Faigin v. Kelly CV-95-317-SD 10/01/97 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
A.J. Faigin
v. Civil No. 95-317-SD
James E. Kelly; Vic Carucci
O R D E R
In this diversity action, plaintiff A.J. Faigin, a sports
agent, asserts that he was defamed by statements appearing in an
autobiography co-authored by defendants James E. Kelly, a former
professional football player, and Vic Carucci, a sportswriter.
Presently before the court is defendants' motion for summary
judgment, to which plaintiff objects.
Background
In 1992, defendant Jim Kelly, former guarterback for the
Buffalo Bills football team, published his autobiography. Armed
and Dangerous, which was co-authored by defendant Vic Carucci, a
sports writer for the Buffalo News. The autobiography contains
approximately five or six references to plaintiff A.J. Faigin,
who served as one of Kelly's agents from 1983 to 1987.
Essentially, those references charge Faigin with untrustworthy conduct in his representation of Kelly and form the basis for
Faigin's cause of action for defamation against Kelly and
Carucci.
Faigin co-founded several corporations ("Lustig companies")
with Mr. Greg Lustig and Mr. Kenneth Weinberger. Defendants'
Reply Memorandum at 12; Plaintiff's Exhibit 22. The Lustig
companies offered athletes a range of services and consisted of
four companies: (1) Lustig Pro Sports (LPS) , which provided Kelly
with agency services; (2) Consultants Development Group (CDG),
which provided Kelly with financial and investment services; (3)
Lustig & Faigin Co. L.P.A., a law firm; and (4) Lustig Group.
Defendants' Memorandum at 8. Faigin's role in the various Lustig
companies is disputed. Although Faigin held the title of
President of LPS, he maintains that he performed mainly as a
contract negotiator for LPS and that his title was merely
cosmetic for recruitment purposes. However, it is undisputed
that Lustig was the dominant figure of the Lustig companies and
controlled most of the financial and investment services provided
through CDG.
In 1983, while still a college student, Kelly hired Faigin
and Lustig as his agents and attorneys. Faigin and Lustig
negotiated Kelly's first professional football contract with the
now-defunct United States Football League team the Houston
2 Gamblers. In 1986 Faigin and Lustig negotiated Kelly's contract
with the Buffalo Bills, creating the highest-paying contract in
National Football League (NFL) history to that date.1
In 1987, Faigin ended his association with Lustig and the
Lustig companies to embark on his own sports agency business.
Faigin was unable to meet with Kelly to discuss his decision to
leave, so he sent Kelly a cassette tape in which he described the
reasons behind his split with Lustig, including his knowledge of
Lustig's having double-billed clients. Faigin did, however,
remain a shareholder in the various Lustig companies until at
least 1991. Defendants' Reply Memorandum at 10.
At about this time, Kelly's brother and two friends began
noticing some "problems" concerning the business services
provided by the Lustig companies. Defendants' Memorandum at 10.
These problems, as described by Kelly, consisted of double
billing him, obtaining a worthless disability insurance policy
for him, investing his money in inappropriate or fraudulent
investments, unwisely structuring his contract with the Houston
Gamblers, and obtaining a two-year prepayment for services in
violation of NFL Players Association regulations. As a result.
1 In the book, Kelly's references to Faigin's contract negotiations on his behalf seem appreciative of Faigin's efforts and, as argued by Kelly, "enhance Faigin's reputation as a tough negotiator." Defendants' Memorandum at 31.
3 Kelly formally fired Lustig in 1988 and terminated his business
with the Lustig companies. Kelly took no formal action with
regard to firing Faigin.
In 1989 Kelly filed suit against Lustig, Faigin, Kenneth
Weinberger, and others in the United States District Court for
the Southern District of Texas claiming, among other things,
breach of fiduciary duties owed by agents to their clients. Part
of this suit was settled in arbitration, which led to Kelly's
receiving $700,000 from two brokerage firms for improper
investments. Kelly voluntarily dismissed his action in 1994 at
the prodding of the court due to Lustig's personal bankruptcy and
the belief that the Lustig companies had no financial resources.
