A .J. Faigin v. Kelly

• Court: District Court, D. New Hampshire
• Decided: March 12, 1998
• Docket: CV-95-317-SD
• Status: Published

Opinion

A .J . Faigin v. Kelly CV-95-317-SD 03/12/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

A.J. Faigin

v. Civil No. 95-317-SD

James E. Kelly

O R D E R

In this diversity action, plaintiff Faigin, a sports agent,

alleges that he was defamed by an autobiography written by Jim

Kelly, a former client of Faigin. Presently before the court is

plaintiff's motion for reconsideration, and a host of motions in

limine filed by both parties.

Discussion

I. Plaintiff's Motion for Reconsideration of Ruling on Limited Purpose Public Figure Issue

Faigin seeks reconsideration1 of the portion of this court's

October 1, 1997 order in which the court held that Faigin was a

limited purpose public figure. Faigin argues that under New

Hampshire law, which applies by stipulation of the parties, the

guestion whether a defamed plaintiff is a public figure is for

the jury not the judge. Nash v. Keene Publishing Corp., 127 N.H

1The court has fully considered Faigin's reply brief on his motion to reconsider. 214, 222, 498 A.2d 348, 353 (1985). Faigin concludes this court

should not have decided the public figure issue but should have

left that issue for the jury.

However, Faigin's argument mistakenly assumes that state law

controls whether the public figure issue is a guestion for the

jury or the judge. The First Circuit in Kassell v. Gannett Co.,

15 Med. L. Rptr. 1205, 1206 (1st. Cir. 1988), held that "in a

federal court diversity action, federal law controls the decision

whether an issue goes to the jury or to the judge." The court

further held that "[u]nder federal law, the public official and

public figure guestions are ones for the court." Id. Under this

federal rule, which displaces the conflicting New Hampshire rule

that the public figure issue is for the jury, it was entirely

proper for this court to decide as a matter of law that Faigin

was a public figure.

The motion to reconsider is thus denied.

II. Plaintiff's Motion in Limine to Preclude Opinion Defense

Faigin seeks to preclude Kelly from raising a defense that

the allegedly defamatory passages in the autobiography merely

express Kelly's subjective opinion of Faigin, which is

constitutionally protected speech. Faigin claims that this

court's October 1, 1997, order found that as a matter of law

2 Kelly's autobiography contains defamatory statements of fact

about Faigin. But, Faigin has misinterpreted the October 1, 1997

order, which merely found that a reasonable person could conclude

that Kelly's autobiography contains defamatory statements of

facts about Faigin. The court did not find that a reasonable

person must draw such conclusion. Rather, it is ultimately for

the jury to determine whether the passages from Kelly's

autobiography are to be interpreted as actionable statements of

fact or constitutionally protected statements of opinion. White

v. Fraternal Order of Police, 909 F.2d 512, 518 (D.C. Cir. 1990)

("If, at the summary judgement stage, the court determines that

the publication is capable of bearing a defamatory meaning, a

jury must determine whether such meaning was attributed in

fact.").

The motion is thus denied.

Ill. Plaintiff's Motion in Limine to Bar Any References to Hunter Kelly's Illness

Faigin argues that under Fed. R. Evid. 403, Kelly must be

precluded from referring to his son's illness during the trial,

as such reference would have no probative value and would work

unfair prejudice on Faigin by evoking jury sympathy for Kelly.

However, should Kelly have to be absent from trial to attend to

his son Hunter, the court must explain Kelly's absence to the 3 jury. Should such an eventuality materialize, the court will at

that time discuss with counsel from both sides the extent to

which Hunter's illness will be disclosed to the jury as an

explanation for Kelly's absence.2

IV. Plaintiff's Motion in Limine to Exclude the Testimony of Andrew Miller

Faigin seeks to exclude the testimony of Andrew Miller,

Kelly's accounting expert, under Fed. R. Evid. 702, which

consists of three related reguirements. "[First], a proposed

expert witness must be gualified to testify as an expert by

'knowledge, skill, experience, training or education'. . .

