE DICTIONARY (“the passage
through the mouth and throat that carries air to the lungs”); Airway, BRITANNICA DICTIONARY
(“the area in the throat through which air passes to and from the lungs”).
In determining whether a statement is false or defamatory, “[e]valuation of content
involves consideration not merely of a statement’s literal meaning, but also of the fair and natural
meaning that reasonable people of ordinary intelligence would give to it.” Lynch, 161 N.J. at 167;
Dello Russo, 358 N.J. Super. at 263-65 (statement must be judged “by its objective meaning to a
reasonable person of ordinary intelligence). An average person would read the use of the word
“airway” in the study’s results and conclude it meant “throat.” Further, use of the word “throat” is

11
The abstract is referred to in the complaint and thus it may be attached to this motion.
16

not capable of a defamatory meaning because even if Defendants had used the word “glottis,” a
reader of ordinary intelligence would not have appreciated the highly technical distinction and
scientific medical consequences that Plaintiff alleges in Paragraph 77 of the complaint. See Lynch,
161 N.J. at 167 (“If a statement has more than a literal meaning, the critical consideration is what
a reasonable reader would understand the statement to mean.”).
Finally, regarding the last alleged defamatory statement, the Article stated: “Researchers
in a separate study involving a cadaver found the devices were not effective, failing to remove
grapes and cashews lodged in their throats and injuring the tongue.” (Compl., Ex. B at p. 4). The
statement itself does not mention the LifeVac Device, but rather ACD “devices” in general.
Plaintiff concedes the study states only that the Dechoker device “resulted in gross injury to the
tongue” and thus the Article contained a minor error. However, the study also states that both the
Dechoker and the LifeVac Device “exerted significant pressure on the tongue and soft palate that
might cause edema in the clinical setting” and concludes that use of both devices “may result in
injury.” (Griffin Cert., Ex. 1 at p. 31). Thus, even if the statement that “the devices . . . “injur[ed]
the tongue” was not fully accurate, the Article nonetheless presents the substantial truth—that the
study found use of either device might cause harm. See G.D., 205 N.J. at 294 (noting “minor
inaccuracies do not amount to falsity so long as the substance, gist, the sting, of the libelous charge
can be justified” (internal citations and quotation marks omitted)); Masson v. New Yorker
Magazine, Inc., 501 U.S. 496, 516 (1991) (noting the law of defamation overlooks minor
inaccuracies, focusing instead on “substantial truth”). The comment about the tongue injury does
not heighten the sting of the study’s conclusion that the LifeVac Device may cause edema and
result in injury and thus it is not actionable, even if it may be a minor inaccuracy.
17

E. Paragraph 126(a) and (f)—FDA Registration
Paragraph 126(a) and (f) of the complaint, and corresponding Paragraphs 46 to 60, relate
to statements in the Article about Plaintiff’s status with the FDA. Plaintiff takes aim at the Article’s
characterization of its status with the FDA as “not regulated.” (Compl. ¶¶ 46 to 60). It asserts that
it is registered by the FDA, which makes it “regulated.” (Id.). Plaintiff also argues that the Article
is “misleading” by stating that the FDA has not “approved” ACDs such as the LifeVac device
because only Class III devices need approval and it is a Class II device. (Id.).
A fair reading of the full Article at most conveys minor inaccuracies about the FDA
regulatory scheme, which do not convey a defamatory meaning. First, although the Article does
state in one place that ACDs are “not regulated” by the FDA, it thereafter contradicts that statement
by telling readers that the devices are “registered by the FDA.” (Compl., Ex. B. at p. 3). Thus,
readers were in fact informed of the truthful status each ACD has with the FDA—registration.
Similarly, although the Article states that “FDA registration merely means the FDA is
aware of the device,” it nonetheless provides facts to the reader that proves that the FDA is in fact
more than simply “aware” of the devices. The Article tells readers that the “FDA inspects facilities
that manufacture medical devices” and notes the type of violations that might occur during an
inspection—“failures to establish and maintain adequate procedures to control the design of the
device.” (Id.). As noted above, “[e]valuation of content involves consideration not merely of a
statement’s literal meaning, but also of the fair and natural meaning that reasonable people of
ordinary intelligence would give to it.” Lynch, 161 N.J. at 167.
Despite the alleged minor inaccuracies in the Article, when the statements in Paragraph
126(a) and (f) are read in context of the full Article, no reader of ordinary intelligence would come
away from the Article believing that the FDA did not regulate the devices and that it was more
18

than simply “aware” of them. See G.D., 205 N.J. at 293 (“Truth may be asserted as a defense even
when a statement is not perfectly accurate.”). The two statements cannot be read in isolation to
support Plaintiff’s claim—context matters.
Plaintiff also alleges that the Article is “purposefully misleading” when it discusses FDA
approval, explaining that the “reason that no ACD has been cleared or approved by the FDA is
because they are classified as a Class II and not Class III device, which means that the LifeVac
Device as a Class II medical device does not require FDA approval.” (Compl. ¶56). But the Article
accurately explains this very context to the reader:
The FDA classifies anti-choking devices as Class II Exempt devices, which