See Kelly v. Lustig, No. H-89-1931, slip op. at 2 (S.D. Tex.
1994). Upon dismissal of this suit, Faigin filed for Rule 11
sanctions against Kelly. The district court awarded Faigin
$11,000, sanctioning Kelly for bringing a frivolous lawsuit
against Faigin. Kelly's suit had focused on the issue of
improper investments and, since "Kelly's deposition clearly
states his belief that Faigin was responsible solely for the
player contract work, not for any investments," the court
concluded that this and "other evidence . . . suggests that
Faigin was not involved in these decisions and that Kelly was
aware of this lack of involvement. Id. at 4.
4 Faigin filed the present action against Kelly and Carucci as
co-authors of Kelly's autobiography. Armed and Dangerous, for the
allegedly defamatory passages against Faigin.
Discussion
1. Summary Judgment Standard
It is appropriate to grant summary judgment when no genuine
issue of material fact exists and the moving party is entitled to
judgment as a matter of law. See Rule 56(c), Fed. R. Civ. P.;
Lehman v. Prudential Ins. Co. of Am., 74 F.3d 323, 327 (1st Cir.
1996). The court's function at this stage is to weigh the
evidence and determine, not the truth of the matter, but whether
there is a genuine issue for trial. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986) . To establish a trial
worthy issue, it does not suffice to rest upon mere allegations
or denials of the adverse party's pleadings. See id. at 256.
Rather, there must be enough competent evidence to allow a trier
of fact to find in favor of the non-moving party. See id. at
249. When the non-moving party bears the burden of persuasion at
trial, to avoid summary judgment that party must make a "showing
sufficient to establish the existence of [the] element[s]
essential to [his] case." Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986). In ruling on summary judgment, the court
5 construes the evidence and draws all justifiable inferences in
the non-moving party's favor. See Anderson, supra, 477 U.S. at
255.
2. Defamatory Meaning
Faigin claims that the following passage from Kelly's
autobiography constitutes defamation by imputing untrustworthy
conduct to Faigin.
I learned my lesson the hard way about whom to trust and whom not to trust in business. I had had complete faith in my first agents, Greg Lustig and A.J. Faigin. Before signing with them out of college, I talked to a bunch of other players they represented and they all said Lustig and Faigin did a good job on their contracts. Even Jack Lambert, the former Steeler great, gave them a strong recommendation. Then Danny and the Trevino brothers started taking a closer look at my business affairs. And the more they looked, the more they didn't like what they found. Finally, I saw the light. In 1988, I fired Lustig and Faigin and put my brother and the Trevinos in charge of all my business dealings. Then I filed a major lawsuit against my former agents, as well as the former owners of the Gamblers for defaulting on the payment of my signing bonus. Fortunately, I was able to catch the problem before it was too late, which made me luckier than a lot of other pro athletes. When you come out of college, you're so trusting, so vulnerable when it comes to finding people to handle your money. I'm just glad that I had a brother and a couple of close friends who cared enough to slap me upside the head and get my attention. The funny thing is, my mother never liked Lustig from Day One. There was something about him that
6 told her he couldn't be trusted. I should have followed Mom's intuition.
Armed & Dangerous at 159-60.
To establish defamation, a plaintiff must show that the
"defendant failed to exercise reasonable care in publishing,
without a valid privilege, a false and defamatory statement of
fact about the plaintiff to a third party." Independent
Mechanical Contractors, Inc. v. Gordon T. Burke & Sons, Inc., 138
N.H. 110, 118, 635 A.2d 487, 492 (1993) (citing R e s t a t e m e n t (S e c o n d )
of Torts § 558 (1977); 8 Richard B. McNamara, New Hampshire
Practice, Personal Injury, Tort and Insurance Practice § 2
(1988)). A given statement is defamatory if "it tends to so harm
the reputation of another as to lower him in the estimation of
the community or to deter third persons from associating or
dealing with him." Restatement, supra, § 559.
