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August 31, 1988

MORTON THIOKOL, INC., Defendant; USA ex rel. ROGER BOISJOLY, Plaintiff, v. MORTON THIOKOL, INC., Defendant

David K. Winder, United States District Judge.

The opinion of the court was delivered by: WINDER


 This opinion addresses two separate actions brought by plaintiff Roger Boisjoly against defendant Morton Thiokol, Inc. ("MTI"), both of which arise from the same general circumstances. The actions were instituted in the United States District Court for the District of Columbia and later transferred to this court. The first action, Civil No. NC-87-079W, hereinafter termed the "private action," is before this court on the motion of defendant MTI for judgment on the pleadings pursuant to Rule 12(c). The second, Civil No. NC-87-09lW, hereinafter termed the " qui tam " action, is before the court on MTI's Rule 12(b) motion to dismiss and Rule 12(f) motion to strike portions of the prayer for relief.

 The court heard oral arguments on both motions on February 23, 1988. Appearing for plaintiff Boisjoly were Robert N. Levin and Robert R. Wallace. Appearing for defendant MTI were Robert E. Jordan, Morgan D. Hodgson, Barbara A. Pollack and Warren Patten. Prior to the hearing the court had reviewed all memoranda submitted by the parties and by the United States, which had submitted an Amicus Curiae memorandum in regard to the qui tam action. After taking this matter under advisement, the court has further considered the law and facts and now renders the following memorandum decision and order. Based upon the following discussion, the court dismisses all claims in both actions with prejudice, except that Counts I and II of the private action are dismissed without prejudice by agreement of the parties.


 A. Background :

 On January 26, 1986, Flight 51-L of the Space Shuttle Challenger ended in tragedy. Seconds after launch, an explosion destroyed the Shuttle and killed the seven astronauts on board. Shortly thereafter, President Reagan appointed an independent Commission, commonly referred to as the Rogers Commission, to investigate the accident.

 In the resulting report (the "Rogers Commission Report"), *fn1" the Commission found that the cause of the accident was a failure in the joint between two segments of the right Solid Rocket Motor ("SRM"). Hot gases escaped through a leak in the joint's seal, and resulted in the explosion that destroyed the Shuttle. The Commission concluded that the failure was due to a "faulty design unacceptably sensitive to a number of factors [including] temperature, physical dimensions, the character of materials, the effects of reusability, processing, and the reaction of the joint to dynamic loading." I Rogers Commission Report 72. It was recommended that the joint be redesigned.

 Defendant MTI designed and manufactured the SRM's used in the Shuttle Program, including the SRM found to be the cause of the accident, under an exclusive contract with NASA. Plaintiff Roger Boisjoly is an engineer who was employed by MTI and whose work involved the SRM's.

 The Commission found that the NASA officials possessing knowledge of the engineers' concerns and MTI's initial recommendation failed to pass that information to NASA officials above them in the launch decision hierarchy. Those who made the final decision of whether to launch never knew of the specific concerns with the function of the joint seals at the low launch temperature. In sum, the Commission concluded that

The decision to launch the Challenger was flawed. Those who made that decision were unaware of the initial written recommendation of the contractor advising against the launch at temperatures below 53 degrees Fahrenheit and the continuous opposition of the engineers at Thiokol after the management reversed its position. . . . If the decision-makers had known all of the facts, it is highly unlikely that they would have decided to launch 51-L on January 28, 1986.

 I Rogers Commission Report 82.

 Following the accident, plaintiff Boisjoly testified before the Rogers Commission and congressional committees investigating the accident and its causes. It is these facts, findings and circumstances that form the background for Boisjoly's actions against MTI.

 B. Private Action :

 Boisjoly seeks to recover compensatory and punitive damages from MTI under a number of common law and statutory causes of action, including defamation, intentional infliction of emotional distress, antitrust, witness tampering, and civil conspiracy. *fn2" Pursuant to MTI's Rule 12(c) motion for judgment on the pleadings, this court dismisses all claims with prejudice. The court's reasoning on each claim is explained below.

