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    Personal Injury Blog
    December 9, 2009
    Grope Therapy: Poetic License Can Lead to a Libel Judgment
    Larry Pollack

    Here’s a personal favorite of mine. It’s lengthy, so I have only included the main body of the opinion and left out the concurrence and dissent, as well as the end of the main opinion (which just wraps up some loose ends).  I also boldfaced the two rival descriptions of the sessions. The “plot” concerns a writer/journalist who enrolled under false pretenses in a nude group therapy “encounter session” in Southern California in the 1970s; the therapist–and later plaintiff–called these sessions ”nude marathons.”  Despite signing an agreement not to write about the experience, the writer (and thus, defendant) wrote a book about it anyway, in which she thinly veiled the identity of the therapist. She changed his name and described him as bearing a strong resemblance to Santa Claus, but apparently the public saw through the ruse. The Santa-lized therapist sued the author and her publishing company for defamation, specifically libel, i.e., the publication of written defamatory remarks, because he felt that the fictionalized version held him up to ridicule.  The jury agreed and awarded the therapist considerable money damages, including punitive damages, and the appellate court in the following opinion refused to overturn the verdict.  The resulting opinion is flat out absurd, and years later was disapproved for its reluctance to interfere with a jury verdict.

    In the opinion, the court sets out the actual transcript of the most controversial of the sessions described in the book, literally alongside the fictionalized version.  Why is the decision absurd? If one compares the two versions, the actual version is just as bad, if not worse, than the fictionalized.  In fact, if you think about it, the actual conversation between the California therapist and the minister, is much funnier then the ”embellished” version, regardless of the embellished version’s use of obscene language. Why? The fictionalized version simply loses the delicious irony of the actual conversation with the minister about bringing his wife to the nude encounter sessions.  Sometimes subtlety is the soul of wit: 

    Bindrim v. Mitchell, 92 Cal. App. 3d 61, 155 Cal. Rptr. 29 (Cal.App.Dist.2 04/18/1979)