carry “moderate risk” but are exempt from pre-market review.
Class II devices like pacemakers and infusion pumps require FDA approval or
clearance. Approval requires rigorous testing to show devices are safe and
effective, while clearance requires a general review by the FDA. No portable
anti-choking devices have been cleared or approved by the FDA, the
spokeswoman said.
[(Compl., Ex. B at p. 3).]
Therefore, the statement that ACDs are not “approved” by the FDA is entirely truthful.
Additionally, the statement by the FDA spokesperson that no ACD device has been “cleared or
approved by the FDA” is a truthful statement by “a public official in connection with that official’s
duties” and is thus fully protected by the common interest privilege. See Sedore v. Recorder Pub.
Co., 315 N.J. 137, 160-61 (App. Div. 1998). Further, given the context that was provided, no
reasonable reader would think that the LifeVac Device was denied approval, only that there is no
approval process. The statement is thus true and also not capable of a defamatory meaning.
The remainder of the comments regarding the FDA in the Article constitute protected
opinion—e.g., individuals stating that they would prefer spending public funds on devices that are
approved by the FDA (i.e. not Class I or Class II devices). (See Compl., Ex. B. at p. 2 (“Dr. Robert
19

Baratz . . . questioned why the state would spend hundreds of thousands of dollars on devices the
FDA has not declared safe and effective.”)). Those opinions are entitled to “absolute immunity.”
Dairy Stores, 104 N.J. at 147.
As argued above, none of the statements listed in Paragraph 126 or elsewhere in the
complaint constitute actionable defamation or trade libel. Counts I and III must be dismissed.
II. PLAINTIFF FAILS TO STATE A CLAIM FOR DEFAMATION (COUNT I)

BECAUSE PLAINTIFF ALLEGES ONLY THAT THE DEFENDANTS
CRITICIZED PLAINTIFF’S PRODUCT.
Plaintiff’s complaint alleges both defamation (Count I) and trade libel (Count III), which
is also known as product disparagement. As argued below, all the allegations in Plaintiff’s
complaint relate to claims that Defendants disparaged its product—the LifeVac Device—and not
the reputation of the company itself. Accordingly, Count I (defamation) must be dismissed.
Defamation and trade libel are two distinct causes of action. Dairy Stores, 104 N.J. at 133.
In the business context, defamation causes injuries to a company’s reputation; trade libel causes
injuries to a company’s product. Ibid. Accord Pacira BioSciences, __ F.4th __ (3d Cir. 2023)
(“While defamation remedies harm to one's reputation, trade libel remedies harm to the reputation
of one's property or product.”); Patel v. Soriano, 369 N.J. Super. 192, 247 (App. Div. 2004) (“[I]f
the statement charges plaintiff with personal misconduct, or imputes to plaintiff reprehensible
personal characteristics, it is regarded as libel or slander. . . . If, however, the aspersion reflects
only on the quality of plaintiff's product, or on the character of plaintiff's business as such, it is
disparagement.”). Justice Garibaldi’s concurring opinion in Dairy Stores describes the distinction:
For example, if a defendant declares that a company refuses to pay its debts,
the reputation of the company will be damaged, but its ability to sell its
product will not be. The statement is defamatory, but it does not disparage
a product. . . . In contrast, if a defendant says that a company’s product is of
poor quality, its sales will be hurt, but public perception of its integrity and
its reputation will not be affected. The statement disparages a product, but
20

it is not defamatory. . . .
[Dairy Stores, 104 N.J. at 158-59 (Garibaldi, J., concurring) (internal

citations omitted).]
Courts will generally not infer defamation against a company’s reputation simply because
a defendant criticized the company’s product. Dairy Stores, 104 N.J. at 134; 5 McCarthy on
Trademarks and Unfair Competition § 27:101 (5th ed.) (“The courts will not stretch to find a
personal or corporate defamation in every allegedly false statement criticizing a product.”).
“Defamation is found only where the imputation fairly implied is that the plaintiff is dishonest or
lacking in integrity, or that he is deliberately perpetrating a fraud upon the public by selling a
product which he knows to be defective.” Id. at 159 (Garibaldi, J., concurring) (quoting W.P.
Keeton, Prosser and Keeton on Torts, 965 (5th ed. 1985)). Accordingly, “unless the disparaging
statement explicitly imputes to the corporation fraud, deceit, dishonesty, or reprehensible conduct
in relation to the product, courts will not deem a merely critical statement to be defamatory.” Ibid.
Accord Patel, 369 N.J. Super. at 248 (defamation is found only “where the imputation fairly
implied is that the plaintiff is dishonest or lacking in integrity, or that he is deliberately perpetrating
a fraud upon the public by selling a product which he knows to be defective” and not “where the
most that can be made out of the words is a charge of ignorance or negligence.”).
Here, the allegedly defamatory statements are recited in Paragraph 126 of the complaint.
At most, they constitute concerns about the LifeVac Device, not Plaintiff or its conduct or business
practices.12 Nowhere in the complaint does Plaintiff allege that Defendants have accused it of
fraud, deceit, dishonesty, or any other reprehensible conduct as a corporation. Even assuming