 1. Defamation (Count II) :

 The acts upon which Boisjoly bases his defamation claim are alleged as follows:

71. Since the date of the disaster, [MTI] spokespersons have consistently and falsely attempted to portray Plaintiff as a disgruntled or malcontented employee whose views should be discounted and whose professional expertise should be doubted.
72. The most recent such attack occurred in January of 1987 in an interview between a [MTI] publicist and a professional engineering publication known as the Spectrum wherein the [MTI] spokesperson falsely alleged that plaintiff was "impatient" and had attempted to use vendors and other subcontractors in connection with his work on the joints in violation of the contracts between the government and [MTI].

 The Complaint goes on to allege that Boisjoly was injured in his profession due to the alleged conduct of MTI. It does not allege special damages.

 The Court holds that the conclusory allegations in paragraph seventy-one do not meet the particularity requirements with which a defamation claim must be alleged. Utah law requires that a claim must identify the defamatory statement either by its "words or words to that effect;" general conclusory statements are inadequate. Williams v. State Farm Insurance Co., 656 P.2d 966, 971 (1982); Dennett v. Smith, 21 Utah 2d 368, 445 P.2d 983, 984 (1968). Although there is no Utah law directly on point, courts have generally required the complaint to also allege when, where, and to whom the alleged defamatory statement was made. See e.g., Schulze v. Coykendall, 218 Kan. 653, 545 P.2d 392, 397 (1976). The purpose of the particularity requirement in pleading defamation is to allow the court to decide if the statement is defamatory and to allow the defendant to formulate a defense. See 5 C. Wright & A. Miller, Federal Practice and Procedure, § 1309, p. 441-42 (1969); 50 Am. Jur.2d Libel and Slander § 408 (1970).

 Paragraph seventy-one clearly fails to allege, in "words or words to that effect," a single specific defamatory statement by defendant MTI. This paragraph also does not document when, where or to whom any defamatory statement was made. In fact, its conclusory allegations are quite similar to those dismissed for lack of particularity by the Dennett court. In the Dennett case, the plaintiff alleged that "defendant made, declared and published to certain persons certain derogatory and libelous statements relating and pertaining to plaintiff which tended to degrade and discredit him." Dennett, 445 P.2d at 984. Cf. Goldberg v. Sitomer, Sitomer & Porges, 97 A.D.2d 114, 469 N.Y.S.2d 81, 83 (1983). *fn3"

 On the other hand, paragraph seventy-two arguably meets the particularity requirements but, nevertheless, fails to allege a statement that is defamatory. By referring to the month during which the alleged defamatory remarks were made, who made them, *fn4" and in general terms to whom they were made, Boisjoly arguably has put MTI on sufficient notice of what statements it must defend against. Further, by stating that the content of the alleged statement, i.e., that Boisjoly "was 'impatient' and had attempted to use vendors and other subcontractors in connection with his work on the joints in violation of the contracts between the government and Thiokol," Boisjoly has arguably met the "words or words to that effect" standard of Dennett.

 However, this court does not find the quoted statements to be defamatory. Because he has not alleged special damages, Boisjoly can only recover if the defamatory statement is slander per se. Western States Title v. Warnock, 18 Utah 2d 70, 415 P.2d 316 (1966). He does claim generally that the statements caused injury to his professional reputation. Such a claim potentially falls into one of the four categories of slander per se. Allred v. Cook, 590 P.2d 318, 320 (Utah 1979). In order to be actionable, however, a statement in regard to profession must allege conduct "incompatible with the exercise of a lawful . . . profession . . . ." Id. The words must "impute a want of capacity or fitness for engaging in the plaintiff's profession or . . . render him unfit to fulfill his duties." Id. Further, because damages are presumed upon a finding of slander per se, courts have required the statement alleged must be found particularly injurious in order to be found defamatory. As stated in Allred, "whether defamatory words constitute slander per se depends on their injurious character. That is, the words must be of such common notoriety that the injury can be presumed from the words alone." Id. at 321 (citing Western States Title v. Warnock, supra) (emphasis added). Stated differently, "it must be seen that as a necessary consequence, plaintiff was damaged in some material manner." Id. (citing Nichols v. Daily Reporter Co., 30 Utah 74, 83 P. 573 (1905) (emphasis added).