[second] the expert's testimony must concern 'scientific,

technical, or other specialized knowledge' . . . [third] the

testimony must assist the trier of fact to understand the

evidence or to determine a fact in issue.'" United States v.

Shay, 57 F.3d 126, 132 (1st Cir. 1995) (guoting. Fed. R. Evid.

702) "Determinations of whether a witness is sufficiently

gualified to testify as an expert on a given subject and whether

such expert testimony would be helpful to the trier of fact are

committed to the sound discretion of the trial court." Pacamor

2The court has fully considered Faigin's reply memo.

4 Bearings, Inc. v. Minebea Co., LTD., 918 F. Supp. 491, 506

(D.N.H. 1996) (internal quotations ommited).

The court concludes that Miller's testimony should not be

excluded as the three requirements of Rule 7 02 have been met.

Kelly intends to elicit testimony from Miller concerninq the

nature and appropriateness of the financial investments made by

Faiqin on behalf of Kelly. First, Faiqin does not dispute

Miller's qualifications to testify on this subject matter.

Second, since the investments at issue are complex financial

transactions. Miller's testimony concerns 'scientific, technical,

or other specialized knowledqe' beyond the ordinary knowledqe

possessed by the lay person. Third, Miller's testimony about the

appropriateness of the investments Faiqin made for Kelly will

assist the jury in determininq whether Faiqin enqaqed in

untrustworthy and unlawful conduct in handlinq Kelly's business

affairs, which is one of the paramount issues in the case.

5 V. Defendent's Motion in Limine to Exclude Expert Testimony of A.J. "Jack" Mills

Faigin intends to elicit testimony from expert witness Mills

concerning the economic loss suffered by Faigin as a result of

the defamation in Kelly's autobiography. Basically, Kelly

objects to the proposed bases for Mill's opinion about the loss

suffered by Faigin. Mills intends to base his opinion on the

projected earnings of an average agent with decent experience and

no reputational impediments. Kelly objects on grounds that

Faigin's success as a sports agent was, during some periods, less

than that of an average agent. Further, Kelly contends that

Faigin had more reputational impediments than the average agent.

The court agrees with Kelly that the further the gulf between

Faigin and the "average agent," the less persuasive Mill's

testimony. However, Kelly has not demonstrated that the gulf is

so obviously immense that Mill's expert testimony should be

excluded. Rather, any points of divergence and shortcomings of

Mill's foundational assumptions can be explored on cross

examination.

6 VI. Defendant's Motion in Limine to Preclude Introduction of Evidence of Pre-publication Damages

Kelly objects to Faigin introducing evidence of damage to

his business that occurred before the publication of the

allegedly defamatory autobiography. It is axiomatic that a

defamation plaintiff may only recover damages proximately caused

by the defamatory publication. See Gertz v. Robert Welch, Inc.,

418 U.S. 323, 349-50 (1974), cert, denied. 459 U.S. 1226 (1983).

Despite this rule, Faigin intends to introduce evidence that Pat

Terrell canceled his agency contract with Faigin in February 1990

upon learning of Kelly's lawsuit against Faigin in Texas.

However, Terrell's decision to cancel his contract with Faigin

occurred two years before the 1992 publication of the allegedly

defamatory autobiography. Thus, the loss of Terrell's patronage

could not have been caused by the defamation, and is entirely

irrelevant to the case at hand.

Faigin seeks to avoid this rather obvious conclusion by

arguing that loss of Terrell's patronage, while clearly not

caused by the defamation, was nonetheless caused by Kelly's

"tortious act of filing a frivolous lawsuit against [Faigin]."

Plaintiff's memorandum attached to motion, p. 5. Even if Faigin

could make out a viable claim against Kelly for malicious

prosecution, Faigin is now suing Kelly for defamation, not

malicious prosecution. Simply because a plaintiff proves that a 7 defendant committed a tort does not entitle the plaintiff to

damages caused by all the torts defendant may have committed

against plaintiff in the past. Those damages may only be

recovered by separate claim for the torts alleged to cause such

damages.

