MEMORANDUM OPINION AND ORDER
This matter is before the Court on two Motions for Summary Judgment. The first Motion considered herein is Defendant Klessig's Motion for Summary Judgment on Plaintiff Chandok's defamation claim. [Record No. 19]. The Court will also consider Plaintiff's Motion for Summary Judgment on Defendant's counterclaim under New York's statutory provision allowing recovery to the victims of Strategic Lawsuits Against Public Participation ("SLAPP"). [Record No. 23]. Responses and replies having been filed, these matters are ripe for review.
In July of 2000, Plaintiff, Dr. Meena Chandok, was offered a position at Boyce Thompson Institute ("BTI") to perform biochemical research. Dr. Chandok began work for BTI in November of 2000 for a 2-year appointment. Dr. Chandok was assigned to assist Dr. Daniel Klessig, who directed Dr. Chandok to research plant immune responses. Specifically, her initial work was to identify which individual proteins could be responsible for Nitric Oxide Synthase, or NOS, from a list of possible proteins. To perform this work, each protein must be isolated, replicated, and tested. In the fall of 2002, Dr. Chandok reported that she had identified the Varient P, or "VarP," protein as having NOS activity. She confirmed this report with additional data on October 20, 2002. This was considered a significant discovery in the field of plant biology. Dr. Klessig and Dr. Chandok began work on a paper to publish the results.*fn1 Dr. Klessig requested that Prof. Brian Crane, a researcher of animal NOS activity who was familiar to Dr. Klessig, attempt to confirm Dr. Chandok's results. Prof. Crane assigned the work to Mr. Pant, a doctoral student who was already performing similar work. Dr. Chandok worked with Mr. Pant to reproduce the results, which was reported as a success. At that time, Dr. Klessig seemed satisfied with this verification, and the paper he and Dr. Chandok completed was submitted to Cell for publication. The paper was published in the Spring of 2003.
In 2003, Dr. Kim was hired and assigned to verify Dr. Chandok's work. Dr. Klessig applied for and received a federal grant to further explore NOS and varP. Also in 2003, Dr. Chandok began applying for positions at other institutions. Dr. Klessig wrote letters of recommendation for Dr. Chandok's applications.
Dr. Chandok collaborated with Dr. Susan Ekengren to research disabling the NOS response from varP. Dr. Chandok and Dr. Ekengren sought publication for this work and succeeded. Their research was published in the Proceedings of the National Academy of Sciences ("PNAS").*fn2 Shortly thereafter, Dr. Klessig began to increase efforts to verify Dr. Chandok's results. He assigned Dr. Kim to this project, and later added Drs. Lee and Wang to the effort.
In the spring of 2004, Dr. Chandok secured employment in Maryland. She submitted a letter of resignation to BTI on March 30th, and her last day with BTI was April 12. At this time, Drs. Kim, Lee, and Wang had still had not duplicated Dr. Chandok's results. After Dr. Chandok left BTI, Dr. Klessig and Lucy Pola, Human Resources director at BTI, sent a letter to Dr. Chandok stating that her results still had not been duplicated. The letter requested that Dr. Chandok return to BTI to assist in verifying her results and indicated that, should she fail to return, Dr. Klessig would begin a scientific misconduct investigation and withdraw support for her visa application. [Ex. 35.] Dr. Chandok did not return to assist in the research. Dr. Klessig initiated the investigation by reporting the possibility of scientific misconduct to Dr. Stern, then President of BTI, and Lucy Pola.