12
In fact, Plaintiff’s complaint at times acknowledges that the allegedly defamatory statements are not about
Plaintiff, but rather its product. See Compl. ¶127 (“The statements made by Defendants were clearly about
Plaintiff and/or Plaintiff’s LifeVac Devive[.]”) (emphasis added)); Compl. ¶44 (“The Article . . . was
nothing more than a ‘hit piece’ about ACDs . . .”) (emphasis added)).
21

Plaintiff’s factual allegations are true for purposes of this motion and that the Article made false
statements about the LifeVac Device, “[i]nterference by falsehoods that cause pecuniary loss, but
are not personally defamatory, has been regarded as a tort ‘more or less distinct’ from
defamation”—trade libel. Patel, 369 N.J. Super. at 247; See also Robert Michael Ey, 21 Causes of
Action 245 (Feb. 2023 Update; Originally published in 1990) (“[W]here a statement is limited to
disparagement of the plaintiff's product, the mere implication that the plaintiff deals in shoddy,
defective, or otherwise undesirable products will not be sufficient to support a defamation claim.”).
“In the case of a complaint charging defamation, [a] plaintiff must plead facts sufficient to
identify the defamatory words . . . . A vague conclusory allegation is not enough.” Zoneraich v.
Overlook Hosp., 212 N.J. Super. 83, 101 (App. Div. 1986). Because Plaintiff has failed to identify
the specific statements that defamed its reputation and suggested it engaged in fraud, deceit, or
other deplorable conduct—as opposed to criticizing its Device—this Court should not infer such
defamation. See Dairy Stores, 104 N.J. at 237 (Garibaldi, J., concurring) (“[C]ourts have generally
been reluctant to find that a disparaging statement that merely criticizes a product is also
defamatory.”); Restatement (Second) of Torts § 623A, Comment g (1977) (“Although it might be
possible to imply some accusation of personal incompetence or inefficiency in nearly every
imputation directed against a business or a product, the courts have insisted that something more
direct than this is required for defamation.”).
Accordingly, Count I should be dismissed because it fails to state a claim for defamation.
III. PLAINTIFF’S CLAIMS FOR DEFAMATION (COUNT I) AND TRADE LIBEL

(COUNT III) MUST ALSO BE DISMISSED BECAUSE IT HAS NOT
ADEQUATELY PLEAD ACTUAL MALICE.
In New Jersey defamation and trade libel cases, the actual malice standard applies “to
investigative new stories that addressed matters of public concern . . . regardless of whether the
22

targets of the statements are public figures or private persons.” Durando, 209 N.J. at 250 (internal
citations and quotation marks omitted); Senna v. Florimont, 196 N.J. 469, 473 (2008) (holding
that actual malice standard was applicable to speech related a matter of public concern); Dairy
Stores, 104 N.J. at 141 (“Insofar as defenses to [trade libel] are concerned, a qualified privilege
should exist wherever it would exist in a defamation action.”). This “fair comment” privilege
extends not only to expressions of “opinion,” but also to statements of “fact.” Dairy Stores, 104
N.J. at 147-148.
In this case, it cannot seriously be disputed that the issues that Defendants’ speech relates
to—proposed legislation requiring taxpayer money to purchase ACDs in schools and the ACDs
themselves, which are purportedly used to save lives—are matters of great public interest or
concern. See Senna, 196 N.J. at 497 (“Discourse on political subjects and critiques of the
government will always fall within the category of protected speech that implicates the actual-
malice standard. Public policy and common sense also suggest that the same protections be given
to speech concerning significant risks to public health and safety.”). Therefore, Plaintiff must meet
the heightened pleading standard and adequately plead that Defendants acted with actual malice.
The Complaint fails to adequately plead actual malice, and therefore Counts I and III must
be dismissed. To meet the actual malice test, “a plaintiff must prove with convincing clarity that
the defamatory statements were published by the defendant with knowledge of their falsity or
reckless disregard of whether they were true or false.” Lawrence v. Bauer, 89 N.J. 451, 466, cert.
denied, 459 U.S. 999 (1982) (applying Sullivan, 376 U.S. at 279-80). Libel defendants have not
acted with “reckless disregard” unless they have published statements with “a high degree of
awareness of their probable falsity.” Garrison v Louisiana, 379 U.S. 64, 74 (1974) (overruled on
other grounds) (quoted in Lawrence, 89 N.J. at 466). In other words, the defendant’s “recklessness
23

in publishing material of obviously doubtful veracity must approach the level of publishing a
knowing, calculated falsehood.” Lawrence, 89 N.J. at 466 (internal quotation marks and citations
omitted).
Whether actual malice is sufficiently plead is an appropriate finding for the Court to make
on a motion to dismiss. Darakjian, 366 N.J. at 247-48; see also Lawrence, 89 N.J. at 462 (stating
that whether a privilege, and therefore whether actual malice standard applies, is a question for a
judge, and not a jury.). In Darakjian, the Appellate Division affirmed the dismissal of a defamation
cause of action, which alleged that the false statements made by the defendant were “made by him
intentionally and with malice … solely with the purpose to harm the plaintiff and to falsely vilify
her…” Id. at 244. The complaint further alleged that the defamatory language was “made with
actual malice and with the intent to harm the plaintiff…” Id.
On appeal, the Appellate Division noted that:
Normally, the facts as pleaded must be taken to be true for the purposes of
the motion, and the court's inquiry is limited to examining the legal
sufficiency of the facts alleged on the face of the complaint.
Yet, when the allegations of a defamation complaint, as here, are limited to