This is not to say that Faigin is entirely precluded from

introducing evidence concerning pre-publication events. Such

evidence may be relevant to other issues in the case besides

damages, for instance Kelly's state of mind with respect to the

defamatory publication. However, lose of Terrell's patronage

has no relevance independent of the damage issues, and is

inadmissible.

The motion is thus granted.

VII. Defendant's Motion in Limine to Preclude Evidence Regarding Damages Arising Out of Defamation by Implication

Kelly urges this court to adopt a rule that there can be

no liability for a defamatory inference drawn from a facially

accurate report about a public figure. In the October 1, 1997,

Order, this court found that portions of Kelly's autobiography

were defamatory even though some of the relevant passages were

facially accurate factual reports about Faigin because those true

facts nonetheless arguably implied an underlying defamatory

meaning that was untrue. More specifically, the court found that the statement "I fired . . . Faigin and . . . filed a major

lawsuit against [him]," while facially accurate, nonetheless

implied Faigin was guilty of misdeeds, which is arguably untrue.

Even though the law is settled that a "defamatory inference may

be derived from a factually accurate news report," White, supra,

909 F.2d at 518, Kelly argues that there should be an exception

for public figures, such as Faigin, due to the the First

Amendment interests at stake.

Some courts have created a per se exception against

defamation by implication from true facts about public figures.

In Schaefer v. Lynch, 406 So.2d 185, 188 (La. 1981), the court

said: "truthful statements which carry a defamatory implication

can be actionable. However, that is only true in the case of

private citizens and private affairs. . . . Even though a false

implication may be drawn by the public, there is no redress for

its servant. Where public officers and public affairs are

concerned, there can be no libel by innuendo." To justify such

rule, courts have reasoned that New York Times Co. v. Sullivan,

376 U.S. 254 (1964), reguires a showing that the defendant made

the defamatory statement with "'actual malice' that is with

knowledge that it was false or with reckless disregard of whethe

it was false or not." New York Times, supra, 376 U.S. at 279-

280. Some courts have reasoned that Times malice is impossible to establish when the defamation is found by implication from a

facially accurate report. Mihalik v. Duprev, 11 Mass. Ap p . C t .

602, 605, 417 N.E.2d 1238, 1240 (1981) ("It would be incongruous

[under the Times malice standard] to permit a public official to

recover where statements . . . were true as far as they went

. . . . We think that their falsity . . . has not been

established merely because in the aggregate they have an

insinuating overtone."); Cibenko v. Worth Publishers, Inc., 510

F. Supp. 761, 765 (D.N.J. 1981); Strada v. Connecticut

Newspapers, 193 Conn. 313, 322-24, 477 A.2d 1005, 1010-11 (1984)

("Just as the goal of a free and active press protects false

statements of fact regarding public figures published without

malice, so too must the law protect truthful facts that may give

rise to false innuendo or inference.").

This court respectfully disagrees with the reasoning of

these courts. Admittedly, Times malice with respect to the

explicit statements of a facially accurate report may be

impossible to establish. Nonetheless, in an action for

defamation by implication, the focus is not on the explicit

statements but rather on the implicit underlying defamatory

inference, which may be a malicious calculated falsehood, in

which case the Times malice standard would be satisfied. For

instance, in White, supra, 909 F.2d at 519, the defendant

10 accurately reported that a certain public official tested

positive on a drug test. The clear, but unstated implication was

that the official used illegal drugs, when, in fact, the test was

a false positive. If the defendant knew the official never used

illegal drugs, the report, while facially accurate, maliciously

implied a calculated falsehood. So, while Time malice could not

be established for the facially accurate statement that the

official tested positive for drugs. Times malice could be found

for the underlying defamatory inference that the official used

illegal drugs.