Pres. Stern began an investigation to determine if Dr. Klessig's suspicions that Dr. Chandok falsified some of her research were meritorious.i Dr. Klessig contacted Dr. Crane, who provided additional information, but Dr. Klessig indicated that it was insufficient and "the evidence still argues that she falsified at least some of the data."*fn3 After reviewing the data, Dr. Stern concluded that the investigation should go forward and formed a committee. Dr. Klessig sent an email agreeing with Dr. Stern.*fn4 Then, Dr. Klessig submitted several suggested phrasings of an allegation of scientific misconduct to the BTI investigation committee.*fn5 Dr. Susan Ridley from the National Science Foundation and Dr. James Anderson from the National Institute of Health, the relevant federal agencies to whom scientific misconduct should be reported, were next notified by Dr. Klessig.*fn6 Dr. Klessig then began discussing the phrasing of the retraction letter that would be sent to Cell magazine and PNAS. Several drafts were suggested to Pres. Stern, Ms. Pola, Dr. Ekengren, and Dr. Martin.*fn7 Once a final form was agreed upon, it was sent to the editors of Cell and PNAS as the formal retraction.*fn8
Dr. Klessig went on to announce the retraction at a lecture at the Juan March Conference in October of 2004, citing unreliable data.*fn9 Following the lecture, Dr. Klessig sent unsolicited emails to several other colleagues in the scientific community. First, he notified Jyoti Shah, a former associate of his who was working on similar research, and warned her of the retraction, again citing unreliable data.*fn10 Similar emails were sent by Dr. Klessig to Dr. Priti Krishna, a former supervisor of Dr. Chandok's in India, and Dr. Nigel Crawford, a colleague performing similar research.*fn11 Dr. Klessig also informed Allen Collmer and Rose Loria, both of Cornell University, which is the campus on which BTI is located.*fn12 After a month of relative silence on the subject, Dr. Klessig was interviewed by John Travis, a reporter for Science magazine, and in that interview he described the Cell paper's data as "shaky" and "unreliable."*fn13
In January of 2005, Dr. Klessig emailed the BTI investigatory committee and again stated that he concluded Dr. Chandok had falsified data.*fn14 Later that same month, Dr. Klessig re-asserted to the same BTI committee that the evidence gathered through the investigation indicated that Dr. Chandok had falsified data.*fn15 At roughly the same time, Dr. Klessig worked with Bridget Coughlin, an editor for PNAS, to determine the best way to phrase the retraction notice in the publication.*fn16
On August 26, 2006, Plaintiff Chandok filed the instant action, alleging defamation by Defendant Klessig, her former supervisor. Defendant raised ten defenses in his Answer. [Record No. 8]. The tenth such "defense" was actually a counterclaim under N.Y. C.L.S. Civ. R § 70-a, which permits defendants to file a SLAPP suit to counterclaim for damages. Id. Through the course of discovery, Plaintiff identified twenty-three allegedly defamatory statements. [Record No. 19, attch. 2]. Defendant Klessig moved for Summary Judgment on the defamation claim. Plaintiff Chandok moved for Summary Judgment on Defendant's SLAPP counterclaim. Both motions are now before this court for decision.
B. List of Allegedly Defamatory Statements
For ease of reference, the Court will continue to employ the statement numbering system used by the parties, and will refer to the allegedly defamatory statements as follows:*fn17
Statement 1: To Brian Crane, via e-mail "Unfortunately, the evidence still argues that she falsified at least some of the data on the recombinant varP." Ex. 84 at 3; Ex. 85.
Statement 2: To Lucy Pola, Dr. Martin, and possibly Pres. Stern, via e-mail "I absolutely agree that there MUST be an investigation regardless of whether varP has NOS activity or not, given the evidence of falsification." Ex. 55.
Statement 3: To Pres. Stern and Lucy Pola, via interoffice memorandum "The conclusion we draw from these results is that most or all of the data that Meena presented to us and in the Cell paper concerning the recombinant varP has been falsified." Ex. 51.
Statement 4: To Pres. Stern and Lucy Pola, via interoffice memorandum "The conclusion I draw from these results is that most or all of the data that Meena presented to us and in the Cell paper concerning recombinant varP may have been falsified." Ex. 88.
Statement 5: To Pres. Stern and Lucy Pola, via interoffice memorandum "The conclusion I draw from these results is that most or all of the data that Dr. Chandok presented to us and in the Cell paper concerning recombinant varP is likely to have been falsified." Ex. 53.
Statement 6: To Pres. Stern, Lucy Pola, Dr. Blissard, Dr. Granados, and Dr. Winans, via memorandum "The conclusion I draw from these results is that most or all of the data that Dr. Chandok presented to us and in the Cell paper concerning the recombinant varP is likely to have been falsified." Ex. 54.
Statement 7: To Dr. James J. Anderson, via letter "Evidence recently emerged that strongly suggests that she falsified most or all of the data on recombinant varP.... In contrast, the evidence that Dr. Chandok falsified most or all of the recombinant varP data is much clearer and therefore, warrants investigation." Ex. 58.
Statement 8: To Dr. Susan Ridley, via letter "Evidence recently emerged that strongly suggests that she falsified some of the data showing that the recombinant variant P gene of Arabidopsis encodes ...