Greene v. Philadelphia Media Network, Inc.

40 Pa. D. & C.5th 157
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedAugust 1, 2014
DocketNo. 1223
StatusPublished

This text of 40 Pa. D. & C.5th 157 (Greene v. Philadelphia Media Network, Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Greene v. Philadelphia Media Network, Inc., 40 Pa. D. & C.5th 157 (Pa. Super. Ct. 2014).

Opinion

RAU, J.,

MEMORANDUM OPINION1

Plaintiff Carl Greene sued defendants, Philadelphia Media Network, Inc., and Philadelphia Media Network (Newspapers), LLC, for monetary damages for defamation, false-light invasion of privacy, and commercial disparagement based on seventeen articles and editorials concerning Mr. Greene's tenure as executive director at the Philadelphia Housing Authority, which were published in the Philadelphia Inquirer and Daily News between November 1, 2010 and August 9, 2011. Defendants filed a motion for summary judgment asserting that plaintiff Greene, who is a public figure, did not show by clear and convincing evidence that the articles were materially false or that defendants published them with actual malice, that is “with knowledge that [they were] false or with reckless disregard of whether [they were] false or not.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964). Defendants argued that the first amendment protects publishers from liability for defamation for unreasonable interpretations of articles’ meanings, claimed unfairness in presentation, opinions, immaterial inaccuracies or truthful articles.2 [160]*160Movants also argued3 that plaintiff Greene could not overcome the fair report privilege, which provides that when “it is in the public interest that information be made available as to what takes place in public affairs, a newspaper has the privilege to report the acts of the executive or administrative officials of government.” Sciandra v. Lvnett, 187 A.2d 586, 588 (Pa. 1963). Once defendants filed their summary judgment motion, the law required plaintiff Greene to refute with actual evidence any facts essential to the cause of action that defendants asserted were not disputed. Pa.R.C.P. 1035.3(a)(2). At this stage, the plaintiff “may not rest upon the mere allegations or denials of the pleadings” but must respond with more. Pa.R.C.P. 1035.3(a). Plaintiff Greene offered Dr. Timothy Habiclc as an expert in linguistics to provide his primary evidence that defendants published the articles with actual malice. Defendants challenged Dr. Habick’s proffered expertise and report and requested a Frye hearing. (Defs.’ reply in supp. of mot. summ. j. at 11, n.5.)

This memorandum addresses this court’s findings and conclusions on the legal admissibility of Dr. Habick’s testimony under Pennsylvania Rule of Evidence 702 and [161]*161accompanying case law following a Frye hearing on July 28, 2014. Plaintiff Carl Greene’s proffered expert, Dr. Timothy Habick, submitted a report stating that, upon review and analysis of all of the allegedly defamatory articles written by numerous authors, he concluded that the writing showed that the defendants “willfully, maliciously, without substantiation, and with reckless disregard for the truth, defamed” plaintiff Carl Greene. (PL’s answer in opp’n to defs.’ mot. summ. j. ex. L, at 3.) Plaintiff’s counsel offered Dr. Habick’s testimony as a linguist for two reasons: (1) to explain what the articles mean to the average reader, and (2) to show that defendants published the articles with actual malice, that is, “with knowledge that [they were] false or with reckless disregard of whether [they were] false or not.” Sullivan, 376 U.S. at 279-80. In short, plaintiff has offered a linguist to testify as an expert to what an average reader thinks, and to what the mental state of the defendants’ seven authors and editorial board was when they published allegedly false statements. Defendants challenged Dr. Habick’s qualifications, the relevance of his testimony, and the reliability of his methods, claiming that they were not “generally accepted in the relevant field” of linguistics. Pa.R.Evid. 702; Grady v. Frito-Lav, 839 A.2d 1038, 1047 (Pa. 2003).

Given the considerable clout that the term “expert” imbues to a jury, Pennsylvania law requires that the judge serve as a gatekeeper before proffered expert testimony is provided at trial. The judge must screen to ensure that the witness has demonstrated qualifications in the field offered, the testimony provides information that an average juror would not already possess, the testimony is relevant and the methods used are reliable. Pennsylvania Rule of Evidence 702 provides:

[162]*162“A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson;
(b) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; and
(c) the expert’s methodology is generally accepted in the relevant field.”

Pa.R.Evid. 702. In examining the admissibility of expert witness testimony, the Pennsylvania Supreme Court has recently held:

“[Tjhis court has recognized the influential nature of expert testimony on complex subjects, and the potential that distortions have to mislead laypersons.... [W]e conclude that a Frye hearing is warranted when a trial judge has articulable grounds to believe that an expert witness has not applied accepted scientific methodology in a conventional fashion in reaching his or her conclusions.”

Betz v. Pneumo Abex LLC, 44 A.3d 27, 53 (Pa. 2012). Plaintiff’s counsel conceded that the type of “unique” testimony offered here rendered a Frye hearing appropriate. Trach v. Fellin, 817A.2d 1102, 1109 (Pa. Super. Ct. 2003) ("Frye only applies when a party seeks to introduce novel scientific evidence.”). Plaintiff Greene, as the proponent of the evidence, bears the burden of establishing “all of the elements for its admission under Pa.R.E. 702, which [163]*163includes showing that the Frye rule is satisfied.” Grady v. Frito-Lay, 839 A.2d 1038, 1045 (Pa. 2003).

In explaining the idea of “methodology,” the Pennsylvania Superior Court has explained that replicability, or reproducibility, lies at the heart of the scientific method:

“[T]he scientific method is a method of research in which a problem is identified, relevant data are gathered, a hypothesis is formulated from these data, and the hypothesis is empirically tested. Within the meaning of the definition of the scientific method, ‘ empirical’ means ‘provable or verifiable by experience or experiment.’ Key aspects of the scientific method include the ability to test or verify a scientific experiment by a parallel experiment or other standard of comparison (control) and to replicate the experiment to expose or reduce error.”

Trach, 817 A.2d at 1113 (internal citations omitted). “Frye

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Related

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Summers v. CERTAINTEED CORP.
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Tucker v. Philadelphia Daily News
848 A.2d 113 (Supreme Court of Pennsylvania, 2004)
Betz v. Pneumo Abex LLC
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American Future Systems, Inc. v. Better Business Bureau
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Commonwealth v. O'SEARO
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Sciandra v. Lynett
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Baker v. Lafayette College
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Bluebook (online)
40 Pa. D. & C.5th 157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greene-v-philadelphia-media-network-inc-pactcomplphilad-2014.