An argument in favor of a per se rule could be made that,

given the greater First Amendment interests at stake in true

facts about public figure, there should be no recovery even if

the public figure can prove Times malice with respect to an

underlying defamatory inference. See Strada, supra, 477 A.2d at

322 ("[F]irst amendment considerations dictate that an article

concerning a public figure composed of true or substantially true

statements is not defamatory regardless of the tone or innuendo

evident."). Generally, facially accurate reports about public

figures are closer to the core of the First Amendment than other

categories of potentially defamatory speech. See, New York

Times, supra, 376 U.S. at 281 ("It is of the utmost conseguence

that the people should discuss the character and gualifications

11 of candidates for their suffrages. The importance to the state

and to society of such discussions is so vast, and the advantages

derived are so great, that they more than counterbalance the

inconvenience of [candidates] whose conduct may be involved, and

occasional injury to the reputations of individuals must yield to

the public welfare, although at times such injury may be

great."). This counsels greater First Amendment protections for

defamation by implication from true facts about a public figure

than for that arising from, for example, an opinion about the

public figure.

However, the per se rule against defamation by implication

from true facts about public figures values the First Amendment

interests to the exclusion of the state's interest in protecting

reputation, which may be egually as tarnished by the underlying

defamatory inference of a facially accurate report as by an

outright lie. For instance, the facially true report in White,

supra, 909 F.2d at 519, that the public official tested positive

for drugs harmed that official's reputation as if the defendant

had outright falsely accused the official of using illegal drugs.

The admittedly stronger First Amendment interests at stake with

facially accurate reports of public figures must be balanced

against the state's interest in protective reputation, which

remains egually as strong whether the defamation is explicit or

12 by implication. A per se rule fails to achieve an appropriate

balance.

Even though a per se rule is too strong, the court finds

that application of standard defamation rules to defamation by

implication from true facts about a public figure overvalues the

state's interest and undervalues the strong First Amendment

interests at stake. Under standard defamation rules, the

published language is interpreted under an objective theory in

which the publication is given the meaning that a reasonable

person would attribute to the language used in the publication.

Id. ("When one uses language, one is held to the construction

placed on it by those who hear or read, if that construction is a

reasonable one."). Under this rule of interpretation, a

publisher may be held liable for the defamatory inference that a

reasonable person would attribute to the true facts reported by

the publisher, even though the publisher did not intend to convey

that defamatory inference. JCd. ("It is no defense that the

defendant did not actually intend to convey the defamatory

meaning, so long as the defamatory interpretation is a reasonable

one."). This chills expression because a publisher must be

vigilant of every possible defamatory implication that may

reasonably arise from a report of true facts. Given the

heightened First Amendment interests at stake in true facts about

13 public figures, this chilling effect is inappropriate.

Accordingly, this court believes there should be an

exception to standard rules of defamation interpretation for

defamation by implication from true facts about public figures.

This court believes the allegedly defamatory language should be

interpreted according to a subjective standard, and the plaintiff

must prove that the publisher intended the defamatory meaning

that it said to arise by implication from the true facts

reported. Such a subjective rule of interpretation strikes the

most appropriate balance between the heightened First Amendment

interests at stake and the state's interest in protecting

reputation. As the Fourth Circuit said: "[B]ecause the

constitution provides a sanctuary for truth, a libel-by-

implication plaintiff must make an especially rigorous showing

where the expressed facts are literally true. The language must

not only be reasonably read to impart the false innuendo, but it

must also affirmatively suggest that the author intends or

endorses the inference." Chapin v. Knight-Ridder Inc., 993 F.2d

1087, 1093 (4th Cir. 1993) .

The motion is thus denied, but the court will instruct the

jury that the defamation should be interpreted under a subjective

standard.