the fact of publication and a bare conclusory assertion that the press
defendants “knew and/or reasonably should have known that the statement
... was false,” with no other factual reference to lend support to the
contention, the court may not simply take the facial assertion as a given,
but rather must evaluate the circumstances as best it can to determine
whether there is any reasonable basis upon which the defamation claim
can be seen to be viable. Were it otherwise, any person or entity
claiming First Amendment protection would be at the mercy of a
claimant's empty assertions unsupported even by any contentions
regarding surrounding facts.
It is not enough for [a] plaintiff[ ] to assert ... that any essential facts
that the court may find lacking can be dredged up in discovery. A
plaintiff can bolster a defamation cause of action through discovery, but not
[ ] file a conclusory complaint to find out if one exists. [A] plaintiff must
plead the facts and give some detail of the cause of action.
24

[Id. at 248-49 (citations omitted) (alterations in original) (emphasis added).]
Thus, the Court should not accept a bare conclusory allegation that the defendants,
“knew and/or reasonably should have known that the statement ... was
false,” with no other factual reference to lend support to the contention, the
court may not simply take the facial assertion as a given, but rather
must evaluate the circumstances as best it can to determine whether
there is any reasonable basis upon which the defamation claim can be
seen to be viable.
[Darakjian, 366 N.J. Super. at 49 (quotes in original) (emphasis added)]
The court agreed that those allegations in the complaint failed to adequately plead that the
defendant acted with actual malice.
Although very rarely will direct evidence exist to meet the plaintiff’s burden of pleading
actual malice, it is still possible to plead particularized facts that the statements at issue were
published with knowledge of their falsity or a reckless disregard for the truth. See Costello v.
Ocean Cnty. Observer, 136 N.J. 594, 615 (1994). For example, “a plaintiff might show actual
malice by demonstrating that the defendant had obvious reasons to doubt the veracity of the
informant or the accuracy of his reports. Or the plaintiff might show that the defendant had found
internal inconsistencies or apparently reliable information that contradicted the story’s libelous
assertions but nevertheless had published the article.” Id. A failure to investigate by itself is not
clear and convincing evidence of actual malice. Id.
In Jobes v. Evangelista, the court did find clear and convincing evidence of actual malice.
368 N.J. Super. 384 (App. Div. 2004). In Jobes, the plaintiffs filed a defamation claim against the
chief of police for publicly accusing them of committing arson, with respect to a building that
burned down. In finding that the chief acted with actual malice (e.g., reckless disregard for the
truth), the court took note that: (1) prior to making the defamatory statements to the media, the
chief’s only basis of knowledge about the fire was the report of the investigating detective; (2)
25

many of the chief’s statements about the plaintiffs’ supposed wrongful and criminal acts were not
based on the detective’s report (e.g. they were essentially fabrications); and (3) the chief took no
steps to verify the facts that were not included in the detectives report prior to making his statement
to the media. Id. at 396-97.
In this case, Plaintiffs have not adequately plead actual malice, asserting nothing more than
bare-boned conclusory allegations that Defendants acted with malice and does not even attempt to
allege actual malice in connection with its trade libel cause of action. For example, in its
Complaint, Plaintiff simply alleges:
115. Publishing the false and defamatory statements and quoting such
clearly biased and untruthful sources not only falls short of any
reasonable standard of journalistic integrity, but also shows
Defendants wrote and published the Article with actual malice, or at
the very least, reckless disregard for the truth of the assertions made
in the Article.
130. Defendants published the foregoing libelous, false and defamatory

statements knowing they were false or, at the very least, with reckless
disregard of their truth or falsity.
132. Where necessary to avoid disrupting their narrative, Defendants (a)

intentionally ignored contradictory facts that were in the sources they
cited to, or clearly observable, or that they knew from common sense
knowledge; (b) refused to perform simple fact-checking that would
have readily proven their statements to be false; and (c) cited to
unreliable sources while completely ignoring more reliable one.
134. Defendants intended to convey the libelous, false and defamatory

meaning. Defendants chose and arranged their statements to insinuate
false and defamatory meanings regarding Plaintiff and the LifeVac
Devices to its readers in an intentional and concerted effort to stop
passage of the Bill and damage Plaintiff.
135. Defendants’ acts or omissions were the cause of Plaintiff’s harm and
were actuated by actual malice or accompanied by a wanton and
willful disregard of Plaintiff who foreseeably might be harmed by
those acts or omissions.
At best, Plaintiff’s attempts to plead actual malice by arguing that Defendants failed to
26

