TC HEARTLAND LLC v. SCHIFFMAN

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TC HEARTLAND LLC, 	)
)
Plaintiff and Counterclaim
Defendant,
)
)
)
v. 	) 	1:23-CV-665
)
SUSAN S. SCHIFFMAN, 	)
)
Defendant and Counterclaim
Plaintiff.
)
MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, Chief District Judge.
The plaintiff, TC Heartland LLC, sells Splenda, an artificial sweetener. It disliked
the public comments about Splenda and its component sucralose made by the defendant,
Dr. Susan Schiffman, after publication of her research about sucralose in a peer-reviewed
scientific journal, so it sued her for defamation. Dr. Schiffman similarly disliked
Heartland’s online assertions impugning her scholarship and integrity, so she sued them
right back, asserting defamation claims and an abuse of process claim. Cross-motions for
summary judgment have been filed.
Both Dr. Schiffman and Heartland have a First Amendment right to express their
views on the safety and health effects of Splenda and sucralose and on the meaning and
validity of research investigating those health and safety issues. Neither party has
produced sufficient evidence to overcome the other’s First Amendment right to talk about
the research and the conclusions to draw from the scientific research, and neither has
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shown a disputed question of material fact. All of their claims and counterclaims will be
dismissed, and the parties can return to the marketplace of ideas and laboratories to duke
out their differences over artificial sweeteners.
I. 	Summary Judgment Standard
A court “shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists “if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In analyzing a summary judgment
motion, courts “must construe all facts and reasonable inferences in the light most
favorable to the nonmoving party.” Bandy v. City of Salem, 59 F.4th 705, 709 (4th Cir.
2023). The moving party has the initial burden of demonstrating the absence of any
material issue of fact; once the moving party meets its initial burden, the nonmoving
party must come forward with evidentiary material demonstrating the existence of a
genuine issue of material fact requiring a trial. Id. at 709–10; see also Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986).
“When faced with cross-motions for summary judgment, the court must review
each motion separately on its own merits to determine whether either of the parties
deserves judgment as a matter of law.” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th
Cir. 2003) (cleaned up); see also Coal. for TJ v. Fairfax Cnty. Sch. Bd., 68 F.4th 864, 878
(4th Cir. 2023). “When considering each individual motion, the court must take care to
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resolve all factual disputes and any competing, rational inferences in the light most
favorable to the party opposing that motion.” Rossignol, 316 F.3d at 523 (cleaned up).
II. 	Undisputed Facts
Splenda is an artificial sweetener containing sucralose. Doc. 126 at ¶ 27; Doc. 132
¶ 27. Heartland produces and sells Splenda. Doc. 126 at ¶ 27; Doc. 132 ¶ 27.
In 2023, Dr. Schiffman, a professor at North Carolina State University, and co-
authors published an article about the effects of sucralose and sucralose-6-acetate
(“S6A”) in a peer-reviewed journal. Doc. 150-2. The text of the article does not mention
Splenda.1 See id. Dr. Schiffman did not conduct the experiments discussed in the article;
those were conducted by a lab hired to do the experiments. Id. at 6.
After the article was published, Dr. Schiffman worked with N.C. State to issue a
press release about her research. Docs. 153-56, 154-5. The press release discussed the
article’s conclusions and Splenda itself. Doc. 154-5. Local news stations interviewed her
about the article, and she discussed Splenda in those interviews. Docs. 154-4, 154-76. A
few other news sources reported on the article and published stories with her statements
about her research. See e.g., Docs. 154-12, 154-28. In summary, she said that her
research showed that sucralose carries multiple potential health risks, and she identified
sucralose with Splenda. See infra at 10–11.
In response to Dr. Schiffman’s published article on sucralose and subsequent
statements about the article and Splenda, Heartland created a webpage disputing her
1 Two of the sources cited in the article have “Splenda” in their title. Doc. 150-2 at 29, 35.
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article’s findings, her statements about the article, and the article’s implications. Doc.
162-18. It impugned the quality of her research and essentially accused her of being a
publicity hound. See infra at 27.
Additional facts will be discussed as issues arise.
III. 	The Causes of Action
Heartland asserts state law claims against Dr. Schiffman that it labels as claims for
slander, Doc. 126 at ¶¶ 179–86, libel, id. at ¶¶ 187–95, and trade libel/product
disparagement/ injurious falsehood. Id. at ¶¶ 196–200. These defamation claims are
based on allegedly false statements she made about Splenda, sucralose, and S6A in the
press release and one news interview about her recently-published research. See Doc.
224 (clarifying the statements it alleges are defamatory).
In the operative counterclaims, Dr. Schiffman asserts state law claims against
Heartland for abuse of process, Doc. 128 at ¶¶ 23–72, and libel as to statements made
about her research motives and the soundness of her science. Id. at ¶¶ 77–115. Her
claims are based on statements that Heartland published on its public-facing website. See
Doc. 215-2 at 15.
The parties agree that North Carolina law applies.
Both parties brought claims for unfair and deceptive trade practices. They have
since stipulated to dismissal of those claims. Doc. 164.
IV. 	Defamation Law
In North Carolina, libel and slander are two forms of defamation. Cannon v. Peck,
36 F.4th 547, 559 (4th Cir. 2022) (citing Tallent v. Blake, 57 N.C. App. 249, 251, 291
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S.E.2d 336, 338 (1982)). “Libel is written, while slander is oral.” Id. (cleaned up). To
prevail on a defamation claim under North Carolina law, the plaintiff must establish:
(1) the defendant made a false, defamatory statement; (2) the statement was “of or
concerning” the plaintiff; (3) the statement was published to a third party; and (4) the
statement caused injury to the plaintiff’s reputation. E.g., Boyce & Isley, PLLC v.
Cooper, 211 N.C. App. 469, 478, 710 S.E.2d 309, 317 (2011); Bouvier v. Porter, 386
N.C. 1, 10, 900 S.E.2d 838, 846 (2024).
If the subject of the statement is a public figure, the plaintiff must also prove that
the defendant acted with actual malice. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80
(1964). The Supreme Court has recognized two types of public figures: (1) all-purpose
public figures, who have achieved “such pervasive fame or notoriety” such that they are
public figures “for all purposes and in all contexts,” and (2) limited-purpose public
figures, who have “voluntarily injected themselves into a particular public controversy”
and thereby became public figures “for a limited range of issues.” Gertz v. Robert Welch,
Inc., 418 U.S. 323, 351 (1974) (cleaned up).
Defamation claims are further “circumscribed by the First Amendment protections
of free speech.” McGlothlin v. Hennelly, 370 F. Supp. 3d 603, 614 (D.S.C. 2019).
Consistent with the elements of the cause of action, the First Amendment requires that
statements “be provable as false before there can be liability under state defamation law.”