 Clearly, the reference to Boisjoly as "impatient" does not fall within this definition. *fn5" And while a closer question, this court finds that the statement that Boisjoly attempted to use vendors or subcontractors in violation of MTI's contracts also falls short. The statement leaves open to interpretation whether Boisjoly knew that his attempted actions were in violation of MTI's contract. It can be interpreted to imply only that an innocent mistake was made on his part. If a statement is susceptible to at least two interpretations, one of which is innocent, no cause of action will exist for defamation. Allred, 590 P.2d at 321. Further, even if the statement had been that Boisjoly's attempt to use subcontractors was in knowing violation of the contract, this court is not convinced that such a statement would reflect so poorly on Boisjoly's capacity or fitness to engage in his profession that it could be presumed that Boisjoly would be thereby damaged. Based on the above reasoning, the court dismisses Count II.

 2. Intentional Infliction of Emotional Distress (Count VIII) :

 In Utah, the tort of intentional infliction of emotional distress occurs

where the defendant intentionally engaged in some conduct toward the plaintiff, (a) with the purpose of inflicting emotional distress, or (b) where any reasonable person would have known that such would result; and his actions are of such a nature as to be considered outrageous and intolerable in that they offend against the generally accepted standards of decency and morality.

 Samms v. Eccles, 11 Utah 2d 289, 358 P.2d 344, 346-47 (1961). This court has had occasion to flesh out the definition of the kind of conduct that this tort requires, and has held that in order to be actionable, a defendant's acts must be

so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!"

 Amos v. Corporation of Presiding Bishop, 594 F. Supp. 791, 831 (D. Utah 1984) (quoting Restatement 2d of Torts, § 46, comment d.) rev'd on other grounds, 483 U.S. 327, 107 S. Ct. 2862, 97 L. Ed. 2d 273 (1987). See also Samms, 358 P.2d at 347 n.14 (citing with approval § 46 of the first Restatement of Torts, predecessor provision to that quoted above).

 Before applying the law to the present case, the court notes that it is proper to dismiss an action for intentional infliction of emotional distress on a Rule 12 motion if all of the elements of the tort are not alleged. In addition, dismissal of a claim is proper if the alleged conduct of the defendant does not rise to the level of outrageousness as required under Utah law. See Amos, 594 F. Supp. at 831; Samms, 358 P.2d at 346-47. Cf. Waldon v. Covington, 415 A.2d 1070, 1078 (D.C. App. 1980) ("a court may determine whether the plaintiff's allegations, viewed in the light most favorable to the plaintiff, are minimally sufficient to show the existence of the intent [requisite to maintain an action for intentional infliction of emotional distress]").

 Turning, then, to the present case, Boisjoly's claim appears to be based on two separate alleged courses of conduct on the part of MTI: *fn6" First, that MTI recommended that NASA launch the Challenger flight that ended in disaster, contrary to Boisjoly's own recommendation and with knowledge of the pressure that Boisjoly was under, and that MTI knew its actions would be injurious to Boisjoly's mental health. Second, that following the accident, MTI attacked Boisjoly by attempting to discredit him, threatening his employment, and removing him from the investigation of the accident with knowledge that these actions would be injurious to Boisjoly's mental health. Boisjoly claims that these actions caused him to be "severely injured in his emotional and mental health and . . . disabled by reason of post traumatic stress disorder and depression caused directly by the disaster and the other matters alleged herein." Complaint para. 60.

 This court holds as a matter of law that neither alleged course of conduct is sufficient to support an action for intentional infliction of emotional distress. As to the first, Boisjoly has not and could not logically allege that either the decision to recommend the launch or the launch itself were acts "intentionally engaged in . . . toward [Boisjoly] . . . with the purpose of inflicting emotional distress, or where any reasonable person would have known that such would result." Samms, 358 P.2d at 346-47. To suggest that the recommendation or the launch were acts directed toward and for the purpose of injuring Boisjoly is ridiculous. Furthermore, for a reasonable person to know that Boisjoly might suffer emotional injury as a result of the launch would include the requirement that the person know that the launch would result in disaster. This court cannot accept any suggestion that either MTI or NASA knew that the Challenger would explode, but yet recommended that it be launched anyway.

 As to Boisjoly's allegations that MTI discredited him, threatened his job, and removed him from the investigation of the accident, this court holds as a matter of law that the alleged conduct is not "outrageous" as defined in Samms and Amos. While threatening an employee's job, discrediting his reputation, and removing him from a position of importance is certainly not desirable behavior, this court does not find it to be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." Amos, 594 F. Supp. at 831. See also Waldon v. Covington, 415 A.2d 1070 (D.C. App. 1980) (harassing, threatening discharge, and assigning embarrassing tasks to employee insufficient to state claim); Shewmaker v. Minchew, 504 F. Supp. 156 (D.D.C. 1980); aff'd, 215 U.S. App. D.C. 53, 666 F.2d 616 (D.C. Cir. 1981) (harassment, wrongful demotion, and character attacks to media and fellow employees insufficient).

