UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KAREN VANDERHOOF-FORSCHNER;
THOMAS E. FORSCHNER,
Plaintiffs-Appellants,

v.

EDWARD MCSWEEGAN,
                                                No. 99-1615
Defendant-Appellee,

and

THE LYME DISEASE FOUNDATION,
INCORPORATED,
Third Party Defendant.

KAREN VANDERHOOF-FORSCHNER;
THOMAS E. FORSCHNER,
Plaintiffs-Appellees,

v.

EDWARD MCSWEEGAN,
                                                No. 99-1616
Defendant-Appellant,

and

THE LYME DISEASE FOUNDATION,
INCORPORATED,
Third Party Defendant.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CA-97-2450-WMN)

Argued: April 3, 2000

Decided: May 16, 2000
Before MICHAEL and TRAXLER, Circuit Judges,
and Roger J. MINER, Senior Circuit Judge of the
United States Court of Appeals for the Second Circuit,
sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Michael Lee Martinez, THOMPSON, HINE & FLORY,
L.L.P., Washington, D.C.; James Russell Schraf, LIPSHULTZ &
HONE, CHARTERED, Silver Spring, Maryland, for Appellants.
Veronica Sophia Parkansky, MORRISON & FOERSTER, L.L.P.,
Washington, D.C., for Appellee. ON BRIEF: Danielle E. Berry,
THOMPSON, HINE & FLORY, L.L.P., Washington, D.C.; Victor I.
Weiner, LIPSHULTZ & HONE, CHARTERED, Silver Spring, Mary-
land, for Appellants. W. Stephen Smith, MORRISON & FOERSTER,
L.L.P., Washington, D.C., for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Karen Vanderhoof-Forschner and her husband Thomas E. Forsch-
ner (the "Forschners"), founders of the non-profit Lyme Disease
Foundation ("LDF"), filed an action against Dr. Edward McSweegan,
asserting claims of defamation and interference with business and
contractual relations. McSweegan, who had been the program officer
for the National Institutes of Health's Lyme disease program, filed a
counterclaim against the Forschners and a third-party claim against

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LDF, asserting claims of defamation and civil conspiracy. Cross-
motions for summary judgment on liability resulted in a classic "dog-
fall"1--the district court granted summary judgment against the
Forschners on their claims and against McSweegan on his claims. The
Forschners appealed the district court's decision, prompting McSwee-
gan to file a cross-appeal. We affirm.

I.

Giving all involved the benefit of all appropriate inferences, the
evidence presented in support of the motions for summary judgment
tended to establish the following. The Forschners founded LDF after
they became convinced that Karen's contracting of Lyme disease dur-
ing her pregnancy caused the severe health problems suffered by their
son. Karen, chairperson of LDF's Board of Directors, took her cause
to the public. She made appearances on national television programs
and was featured in articles appearing in national newspapers and
magazines. Karen's work for LDF brought her in contact with various
members of Congress, and she became a successful lobbyist, persuad-
ing officials to dedicate additional funds to Lyme disease research.
Within a few short years, LDF had received sufficient donations and
grants to hire a staff, which included her husband Tom as the founda-
tion's Executive Director.

McSweegan's contact with the Forschners began when he was
appointed as program officer for the Lyme disease program at the
_________________________________________________________________
1 See Ferrell v. Ashmore, 507 So. 2d 691, 694 (Fla. Dist. Ct. App.
1987) ("In both cases, both the contractor and the owner lost their respec-
tive claims (in the vernacular, a `dogfall')."); Raybon v. Reimers, 226
S.E.2d 620, 621 n.1 (Ga. Ct. App. 1976) (defining"dogfall" as a "collo-
quialism . . . derived from wrestling where it signifies a draw or tie.");
Dixon v. Dixon, 306 S.W.2d 879, 879 (Ky. 1957) ("This divorce action
resulted in a dog-fall, to use a wrestling term. The Chancellor refused to
grant a divorce to either . . . ."); McFarland v. Bruening, 185 S.W.2d
247, 250 (Ky. 1945) ("It is further contended that it was error . . . not to
have given what is sometimes called the `dogfall' instruction; that is, that
if the jury shall believe that both drivers were negligent and their concur-
rent negligence caused the accident and consequent injuries, they will not
award damages either to the plaintiff or to the defendant.").

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National Institutes of Health ("NIH"). McSweegan developed a nega-
tive opinion of the Forschners and LDF, and he questioned their
views on "chronic Lyme disease" and the need for prophylactic anti-
biotic treatment of tick bites.

