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Lovingood v. Discovery Communications, Inc.

United States District Court, N.D. Alabama, Northeastern Division

August 1, 2017




         In 2013, The Discovery Channel broadcast a film that the British Broadcasting Corporation made regarding the Challenger shuttle disaster. Launched in 1986, the Space Shuttle Challenger came apart shortly after takeoff. The shuttle crashed, killing the shuttle’s seven crew members. The BBC film entitled “The Challenger Disaster” recounts the investigation following the crash through the eyes of Dr. Richard P. Feynman, a physics professor who was involved in the investigation. (Doc. 60-6, p. 13).

         The plaintiff in this action, Dr. Judson A. Lovingood, became involved in NASA’s shuttle program in 1969 when NASA instituted the program. (Doc. 60-6, p. 64). In 1986, Dr. Lovingood was the deputy manager of the shuttle projects office at Marshall Space Flight Center, and he was partially responsible for overseeing the development and operation of the propulsion systems for the Challenger shuttle. (Doc. 60-6, pp. 14–15). When President Ronald Reagan established a Presidential Commission to investigate the cause of the Challenger accident, NASA tapped Dr. Lovingood to testify before the Commission because of the depth of his knowledge regarding the shuttle’s design. (Doc. 60-6, p. 64). In this lawsuit, Dr. Lovingood contends that the BBC film that the Discovery defendants broadcast in the United States defames him and places him in a false light. (Doc. 1-1).[1]

         The scene in the Challenger film that concerns Dr. Lovingood is short but poignant, especially to Dr. Lovingood. The scene depicts Dr. Lovingood testifying before the Presidential Commission. The actor who portrays Dr. Lovingood represents to the Commission that NASA engineers had calculated, and therefore were aware of, the probability of complete mission failure and the deaths of the members of the Challenger crew. (Doc. 60-26). It is undisputed that there never was such a calculation, and Dr. Lovingood never gave such testimony before the Presidential Commission. Dr. Lovingood contends that the Discovery Channel should have detected the false information in the film and refused to broadcast the film with the defamatory content.

         Pursuant to Federal Rule of Civil Procedure 56, the Discovery defendants ask the Court to enter judgment in their favor on Dr. Lovingood’s claims. The defendants argue that Dr. Lovingood was a public official and that his status as a public official requires him to prove by clear and convincing evidence that Discovery acted with actual malice when it broadcast the BBC film containing the false testimony. (Doc. 63, pp. 12–14, 17–20). The defendants contend that on the record before the Court, Dr. Lovingood cannot carry this burden. For the reasons stated below, the Court grants the Discovery defendants’ motion for summary judgment.


         “The 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). To demonstrate that there is a genuine dispute as to a material fact that precludes summary judgment, a party opposing a motion for summary judgment must cite “to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A). “The court need consider only the cited materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3). When considering a summary judgment motion, the Court must view the evidence in the record in the light most favorable to the non-moving party and draw reasonable inferences in favor of the non-moving party. White v. Beltram Edge Tool Supply, Inc., 789 F.3d 1188, 1191 (11th Cir. 2015).


         When the Challenger accident occurred in 1986, Dr. Lovingood was working as the deputy manager of the space shuttle projects office at NASA’s Marshall Space Flight Center. (Doc. 60-6, p. 14). Dr. Lovingood had distinguished himself as the individual at NASA who had the greatest institutional knowledge of the shuttle. (Doc. 60-6, p. 64). Dr. Lovingood also was one of the few people at NASA who could discuss the shuttle’s main engine, the solid booster, and the external tank. Other engineers could address only one of the three components. (Doc. 60-6, pp. 63–64). Given his breadth of knowledge, it comes as no surprise that NASA designated Dr. Lovingood to testify before the Presidential Commission that investigated the crash of the Challenger shuttle.

         Dr. Feynman, a Nobel Laureate and physics professor at Caltech, was a member of the Presidential Commission. He wrote a book about his experience on the commission. The book is entitled What Do You Care What Other People Think?. (Doc. 60-6, p. 13; see also Doc. 63, p. 10; Doc. 65, p. 4). The BBC’s film entitled “The Challenger Disaster” is based on Dr. Feynman’s book. The BBC licensed Discovery to broadcast the film in the United States. (Doc. 60-1, pp. 2–4; Doc. 63, ¶¶ 17–18; see also Doc. 60-9). The film premiered on The Discovery Channel and The Science Channel on November 16, 2013. (Doc. 1-1, ¶ 3).

         “The Challenger Disaster” film begins with the following message displayed in white letters on a black screen: “This is a true story.”[2] (Doc. 60-26, 1:36).[3] The text then indicates that the film is based on Dr. Feynman’s book “and on interviews with key individuals.” (Doc. 60-26, 1:48). A final line of text states: “Some scenes have been created for dramatic purposes.” (Doc. 60-26, 2:06). All three messages appear in white against a black screen, in the same font, and all three are approximately the same size. (Doc. 60-26, 1:36–2:10).