Defendant Kelly argues that the above-guoted passages from
his autobiography do not contain false statements of fact
concerning plaintiff Faigin, but rather merely espouse Kelly's
subjective opinion, which is incapable of verification as true or
false. Thus Kelly concludes that the First Amendment shields him
from liability for defamation. Constitutional protection for
expressions of opinion was established when the Supreme Court
announced that "[u]nder the First Amendment there is no such
thing as a false idea." Gertz v. Robert Welch, Inc., 418 U.S.
7 323, 339 (1974). However, subsequent caselaw has rejected the
view that "'Gertz was intended to create a wholesale defamation
exemption for anything that might be labeled opinion.'" Godfrey
v. Perkin-Elmer Corp., 794 F. Supp. 1179, 1191 (D.N.H. 1992)
(citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 21 (1990)).
Rather, the Court in Milkovich rejected an "artificial dichotomy
between 'opinion' and fact," Milkovich, supra, 497 U.S. at 19,
because expressions of "opinion" may nonetheless imply an
underlying objective evaluation that is "susceptible of being
proved true or false." Id. at 21.
The question of whether an expression of opinion nonetheless
implies an underlying objective evaluation of the defamed subject
is, in the first instance, a question of law for the court. See
White v. Fraternal Order of Police, 909 F.2d 512, 518 (D.C. Cir.
1990). Summary judgment on the ground of constitutional
privilege is only appropriate if no reasonable person could
conclude that the communication implies a defamatory statement of
fact.
This court agrees with Kelly that the first paragraph's
opening sentence, "I learned my lesson the hard way about whom to
trust and whom not to trust in business," merely expresses
Kelly's subjective evaluation of Faigin. Criteria of
trustworthiness may vary from person to person, and, standing alone, the statement does not appeal to any objective criteria
beyond that held by Kelly. However, the second paragraph does
imply an objective, factual basis for Kelly's evaluation that
Faigin is untrustworthy. The text reads, "the more [Danny and
the Trevino brothers] looked [at my business affairs], the more
they didn't like what they found." This implies that Danny and
the Trevinos discovered some concrete evidence of Faigin's
untrustworthy conduct in handling Kelly's business affairs. This
is an assertion of fact that is susceptible of being proved true
or false.
The third paragraph removes all doubt that the evaluation
"Faigin is untrustworthy" was meant as an objective matter of
fact. The paragraph begins, "Finally, I saw the light," which
implies recognition of some alleged truth about Faigin, not
formulation of a subjective opinion. Continuing, the paragraph
asserts that Kelly fired Faigin and instituted a "major lawsuit"
against him, insinuating that Faigin engaged in untrustworthy
misconduct to justify such adverse actions against him.
Furthermore, the claim that Kelly filed a "major lawsuit" against
Faigin appeals to the objective criteria of the law as a basis
for the evaluation that "Faigin is untrustworthy." Read as a
whole, the passage from the autobiography clearly implies factual
allegations that are susceptible of being proved true or false. This is not "the sort of loose, figurative, of hyperbolic
language," Milkovich, supra, 497 U.S. at 21, that merely
expresses Kelly's opinion of Faigin and is constitutionally
protected.
Next, Kelly seeks summary judgment on the ground that the
passages from the book were true. "One who publishes a
defamatory statement of fact is not subject to liability for
defamation if the statement is true." Restatement, supra, § 581A.
In the law of defamation, truth is defined as "substantial
truth," as it is not necessary that every detail be accurate.
See Curley v. Curtis Pub. Co., 48 F. Supp. 29, 33 (D. Mass.
1942). In other words, literal truth of a statement is not
reguired "'so long as the imputation is substantially true so as
to justify the "gist" or "sting" of the remark.'" Maheu v.