14 VIII. Plaintiff's Motion in Limine to Prohibit Evidence on a Defense Theory of Vicarious Liability

The court agrees with Faigin that, as a general matter,

there is a difference between, on the one hand, alleging that a

person is the direct agent of wrongdoing and, on the other hand,

alleging that the person is guilty by association with

wrongdoers. Therefore, a defamatory accusation that a plaintiff

is the direct agent of wrongdoing is not rendered true by proof

that the plaintiff is guilty by association with wrongdoers. In

the October 1, 1997 order, this court interpreted the defamatory

passages from Kelly's autobiography to imply that Faigin was the

direct agent of wrong against Kelly. If this court's

interpretation were controlling, the court would agree with

Faigin that proof of Faigin's guilt by association with Lustig

would be irrelevant. However, this court has ruled that it is

ultimately for the jury to determine what, if any, defamatory

meaning was intended by Kelly. If the jury believes that Kelly

intended to accuse Faigin not of direct wrongdoing but rather of

guilt by association, proof that Faigin is in fact guilty by

association goes to the truth value of the defamation.

15 IX. Plaintiff's Motion in Limine to Limit Defense Evidence to those Complaints About Kelly's Representation which were Actually Raised in the Texas Lawsuit.

Faigin bases this motion on the October 1, 1997 order in

which the court held that the defamatory sting of Kelly's

autobiography consisted of the same factual allegations and

complaints about Faigin's representation of Kelly that Kelly

previously raised in the Texas lawsuit. However, once again it

is the jury that will ultimately determine what, if any,

defamatory sting can be drawn from the autobiography. Since the

jury may believe that the defamatory sting consists of complaints

against Faigin that are broader and different than the specific

allegations raised in the Texas lawsuit, Kelly is entitled to

introduce evidence of such broader or different complaints.

X. Plaintiff's Motion in Limine to Give Limited Preclusive Effect to the Rule 11 Decision against Kelly

The Rule 11 sanctions issued against Kelly by the Texas

court will not be accorded preclusive effect. To establish

collateral estoppel, one of the reguirements is that the issue to

be precluded is the same as in the first action. Grella v. Salem

Five Cent Savings Bank, 42 F.3d 26, 30 (1st Cir. 1994). The

issue decided in the Rule 11 order was whether Kelly knew that

the allegations in the Texas lawsuit complaint against Faigin 16 were false. The issue here is whether Kelly knew that the

defamatory message in his autobiography was false. The jury may

find that the defamatory message consists of allegations that are

different and broader than those in the Texas lawsuit. Thus, a

finding that Kelly knew the allegations in the Texas lawsuit were

false may have no bearing on whether Kelly knew the defamation

was false.

Faigin has a back-up position. Faigin argues that even if

the Rule 11 order is narrower in scope than the issues here, the

Rule 11 order should be given preclusive effect over at least the

narrower range of issues that were within the scope of the Rule

11 order. However, this court finds that there is no overlap

between the issues decided in the Rule 11 order and the issues in

this case. Strictly speaking, the issue here is whether there is

clear and convincing evidence that Kelly knew the defamation was

false. New York Times, supra, 376 U.S. at 285. The clear and

convincing evidence burden is part of the Times malice standard

and serves to hold "the line between speech unconditionally

guaranteed and speech which may legitimately be regulated." Id.

(internal quotations omitted) . On the other hand, findings to

support Rule 11 sanctions do not have to be supported by clear

and convincing evidence. Thus, in the context of the Rule 11

order, the Texas court's finding that Kelly knew the allegations

17 were false does not translate into a finding that there was clear

and convincing evidence of Kelly's malice.

XI. Motion in Limine to Preclude Evidence of the Rule 11 Opinion on Sanctions

The court will reserve ruling on this motion until the

issues are better developed at trial. Kelly seeks exclusion of

the Rule 11 sanctions under Rule 403, which reguires a weighing

of the probative and prejudicial value of evidence. At this

stage of the litigation, it is difficult to gage the probative

value of the Rule 11 order. The more evidence introduced at

trial that the defamation was based on Kelly's complaints about

Faigin that are different from the complaints Kelly raised in the

Texas lawsuit, the less probative the Rule 11 order's finding

that Kelly knew the complaints raised in the Texas lawsuit were

false. Once the probative value of the Rule 11 order becomes

better established during the course of trial, the court will

apply the 403 balance test.