Milkovich v. Lorain J. Co., 497 U.S. 1, 19–20, (1990). “The First Amendment will fully
protect statements that cannot reasonably be interpreted as stating actual facts.” See
Snyder v. Phelps, 580 F.3d 206, 218 (4th Cir. 2009), aff’d, 562 U.S. 443 (2011) (cleaned
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up). The First Amendment also protects statements of opinion incapable of being proven
false. Milkovich, 497 U.S. at 19–20; see also Craven v. Cope, 188 N.C. App. 814, 817,
656 S.E.2d 729, 732 (2008). Whether a statement is one of actionable fact is a question
of law for the court based on a fact-specific analysis of a “statement’s language and
context to determine if it could be interpreted as asserting a fact.” Biospherics, Inc. v.
Forbes, Inc., 151 F.3d 180, 184–86 (4th Cir. 1998) (analyzing fact versus opinion as a
matter of law); see also Potomac Valve & Fitting Inc. v. Crawford Fitting Co., 829 F.2d
1280, 1285 n.12 (4th Cir. 1987) (noting that “[w]hether a statement constitutes fact or
opinion is a question of law for the trial court to decide.”).
Scientific conclusions based on research and speech about that research do not fit
easily into the fact-opinion paradigm. See ONY, Inc. v. Cornerstone Therapeutics, Inc.,
720 F.3d 490, 496 (2d Cir. 2013); Pacira Biosciences, Inc. v. Am. Soc’y of
Anesthesiologists, Inc. (Pacira I), 583 F. Supp. 3d 654, 658 (D.N.J. 2022), aff’d, 63 F.4th
240 (3d Cir. 2023). The Court agrees with the Second and Third Circuits that such
speech receives First Amendment protection under certain conditions to encourage
legitimate debate about scientific issues and to encourage discussion and research into
matters of public and scientific interest.
The reasons for this protection have been persuasively summarized by the Second
Circuit:
Most conclusions contained in a scientific journal article are, in principle,
“capable of verification or refutation by means of objective proof,” Phantom
Touring, Inc. v. Affiliated Publ’ns, 953 F.2d 724, 728 n. 7 (1st Cir. 1992).
Indeed, it is the very premise of the scientific enterprise that it engages with
empirically verifiable facts about the universe. At the same time, however, it
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is the essence of the scientific method that the conclusions of empirical
research 	are 	tentative 	and 	subject 	to 	revision, 	because 	they 	represent
inferences about the nature of reality based on the results of experimentation
and observation. Importantly, those conclusions are presented in publications
directed to the relevant scientific community, ideally in peer-reviewed
academic journals that warrant that research approved for publication
demonstrates at least some degree of basic scientific competence. 	These
conclusions are then available to other scientists who may respond by
attempting to replicate the described experiments, conducting their own
experiments, or analyzing or refuting the soundness of the experimental
design or the validity of the inferences drawn from the results. . . . Needless
to say, courts are ill-equipped to undertake to referee such controversies.
Instead, the trial of ideas plays out in the pages of peer-reviewed journals,
and 	the 	scientific 	public 	sits 	as 	the 	jury.
ONY, 720 F.3d at 496–97; see discussion infra at 12–13.
V. 	Both Parties are Public Figures
Whether a person is a public figure is a question of law. Carr v. Forbes, Inc., 259
F.3d 273, 278 (4th Cir. 2001); see Rosenblatt v. Baer, 383 U.S. 75, 88 (1966) (noting that
“as is the case with questions of privilege generally, it is for the trial judge in the first
instance to determine whether the proofs show respondent to be a ‘public official.’”).
The party that makes the allegedly defamatory statements has the burden of proving that
the plaintiff is a public figure to impose a requirement that the plaintiff show actual
malice. Carr, 259 F.3d at 278. In the “limited-purpose public figure context” applicable
here,” Gertz, 418 U.S. at 351, courts make this decision by evaluating whether there was
a “public controversy” that “gave rise to” the allegedly defamatory statement and, if so,
whether the speaker’s “participation in that controversy sufficed to establish him as a
public figure within the context of that public controversy.” Carr, 259 F.3d at 278.
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As to Heartland’s claim that it has been defamed by Dr. Schiffman, Dr. Schiffman
has produced plenary evidence that Heartland is a public figure. Sucralose, the chemical
base of Splenda, was the subject of a food additive petition before the FDA, see Doc.
162-4, and the submission included evidence of safety testing as part of the FDA filings.
See id. Heartland maintains a public website about Splenda that regularly and
affirmatively addresses safety and health, see, e.g., Doc. 162-11, it employs a public
relations firm, Doc. 181-7, and it sells millions of dollars of Splenda every year. Doc.
176-16. Heartland has issued press releases for years affirmatively asserting that Splenda
is safe and “healthy,” see, e.g. Doc. 162-9; Doc. 162-12 at 3, 5; Doc. 162-3 at 4, and
disputing findings or assertions by others, including the World Health Organization, that
might be understood to the contrary. Doc. 162-7.
Heartland contends that it is not a public figure and thus only has to prove that Dr.
Schiffman acted negligently when she made the statements at issue. But it has produced
no evidence to support that assertion, and the argument that Heartland is not a limited-
purpose public figure borders on the ridiculous. As to its speech about whether Splenda
is a safe product or can be used as part of a healthy diet, Heartland is a public figure.
While a closer question, Dr. Schiffman is also a public figure for purposes of her
statements made about Splenda, sucralose, and S6A. The Supreme Court has made clear
that academic writings alone do not make someone a public figure. Hutchinson v.
Proxmire, 443 U.S. 111, 135 (1979). Heartland’s reliance on these publications is not
persuasive. But as discussed, there was a public controversy about the safety and health
effects of Splenda and sucralose that predated Dr. Schiffman’s statements. That debate
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includes a guideline article by the World Health Organization about artificial sweeteners
and sucralose made days before Dr. Schiffman’s statements were made, Doc. 162-5, and
Heartland’s public response to that article. Doc. 162-7.
Heartland’s evidence shows that Dr. Schiffman voluntarily injected herself into the
controversy by preparing a press release about her research and making statements to
media outlets about that research, which invited a significant degree of public attention
and comment. Hutchinson, 443 U.S. at 135; Docs. 153-56, 154-5, 154-4, 154-76, 154-
12, 154-28. In her remarks, she advised the public to stop using consumer artificial
sweeteners like Splenda, thus attempting to influence the public debate about Splenda’s
safety. While Dr. Schiffman contends that she “merely added her voice” to the
discussion, this overlooks her role in preparing the press release, and she has offered no
evidence that she later spoke about her research only in response to inquiries from the
media. Dr. Schiffman’s conduct was closer to that described in Carr, where a developer
was held to be a limited-purpose public figure, 259 F.3d at 279–80, than in Hutchinson,
where a research scientist only entered the public debate after the allegedly defamatory
remarks were made and who, as a result, was involuntarily dragged into the controversy.