Hughes Tool C o ., 569 F.2d 459, 466 (9th Cir. 1977) (citation
omitted). Furthermore, a false and "defamatory inference may be
derived from a factually accurate news report." Southern Air
Transport v. ABC, 877 F.2d 1010, 1014 (D.C. Cir. 1989); see also
White, supra, 909 F.2d at 521 (holding that factually accurate
report that plaintiff failed drug test supported false and
defamatory inference that plaintiff used illegal drugs); Davis v.
Ross, 754 F.2d 80, 84 (2d Cir. 1985) (holding that a factually
accurate report that an employee was discharged may nonetheless
10 constitute actionable defamation if the report "contains an
insinuation that the discharge was for some misconduct"). It is
irrelevant that the passage may in some respects be a facially
accurate report that Kelly did in fact fire and sue Faigin
because the focus is whether the underlying defamatory inference
is true or false.
This court finds that there remains a disputed issue of fact
whether the "sting" of the defamatory passages from Kelly's book
--that Faigin engaged in untrustworthy and unlawful conduct in
handling Kelly's business affairs--is substantially true. Kelly
alleges that Faigin committed several untrustworthy acts
constituting unlawful breach of fiduciary duties in handling
Kelly's business affairs. See Kelly's Memorandum of Law at 36.
However, in 1994 Kelly made the same factual allegations to
support a lawsuit against Faigin in the United States District
Court for the Southern District of Texas. The Texas court
determined that Kelly's allegations against Faigin were frivolous
and imposed Rule 11 sanctions on Kelly. This is persuasive
evidence that Kelly's allegations against Faigin asserted in
support of the "sting" of the defamation are false.2
2 The parties dispute whether the Texas court's Rule 11 sanctions order should have preclusive effect in this action under the doctrine of collateral estoppel. However, since the motion for summary judgment before the court was filed by defendant Kelly, the court need only decide whether there is a
11 3. Limited-Purpose Public Figure
Kelly next argues that summary judgment should be granted
because Faigin gualifies as a "public figure." Under the First
Amendment, state tort law may not as vigorously protect a "public
figure's" interest in reputation. The First Amendment protects
citizens from liability for defamation of public figures unless
the erroneous statement was made with "actual malice." See
Curtis Pub. Co. v. Butts, 388 U.S. 130, 155 (1967). The
rationale for applying a heightened constitutional standard to
defamation of public figures is threefold. First, the standard
strikes the most appropriate balance between the state's interest
in protecting reputation and the "profound national commitment to
the principle that debate on public issues should be uninhibited,
robust, and wide-open . . . ." New York Times Co. v. Sullivan,
376 U.S. 254, 270 (1964). Although calculated falsehoods remain
outside the core of the First Amendment, erroneous misstatements
are inevitable in a robust system of free expression. Second,
public figures assume the risk of defamatory statements leveled
against them because by "thrust[ing] themselves to the forefront
disputed issue of fact about the truth of the defamation. To decide this, the court need not determine whether the Texas court's Rule 11 sanctions order has preclusive effect. In other words, Faigin is attempting to use the doctrine of collateral estoppel offensively, which is inappropriate when defending against a motion for summary judgment filed by the opposing party.
12 of particular public controversies . . . they invite attention
and comment." Gertz, supra, 418 U.S. at 345. Lastly, public
figures more readily may resort to self help, minimizing the need
for judicial protection against defamation. "Public . . .
figures usually enjoy significantly greater access to the
channels of effective communication and hence have a more
realistic opportunity to counteract false statements than private
individuals normally enjoy." Id. at 344.
The designation "public figure" may rest on two alternative
bases. First, in some instances, an individual may achieve such
pervasive fame or notoriety that he becomes a public figure for
all purposes and in all contexts. Id. at 351-52. Second,
persons of lesser fame may nonetheless gualify as limited public
figures if they "thrust themselves to the forefront of particular
public controversies." Id. at 345. Such limited public figures
are subject to the "actual malice" standard only for defamation
arising out of the public controversy into which they have thrust
themselves. W.P. K eeton et al ., Prosser and K eeton on the Law of Torts §
113, at 806 (5th ed. 1984); see Bruno & Stillman, Inc. v. Globe
Newspaper Co., 633 F.2d 583, 591-92 (1st Cir. 1980); Dameron v.
