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Bertrand v. Mullin

Supreme Court of Iowa

May 16, 2014


As Amended June 9, 2014.

Petition for certiorari filed at, 08/14/2014

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Appeal from the Iowa District Court for Woodbury County, Jeffrey L. Poulson, Judge. Appeal and cross-appeal from a judgment entered by the district court on a claim for defamation of character.


Jeana L. Goosmann and Emilee Boyle Gehling of Goosmann Law Firm, PLC, Sioux City, for appellant.

Mark McCormick of Belin McCormick, P.C., Des Moines, for appellees.

CADY, Chief Justice. All justices concur except Appel and Mansfield, JJ., who take no part


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CADY, Chief Justice.

In this appeal and cross-appeal, we must decide whether a political campaign advertisement aired on television constituted actionable defamation. The district court overruled a motion for directed verdict at trial, and a jury returned a verdict for the plaintiff. Both parties appealed and raised a variety of claims of error. On our review, we conclude the verdict cannot stand because the action was not supported by sufficient evidence of actual malice. We reverse the judgment of the district court and dismiss the case.

I. Background Facts and Prior Proceedings.

Rick Bertrand and Rick Mullin were candidates for the Iowa Senate from Sioux City and Woodbury County in the 2010 general election. Bertrand ran as a Republican, and Mullin ran as a Democrat. Mullin was a former chair of the Woodbury County Democratic Party.

Bertrand owned a number of businesses and real estate in the Pearl Street district of Sioux City. From 1999 until 2009, however, he worked as a salesperson and later as district manager for Takeda Pharmaceuticals (Takeda), a large multinational pharmaceutical company. Bertrand worked in the metabolic division of the company, which produced and marketed the diabetes drug Actos. Bertrand did not own stock in Takeda, and his local business interests were unrelated to the pharmaceutical industry.

Another division of Takeda sold a tablet called Rozerem, a prescription sleep aid. Bertrand, however, never personally sold the drug.

In October 2010, Bertrand ran a campaign advertisement on television called " Running from the Past." The advertisement focused on certain current policy positions of Mullin and compared them to positions Mullin took as Woodbury County Democratic Chair. The advertisement made Mullin angry and offended him. Additionally, his internal polling revealed the advertisement was causing him to lose support. His campaign manager told him: " Bertrand hit you hard. Hit him back harder."

Opposition research conducted on behalf of Mullin revealed a Los Angeles Times article about the disclosure by a consumer group of a Food and Drug Administration (FDA) report that expressed concern over the sale of Actos by Takeda. The article

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reported the FDA had found 388 patients were hospitalized for heart failure after taking Actos. Research also revealed the FDA had criticized the marketing of Rozerem by Takeda, particularly an advertisement that made it appear that Rozerem was being marketed to children. Finally, research uncovered an article from the Morning Herald in Sidney, Australia, which reported a consumer advocacy group had declared Takeda " the most unethical drug company in the world."

This research was used as the basis for a television advertisement ultimately run by Mullin in response to the " Running from the Past" advertisement by Bertrand. Mullin and several Iowa Democratic Party staff members discussed the themes and content of the advertisement between October 15 and 17. Mullin initially had significant misgivings about the script. He disliked the proposed tone of the script and found it to be at odds with the positive tenor he believed characterized his campaign. Mullin said:

I really don't like this new ad at all -- it isn't me and it is totally inconsistent with the beautiful print pieces we've been mailing out by the thousands. It also devalues the great TV spot we are already running.
Can't we find a way to be derisive/dismissive of Bertrand's negative attack and then pivot to our positive message? I really don't like the positioning of me in this, and it buys into Bertrand's frame. Let's bust out of his frame and keep positive.

In a later email, Mullin introduced a rewrite of the script as being " less vile." Eventually, Mullin approved the script.

The advertisement--titled " Secrets" --formed the basis for this lawsuit. It first aired on television on October 17. The audio portion of " Secrets" contained the following statements:

Rick Bertrand said he would run a positive campaign but now he is falsely attacking Rick Mullin. Why?
Because Bertrand doesn't want you to know he put his profits ahead of children's health.
Bertrand was a sales agent for a big drug company that was rated the most unethical company in the world. The FDA singled out Bertrand's company for marketing a dangerous sleep drug to children.
Rick Bertrand. Broken promises. A record of deceit.

At the bottom of the screen during one shot was a written image, which stated in bold capital letters, " BERTRAND'S COMPANY MARKETED SLEEP DRUG TO CHILDREN."

The statements in the advertisement cited to newspaper articles, which also flashed across the television screen. The sources cited for the statements made in the advertisement focused on Takeda. There was no mention of the local companies owned by Bertrand. Mullin admitted he did not know if Bertrand had ever sold Rozerem or marketed dangerous drugs to children at the time the advertisement aired. When he approved the script, he said he liked the " 'profiting at the expense of children' line." A friend of Mullin confided in a later email to the Iowa Democratic Party staff, " I guess I ...

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