Gray v. S t . Martins Press

• Court: District Court, D. New Hampshire
• Decided: February 18, 1999
• Docket: CV-95-285-M
• Status: Published

Opinion

Gray v . S t . Martins Press CV-95-285-M 02/18/99 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Robert K. Gray, Plaintiff

v. Civil N o . 95-285-M

S t . Martin’s Press, Inc. and Susan Trento, Defendants

O R D E R

In this defamation action plaintiff, Robert K. Gray, alleges

that The Power House, a book authored by Susan Trento and

published by S t . Martin’s Press, contains five statements which

are false and defamatory. By prior order, the court denied

plaintiff’s motion to amend his complaint (more than six years

after publication of The Power House, and over three years after

he filed suit, plaintiff sought to add twenty additional

allegedly defamatory statements to his complaint). In so doing,

the court held that plaintiff’s motion was untimely, he failed to

explain the undue delay associated with filing that motion, and defendants would be substantially prejudiced if the court were to

permit him to substantively amend the complaint at such a late

date. Gray v . S t . Martin’s Press, N o . 95-285-M, slip o p . (D.N.H.

October 5 , 1998) (the “October Order”).

Perhaps anticipating the court’s ruling on his motion to

amend, plaintiff foreshadowed the current dispute when, in response to defendants’ objection to his motion to amend, he made

the following declaration:

Plaintiff intends to prove the falsity of the additional statements whether he is allowed to obtain relief for them by way of an amended complaint. All allegedly false statements made by M s . Trento and S t . Martin’s in connection with the publication of The Power House are probative of the state of mind of both defendants.

Plaintiff’s reply memorandum in support of his motion to amend

(document n o . 151) at 5 . At the time, the court noted that the

admissibility of those twenty additional statements was not at

issue. See October Order at 1 1 , n.1 (“Whether (or to what

extent) plaintiff will be permitted to introduce evidence

relating to those statements in the absence of an amendment to

his complaint i s , of course, not before the court and well beyond

the scope of this order.”).

Defendants dispute both the relevance and admissibility of

those additional statements and have filed a motion in limine, by

which they move the court to preclude plaintiff from “using

allegedly false statements in The Power House, other than the five statements in suit, to prove the state of mind of either

Defendant.” Defendants’ motion in limine (document n o . 1 6 2 ) , at

1. Plaintiff objects, asserting that “Rule 404(b) [of the

Federal Rules of Evidence] permits evidence of other wrongs or

acts to prove knowledge and recklessness.” Plaintiff’s objection

(document n o . 165) at 1 .

2 Discussion

Plaintiff claims that evidence of other defamatory and/or

inaccurate statements in The Power House (i.e., beyond the five

statements specifically at issue) is admissible under Federal

Rule of Evidence 404(b) to show “the absence of accident and

inadvertence.” Plaintiff’s memorandum at 5 . Rule 404(b)

provides, in pertinent part:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Fed. R. Evid. 404(b). Plaintiff suggests that he should be

permitted to demonstrate the falsity of roughly 20 collateral

statements contained in The Power House, not because they form

the basis of his complaint, but because they support his thesis

that Trento was corrupt and unworthy of belief. In so doing,

plaintiff hopes to demonstrate S t . Martin’s “actual malice” in

publishing the five allegedly defamatory statements at issue in

this case.

The core of plaintiff’s argument appears to be that because S t . Martin’s knew or should have known that the 20 collateral statements were false (and, therefore, should have recognized Trento’s work as unreliable o r , at a minimum, should have carefully scrutinized it for accuracy), it acted recklessly or deliberately in publishing the five allegedly defamatory

3 statements which are the subject of this suit. As discussed more

fully below, however, S t . Martin’s mere failure to thoroughly

investigate Trento’s writing is not sufficient to support a

finding of actual malice. Nor would it suffice for plaintiff to

simply show that S t . Martin’s conduct amounted to even an extreme

departure from professional journalistic standards. To prevail,

plaintiff must prove more. And, that proof must directly relate

to the five allegedly defamatory statements identified in the

complaint.