fully investigate the matters discussed in the Article. However, “[m]ere failure to investigate all
sources does not prove actual malice.” Lynch, 161 at 152 (citing Ryan v. Brooks, 634 F.2d 726
(4th Cir.1980) (publishers’ reliance on previously published material not reckless where there was
no reason to doubt accuracy of sources used), McQuoid v. Springfield Newspapers, 502 F.Supp.
1050 (W.D.Mo.1980) (one newspaper’s reliance on article previously published by another paper
not proof of reckless disregard), and Schultz v. Reader's Digest Ass'n, 468 F.Supp. 551
(E.D.Mich.1979) (reliance on previously published articles not evidence of actual malice)).
While the court treats well-pleaded facts as true, it should not accept as true facts which
are not well-pleaded. It should not accept legal conclusions couched as a factual allegation, nor
should it accept merely conclusory, unwarranted deductions of fact or unreasonable inferences.
See Papasan v. Allain, 478 U.S. 265 (1986). There are simply no facts pleaded in the Complaint
from which the Court could draw an appropriate inference that Defendants made the statements
with actual malice. Stripped of its legal conclusions, the Complaint pleads no facts whatsoever
supporting its allegations against Defendants.
In fact, as argued in Point I above, most of the alleged defamatory comments are actually
protected opinion or hyperbole or they are truthful statements. The only conceded minor
inaccuracies within the Article were non-defamatory or were cured by other statements within the
Article. For example, as argued above, although the Article mistakenly described ACDs as not
being regulated by the FDA, the Article nonetheless went on to provide details to show that they
were in fact registered and regulated by the FDA. Given such, as a matter of law Plaintiff cannot
prove that Defendants acted with actual malice.
For the forgoing reasons, Plaintiffs have failed to adequately plead that Defendants acted
with actual malice, and therefore Counts I and II of the Complaint for defamation and trade libel
27

must be dismissed because they fail to state a claim for which relief can be granted.
IV. PLAINTIFF’S CLAIM FOR TRADE LIBEL (COUNT III) MUST BE DISMISSED
BECAUSE IT HAS NOT ADEQUATELY PLEAD SPECIAL DAMAGES
Although the fact that the allegedly defamatory statements cited in the Complaint are
nothing more than opinion and rhetorical hyperbole is sufficient reason to warrant dismissal of the
trade libel claim, Plaintiff also fails to adequately plead special damages with the required
specificity, which is similarly fatal to Plaintiff’s trade libel claim.
Unlike ordinary defamation actions, an action for trade libel requires special damages in
all cases. Henry V. Vaccaro Const. Co. v. A. J. DePace, Inc., 137 N.J. Super. 512, 517 (Law. Div.
1975) (“[Trade libel] requires special damage in all cases, unlike ordinary defamation.”); See also
Sys. Operations, Inc., 555 F.2d at 1140 (listing the elements of trade libel as: “(1) publication (2)
with malice (3) of false allegations concerning plaintiff's property or product (4) causing special
damages, i.e., pecuniary harm.”). Not only must Plaintiff prove special damages with particularity,
it must also sufficiently plead special damages with specificity. See Rule 4:5-8 (“Items of special
damage claimed shall be specially stated[.]”). “General, implied, or presumed damages of the kind
available in personal defamation actions do not satisfy the requirement of special damages needed
for [trade libel] causes of action.” Patel, 369 N.J. Super. at 249. This heightened pleading
requirement compels a plaintiff to “allege either the loss of particular customers by name, or a
general diminution in its business, and extrinsic facts showing that such special damages were
the natural and direct result of the false publication.” Mayflower Transit, LLC v. Prince, 314 F.
Supp. 2d 362, 378 (D.N.J. 2004) (emphasis added) (internal citations and quotation marks
omitted). If predicating a claim on the latter general diminution theory, the plaintiff must allege
extrinsic facts showing an established business, the amount of sales for a

substantial period preceding the publication, the amount of sales for a
subsequent to the publication, facts showing that such loss in sales were the
28

natural and probable result of such publication, and facts showing the
plaintiff could not allege the names of particular customers who withdrew
or withheld their custom.
[Id. (internal citations and quotation marks omitted)]
Here, Plaintiff fails to adequately plead special damages with the required specificity since
it does not purport to even attempt to identify particular customers by name, instead opting to
identify general/broad categories of customers, e.g., “other states and municipalities which had
expressed interest in purchasing LifeVac for their resident and constituent” or “New Jersey
schools.” (Compl. ¶¶ 121 to 124). To the extent Plaintiff’s complaint can be interpreted to plead
special damages under a general diminution theory, Plaintiff does not allege facts identifying “the
amount of sales for a subsequent to the publication, facts showing that such loss in sales were the
natural and probable result of such publication, and facts showing the plaintiff could not allege the
names of particular customers who withdrew or withheld their custom.” Mayflower Transit, 314
F. Supp. 2d at 378 (internal citations and quotation marks omitted).
For these reasons, Plaintiff fails to adequately plead actual special damages with the
requisite specificity, thus warranting dismissal.
V. PLAINTIFF’S CLAIM FOR TRADE LIBEL (COUNT III) MUST BE DISMISSED

