The opinion of the court was delivered by: SEYBERT
Plaintiff Aequitron engages in the manufacture, sale and distribution of medical devices, including infant heart rate respiration monitors. Complt. P 9. Aequitron's monitors are Class 2 prescription medical devices approved under applicable rules and regulations of the United States Food and Drug Administration and are used in connection with written prescriptions by physicians for infants who have been diagnosed as susceptible to infant apnea, commonly referred to as sudden infant death syndrome ("SIDS"). Id. PP 9-10. Aequitron manufactures its products in Minnesota and distributes them through various dealers and independent manufacturers throughout the United States, Canada and other international markets. Id. P 11.
Defendant BRG is a sole proprietorship of defendant Dyro, who is engaged in biomedical research, investigation and consultation. Deft.'s 3(g) P 1. Dyro is a biomedical engineer with a bachelor's degree in electrical engineering from the Massachusetts Institute of Technology, a masters degree in biomedical electronics from the University of Pennsylvania and a Ph.D. in biomedical electronics engineering from the University of Pennsylvania. Id. P 2. He has been a certified clinical engineer since 1976 and is presently editor of The Journal of Clinical Engineering. Id. P 2. In September 1994, Dyro resigned his full-time position as the Director of Biomedical Engineering at the State University Hospital in Stony Brook to pursue his expert consulting business. Plf.'s 3(g) PP 5-6.
In the early 1990s, Dyro was retained as an expert in two products liability lawsuits brought against plaintiff Aequitron, both lawsuits alleging that Aequitron's infant heart rate and respiration monitor Model 9200 was defective and caused the deaths of the infants in each case. Deft.'s 3(g) PP 4-5. These two cases were titled Campbell v. Aequitron Medical, Inc., brought in Arkansas state court, and Chruscinksi v. Khalsa, brought in Arizona state court. Id. Dyro was retained in the Campbell matter in December 1992 and in the Chruscinksi matter in October 1993. Dyro Aff. PP 5, 6.
In connection with his retention in the above-referenced actions, on or about December 13, 1992, Dyro received the allegedly defective Model 9200 infant monitor from the attorneys for the plaintiffs in the Campbell action. Deft.'s 3(g) P 6. Thereafter, Dyro conducted certain tests on the Campbell's infant monitor. Id. P 7. In July 1993, Aequitron's counsel and an independent consulting engineer observed Dyro's testing of the monitor, at which time Dyro stated that the monitor's audible alarm was working properly. Plf's 3(g) P 11. In August 1993, Dyro was then deposed in the Campbell matter and testified that the alarm on the infant heart monitor was properly functioning. Id. P 13. Following this deposition, the Campbell's attorney instructed Dyro to continue testing the monitor. Dyro Aff. P 8.
On May 3, 1995, Dyro videotaped another test of the Campbell monitor, in which Dyro stated his observations and opinions that the Campbell monitor failed to emit an audible alarm when respiration ceased. Deft.'s 3(g) P 7. On May 8, 1995, Dyro then wrote to the Campbell's attorney describing the results of the May 3, 1995 testing. Dyro Aff. P 9. On May 17, 1995, Dyro also wrote to the plaintiffs' attorney in the Chruscinski action informing her of the May 3, 1995 test results. Dyro Aff. P 12. On July 11, 1995, Chruscinski's counsel requested a copy of the video, which was sent on August 15, 1995. Dyro Aff. P 14. Dyro did not send the videotape to anyone other than these attorneys, nor has Dyro publicized or advertised the testing of the infant monitor. Deft.'s 3(g) PP 10-11. Aequitron claims that the attorneys in the Chruscinksi matter never asked Dyro to test the Campbell monitor. Plf's 3(g) P 19.
On June 28, 1996, Aequitron then commenced this action against Dyro claiming trade libel, tortious interference with prospective business advantage and defamation, as well as a claim for punitive damages. Specifically, plaintiff alleges that the May 3, 1995 videotape is false and misleading because (1) it fails to disclose that in the July 23, 1992 test of the same monitor, Dyro found that it was not defective; (2) Dyro had previously testified at his deposition that the audible alarm sounded properly; and (3) it fails to disclose that the monitor was never returned for factory recertification. Plaintiff claims that Dyro circulated the May 3, 1995 videotape in order to secure business as expert witnesses against Aequitron in other potential products liability cases.
I. STANDARDS GOVERNING MOTIONS FOR SUMMARY JUDGMENT
Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Under the law of the Second Circuit, a district court must weigh several considerations in evaluating whether to grant a motion for summary judgment with respect to a particular claim. Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994) (internal case citations omitted). First, the moving party carries the burden to demonstrate that no genuine issue respecting any material fact exists. Id. (citations omitted). Second, all ambiguities and inferences must be resolved in favor of the non-moving party. Id. Third, the moving party may obtain summary judgment by showing ...