A. Relevance of the Additional Statements.

In order to prevail on his defamation claim, plaintiff must

prove, by clear and convincing evidence, that S t . Martin’s

published the allegedly defamatory statements with “actual

malice.” In the context of a defamation action brought by a

public figure, the Supreme Court has held that a defendant acts

with actual malice when it publishes statements with a “high

degree of awareness of their probable falsity,” Garrison v .

Louisiana, 379 U.S. 6 4 , 74 (1964), or if it “entertained serious

doubts as to the truth of his publication,” S t . Amant v . Thompson, 390 U.S. 7 2 7 , 731 (1968), or if it acted with

“purposeful avoidance of the truth.” Harte-Hanks Communications,

Inc. v . Connaughton, 491 U.S. 6 5 7 , 692 (1989). See also Masson

v . New Yorker Magazine, Inc., 501 U.S. 496, 499 (1991) (holding

that actual malice is “a term of art denoting deliberate or

reckless falsification.”). “Mere negligence,” or even an

4 “extreme departure” from accepted professional journalism

standards, does not suffice. See Connaughton, 491 at 665.

Rather, the actual malice standard demands that, as to each

specific statement in suit, a plaintiff demonstrate that the

publisher has “come close to wilfully blinding itself to the

falsity of its utterance.” Tavoulareas v . Piro, 817 F.2d 7 6 2 ,

776 (D.C. Cir. 1987).

Having identified the burden of proof borne by plaintiff,

the next point of interest is how that burden applies to the case

at hand. As the Court of Appeals for the District Of Columbia

Circuit observed, “defamation plaintiffs cannot show actual

malice in the abstract; they must demonstrate actual malice in

conjunction with a false defamatory statement.” Tavoulareas, 817

F.2d at 794 (emphasis in original). It i s , therefore, difficult

to discern the relevance of 20 additional allegedly false

statements in the book to the issues in dispute. The fact that

other statements in the book might be false or inaccurate neither

tends to prove nor disprove the assertion that defendants

published the five specific statements in suit with actual malice. Thus, it is difficult to see how those statements pass

even the threshold barrier presented by the relevance requirement

of Rule 401.

To sustain his burden at trial, plaintiff must prove more

than a simple failure on S t . Martin’s part to investigate

5 Trento’s claims. See S t . Amant, 390 U.S. at 731-33. Instead, he

must show that each statement in suit was made with a high degree

of awareness that it was likely false o r , at a minimum, that S t .

Martin’s purposefully avoided discovering the falsity of those

statements. See Connaughton, 491 U.S. at 692. Taking the time

and energy to prove the falsity of 20 or more different

statements contemporaneously published in The Power House would

not advance that cause and, as discussed below, would likely

confuse the jury and distract it from its true task.

B. Rule 404(b) - Proof of Knowledge or Intent.

Plaintiff contends that falsity of the 20 collateral

statements is both relevant t o , and highly probative o f ,

defendants’ state of mind. He suggests that evidence that The

Power House contains numerous collateral false statements about

him demonstrates, ipso facto, that the five statements at issue

were not the product of accident or mistake, observing that, “The

oftener a like act has been done, the less likely that it could

have been done innocently.” Plaintiff’s memorandum at 5 .

While that proposition may be true in the abstract, to some

degree, it does not provide much support for plaintiff’s

assertion that evidence regarding the falsity of 20 collateral

statements is admissible under Rule 404(b). That defendants

published one or more false collateral statements about plaintiff

does not provide much (if any) support for his claim that they

6 acted with actual malice when they published one or more of the

statements in suit.

Here, as in Price v . Viking Penguin, Inc., 676 F.Supp. 1501

(D.Minn. 1988), it would certainly seem that the collateral

statements are not probative of defendants’ state of mind with

regard to the allegedly defamatory statements at issue. In

Price, the court observed:

The court finds little or no support for plaintiff’s argument that “collateral falsehoods” may provide a basis for inferring actual malice. As the District of Columbia Circuit recently held, “defamation plaintiffs cannot show actual malice in the abstract; they must demonstrate actual malice in conjunction with a false defamatory statement.” [citing Tavoulareas] Accordingly, even if [the author] had subjective doubts about, for example, the mineral deposit conspiracy theory, this would not establish an inference of actual malice with respect to his statements concerning plaintiff. The doubt must be in conjunction with the alleged defamatory statement.