XII. Faigin's Supplement to Motions in Limine

Faigin seeks to exclude testimony that Gary Cooper

expressed concern to Faigin about the legitimacy of an investment 18 made by Lustig on Kelly's behalf. First, Faigin claims Cooper's

testimony is irrelevant because Kelly did not know of the

conversation between Cooper and Faigin. Thus, Cooper's testimony

does not render it more likely that Kelly believed true the

defamatory allegations of wrongdoing against Faigan. However,

truth is a complete defense to defamation whether or not the

publisher knew the defamation was true. Cooper's testimony is

relevant to whether, in fact, Faigin committed wrongs against

Kelly regardless of whether Kelly was aware that he was the

victim of wrongdoing. Second, Faigin argues that he was not

informed of Cooper's proposed testimony until the eve of trial.

However, this is not a grounds for exclusion because Faigin has

deposed the witness and will have an opportunity to cross-examine

Cooper. Thus, Faigin has ample opportunity to prepare for

Cooper's testimony. Third, Faigin argues that Cooper's testimony

is irrelevant because it merely establishes that Lustig was

guilty of wrongdoing of which Faigin was aware. According to

Faigin, this merely tends to prove his guilt by association.

However, the court disagrees with Faigin's characterization of

the evidence. If Faigin failed to inform Kelly of a known

improper investment made by Faigin's partner Lustig, Faigin at

least arguably breached a personal duty owed to Kelly. Thus,

Cooper's testimony tends to prove that Faigin was the direct

19 agent of wrong against Kelly. Furthermore, since this court has

ruled that Kelly may introduce evidence that the defamation was

intended to accuse Faigin of guilt by association, the court

would not exclude Cooper's testimony even if Faigin's

characterization of that testimony were accurate.3

XIII. Plaintiff's Motion to Prohibit Allegations of Double Billina

Faigin contends that the court should preclude Kelly from

introducing evidence that Faigin, or any company with which

Faigin worked, engaged in "double-billing." Faigin's argument is

based on the contention that the decision of the Cuyahoga County

Court of Common Pleas should be given preclusive effect. See

Lustig Pro Sorts, Inc. v. Kelly, No. 168339 (Court of Common

Pleas, County of Cuyahoga Dec. 10, 1990). According to Faigin,

"any claim for alleged ''double-billing' that Kelly raised has

been merged into the Ohio judgment." Plaintiff's Memorandum in

Support of Motion in Limine to Prohibit Allegations of Purported

"Double-Billing", at 2. Further, Faigin argues that Kelly should

be barred from mischaracterizing the Ohio decision.

First, the court notes that the doctrine of claim

3 For this same reason, the court denies Faigin's motion to exclude Ron Spring's testimony.

20 preclusion, or res judicata, of which merger is a facet, is not

applicable to this case. Kelly is not attempting to assert a

counter claim that should have been decided in the earlier

litigation, he is merely seeking to defend the present defamation

claim by establishing truth, or absence of malice. Thus, the

court assumes that the plaintiff has confused the doctrine of res

judicata with collateral estoppel, which precludes parties from

relitigating issues that have been "actually and necessarily

determined by a court of competent jurisdiction." See 18 James

W. Moore et al., Moore's Federal Practice § 132.01 (3d ed. 1997).

The distinction between the effect of a judgment as a bar to the prosecution of a second action for the same cause, and its effect as an estoppel in another suit between the same parties upon a different cause of action, has long been recognized in this jurisdiction. . . . In the former case, the judgment on the merits is an absolute bar to a subseguent action: it concludes the parties, not only as to every matter which was offered and received to sustain or to defeat the suit, but also as to any other matter which might have been offered for that purpose, but in the latter case, the judgment in the prior action operates as an estoppel only as to those matters which were then directly in issue, and either admitted by the pleadings or actually tried.