McSweegan began documenting his dealings with the Forschners
and informally investigating LDF. He distributed to various media
outlets documents in which he took issue with statements made by the
Forschners or LDF and gave his own views on Lyme disease, the
Forschners, and LDF. In June 1995, after being reprimanded by his
superiors for his conduct, McSweegan was removed from his position
as the Lyme disease program officer.

McSweegan nonetheless continued his campaign against the
Forschners and LDF, which included Internet postings, e-mails, and
anonymous mailings criticizing the Forschners and their foundation.
McSweegan accused the Forschners of harassing NIH staff members
and grantees, and he described LDF as "whacko." McSweegan also
gave interviews to a reporter who eventually wrote several articles
about the feud between McSweegan and the Forschners. In those
interviews, McSweegan made his dislike of the Forschners and LDF
crystal clear, essentially describing the Forschners as frauds.

While McSweegan was waging his battle, the Forschners were
launching their own counter-assault, which included pressuring NIH
to remove him from the Lyme disease program. In various Internet
postings, the Forschners challenged McSweegan's views about them
and their foundation, often referring to him as"a cowardly stalker,"
"the stalker," and "the LDF stalker." J.A. 639-40.

This battle of words gave rise to the present action. As to the defa-
mation claims, the district court determined that all claims should be
considered under the constitutional "actual malice" standard because
all of the parties were limited public figures. 2 The court then con-
cluded that none of the statements made by any of the parties were
defamatory, but instead were "`heat-of-battle' hyperbole." J.A. 1075.
_________________________________________________________________
2 Karen Forschner and McSweegan conceded that, for purposes of this
action, they were limited public figures. Thus, only the status of Tom
Forschner was in dispute.

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The court noted that the remaining claims--the Forschners' inten-
tional interference with contract and business relations claim and
McSweegan's conspiracy claim--were dependent upon a determina-
tion that defamation had occurred. Because the court rejected the def-
amation claims on both sides, it likewise rejected the remaining
claims, thus ending the action.

II.

The Forschners contend on appeal that the district court erred in its
conclusion that none of McSweegan's statements were defamatory.
They also contend that the court erred in determining that Tom
Forschner was a limited public figure. As to the dismissal of their
intentional interference claim, they argue that if this Court reverses
the district court's decision on the defamation claim, then the dis-
missal of the interference claim should likewise be reversed, given
that the claim rises or falls with the defamation claim.

For his part, McSweegan makes it clear that he appealed to protect
his right to assert his counterclaim only in the event that the Forsch-
ners prevailed on appeal. McSweegan contends that no meaningful
distinction can be made between the statements made by him about
the Forschners and the statements made by the Forschners about him.
Thus, if this Court determines that his statements about the Forsch-
ners are defamatory, then McSweegan contends that we must likewise
conclude that their statements about him are defamatory.

"[B]ecause defamation claims raise First Amendment issues, we
have an obligation to make an independent examination of the whole
record in order to make sure that the judgment does not constitute a
forbidden intrusion on the field of free expression." Wells v. Liddy,
186 F.3d 505, 520 (4th Cir. 1999) (internal quotation marks omitted),
cert. denied, 120 S. Ct. 939 (2000). After thoroughly reviewing the
entire record and considering the briefs and arguments of the parties,
we agree with the district court that Tom Forschner is properly
viewed as a limited public figure and that none of the statements at
issue in this case can be reasonably understood as defamatory.
Instead, the statements must be viewed as "rhetorical hyperbole, a
lusty and imaginative expression of the contempt felt by" McSweegan
for the Forschners, and by the Forschners for McSweegan. Old

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Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers v. Austin,
418 U.S. 264, 286 (1974). Accordingly, we affirm on the reasoning
of the district court.3 See Vanderhoof-Forschner v. McSweegan, No.
WMN-97-2450 (D. Md. April 2, 1999).

AFFIRMED
_________________________________________________________________
3 A federal court sitting in diversity must apply the choice-of-law rules
of the forum state. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S.
487, 496-97 (1941). Under Maryland law, defamation claims are gov-
erned by the law of the state where the defamatory statement was pub-
lished. See Wells, 186 F.2d at 521-22. However, because the parties
agree that Maryland law governs their claims, we need not inquire fur-
ther into the choice-of-law questions. See American Fuel Corp. v. Utah
Energy Dev. Co., 122 F.3d 130, 134 (2d Cir. 1997) ("[W]here the parties
have agreed to the application of the forum law, their consent concludes
the choice of law inquiry.").

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