443 U.S. at 135; see also Wolston v. Reader’s Dig. Ass’n, 443 U.S. 157, 166 (1979).
VI. 	Heartland’s Defamation Claims
A. Dr. Schiffman’s Statements that Heartland Alleges are Defamatory
Heartland alleges that Dr. Schiffman’s statements in a May 31, 2023, N.C. State
press release and a June 1, 2023, WRAL news interview are defamatory. Doc. 224. The
specific press release statements that Heartland contends are defamatory are:
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(1) A new study finds a chemical formed when we digest a widely used
sweetener is “genotoxic,” meaning it breaks up DNA. The chemical is
also found in trace amounts in the sweetener itself, and the finding raises
questions about how the sweetener may contribute to health problems. . .
. “Our new work establishes that sucralose-6-acetate is genotoxic,” . . .
“We also found that trace amounts of sucralose-6-acetate can be found in
off-the-shelf sucralose,” . . . “Our work suggests that the trace amounts
of sucralose-6-acetate in a single, daily sucralose-sweetened drink exceed
that threshold [of toxicological concern].” . . . “In short, we found that
sucralose-6-acetate is genotoxic . . . .”
(2) “When we exposed sucralose and sucralose-6-acetate to gut epithelial
tissues – the tissue that lines your gut wall – we found that both chemicals
cause ‘leaky gut.’ Basically, they make the wall of the gut more
permeable. The chemicals damage the ‘tight junctions,’ or interfaces,
where cells in the gut wall connect to each other. A leaky gut is
problematic, because it means that things that would normally be flushed
out of the body in feces are instead leaking out of the gut and being
absorbed into the bloodstream.”
(3) “We found that gut cells exposed to sucralose-6-acetate had increased
activity 	in 	genes 	related 	to 	oxidative 	stress, 	inflammation 	and
carcinogenicity.”
Id. at 2. The specific news interview statements are:
(4) “Yeah. Well, it breaks it up. That’s a pretty big deal.”
(5) “And when it gets into the gut, it can induce genes, which are, you know,
part of DNA, and it can cause inflammation and even cancer.”
(6) “Well, this is what’s really interesting that we found, is that the amount
of sucralose-6-acetate, this compound that is in a single packet of Splenda
or in one drink, is enough to exceed what’s called the -- it’s called the
threshold of toxicological concern. It’s the level used in the food industry
and in Europe, at the European food agencies, to say that this is too much
genotoxic compound in the food supply. And so a single packet is too
much.”
(7) “Okay. Risk wise, sucralose is worse [compared to other artificial
sweeteners].”
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(8) “So basically, the data shows it’s not a good idea to consume sucralose.”
Id. at 3. Heartland also contends that the “overall message” of Dr. Schiffman’s press
release and interview are false and defamatory. Id. at 4.
B. Heartland’s Motion
Heartland contends that it is entitled to summary judgment on two aspects of its
defamation claims against Dr. Schiffman.
First, Heartland asks the Court to hold that it is not a public figure so that it only
needs to show that Dr. Schiffman’s statements were made negligently. Doc. 183-1 at 10,
35–36. The Court has already addressed Heartland’s status as a public figure supra. This
part of its motion will be denied.
Second, Heartland contends that it is entitled to partial summary judgment on the
element of publication. Id. at 37 (asking the Court to hold that Dr. Schiffman “published
defamatory statements”). Dr. Schiffman acknowledges that she appeared on the local
news and made the statements about her research. Doc. 162 at 30. This constitutes
publication to a third party. See Bell v. Simmons, 247 N.C. 488, 494, 101 S.E.2d 383,
387–88 (1958) (stating the rule that speaking to a reporter who plans to write an article
constitutes slander and libel, if the words are subsequently printed).
Heartland is entitled to partial summary judgment in its favor on the publication
element of its defamation claims. This part of Heartland’s motion will be granted.
C. Dr. Schiffman’s Motion
Dr. Schiffman moves for summary judgment on all of Heartland’s claims against
her, contending that her statements about her research are protected by the First
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Amendment. As noted, Dr. Schiffman made the statements that Heartland alleges are
defamatory to the public in a press release and a local news interview. It is undisputed
that she made those statements following the publication of a scientific article she
coauthored and that her remarks were directed to summarizing and explaining her
research results to a lay audience. Docs. 150-2, 154-4, 154-5.
1. 	Relevant Law
Courts are “careful when applying defamation and related causes of action to
academic works, because academic freedom is a ‘special concern of the First
Amendment.’” ONY, 720 F.3d at 496 (citing Keyishian v. Bd. Of Regents of the Univ. of
the State of N.Y., 385 U.S. 589, 603 (1967)). Accordingly, “scientific conclusions are
protected speech to the extent they are ‘draw[n] . . . from non-fraudulent data, based on
accurate descriptions of the data and methodology underlying those conclusions, on
subjects about which there is legitimate ongoing scientific disagreement.’” Pacira I, 583
F. Supp. 3d at 658 (quoting ONY, 720 F.3d at 498).
As this Court previously noted, “[a]ccurate summaries of scientific conclusions
are likewise not actionable statements for libel purposes, ‘at least where the secondary
statement was not made in connection with a consumer-facing advertisement.’” Doc. 35
at 2 (quoting Pacira I, 583 F. Supp. 3d at 661); see also ONY, 720 F.3d at 498.2 Such
2 Since ONY, district courts have described the secondary statement standard with varying
phrases. See, e.g., LTL Mgmt. LLC v. Moline, No. 23-CV-2990, 2024 WL 3219683, at *13
(D.N.J. June 28, 2024) (“merely summarize”); Pacira I, 583 F. Supp. 3d at 661–62 (“fully
accords with” and “entirely consistent with”); Guardant Health, Inc. v. Natera, Inc., No. 21-CV-
4062, 2025 WL 2106522, at *5 (N.D. Cal. July 28, 2025) (“merely reproduce and then accurately
describe”); Bayer Healthcare LLC v. Johnson & Johnson, Inc., 	F. Supp. 3d 	, 2026 WL
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accurate “secondary statements,” whether in a journal article, podcast, or other media, do
not form the basis for a libel claim; “[t]o conclude otherwise would risk ‘chilling’ the
natural development of scientific research and discourse.” Pacira BioSciences, Inc. v.
Am. Soc’y of Anethesiologists, Inc. (Pacira II), 63 F.4th 240, 244, 248 (3d Cir. 2023).
Courts decide as a matter of law whether statements about scientific research are
protected by the First Amendment. See ONY, 720 F.3d at 492.