Washington Magazine, Inc., 779 F.2d 736, 741 (D.C. Cir. 1985);
Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1296-98
(D.C. Cir. 1980); c f . Wov v. Turner, 573 F. Supp. 35, 38 (N.D.
13 G a . 1983). Kelly makes the more modest contention that Faigin
was a limited-purpose public figure.
According to Kelly, Faigin voluntarily injected himself into
the forefront of the public controversy surrounding the
unscrupulous and untrustworthy practices of sports agents who
represent professional athletes. In Time v. Firestone, 424 U.S.
448, 454 (1976), the Court drew a distinction between "public
controversy," on the one hand, and "controversies of interest to
the public," on the other. In that case, Mary Firestone, a
wealthy socialite, brought a defamation action against Time,
Inc., for erroneously reporting that her husband, well-known
industrialist Russell Firestone, had been granted a divorce on
grounds of extreme cruelty and adultery, when the grounds were
actually "lack of domestication." The Firestones' divorce
proceedings had captured wide-spread public attention due not
only to the Firestones' notoriety as members of the "sporting
set," but also to the sensational nature of the charges leveled
against Mary by her husband Russell. The Court concluded that,
"even though the marital difficulties of extremely wealthy
individuals may be of some interest to some portions of the
reading public," id. at 454, the affair was not a "public
controversy." The Court did not elaborate further, nor did it
articulate any standards governing when a controversy may be
14 properly characterized a "public controversy."
However, standardless decisionmaking with respect to this
constitutional issue is fraught with danger of government
censorship, because, as the Court pointed out in Gertz,
it would occasion the . . . difficulty of forcing state and federal judges to decide on an ad hoc basis which publications address issues of "general or public interest" and which do not--to determine, in the words of M r . J u s t i c e M a r s h a l l , "what information is relevant to self-government." Rosenbloom v. Metromedia, Inc., 403 U.S. [29,] 79 [(1971)]. We doubt the wisdom of committing this task to the conscience of judges.
Gertz, supra, 418 U.S. at 346. True commitment to freedom of
expression precludes the government from supervising which issues
are open for public debate.
Since Firestone, courts have struggled to articulate more
determinate standards distinguishing between "public
controvers[ies]" and "controversies of interest to the public."
See, e.g., Avins v. White, 627 F.2d 637, 647 (3d Cir. 1980);
Waldbaum, supra, 627 F.2d at 1296; Bose Corp. v. Consumers Union
of U.S., Inc., 508 F. Supp. 1249, 1273 (D. Mass. 1981);
Fitzgerald v. Penthouse Int'l, Ltd., 525 F. Supp. 585, 590 (D.
Md. 1981). The generally accepted test first enunciated by the
District of Columbia Circuit in Waldbaum examines whether "the
outcome of [the controversy] affects the general public or some
segment of it in an appreciable way." Waldbaum, supra, 627 F.2d
15 at 1296. However, this test does not render resolution of the
"public controversy" issue any more determinant, but merely
shifts standardless decisionmaking to a different part of the
analysis. An ad hoc inquiry into whether the effect of a
controversy on the public is "appreciable," or worthy of judicial
recognition, turns courts into censors of public debate no less
so than an ad hoc inquiry into "which publications address issues
of public interest," Gertz, supra, 418 U.S. at 346. Under either
inquiry, the reviewing court must make ad hoc content-based
assessments of the relative worth of the issues involved in the
controversy.
Rather, this court believes that controversies of interest
to the public should be considered prima facie "public
controversies," unless the matter falls within a recognized
sphere of privacy protecting the participants from intrusive and
potentially harmful media attention. In identifying such privacy
interests, courts should look to our nation's history, legal
traditions, and practices which "provide the crucial 'guideposts
for responsible decisionmaking' that direct and restrain our
exposition of the [Constitution]." Washington v. Glucksberg,
U.S. ___ , ,117 S.C t . 2258, 2268 (1997) (quoting Collins v.