5 Richard Wiebusch, New Hampshire Practice, Civil Practice and

Procedure § 1871 (1984) (guoting Ainsworth v. Claremont, 108 N.H.

55, 56, 225 A.2d 867 (1967)).

Thus, the preclusive effect of the Ohio decision is

21 limited to the issues actually decided by that court. Although

the Ohio court rejected Kelly's claim that LPS overcharged him by

billing 5% commission on his earning, rather than the 3% Kelly

claimed he owed, the court did find that Kelly had overpaid

$9,600.00 in commission on bonus money provided for by the

Houston Gamblers' contract. Based upon these findings, both

litigants conclude that the Ohio court decision is favorable to

their case. Faigin seeks to assert that the court's statement

that "there has been no showing of overpayment,4" means Kelly

should be precluded from offering any evidence of improper

billing. This position, of course, is untenable. The preclusive

effect of the judgment is limited to the facts actually

decided-that Kelly owed LPG 5% of his earnings. Thus, in this

case the court will preclude Kelly from again arguing that he

only owed LPG 3%.

Kelly, however, contends that the structuring of his

Gamblers' bonus payment and the commission LPG received were

major factors leading him to loose trust in his agents. To the

extent that the Ohio court found that LPG billed Kelly for

commission to which it was not entitled, the decision supports

4There was clearly no overpayment in this case because, although LPG had negotiated Kelly's Bills' contract which ran through the 1990-91 football season, Kelly stopped making payments to LPG in 1988.

22 Kelly's contention. Thus, Kelly is entitled to use the decision

to support his defense. Furthermore, since Kelly can defend this

defamation suit either by showing that the defamatory implication

was true or that he lacked malice, Kelly's understanding of the

Ohio court's decision is relevant. Kelly can argue that he

believed his allegations were true because the Ohio court's

deduction of $9,600.00 from the amount owed led him reasonably to

believe that he had been overcharged.

In the final analysis, the parties argument over the

implications of the Ohio decision seems to be an issue of

semantics. While Faigin argues that the decision supports his

contention that there was no evidence of "double billing," Kelly

argues that the court's deduction of the $9,600.00 from the

amount owed indicates that he was indeed "double billed." Under

these circumstances, the court finds the most appropriate

solution is to allow the parties to use the decision as evidence

and attempt to persuade the jury that their characterization of

the decision is proper. In the end it is the jury that must

decide the significance of the $9,600.00 that the Ohio court

found was not owed to LPG.

The motion is granted in part in that Kelly will be

precluded from arguing that he only owed LPG 3% commissions.

23 Conclusion

For the foregoing reasons, the court has denied (1)

plaintiff's motion for reconsideration (document no. 92), (2)

plaintiff's motion to preclude opinion defense (document no. 58),

(3) plaintiff's motion to bar reference to Hunter Kelly (document

no. 64), (4) plaintiff's motion to exclude testimony of Andrew

Miller (document no. 63), (5) defendant's motion to exclude

testimony of A.J. Mills (document no. 68), (6) defendant's motion

to preclude defamation by implication (document no. 67), (7)

plaintiff's motion to prohibit vicarious liability defense

(document no. 59), (8) plaintiff's motion to limit defense to

complaints which were raised in the Texas lawsuit (document no.

62), (9) plaintiff's motion to give preclusive effect to the Rule

11 sanction order (document no. 61), (10) defendant's motion to

preclude evidence of Rule 11 order (document no. 69), (11)

plaintiff's supplementary motion to preclude testimony of Cooper

(document no. 104). The court has granted (1) defendant's motion

to preclude evidence of pre-publication damages (document no.

66), and (2) plaintiff's motion to prohibit allegations of double

24 billing, which is granted only in part (document no. 55.1).

SO ORDERED.

Shane Devine Senior Judge

March 12, 1998

cc: Wilbur A. Glahn, Esguire Alan J. Mandel, Esguire Linda Steinman, Esguire Steven M. Gordon, Esguire