Following the relevant law, the Court refers to Dr. Schiffman’s statements made in
the press release and news interview as her “secondary statements,” to distinguish them
from statements in the underlying scientific article, which are not at issue.3
2. 	Dr. Schiffman’s Statements Are Protected by the First Amendment
The safety of sucralose, and thus Splenda, constitutes a subject of legitimate
ongoing scientific consideration and discussion. See supra at 8–9; ONY, 720 F.3d at 498.
Dr. Schiffman’s secondary statements in the press release and the news interview about
her article constitute protected academic speech and cannot be the basis for a defamation
claim unless the secondary statements are inaccurate descriptions of the article or the
1045917, at *18 (S.D.N.Y. Apr. 17, 2026) (“misrepresent” and “absence of . . . inaccurate
representations”); Cassava Scis., Inc. v. Bredt, No. 22-CV-9409, 2024 WL 1347362, at *16
(S.D.N.Y. Mar. 28, 2024) (“republications of scientific conclusions” and “accurate
representations of those conclusions”). For this order, the Court adheres to the shorthand
“accurate summaries” as a common denominator to describe this standard. Doc. 35 at 2.
3 In its amended complaint filed after the Court ruled on the motion to dismiss, Heartland has
alleged that Dr. Schiffman’s underlying research is fraudulent, Doc. 126 at ¶¶ 8, 11, 166, but its
defamation claims continue to be based on her secondary statements about that research. Id. at
¶¶ 108–09, 112–13, 116–17, 180, 188, 197; see also Doc. 224 (Heartland’s clarification of
alleged defamatory statements). The Court discusses Heartland’s allegations of fraud infra.
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article was based on fraudulent data. See ONY, 720 F.3d at 498; Pacira I, 583 F. Supp.
3d at 661. Heartland has not pointed to evidence that establishes either.
a. 	Dr. Schiffman’s Statements are Accurate Summaries of Her Article
As demonstrated by the following table, each of Dr. Schiffman’s challenged
statements were “mere summary or repetition of an otherwise protected scientific
opinion” and “did not misstate the article’s conclusions.” Pacira I, 583 F. Supp. 3d at
661 (cleaned up). Because her secondary statements all “fully accord with the
conclusions of the article,” they are not actionable. Id. (cleaned up).
Allegedly Defamatory Statements 	Article Quotes
A new study finds a chemical formed
when we digest a widely used sweetener is
“genotoxic,” meaning it breaks up DNA.
The chemical is also found in trace
amounts in the sweetener itself, and the
finding raises questions about how the
sweetener may contribute to health
problems. . . . “Our new work establishes
that sucralose-6-acetate is genotoxic,” . . .
“We also found that trace amounts of
sucralose-6-acetate can be found in off-
the-shelf sucralose,” . . . “Our work
suggests that the trace amounts of
sucralose-6-acetate in a single, daily
sucralose-sweetened drink exceed that
threshold [of toxicological concern].” . . .
“In short, we found that sucralose-6-
acetate is genotoxic . . . .”
“Sucralose is a chlorinated artificial
sweeter that is used worldwide . . . in
thousands of food, beverage, and
pharmaceutical products.” Doc. 150-2 at
3.
“The purpose of this study was to
determine the toxicological and
pharmacokinetic properties of sucralose-6-
acetate, a structural analog of the artificial
sweetener sucralose.” Id.
“Overall, the . . . findings for sucralose-6-
acetate raise significant health concerns
regarding the safety and regulatory status
of sucralose itself.” Id.
“Data indicate the sucralose-6-acetate is
genotoxic.” Id. at 13.
“sucralose-6-acetate significantly
increased expression of genes associated
with inflammation, oxidative stress, and
cancer.” Id. at 23.
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Allegedly Defamatory Statements 	Article Quotes
“examples of estimated sucralose-6-
acetate content in common beverages” Id.
at 24.
“single servings of sucralose containing
drinks may contain levels of sucralose-6-
acetate that exceed a [genotoxicity] rate
by 4 orders of magnitude or more.” Id.
“bioconversion of sucralose to sucralose-
6-acetate” Id. at 26.
“When we exposed sucralose and
sucralose-6-acetate to gut epithelial tissues
– the tissue that lines your gut wall – we
found that both chemicals cause ‘leaky
gut.’ Basically, they make the wall of the
gut more permeable. The chemicals
damage the ‘tight junctions,’ or interfaces,
where cells in the gut wall connect to each
other. A leaky gut is problematic, because
it means that things that would normally
be flushed out of the body in feces are
instead leaking out of the gut and being
absorbed into the bloodstream.”
“Both sucrolose-6-actetate and sucralose
altered TEER and permeability in human
colonic epithelial monolayers.” Id. at 16.
“exposure of human intestinal epithelium
to sucralose-6-acetate as well as sucralose
itself damaged tight junctions and
impaired intestinal barrier function.” Id.
at 23.
“Sucralose-6-acetate and sucralose
reduced the transepithelial resistance and
enabled ions and macromolecules to pass
from the apical (luminal) to the basolateral
side of intestinal epithelium through the
paracellular pathways. Enhanced
intestinal permeability (leaky gut) that
enables passage of microorganisms and
metabolites into the body plays a major
role in IBD, chronic liver disease, as well
as pathogenesis of colorectal cancer.” Id.
at 25 (internal citations omitted).
“We found that gut cells exposed to
sucralose-6-acetate had increased activity
in genes related to oxidative stress,
inflammation and carcinogenicity.”
“sucralose-6-acetate significantly
increased expression of genes associated
with inflammation, oxidative stress, and
cancer.” Id. at 23.
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Allegedly Defamatory Statements 	Article Quotes
“Yeah. Well, it breaks it up. That’s a pretty
big deal.”
“Sucralose ingestion induced
histopathological changes including
lymphocytic infiltrates into the intestinal
epithelium, glandular disorganization, and
epithelial scarring.” Id. at 4.
“Both sucrolose-6-actetate and sucralose
altered TEER and permeability in human
colonic epithelial monolayers.” Id. at 16.
“Sucralose-6-acetate and sucralose
reduced the transepithelial resistance and
enabled ions and macromolecules to pass
from the apical (luminal) to the basolateral
side of intestinal epithelium through the
paracellular pathways. Enhanced
intestinal permeability (leaky gut) that
enables passage of microorganisms and
metabolites into the body plays a major
role in IBD, chronic liver disease, as well
as pathogenesis of colorectal cancer.” Id.
at 25 (internal citations omitted).
“And when it gets into the gut, it can
induce genes, which are, you know, part
of DNA, and it can cause inflammation
and even cancer.”
“sucralose-6-acetate significantly
increased expression of genes associated
with inflammation, oxidative stress, and
cancer.” Id. at 23.