BECAUSE IT CANNOT, UNDER ANY CIRCUMSTANCE, SHOW THAT THE
ALLEGED DEFAMATORY STATEMENTS CAUSED DAMAGES
“To establish [trade libel], plaintiff must show the falsehood . . . played a material and
substantial part in leading others not to deal with plaintiff.” Patel, 369 N.J. Super. at 248; See also
Gillon v. Bernstein, 218 F.Supp.3d 285, 298 (D.N.J. 2016) (a plaintiff must show that “such special
damages were the natural and direct result of the false publication”) (emphasis added)). Plaintiff
does not directly plead, and can never directly show, that “others” did not “deal with plaintiff”
because of the alleged defamatory statements. Instead, Plaintiff attempts to do so indirectly through
29

a tenuous and speculative causal nexus that could never be proven through discovery and should
be subject to dismissal. In this case, the “others” include New Jersey schools and their districts.
(Compl. ¶¶ 124, 138, 140, 142, 144-145, 150). Plaintiff alleges the following causal chain: (1) a
bill mandating school districts to purchase ACDs is introduced on April 19, 2021 (Compl., Ex. A);
(2) approximately 9 months later, on January 7, 2022, the subject Article is published containing
alleged defamatory statements (Compl., Ex. B); (3) the subject Article causes the bill to
“effectively stall” (Compl., ¶ 119); and (4) the New Jersey schools are never mandated to purchase
ACDs, effectively preventing Plaintiff from realizing sales it would have (supposedly) realized as
a result of the passage of the bill.
The causal nexus between the subject article and contracts with New Jersey schools is too
remote, tenuous, and based on pure conjecture and speculation, i.e., it assumes that the bill would
have passed but for the Defendants’ Article. To the contrary, we know for a fact that the bill would
not have passed even if the Article was not published. “All business conducted during the first
year of the two-year legislative session may be continued into the second year, but unfinished
business expires at the end of the second year.” Glossary of Terms, NEW JERSEY
LEGISLATURE, https://www.njleg.state.nj.us/glossary (last accessed Apr 11, 2023). The 2020-
2021 session, the session in which the bill was first introduced, ended by January 11, 2022, the
day the 2022-2023 session commenced and two business days after the Article was published. Id.
(“New Jersey’s session year begins on the second Tuesday of each January.”). At the time the
Article was published, the bill had never even had a committee hearing and thus it would have
been legally impossible for the bill to have passed both houses by January 11, 2022 when the
session ended. See Bill S3630, NEW JERSEY LEGISLATURE,
https://www.njleg.state.nj.us/bill-search/2020/S3630 (last accessed Apr 11, 2023) (evidencing that
30

bill never had committee meeting); N.J. Const., Art. IV, Section IV, Para. 6 (requiring all bills to
be read three times in each house and to have at least one calendar day between the second and
third reading); Rules of the Senate, R. 17:1 (a bill may not be given a second reading until it is
reported by a committee); Rules of the Senate, R. 17:5 (“No bill or resolution requiring three
readings shall have a first and second day reading on the same day without the permission of the
President).13 Thus, no matter what the Article stated, there was no way for the bill to pass before
it expired on January 11, 2022.
Even if the bill did not expire, it is impossible for Plaintiff to ever prove—as is its burden—
that the bill would have passed but for the Article and thus it would have financially benefited.
Every year, thousands of bills are introduced and only a small percentage ever pass.14 See
Explainer: How a Bill Becomes a Law in the Garden State, NJ SPOTLIGHT NEWS, April 1, 2014
(“Thousands of bills that do not pass get recycled and reintroduced every two years during a new
legislative session.”); N.J. Lawmaker Tries to Limit New Bills . . . By Introducing a New Bill, NJ
ADVANCE MEDIA, Oct. 6, 2014 (noting that in just the first ten months of the legislative session,
lawmakers had introduced 6,777 bills and only 1.6 percent had passed both houses). Proving
special damages requires direct proof of a pecuniary loss and a causal connection to the defamatory
statement. A plaintiff can never base a special damages claim upon an assertion that a bill would
have passed but for the defamation because “the possibility that a bill might become a law is an
expectation built on uncertainty until it happens.” James v. N.J. Manufact. Ins. Co., 216 N.J. 552,

13
The Rules of the Senate of the State of New Jersey is available online at
https://pub.njleg.state.nj.us/publications/pdf/SenRules.pdf, last accessed April 5, 2023.
14
Per the Chapter Laws, during the relevant legislative session, the Legislature enacted 156 laws in 2020
and 200 laws in 2021—a total of 356 laws (each of which requires one bill in each house, so a total of 712
bills). In contrast, the Legislature’s “bill search” function on its website shows that nearly 11,500 bills were
introduced during the 2020-2021 legislative session. The Court can take judicial notice of these publicly
posted legislative bills and chapter laws.
31

573 (2014). The bill in question, S. 3630 (2021), was pending for nine months without any
legislative action whatsoever so it is preposterous to suggest that the bill would have passed but
for the publication of the Article. Indeed, as the Article notes, a similar bill failed in Wisconsin in
2019.
Moreover, despite asserting that “[t]here is no indication that the Bill will be considered
further by the legislators,” Plaintiff curiously omits from its complaint that the bill was
reintroduced after the article was published. S. 73 (2022) was introduced on January 11, 2022
(two days after the Article was published). (Griffin Cert., Ex. 2). Its companion bill, A. 3778
(2022), was introduced on May 5, 2022. (Griffin Cert., Ex. 3).15 Thus, clearly the Article did not
“effectively stall” the bill and no amount of discovery could prove otherwise. The bill did not pass
because the legislative session expired. It was re-introduced in the new session, and remains in the
same status it held for nine months before Defendants even published the Article—it is pending in
committee.
Passage of the bill (as reintroduced) is still possible, but even if it does not pass, Plaintiff
could never prove as a matter of law that it would have passed but for the Article. The mere fact
that one or two lawmakers withdrew sponsorship after reading Plaintiff’s article would be
insufficient as a matter of law. Proving that the bill would have passed but for the allegedly
defamatory statements in the Article would require Plaintiff to obtain the testimony of a majority
of lawmakers in each house that they read the Article and that they would have voted for the bill
but for the alleged defamatory statements in the Article (none of which are even actionable, as
stated in Point I above). Plaintiff would also need the testimony of the Governor that he would
have signed the bill into law had it passed the Legislature. But even if Plaintiff were to somehow