Harker Heights, 503 U.S. 115, 125 (1992)). For instance,
citizens enjoy a recognized privacy interest in their marriage,
16 divorce, and other family planning matters, so the Court in
Firestone was justified in refusing to find the Firestones'
divorce proceedings a "public controversy," even though it
captured public interest.
Accordingly, this court finds there was a "public
controversy" surrounding sports agents' representations of
professional athletes. As the plaintiff points out, the
untrustworthiness of sports agents "has received widespread
attention in every medium, ranging from law review articles to
the current blockbuster film 'Jerry Maguire.'" Defendant's Memo
at 40. The articles and coverage cited by plaintiff evidence
that the controversy captured public interest raising a
presumption of "public controversy." This presumption is not
overcome because there are no recognized privacy interests at
stake in the relation between sports agents and the professional
athletes they represent, as there are, for instance, between
doctors and their patients or lawyers and their clients.
Furthermore, any privacy interests that do arise are those of the
athlete, not the agent.
Having found that a "public controversy" existed, the next
step is to examine Faigin's role in that controversy. Public
figures are those who "have 'thrust themselves to the forefront'
of the controversies so as to become factors in their ultimate
17 resolution." Waldbaum, supra, 627 F.2d at 1297 (quoting Gertz,
supra, 418 U.S. at 345). Language from some of the cases appears
to indicate that plaintiffs must seek "to influence the
resolution of the controversy." Fitzgerald, supra, 525 F. Supp.
at 592; see also Lerman v. Flynt Distrib. Co., 745 F.2d 123, 316
(2d Cir. 1984) (plaintiff must have "successfully invited public
attention to his views in an effort to influence others"), cert.
denied, 471 U.S. 1054 (1985) . Under this understanding,
plaintiffs thrust themselves to the forefront of a controversy
only by publicly assuming an ideological position in an ensuing
public debate. On the other hand, some courts find public figure
status if the plaintiff voluntarily enters a sphere of public
concern out of which the public debate arises, even though the
plaintiff does not publicly assume an ideological position in the
resulting debate. See, e.g.. Brewer v. Memphis Publishing Co.,
626 F.2d 1238 (5th Cir. 1980), cert, denied, 452 U.S. 962 (1981);
Chuv v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1280
(3d Cir. 1979); Cepeda v. Cowles Magazines, 392 F.2d 417 (9th
Cir. 1968); Curtis Publishing Co. v. Butts, supra, 388 U.S. 155.
The latter is the better position because, as long as the
plaintiff voluntarily engages in activity out of which publicity
and controversy foreseeably arise, the threefold rationale for
public figure status is applicable, regardless of whether the
18 plaintiff further assumes an influencing role in the controversy.
Concededly, Faigin publicly assumed no ideological position
in the controversy surrounding sports agents' unscrupulous
representation of athletes. While he did contact state and
federal legislators with regard to proposed legislation
regulating agents. Defendants' Memo, Exhibit 70; see Defendants'
Memo, Exhibit 44, Faigin Deposition at 682-85, 689-91, this
contact constituted "behind the scenes" influencing.
Nonetheless, this court finds that Faigin voluntarily thrust
himself to the forefront of the public controversy. First,
Faigin himself claims that he was a "prominent agent in the mid
1980s." Faigin Deposition, supra, at 117. Also, Faigin admits
that he often had contact with the press regarding the athletes
he was representing, id. at 634, was often guoted in published
articles, id. at 636, and periodically appeared on sports talk
shows on radio and television, id. at 643. His own promotional
materials identify him as "a nationally known sports agent,"
Defendant's Memo, Exhibit 68, and boast that "[t]here has not
been a significant trend in the negotiation of football contracts
or tactics that I have not helped in creating or taken a lead
role in implementing." Defendant's Motion, Exhibit 77, "A.J.