Price, 676 F.Supp. at 1513 (emphasis supplied).

Finally, the court notes the obvious: the 20 collateral

statements were published in The Power House. Thus, they are

quite unlike evidence which might tend to establish Trento’s

reputation for accuracy (or inaccuracy), a “historical fact” of

which S t . Martin’s might reasonably have been aware. I f , for

example, Trento had been accused of defamation in the past and if

S t . Martin’s knew or should have known of that accusation,

perhaps one might reasonably argue that S t . Martin’s had an

7 obligation to investigate her claims in The Power House in

greater detail, and failure to do so might arguably be urged as a

basis for finding willful blindness. That is not, however, the

type of evidence which plaintiff seeks to introduce. Instead, he

wishes to show the jury 20 collateral statements which were made

contemporaneously with the five statements in suit, attempt to

prove them false, and then argue that because they were false S t .

Martin’s should have known they were false, and so acted with

actual malice in publishing the five statements in suit. He has,

however, failed to demonstrate how such evidence, if admitted,

would support his claim. It does not follow that defendants

acted with actual malice when they published the five statements

actually identified in the complaint, because other statements

not in suit were also false. Simply stated, plaintiff has failed

to articulate how the claim that The Power House contains

collateral factual inaccuracies sheds any light on defendants’

state of mind when they published the allegedly defamatory

statements or whether defendants published the five statements in

suit with the requisite “actual malice.”

C. Rule 403: Unfair Prejudice, Confusion, Undue Delay.

Even if arguably relevant and otherwise admissible, however,

the collateral statements are of comparatively little probative

value. Were they introduced at trial, the court has no doubt

that they would needlessly confuse (and quite possibly mislead)

the jury, unduly waste time and substantially prolong the trial,

8 and unfairly prejudice defendants. See Fed. R. Evid. 403. Thus,

even if the court were persuaded that the collateral statements

were relevant under Rule 401 and admissible under Rule 404(b) to

show defendants’ state of mind or absence of mistake, it would

still preclude their introduction at trial under Rule 403.

The injection into this trial of twenty mini-trials concerning the alleged falsity of collateral statements in the book would likely confuse the jury as to the precise issue before them: whether the five specific statements in suit were published with actual malice. A five-fold increase in allegedly false (and, according to plaintiff, defamatory) statements would also unavoidably and unnecessarily prolong the proceedings. And, in substance, it would permit plaintiff to do precisely that which the court precluded him from doing when it denied his motion to amend the complaint. The proper means by which to have brought that case before a jury was either: (a) to have included all 25 statements in the original complaint; or (b) to have properly supported his motion to amend, specifically explaining the extensive delay in seeking the amendment. Plaintiff did neither.

Finally, as noted in the October Order, defendants would be

substantially prejudiced i f , at this late date, the scope of the

trial were suddenly expanded from five allegedly false and

defamatory statements (about which substantial discovery has been

9 had) to one involving twenty additional allegedly false

statements.

Conclusion

For the foregoing reasons, defendants’ motion in limine

(document n o . 162) is granted. Plaintiff has failed to

demonstrate that the collateral statements are admissible under

Rule 404(b) to show defendants’ state of mind or the absence of

mistake. Moreover, even if plaintiff had made such a showing,

the court would, in the exercise of its discretion, preclude the

introduction of evidence of the false and defamatory nature of

those statements under Rule 403 on grounds that the probative

value of that evidence is substantially outweighed by the danger

of unfair prejudice, confusion of the issues, and likelihood of

misleading the jury.

SO ORDERED

Steven J. McAuliffe United States District Judge February 1 8 , 1999

cc: James G. Walker, Esq. Mark D. Balzli, Esq. Cletus P. Lyman, Esq. William L . Chapman, Esq. John C . Lankenau, Esq. Steven M . Gordon, Esq. Seth L . Rosenberg, Esq.