“(MT) genes encode proteins that are
biomarkers of inflammation, oxidative
stress, and cancer.” Id. at 26.
“Other genes for which expression was
greater for sucralose-6-acetate than
control were also implicated in cancer in
some tissues.” Id. at 27.
“Well, this is what’s really interesting that
we found, is that the amount of sucralose-
6-acetate, this compound that is in a single
packet of Splenda or in one drink, is
enough to exceed what’s called the -- it’s
“The sucralose-6-acetate intermediate
generated during the manufacturing
process is retained as an impurity in
commercial sources of sucralose.” Id. at
3.
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Allegedly Defamatory Statements 	Article Quotes
called the threshold of toxicological
concern. It’s the level used in the food
industry and in Europe, at the European
food agencies, to say that this is too much
genotoxic compound in the food supply.
And so a single packet is too much.”
“single servings of sucralose containing
drinks may contain levels of sucralose-6-
acetate that exceed a [genotoxicity] rate
by 4 orders of magnitude or more.” Id. at
24.
Cited source for seven article references:
“Splenda alters gut microflora and
increases intestinal P-glycoprotein and
cytochrome P-450 in male rats.” Id. at 29.
Cited source for two article references:
“The artificial sweetener Splenda
promotes gut proteobacteria, dysbiosis,
and myeloperoxidase reactivity. . . .” Id.
at 35.
“Okay. Risk wise, sucralose is worse
[compared to other artificial
sweeteners].”4
“Overall, the . . . findings for sucralose-6-
acetate raise significant health concerns
regarding the safety and regulatory status
of sucralose itself.” Id. at 3.
“So basically, the data shows it’s not a
good idea to consume sucralose.”5
“These findings raise health and safety
concerns regarding the continued presence
of sucralose in the food supply.” Id. at 29.
Heartland contends that “ample evidence exists from which a jury can conclude”
that Dr. Schiffman’s statements about genotoxicity and health effects of S6A did not
“‘merely’ summarize the 2023 article.” Doc. 161 at 15. Putting aside whether that
4 Alternatively, this challenged statement is non-actionable opinion. See Craven, 188 N.C.
App. at 817. It is included in the table for the sake of completeness.
5 See supra at note 4.
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question is for the jury or the Court, an examination of the cited evidence does not
support this contention.
First, Heartland challenges the conclusions that Dr. Schiffman drew from the
results of the experiments and detailed in her secondary statements, suggesting that Dr.
Schiffman did not sufficiently qualify her conclusions as preliminary or note the lack of
definitive assessment as to toxicity in humans. Doc. 183-2 at 15–17.6 But Dr. Schiffman
used qualifying language in the N.C. State press release such as “the finding raises
questions about how the sweetener may contribute to health problems,” “our work
suggests that,” and “raises a host of concerns.” Doc. 154-5 at 2–3. The university press
release said that the article relied on “in vitro” experiments and tests. Id. at 3.
Even in the three-minute news interview, Dr. Schiffman was not definitive; she
said that S6A “can” have negative health effects, Doc. 154-4; Doc. 154-66 at 5, not that it
“will” or “does” cause inflammation and cancer. And during the interview, the reporter
specifically referenced Dr. Schiffman’s article, Doc. 154-66 at 4, which has a host of
qualifying language such as “might far exceed,” “may occur,” “suggest that,” and
“indicated that,” e.g., Doc. 150-2 at 3, 6, 12–13, 27, and which specifically
acknowledges, including in its title, that the tests were in vitro. E.g., id. at 3, 6–7, 9, 12,
25, 28. Thus, in a shorter fashion and directed to a lay audience, her secondary
6 Heartland contends that the experiments conducted in vitro cannot lead to warnings about
human health and points to expert testimony describing the experiments used in Dr. Schiffman’s
article as “screening-level,” “exploratory,” and “initial.” Doc. 183-2 at 15–19 (citing Dr.
Aliasger Salem’s expert report Doc. 183-6 at ¶¶ 2–6, 53–54, 91–92; Dr. Salem’s expert report
Doc. 161-19 at ¶¶ 62–63, 68, 212, 220–24, 237, 260, 270; Dr. Salem’s deposition Doc. 161-20 at
11, 14, 18–19; Dr. Tauseef Khan’s expert report Doc. 161-3 at ¶¶ 52, 66–77).
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statements repeat the conclusions that she made in the article based on the studies
detailed in the article. Id. at 25–29. Heartland’s cited evidence may undermine the
strength of those conclusions, but it does not undermine the accuracy of Dr. Schiffman’s
secondary statements describing her article’s conclusions. See Doc. 161 at 15–16.
To the extent Heartland is saying that the secondary statements are not nuanced
enough, that argument if adopted would essentially prohibit scientists from commenting
on sophisticated research to a lay audience beyond reading their study results in full. And
Dr. Schiffman’s secondary statements were not so over-simplified as to be inaccurate.
Heartland says that Dr. Schiffman’s statement that S6A “can cause inflammation
and even cancer” is not supported by the article. Id. at 16 (emphasis supplied by
Heartland). But the article’s findings state that S6A “significantly increased expression
of genes associated with inflammation, oxidative stress, and cancer,” Doc. 150-2 at 3, 23,
as well as genes that “were also implicated in cancer in some tissues.” Id. at 27. This
statement also is consistent with additional references to “cancer” in the three instances
noted in the above table and elsewhere in the article. Id. at 3, 5, 19, 23, 25–29, 31–37.
Here again, Dr. Schiffman’s secondary statements were not so over-simplified as to be
inaccurate, and her summary secondary statements about cancer are not actionable.
Heartland challenges Dr. Schiffman’s statements that the genotoxicity finding was
a “pretty big deal” and that when asked “How much Splenda or sucralose needs to be
consumed in order for this to be harmful?” her response was “a single packet . . . is too
much.” Doc. 161 at 17. It is difficult to see how her assertion that her research was “a
pretty big” deal defames Heartland, and in context she is expressing an opinion. Putting
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that aside, these statements are consistent with statements in the article (1) discussing
“significant health concerns regarding the safety . . . of sucralose itself,” Doc. 150-2 at 3;
(2) emphasizing up front the ubiquity of sucralose and its consumer product presence and
stating that it “is used worldwide as a sugar substitute in thousands of food, beverage, and
pharmaceutical products,” id.; (3) discussing the potential genotoxicity of “a single daily
sucralose-sweetened drink” and “single servings of sucralose,” id. at 3, 24; and
(4) relying upon other scientific studies that have examined Splenda, specifically, and
have referenced Splenda in their titles. Id. at 4, 5, 24–26, 29, 35.