         The film, which the Discovery defendants describe as a “docudrama,” centers on Dr. Feynman’s efforts to identify the cause of the Challenger disaster. (See generally Doc. 60-26).[4] Along the way, Dr. Feynman encounters resistance and secrecy from other members of the Commission and from individuals associated with NASA and the United States government. (See generally Doc. 60-26). Dr. Feynman persists, and ultimately he leads the Commission to discover that an improperly sealed “O-ring” on the right solid rocket booster caused the crash. (See, e.g., Doc. 60-26, 1:21:50–1:25:01; see also Doc. 1-1, ¶ 2; Doc. 60-6, p. 12). In the film, during the course of his investigation, Dr. Feynman reveals that NASA knew of significant risks associated with the O-rings but chose to launch the shuttle anyway. (See generally Doc. 60-26).

         Dr. Lovingood’s claims relate to two scenes in the film. In the first scene, Dr. Feynman eats lunch with two NASA engineers in a cafeteria. Dr. Feynman introduces himself to the engineers and states that he is “on the Commission.” (Doc. 60-26, 21:37). One of the engineers replies, “I got nothing to hide.” (Doc. 60-26, 21:28). Dr. Feynman then asks, “If I was to ask you engineers-never mind what the managers say, but you guys-given all your experience, what you thought the probability was of an accident on any single launch, what would you say?” (Doc. 60-26, 21:45). The engineers avoid Dr. Feynman’s eye. Dr. Feynman says, “If you don’t want to say out loud, perhaps you could write down on a piece of paper.” (Doc. 60-26, 21:54). The engineers exchange uneasy glances, and the scene cuts away. Later, Dr. Feynman discovers a handwritten note in his coat pocket that reads, “We think Ivory Soap.” (Doc. 60-26, 31:50). The audience later learns that “We think Ivory Soap” is a reference to a 19th-century advertising slogan for Proctor & Gamble’s “Ivory” soap. (Doc. 60-26, 1:07:44–1:08:14). The slogan touted Ivory soap as 99.44% pure. (See Doc. 60-26, 1:07:46).

         The second scene portrays Dr. Lovingood and NASA shuttle program manager Lawrence Mulloy testifying before the Presidential Commission. In the scene, Dr. Feynman asks Dr. Lovingood and Mr. Mulloy, “Can you remind me what NASA calculates the probability of shuttle failure to be? Failure meaning the loss of the vehicle and the deaths of the entire crew.” (Doc. 60-26, 1:19:05). The chairman of the Commission invites Dr. Lovingood to answer, and Dr. Lovingood reads from a stack of paper: “Certainly, that would be 1 in 10 to the power of 5.” (Doc. 60-26, 1:19:10). The scene proceeds as follows.

Dr. Feynman: “Really? Would you explain that?”
Dr. Lovingood: “Yes, the probability of mission success is 100%, minus epsilon.”
Dr. Feynman: “Epsilon, that’s a pretty fancy word. Let’s put all that you said there into English. So that’s, um, that’s one failure in every 100,000 flights. So you claim that the shuttle would fly every day for 300 years before there would be a single failure. That’s crazy, I mean, how would you ever even test that?”
Dr. Lovingood: “NASA arrived at that figure because it was a manned flight.”
Dr. Feynman: “Because there were people on board, but that is not a scientific calculation, that’s a wish. And interesting that the figure is very different from that of NASA’s own engineers based on their direct experience and observation of many known component problems, some of NASA’s engineers calculate the probability of success as only 99.4%, in other words that’s roughly one flight in every 200 will fail.”

(Doc. 60-26, 1:19:17–1:20:23).[5]

         Both scenes are fabrications. (See Doc. 65, pp. 5–11). In reality, the meeting portrayed in the film in the cafeteria took place in a conference room at Marshall Space Flight Cente, and Dr. Lovingood was present. (Doc. 60-6, p. 62). At the meeting, Dr. Feynman did not ask what “the probability was of an accident on any single launch.” (See Doc. 60-6, pp. 62, 66; p. 6, above). Rather, Dr. Feynman asked the engineers to write down the probability of the Challenger mission not being completed because of a failure of the main engine. (Doc. 60-6, p. 66; Doc. 63, ¶6; Doc. 64-1, p. 5; Doc. 65, p. 5). From an engineering perspective, the distinction is significant. Dr. Lovingood testified that, because of a series of safety redundancies that were designed to activate upon a failure of the main engine, the likelihood that a malfunction of the main engine would cause the mission to fail was low. (See Doc. 60-6, pp. 44–45). Indeed, the Commission concluded that the main engine functioned properly during the Challenger flight and did not contribute to the crash. (Doc. 60-6, pp. 21–22). In a nod to the Ivory soap ...

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