 3. Civil Conspiracy (Count I) :

 There is virtually no Utah law on the subject of civil conspiracy and very little in other jurisdictions. However, those courts that have considered it are in general agreement as to its essential elements and applicability. A representative statement of the elements of civil conspiracy is found in Halberstam v. Welch, 227 U.S. App. D.C. 167, 705 F.2d 472 (D.C. Cir. 1983):

(1) an agreement between two or more persons;

 Id. at 477. Implicit in this definition is that the unlawful act be directed toward and cause injury to the plaintiff. Civil conspiracy is essentially a tool allowing a plaintiff injured by the tort of one party to join and recover from a third party who conspired with the tortfeasor to bring about the tortious act or in other words, a method of imposing vicarious liability. S ee, e.g., Halberstam, 705 F.2d at 479; Hokanson v. Lichtor, 5 Kan. App. 2d 802, 626 P.2d 214, 220-21 (1981); Fisher v. Freeland, 279 Ore. 177, 566 P.2d 517 (1977). See generally Prosser and Keeton, The Law of Torts § 46 (5th ed. 1984); Note, "Civil Conspiracy: A Substantive Tort?", 59 B.U. L.Rev. 921, 926 (1979).

 Here, Boisjoly does not attempt to use civil conspiracy to impose vicarious liability on a third party for the torts of MTI. Instead, he attempts to use it to bootstrap himself into a position to recover damages for conduct that, with one possible exception, was neither directed toward him nor the cause of injury to him.

 Examination of the complaint proves this to be the case. The complaint first alleges that the purpose of the conspiracy between NASA and MTI was "withholding information from the public, the Congress, flight crews, insurers and owners of payloads as to the unsafe and defective condition of the SRM's in order to induce continued Congressional funding and additional payments from the cargo owners . . . and exclusion of all potential competitors to [MTI] for the SRM business." Complaint para. 66. The complaint then lists the overt acts allegedly done in connection with the conspiracy, including that NASA lied to Congress and the public about the shuttle safety record and, subsequent to the accident, awarded a $ 75 million bonus to MTI, based in part on MTI's supposed contribution to the safety and integrity of the Shuttle Program; that MTI withheld information from the SEC, the public, and MTI shareholders and stock purchasers concerning the liability that might arise from the defective SRM's; that MTI pressured its staff to overlook known safety problems; and that MTI attacked the competence of Boisjoly and other engineers who attempted to rectify the safety defects and to stop the Challenger launch that ended in disaster. Finally, the complaint lists the injuries allegedly caused by the conspiracy. These inquiries include the waste of billions of dollars of public funds; the misdirection of the space program; the deaths of the Challenger astronauts and the near deaths of others; the loss of the Challenger payloads; the loss suffered by the insurers of the cargo, the Shuttle hardware, and the lives of the astronauts; and the injuries to the plaintiff complained of in this action.

 Clearly, the "conspiracy" alleged in the complaint is not of a nature to support an action for damages on the part of Boisjoly. With the exception of the alleged attack on Boisjoly's competence, neither the conspiracy itself nor the overt acts allegedly done in furtherance of it were directed towards Boisjoly. Further, the injuries allegedly caused by those acts were not injuries to Boisjoly, with the exception of the personal attack. Boisjoly has no standing to sue and recover damages for the alleged waste of taxpayer dollars, the misdirection of the space program, the losses suffered by insurance companies, the injury to MTI stockholders, *fn7" or the deaths of the astronauts. Attempting to make the same claims under a civil conspiracy cause of action is plainly a misuse of the doctrine and does not rectify a clear lack of standing.

 Similarly, the claimed civil conspiracy is irrelevant to Boisjoly's attempt to recover against MTI based on its attack of his reputation and competence. In this same action, Boisjoly attempts to recover from MTI, the only defendant, for those same alleged attacks based on theories of defamation and intentional infliction of emotional distress. Because civil conspiracy is a tool for establishing vicarious liability, it cannot be maintained in a suit involving a single defendant where the same underlying torts are also asserted by separate counts against the same ...

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