Heartland suggests that Dr. Schiffman should not have mentioned Splenda in her
secondary statements because she “did not directly test Splenda sucralose for S6A for the
2023 Article.” Doc. 161 at 5 (cleaned up); see Doc. 161 at 17; Doc. 224 at 2–3. But it is
undisputed that Splenda is composed of sucralose, Doc. 126 at ¶ 27; Doc. 132 at ¶¶ 27,
29, and “sucralose” is a subject of Dr. Schiffman’s study. Doc. 150-2 at 3.
Heartland contends that Dr. Schiffman “cannot claim First Amendment protection
for scientific opinions about one substance [S6A] by pointing to articles about an entirely
different substance,” sucralose. Doc. 161 at 18. This contention is inapposite, again, first
because it challenges Dr. Schiffman’s research methods and data, rather than the accuracy
of her secondary statements, and second because the article itself is replete with
discussion concerning research about sucralose; it repeatedly compares, supports, and
relates such research to Dr. Schiffman’s own research on S6A. See Doc. 150-2 at 4–6,
18–29. The title of the article demonstrates it is about both S6A “and its parent
sucralose.” Id. at 3. The opening sentence of the article states that “Sucralose is a
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21
chlorinated artificial sweeter that is used worldwide as a sugar substitute in thousands of
food, beverage, and pharmaceutical products.” Id. Heartland’s criticism of Dr.
Schiffman’s scientific approach does not support its defamation claim.
Heartland challenges the “overall message” of the press release and interview.
Doc. 224 at 4. But the overall message of the press release and interview is stated at the
outset of both: they are about Dr. Schiffman’s “new study” and research. Doc. 154-5 at
2; Doc. 154-66 at 4. As shown in the table, supra at 14–17, the summary statements in
the press release and interview are consistent with the statements in the article.
Heartland’s challenge to Dr. Schiffman’s overall message “must be settled by the methods
of science rather than by the methods of litigation.” ONY, 720 F.3d at 497 (cleaned up).
“More papers, more discussion, better data, and more satisfactory models—not larger
awards of damages—mark the path toward superior understanding of the world around
us.” Id. (cleaned up).
Heartland cites Guardant Health in support of its argument that Dr. Schiffman’s
speech is not a mere summary of her article. Doc. 161 at 15. But Guardant Health
concerned false advertisement claims in commercial advertisements directed to
customers. Guardant Health, 2025 WL 2106522, at *5. Here, Dr. Schiffman is not a
competing corporation making such “comparison advertisements.” She coauthored a
published scientific study with which Heartland disagrees.
Heartland also cites Hi-Tech Pharmaceuticals, Inc. v. Cohen, 277 F. Supp. 3d 236,
245 (D. Mass. 2016). Doc. 161 at 15. In that case, the court declined to follow the
Second Circuit’s lead in ONY because its circuit court had not done so, and the court
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22
alternatively found without much discussion that the defendant did not produce evidence
that each of the ONY conditions were met as a matter of law. Hi-Tech Pharms., 277 F.
Supp. 3d at 245. To the extent the Hi-Tech court did not follow the analysis of the
Second Circuit in ONY and, by extension, the analysis in Pacira I, the Court does not find
that opinion persuasive. And here, Dr. Schiffman has shown that her statements
accurately reflect her research, so on that point Hi-Tech is distinguishable.
b. Dr. Schiffman’s Article is Not Based on Fraudulent Data or
Inaccurate Descriptions of the Data
Heartland also contends that Dr. Schiffman’s 2023 article is based upon fraudulent
data so that her later secondary statements about her research are not protected by the
First Amendment. The evidence, viewed in the light most favorable to Heartland, does
not show the kind of fraudulent data necessary to set aside the protections of the First
Amendment.
Heartland maintains that the article constitutes “fraud” based on its disagreements
with her results, methodology, and decisions about what to include in and omit from her
published research. Doc. 161 at 20–21. But omitting data does not necessarily make
research fraudulent. See ONY, 720 F.3d at 494, 499 (holding that scientific opinions were
protected by the First Amendment even when the plaintiff alleged that the defendant
omitted data); Pacira I, 583 F. Supp. 3d at 657–59 (holding that allegations of cherry-
picking and omitting data cannot survive a motion to dismiss because the data is
nonfraudulent). Similarly, Heartland’s complaints about what experiments Dr. Schiffman
chose to run or how they were run is a complaint about methodology and does not make
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23
the data in the article fraudulent. ONY, 720 F.3d at 494–95, 499 (complaints about
omission and failure to cite contrary data amount to objections to scientific
methodology); Pacira I, 583 F. Supp. 3d at 659–60 (rejecting the plaintiff’s attempt to
recast flaws in methodology as false descriptions of data).
Heartland contends that Dr. Schiffman’s omissions differ from those in ONY
because the data in ONY was not fraudulently created and was already publicly disclosed.
Doc. 161 at 21. But using the phrase “fraudulently created” in a brief does not make it
so, and Heartland has offered no evidence that the numbers in the studies were made up
or that the tests were not conducted. Heartland has simply tried another way of framing
its disagreement with Dr. Schiffman’s methodology and conclusions. Heartland and
others can run their own tests following the same methodology or using methodology
they say is better or more complete, and they are free to use their results to publicly rebut
Dr. Schiffman’s results if that is what such research shows. Courts are not in the best
position to analyze disputed scientific methodology; rather those disputes should be
posed to the marketplace of ideas. ONY, 720 F.3d at 496–97.
Heartland asserts that an investigation by N.C. State, Dr. Schiffman’s employer,
into Dr. Schiffman’s research as reflected in the article undermines Dr. Schiffman’s
motion for summary judgment. See Doc. 251 at 4.7 But if anything, that article supports
Dr. Schiffman’s position.
7 Heartland contends, in summary, that a report of the investigation should not be considered
as it was filed after close of discovery and summary judgment briefing. Doc. 251. Both parties
have had an opportunity to address the report’s effect on summary judgment, and Heartland has
long known that N.C. State was investigating Dr. Schiffman’s research article based on claims
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24
According to the investigation report, a vice chancellor convened a panel of
professors to investigate whether Dr. Schiffman committed research misconduct based on
Heartland’s allegations in this case that she (1) omitted contradictory data and (2) did not
disclose conflicting repeat tests. Doc. 226-2 at 3–4. The committee concluded that Dr.
Schiffman did not follow “best practices” because she “should have reported the negative
Multiflow data from Litron Laboratories in the article” and that a discussion of the reason
behind the differing results “would have been appropriate and . . . followed best
practices.” Id. at 7. The committee stated that the exclusion of some data “should have
been discussed with all coauthors of the article.” Id.