15
The Court can take judicial notice of these publicly posted legislative bills and chapter laws.
32

pull off such proofs, there are still too many uncertainties that could have caused the bill to join
the thousands of others that do not pass each year. For example, had the bill had a committee
hearing, it is possible that individuals may have testified against its passage. The bill likely would
have been subject to amendment, such as reducing the amount of funding provided or changing
the types of ACDs to be provided.16
No amount of discovery could ever prove that the Article played a material and substantial
part in leading others not to deal with Plaintiff and therefore this Court should dismiss Count III
as a matter of law.17 Dismissal is required “where the pleading does not establish a colorable claim
and discovery would not develop one.” State v. Cherry Hill Mitsubishi, Inc., 439 N.J. Super. 462,
467 (App. Div. 2015) (citation omitted).
VI. PLAINTIFF’S CLAIM FOR TORTIOUS INTERFERENCE FAILS TO STATE A

CLAIM BECAUSE IT IS DUPLICATIVE OF THE DEFAMATION AND TRADE
LIBEL CLAIMS.
It is widely held that a plaintiff cannot re-package a failed defamation claim as a separate
claim for tortious interference. Where claims for tortious interference are predicated on precisely
the same facts as are alleged in the defamation count, “[p]roof or failure of proof of the operative
facts of the defamation count would, therefore, completely comprehend the malicious interference

16
In that regard, the bill itself simply required schools to purchase Class II portable ACDs—not the LifeVac
Device brand. Although the LifeVac Device is currently the only Class II ACD on the market, that does not
mean that other companies might not rush to register devices with the FDA during the six months before
the bill became effective to qualify for the contracts. Plaintiff’s damages claim is pure speculation—there
is no guarantee it would have gotten the contracts.
17
To be entitled compensatory damages under a defamation claim for particular material, economic or
financial losses – as opposed to for nominal damages – a plaintiff must show that such loss was caused by
the defamation. See Model Jury Charges (Civil), “Defamation Damages (Private or Public” (rev. Nov.
2022) (“[Plaintiff] can recover these damages only if you determine that [defendant’s] conduct was a
substantial factor in causing [plaintiff’s] material, economic or financial losses.”); see also Ward, 136 N.J.
at 541 (finding proofs in the case were inadequate to meet the causation and damages elements necessary
to the defamation action). For the same reasons outlined in this section, Plaintiff cannot, under any
circumstance, show that the alleged loss was caused by the Article, i.e., that the subject legislative bill
would have passed but for the Article. Thus, Plaintiff’s defamation claim (Count I) must be dismissed
separately and apart for the other bases outlined herein.
33

cause.” Bainhauer v. Manoukian, 215 N.J. Super. 9, 48 (App. Div. 1987); see also Lutz v. Royal
Ins. Co. of Am., 245 N.J. Super. 480, 503 (App. Div. 1991) (dismissing plaintiff’s tortious
interference claims since plaintiff “attempt[ed] to prove his malicious interference claims with
precisely the same evidence that forms the basis for his defamation claim.”)
Indeed, courts have routinely refused to subvert a defendant’s First Amendment protections
by allowing plaintiffs to repackage defamation claims as other causes of action that are premised
on the same set of facts. Lutz, 245 N.J. Super. 480, 503 (App. Div. 1991) (concluding “that the
malicious interference claims were properly dismissed as duplicative of plaintiff's sole remaining
defamation claim” because plaintiff was attempting to prove “malicious interference claims with
precisely the same evidence that forms the basis for his defamation claim.”).
Here, Plaintiff’s second count for tortious interference with prospective economic
advantage is duplicative of its defamation and trade libel claims in that they are based on the same
operative facts, i.e., that “Defendants deliberately sabotaged Plaintiff’s potential contracts and
business relationships by libeling and/or slandering Plaintiff and its LifeVac Device in the Article
and publishing same.” See Compl., ¶ 142. Therefore, it must be dismissed.
CONCLUSION
For these reasons, Plaintiff’s Complaint fails to state a claim upon which relief can be
granted, thus warranting dismissal of Plaintiff’s Complaint.
Respectfully Submitted,
/s/ CJ Griffin
/s/ Marc M. Yenicag
April 14, 2023
34


Jennifer Borg (035131990)
Court Plaza South
(201) 488-8200
LIFEVAC, LLC,
STATES NEWSROOM, INC., d/b/as the New STIPULATION EXTENDING TIME TO

Jersey Monitor, DANA DIFILIPPO, JOHN ANSWER
Defendants.
IT IS HEREBY stipulated and agreed by and between the attorneys for Defendants States
Newsroom, Inc. and Dana DiFilippo (collectively, “Defendants”) and the attorneys for Plaintiff
LifeVac, LLC that the time within which Defendants may answer or otherwise respond to the
complaint filed in the above-captioned action is hereby extended for a period of 60 days, to April
15, 2023.
QUINTAIROS, PRIETO, WOOD & PASHMAN STEIN WALDER HAYDEN, P.C.