Faigin['s] Qualifications to Represent a Top NFL Draft Pick."
Further, Faigin achieved the position as a high-profile sports
19 agent largely through self-promotion. He voluntarily thrust
himself to the forefront of a high-profile community of sports
agents that attracted media attention and publicity. Faigin may
not now hide behind a cloak of privacy when the publicity turns
negative.
Since Faigin is a public figure, he is obligated to prove
that Kelly and Carucci acted with actual malice in publishing the
defamatory passages of the autobiography. The "actual malice"
standard, as established in New York Times Co., supra, 376 U.S.
at 279-80, reguires a showing that the defendant published the
defamatory falsehood with "knowledge that it was false or with
reckless disregard of whether it was false or not." Here, there
is enough evidence on the record for a reasonable juror to find
that Kelly knew the defamatory statements about Faigin were
false. In the Rule 11 sanctions order, the Texas court found
that "Kelly knew that the allegations against Faigin were
frivolous, but he continued to consent to this being included in
the suit." Plaintiff's Memorandum, Exhibit 65, at 4. Also,
Kelly admitted in deposition testimony that Faigin did most of
the "contract negotiation work" and Faigin's partner Greg Lustig
handled Kelly's financial affairs. This is evidence that Kelly
knew Faigin had not committed untrustworthy conduct in handling
his business affairs. At this stage of the litigation, Faigin
20 has met his burden of proving actual malice on the part of Kelly.
However, there is no evidence that Carucci, Kelly's co
author, knew the allegations against Faigin were false or
recklessly disregarded the truth. It is undisputed that Carucci,
who was a reporter and casual friend of Kelly's, had no personal
knowledge of whether Faigin engaged in untrustworthy conduct in
handling Kelly's business affairs. Rather, Carucci relied solely
on Kelly to recount the facts surrounding Faigin's representation
of Kelly. There is no evidence that Kelly told Carucci that the
allegations against Faigin were false. Further, there is nothing
in the record to suggest that Carucci's reliance on Kelly was
misplaced and reckless, such as evidence that Kelly was known to
be an unreliable source of truthful information. Also, since
Kelly's name was on the autobiography, Kelly was placing himself
in danger of liability for any defamatory falsehoods, which is a
recognized indicator of reliability. St. Amant v. Thompson, 389
U.S. 727, 733 (1968). Plaintiff relies solely on the opinion of
an expert that Carucci failed to follow reasonable journalistic
standards in not contacting Faigin to confirm the defamatory
imputation. However, failure to follow journalistic standards
and lack of investigation may establish irresponsibility or even
possibly gross irresponsibility, but not reckless disregard of
truth.
21 5. Plaintiff's Injury
Defendants finally argue that their motion for summary
judgment should be granted because Faigin cannot show proof of
damages resulting from the defamation. However, "[a] person may
be held liable for defamation without proof of special harm if
the publication imputes . . . matter incompatible with the
plaintiff's business, trade, profession, or office . . .
Restatement, supra, § 570. Also, under New Hampshire law,
"[g]uestions of whether plaintiff has, in fact, sustained an
injury or any damage, and, if he has, the nature and extent
[thereof], are . . . guestions of fact for determination by the
jury or other trier of facts." Thomson v. Cash, 119 N.H. 371,
376, 402 A.2d 651, 654-55 (1979) (citations omitted); see also
Chaulk Services, Inc. v. Fraser, 769 F. Supp. 37, 40 n.5 (D.N.H.
1990). Therefore, the issue of Faigin's damages is a guestion of
fact for a jury.
6. Conclusion
For the foregoing reasons, defendants' motion for summary
judgment is denied.
SO ORDERED.
Shane Devine, Senior Judge United States District Court
October 1, 1997
22 cc: Wilbur A. Glahn III, Esq. Alan J. Mandel, Esq. Linda Steinman, Esq. William L. Chapman, Esq.