The committee also unanimously concluded that Dr. Schiffman did not commit
“research misconduct” because she provided a reason for the omission. Id. It specifically
declined to make any finding that Dr. Schiffman’s omission “was done with the specific
‘intent to intentionally mislead.’” Id. at 7–8. The report thus does not create a question
as to whether the article “draws conclusions from non-fraudulent data, based on accurate
descriptions of the data and methodology underlying those conclusions.” ONY, 720 F.3d
at 498.
Heartland makes in this lawsuit. Heartland also moves to reopen discovery to serve a subpoena
and take third-party depositions of individuals involved in the investigation. Docs. 253, 258.
Given the already extensive discovery Heartland has been allowed to conduct in this case to
investigate its claims, allowing any additional discovery–much less the extensive and unduly
burdensome discovery that Heartland proposes–would be disproportionate to the needs of the
case. See Fed. R. Civ. P. 26(b)(2)(C)(iii). It is highly likely that the third party in possession of
the information Heartland now wants would resist such discovery, and even if it doesn’t or such
resistance is unsuccessful, it is unlikely anything new and material would turn up; Heartland has
had every opportunity to investigate Dr. Schiffman’s research and has done so ad nauseum. The
only point of the requested discovery is to increase expenses to all parties without corresponding
benefit to resolution of the issues. In any event, the report is not determinative of any issue.
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As noted supra, courts decide as a matter of law if a statement receives the
protection of the First Amendment. Id. at 492. Failing to use best practices does not
equate to fraud, and nothing in this report supports Heartland’s assertion that Dr.
Schiffman used fraudulent data or did not accurately describe the data and methodology
underlying those conclusions.
Heartland cites multiple cases in support of its fraud argument, but each case is
distinguishable. In CrossFit, Inc. v. National Strength & Conditioning Ass’n, the court
denied summary judgment to the defendant on First Amendment grounds on false
advertising claims because there were triable issues of fact concerning whether the
defendant’s conclusions were fraudulent. No. 14-CV-1191, 2016 WL 5118530, at *7
(S.D. Cal. Sep. 21, 2016). Also, the court found that the speech was commercial, and the
peer-reviewed journal issued a correction, id. at *7–8, neither of which is the case here.
In re Neurontin Marketing & Sales Practices Litigation also involved claims of using
cherry-picked data to sell more drugs. No. 4-CV-10739, 2011 WL 3852254, at *17 (D.
Mass. Aug. 31, 2011), aff’d, 712 F.3d 21 (1st Cir. 2013). U.S. ex rel. Jones v. Brigham &
Women’s Hospital is a False Claims Act case that makes no mention of the First
Amendment. 678 F.3d 72, 75 (1st Cir. 2012).8
8 The First Circuit in Jones noted that in the FCA context “expressions of opinion, scientific
judgments, or statements as to conclusions about which reasonable minds may differ cannot be
false.” 678 F.3d at 87. If that test of falsity is applied here, Heartland would lose, because the
evidence at least shows that reasonable minds may differ about the appropriate conclusions to
draw from Dr. Schiffman’s research.
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3. 	Alternatively, Heartland has not Shown Actual Malice
Because Dr. Schiffman is a public figure, Heartland must show that she made her
challenged statements with actual malice. Sullivan, 376 U.S. at 279–80. “Actual malice”
requires a plaintiff to prove that alleged defamatory statement was made “with
knowledge that it was false or with reckless disregard of whether it was false or not.” Id.
at 280. Evidence of personal hostility alone cannot show actual malice. Cannon, 36
F.4th at 568. Under North Carolina defamation law, actual malice must be shown “with
convincing clarity.” Lewis v. Rapp, 220 N.C. App. 299, 303, 725 S.E.2d 597, 601 (2012).
“There must be sufficient evidence to permit the conclusion that the defendant in fact
entertained serious doubts as to the truth of [her] publication.” Id.
Heartland points to several categories of evidence in an effort to show actual
malice: (1) the omissions of data from the article, see supra at 22–25; (2) an opinion by a
third-party scientist that Dr. Schiffman had bias towards the research outcome because
she omitted test results, Doc. 153-49 at 2; (3) funding she received from the Sugar
Association over 15 years ago, Docs. 161-8, 161-9; and (4) an email about seeking
funding broadly from different entities for her research. Doc. 161-23. None of this
evidence tends to show with convincing clarity that Dr. Schiffman “in fact entertained
serious doubts as to the truth of [her] publication.” Lewis, 220 N.C. App. at 303.
Perhaps the omissions would allow a jury to conclude that Dr. Schiffman did not
follow best practices in her research, but that is not a material question of fact and any
such conclusion would not by itself establish malice with convincing clarity. The opinion
evidence is of questionable materiality, and the remaining evidence about funding is too
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remote and speculative to permit an inference that she acted with malice in making the
secondary statements.
In a similar case affirming the dismissal defamation claims for lack of malice, the
Seventh Circuit noted that “[s]cientific truth is elusive. Nothing in this record suggests,
however, that [the defendant] either knew that she was writing falsehoods or feared that
she might be doing so but barged ahead without checking.” Underwager v. Salter, 22
F.3d 730, 735 (7th Circ. 1994). 	In this context, “[m]ore papers, more discussion, better
data, and more satisfactory models—not larger awards of damages—mark the path
toward superior understanding of the world around us.” 	Id. at 736.
In sum, no genuine issue of material fact exists as to actual malice. Dr. Schiffman
has established that she is entitled to summary judgment on Heartland’s defamation
claims, and her motion for summary judgment will be granted.
VII. 	Dr. Schiffman’s Counterclaims Against Heartland
Dr. Schiffman’s defamation counterclaims are based on the following statement on
Heartland’s website:
[I]n an attempt to make headlines, Dr. Susan Schiffman, the author of a May
2023 article about a chemical compound called sucralose-6-acetate (“S6A”),
falsely claimed that Splenda contains S6A and that after we consume
Splenda, the sucralose in Splenda turns into S6A inside the body and causes
DNA damage, gene damage, or is genotoxic. These claims are false. The
article is not sound science and its findings have no impact on the safety of
Splenda.
Doc. 162-18 at 2. Heartland moves for summary judgment on all of Dr. Schiffman’s
defamation counterclaims, contending inter alia that portions of the allegedly defamatory
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statement are non-actionable, protected opinion and that she cannot prove actual malice
or damages.
A. The First Amendment Protects Heartland’s Statements
The First Amendment protects Heartland’s challenged statement that are opinions
incapable of being proven false. See Milkovich, 497 U.S. at 19–20; Craven, 188 N.C.
App. at 817. The phrase “in an attempt to make headlines,” represents Heartland’s
opinion of Dr. Schiffman and her actions in vague terms and cannot be proven false.