BOYER, P.C. Attorneys for Defendants
Attorneys for Plaintiff
s/Jyoti M. Halsband
By: _______ By: s/ CJ Griffin
Jyoti M. Halsband, Esq. CJ Griffin, Esq.
Dated: January 30, 2023 Dated: January 30, 2023


4/14/23, Defendant's Motion To Dismiss Plaintiff's Complaint, LifeVac LLC v. States Newsroom Inc. Et Al

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MER-L-000049-23 04/14/2023 11:58:28 AM Pg 1 of 2 Trans ID: LCV20231275082

PASHMAN STEIN WALDER HAYDEN, P.C.

v. Docket No.: MER-L-000049-23

STATES NEWSROOM, INC., d/b/as the New NOTICE OF MOTION TO DISMISS

TO: Jyoti M. Halsband, Esq.

County, to dismiss Plaintiff’s Complaint in this action.

PLEASE TAKE FURTHER NOTICE that oral argument is requested if opposition is

PASHMAN STEIN WALDER HAYDEN, P.C.

By: /s/ CJ Griffin

PASHMAN STEIN WALDER HAYDEN, P.C.

v. Docket No.: MER-L-000049-23

STATES NEWSROOM, INC., d/b/as the New [PROPOSED] ORDER

IT IS ON THIS ____________ DAY OF ______________, 2023

1. Defendant’s Motion to Dismiss Plaintiff LifeVac, LLC’s Complaint for failure to

state a claim pursuant to Rule 4:6-2(e) is GRANTED;

2. Count I of Plaintiff’s Complaint is dismissed with prejudice;

3. Count II of Plaintiff’s Complaint is dismissed with prejudice;

4. Count III of Plaintiff’s Complaint is dismissed with prejudice; and

PASHMAN STEIN WALDER HAYDEN, P.C.

v. Docket No.: MER-L-000049-23

STATES NEWSROOM, INC., d/b/as the New

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS

PRELIMINARY STATEMENT .................................................................................................... 1

James v. N.J. Manufact. Ins. Co.,

Pacira Biosciences, Inc. v. Am. Soc'y of Anesthesiologists, Inc.,

N.J. Const., Art. IV, Section IV, Para. 6 ....................................................................................... 31

Rule 4:6-2(e) .................................................................................................................................. 3

5 McCarthy on Trademarks and Unfair Competition § 27:101 (5th ed.) ..................................... 21

A. 3778 (2022) .............................................................................................................................. 32

Airway, BRITANNICA DICTIONARY ............................................................................................... 16

Airway, CAMBRIDGE DICTIONARY ................................................................................................ 16

Bill S3630, NEW JERSEY LEGISLATURE, https://www.njleg.state.nj.us/bill-

Explainer: How a Bill Becomes a Law in the Garden State,

Glossary of Terms, NEW JERSEY LEGISLATURE, https://www.njleg.state.nj.us/glossary (last

Model Jury Charges (Civil),

N.J. Lawmaker Tries to Limit New Bills . . . By Introducing a New Bill,

Restatement (Second) of Torts § 623A, comment g (1977) ......................................................... 22

Robert Michael Ey,

Rules of the Senate, R. 17:1 ……………………………………………………………………..31

prospective economic advantage, and trade libel.

for at least four compelling reasons:

are premised upon mischaracterized non-actionable statements of opinion, hyperbole or otherwise

of the debate over the efficiency of ACDs. (Point I).

defendant criticized the company’s product. (Point II).

Finally, courts routinely dismiss tortious interference claims where corresponding

A. The Alleged Defamatory Statements

 “Like a toilet plunger”

 Such studies are not “real science”

 “hand held manual plungers promoted as anti-choking devices”

 “One study published in the Annuals of Emergency Medicine in 2017 is problematic”

 Researchers “found the devices . . . [were] injuring the tongue.”

In deciding a motion to dismiss pursuant to Rule 4:6-2(e), “the inquiry is confined to a

motion to dismiss stage, Darakjian, 366 N.J. at 248-49.

I. COUNT I (DEFAMATION) AND COUNT III (TRADE LIBEL) FAIL TO STATE

defamatory is a question of law to be resolved by a court. Kotlifkoff, 89 N.J. at 67.

statement’s content is judged by its objective meaning to a reasonable person

A. Paragraph 126(b)—“Like a Toilet Plunger”

absolute immunity.”); Kotlifkoff, 89 N.J. at 71 (“[N]o matter how extreme, vituperous, or

vigorously expressed” a defendant’s “pejorative opinion” is, it is “entitled to constitutional

B. Paragraph 126(e)—“Hand Held Manual Plungers Promoted As [ACDs]”

relates to Paragraphs 85 to 87 of the complaint, which state:

86. This statement is blatantly false.

Respectfully, Plaintiff grossly mischaracterizes the Article, which is accurate.

IT IS ON THIS DAY OF __, 2023