Doc. 162-18 at 2; see Biospherics, Inc., 151 F.3d at 185 (stating “the vaguer a term, or the
more meanings it reasonably can convey, the less likely it is to be actionable” (cleaned
up)). The assertion that Dr. Schiffman’s article is “not sound science” is also an opinion
incapable of being proven false, because it is vague and encompasses many meanings.
Doc. 162-18 at 2. Heartland made these assertions on its website to combat the negative
publicity resulting from media attention given to Dr. Schiffman’s article and to convince
consumers that its product was safe. Id.; see Biospherics, Inc., 151 F.3d at 184
(explaining that courts look to a statement’s language and context to determine if it could
be interpreted as asserting a fact).
Other parts of the statement receive First Amendment protection as scientific
conclusions on a “subject about which there is legitimate ongoing scientific
disagreement.” Pacira I, 583 F. Supp. 3d at 658 (cleaned up). The safety of sucralose
and Splenda was an ongoing debate before the publication of Dr. Schiffman’s article.
See, e.g., Docs. 162-5, 162-7.
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Just as Dr. Schiffman may go on news shows and talk about her findings and her
opinions on the safety of sucralose and Splenda, Heartland may post on its website its
view that the claims in her research are false or inaccurate and provide its explanation of
why it believes her data and results are wrong, based on other studies contradicting her
findings. Doc. 162-18 at 3–12. Dr. Schiffman has made no showing that Heartland’s
views and beliefs are themselves capable of being proved false. Its criticisms of Dr.
Schiffman’s scientific findings and methodology are protected by the First Amendment.
See ONY, 720 F.3d at 497 (“Scientific controversies must be settled by the methods of
science rather than by the methods of litigation.” (cleaned up)); see also Arthur v. Offit,
No. 09-CV-1398, 2010 WL 883745, at *5–6 (E.D. Va. Mar. 10, 2010) (noting that
statements are not actionable when made “in the context of a heated and very public
scientific debate” that “threatens to ensnare the Court in the thorny and extremely
contentious debate over” scientific questions associated with vaccines).
Heartland’s motion for summary judgment on these counterclaims will be granted.
B. Abuse of Process
In addition to her defamation claims, Dr. Schiffman brings an abuse of process
claim against Heartland. Doc. 128 at ¶¶ 23–72. Heartland moves for summary judgment
on this claim. Doc. 154 at 2.
“[A]buse of process is the misuse of legal process for an ulterior purpose. It
consists in the malicious misuse or misapplication of that process after issuance to
accomplish some purpose not warranted or commended by the writ.” Fowle v. Fowle,
263 N.C. 724, 728, 140 S.E.2d 398, 401 (1965). In other words, “abuse of process
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requires both an ulterior motive and an act in the use of the legal process not proper in the
regular prosecution of the proceeding, and that both requirements relate to the
defendant’s purpose to achieve through the use of the process some end foreign to those it
was designed to effect.” Stanback v. Stanback, 297 N.C. 181, 201, 254 S.E.2d 611, 624
(1979) (cleaned up); Chidnese v. Chidnese, 210 N.C. App. 299, 310–11, 708 S.E.2d 725,
734–35 (2011).
Dr. Schiffman contends that Heartland filed the lawsuit to silence, intimidate, and
discredit her, “to financially cripple” her, to “send a message that anyone who publishes
anything about Splenda that Heartland dislikes will face the same treatment,” Doc. 162 at
25, and that to that end it used a legal process to obtain irrelevant and costly discovery
from third parties and to send such discovery materials to Dr. Schiffman’s publisher. Id.
at 26–27. But in the entirety of her discussion of this claim, she cites only her own
unverified amended counterclaim and two internal email threads about Heartland’s
marketing response to the WHO report. Id. at 24–29 (repeatedly citing amended
counterclaim at Doc. 128 and also citing at 28 “Exhibit P,” Doc. 176-17, and “Exhibit F,”
Doc. 181-7).9 Unverified complaints are not evidence, and nothing in those emails
establishes ulterior motive as to Dr. Schiffman or improper use of process.
Anyone who delves into the record and procedural history of this case would
easily have suspicions about Heartland’s motives. But suspicions are not evidence. Dr.
Schiffman has not directed the Court to evidence that creates a disputed question of fact,
9 There do not appear to be any facts in Dr. Schiffman’s initial statement of facts, Doc. 162 at
2–3, that are material to her abuse of process claim.
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and the Court need not itself scour the record looking for such evidence. See, e.g.,
Freeland v. Long Beach Mortg. Co., 741 F. Supp. 3d 314, 316 (M.D.N.C. 2024); Hughes
v. B/E Aerospace, Inc., No. 12-CV-717, 2014 WL 906220, at *1 n.1 (M.D.N.C. Mar. 7,
2014) (“A party should not expect a court to do the work that it elected not to do.”).
Heartland’s motion for summary judgment on this counterclaim will be granted.
VIII. 	Conclusion
When a company makes health claims about its product and sells a lot of it, it has
to expect that someone, somewhere, sometime, will investigate whether that product is in
fact healthy or unhealthy or safe or unsafe. The First Amendment does not require a
scientist to defend research studies in court merely because a company whose sales of a
product might be affected by publicity about that research disagrees with the research or
dislikes the publicity. That is all Heartland has shown here: it disagrees with Dr.
Schiffman’s research and is unhappy that some consumers asked questions about it.
Allowing this case to go to trial would chill the First Amendment rights of all scientists to
speak about their research and would make any sensible scientist question whether to
conduct such research at all, chilling a different aspect of their First Amendment rights.
Neither party has produced sufficient evidence to overcome the other’s First
Amendment privilege to express their opinions and views or to establish disputed
questions of material fact. All claims and counterclaims will be dismissed.
It is ORDERED that:
1. 	The defendant’s motion for summary judgment, Doc. 149, is GRANTED.
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2. 	The plaintiff’s motion for summary judgment, Docs. 153, 154, is GRANTED IN
PART as it relates to the defendant’s counterclaims and to the publication element
of its defamation claims, but DENIED IN PART as it relates to the public figure
element of its defamation claims.
3. 	In the Court’s discretion, the plaintiff’s motion to reopen discovery, Doc. 253, is
DENIED.
4. 	The parties’ Daubert motions, Docs. 204, 206, 208, 210, are DENIED as moot.
5. 	The consent motion to continue the trial, Doc. 244, is DENIED as moot.
6. 	Motions to seal, Docs. 148, 151, 169, 171, 174, 176, 178, 180, 182, 189, 191,
235, 239, 243, remain pending and will be addressed by separate order.
7. 	Judgment will be entered separately as time permits.
This the 22nd day of June, 2026.
___________________________________
UNITED STATES DISTRICT JUDGE
Case 1:23-cv-00665-CCE-JGM Document 260 Filed 06/22/26 Page 32 of 32