    [1]      COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FOUR
    [2]      Civ. No. 52133
    [3]      1979.CA.40861 <http://www.versuslaw.com>; 155 Cal. Rptr. 29; 92 Cal. App. 3d 61
    [4]      April 18, 1979
    [5]      PAUL BINDRIM, PLAINTIFF AND APPELLANT,
    v.
    GWEN DAVIS MITCHELL ET AL., DEFENDANTS AND APPELLANTS
    [6]      Superior Court of Los Angeles County, No. WE C 24045, Richard Leslie Wells, Judge.
    [7]      Lillick, McHose & Charles, Anthony Liebig, Kathleen Hallberg, Satterlee & Stephens, Robert M. Callagy and Katherine J. Trager for Defendants and Appellants.
    [8]      Slaff, Mosk & Rudman, George Slaff and Marc R. Stein for Plaintiff and Appellant.
    [9]      Opinion by Kingsley, J. Separate concurring opinion by Jefferson (Bernard), J. Separate dissenting opinion by Files, P. J.
    [10]     Kingsley
    [92 CalApp3d Page 68]
    [11]     This is an appeal taken by Doubleday and Gwen Davis Mitchell from a judgment for damages in favor of plaintiff-respondent Paul Bindrim, Ph.D. The jury returned verdicts on the libel counts against Doubleday and Mitchell and on the contract count against Mitchell.
    [92 CalApp3d Page 69]
    [12]     The court denied defendants’ motion for judgment NOV and granted a new trial subject to the condition that new trial would be denied if plaintiff would consent to (1) a reduction of the libel verdict against Mitchell from $38,000 to $25,000; (2) a striking of the $25,000 punitive damage award against Doubleday on the libel count; and (3) a striking of the $12,000 damage award on the contract count against Mitchell.
    [13]     Plaintiff consented without prejudice on these issues in any appeal to be taken from the judgment. Defendants appealed and plaintiff cross-appealed from the judgment reducing the original jury verdict.
    [14]     Plaintiff is a licensed clinical psychologist and defendant is an author. Plaintiff used the so-called “Nude Marathon” in group therapy as a means of helping people to shed their psychological inhibitions with the removal of their clothes.
    [15]     Defendant Mitchell had written a successful best seller in 1969 and had set out to write a novel about women of the leisure class. Mitchell attempted to register in plaintiff’s nude therapy but he told her he would not permit her to do so if she was going to write about it in a novel. Plaintiff said she was attending the marathon solely for therapeutic reasons and had no intention of writing about the nude marathon. Plaintiff brought to Mitchell’s attention paragraph B of the written contract which reads as follows: “The participant agrees that he will not take photographs, write articles, or in any manner disclose who has attended the workshop or what has transpired. If he fails to do so he releases all parties from this contract, but remains legally liable for damages sustained by the leaders and participants.”
    [16]     Mitchell reassured plaintiff again she would not write about the session, she paid her money and the next day she executed the agreement and attended the nude marathon.
    [17]     Mitchell entered into a contract with Doubleday two months later and was to receive $150,000 advance royalties for her novel.
    [18]     Mitchell met Eleanor Hoover for lunch and said she was worried because she had signed a contract and painted a devastating portrait of Bindrim.
    [19]     Mitchell told Doubleday executive McCormick that she had attended a marathon session and it was quite a psychological jolt. The novel was
    [92 CalApp3d Page 70]
    [20]     published under the name “Touching” and it depicted a nude encounter session in Southern California led by “Dr. Simon Herford.”
    [21]     Plaintiff first saw the book after its publication and his attorneys sent letters to Doubleday and Mitchell. Nine months later the New American Library published the book in paperback.
    [22]     The parallel between the actual nude marathon sessions and the sessions in the book “Touching” was shown to the jury by means of the tape recordings Bindrim had taken of the actual sessions. Plaintiff complains in particular about a portrayed session in which he tried to encourage a minister to get his wife to attend the nude marathon. Plaintiff alleges he was libeled by the passage below:
    [23]     Excerpts from “Touching “ 
    [24]     Page 
    [25]     126-27 
    [26]     The minister was telling us how the experience had gotten him further back to God, 
    [27]     And all the time he was getting closer to God, he was being moved further away from his wife, who didn’t understand, she didn’t understand at all. She didn’t realize what was coming out of the sensitivity training sessions he was conducting in the church. 
    [28]     he felt, he, more than felt, he knew, that if she didn’t begin coming to the nude marathons and try to grasp what it was all about, the marriage would be over. 
    [29]     “You better bring her to the next marathon,” Simon said. 
    [30]     “I’ve been trying,” said the minister. “I only pray she comes.” 
    [31]     “You better do better than pray,” said Simon. “You better grab her by the cunt and drag her here.” 
    [32]     “I can only try.” 
    [33]     “You can do more than try. You can grab her by the cunt, 
    [34]     “A man with that kind of power, whether it comes from God or from his own manly strength, strength he doesn’t know he has, can drag his wife here by the fucking cunt. 
    [35]     “I know,” Alex said softly. “I know.” 
    [36]     Transcript of Actual Session:
    [37]     “I’ve come a little way,” 
    [38]     “I’d like to know about your wife. She hasn’t been to a marathon?” 
    [39]     “No.” 
    [40]     “Isn’t interested? Has no need?” 
    [41]     “I don’t - she did finally say that she would like to go to a standard sensitivity training session somewhere. She would be - I can’t imagine her in a nude marathon. She can’t imagine it.”
    [42]     “Why?” 
    [43]     “Neither could I when I first came.
    [44]     “Yeh. She might. I don’t know.”
    [45]     “It certainly would be a good idea for two reasons: one, the minor one is that you are involved here, and if she were in the same thing, and you could come to some of the couple ones, it would be helpful to you. But more than that, almost a definite recipe for breaking up a marriage is for one person to go into growth groups and sense change and grow . . .”
    [46]     “I know that.”
    [47]     “Boy they sure don’t want that, and once they’re clear they don’t need that mate anymore, and they are not very patient.”
    [48]     “But it is true, the more I get open the more the walls are built between us. And it’s becoming a fairly intelligent place, a fairly open place, doing moderate sensitivity eyeballing stuff with the kids. I use some of these techniques teaching out class work.”
    [49]     “Becoming more involved?”
    [50]     “Yeh, involved at the same time that I am more separated from. It’s a paradox again, isn’t it?”
    [51]     “Mmm.”
    [92 CalApp3d Page 71]
    [52]     Plaintiff asserts that he was libeled by the suggestion that he used obscene language which he did not in fact use. Plaintiff also alleges various other libels due to Mitchell’s inaccurate portrayal of what actually happened at the marathon. Plaintiff alleges that he was injured in his profession and expert testimony was introduced showing that Mitchell’s portrayal of plaintiff was injurious and that plaintiff was identified by certain colleagues as the character in the book, Simon Herford.
    [53]     I
    [54]     Defendants first allege that they were entitled to judgment on the ground that there was no showing of “actual malice” by defendants. As a public figure, plaintiff is precluded from recovering
    [92 CalApp3d Page 72]
    [55]     damages for a defamatory falsehood relating to him, unless he proved that the statement was made with “actual malice,” that is, that it was made with knowledge that it is false or with reckless disregard of whether it was false or not. (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 279-280 [11 L.Ed.2d 686, 706-707, 84 S.Ct. 710, 95 A.L.R.2d 1412].) The cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. (St. Amant v. Thompson (1968) 390 U.S. 727, 731 [20 L.Ed.2d 262, 267, 88 S.Ct. 1323].) Thus, what constitutes actual malice focuses on defendants’ attitude toward the truth or falsity of the material published and reckless disregard of the truth or falsity cannot be fully encompassed by one infallible definition but its outer limits must be marked by a case-by-case adjudication. (Widener v. Pacific Gas & Electric Co. (1977) 75 Cal. App. 3d 415, 434 [142 Cal. Rptr. 304].)
    [56]     Evidence establishing a reckless disregard for the truth must be clear and convincing evidence, and proof by a preponderance of evidence is insufficient. (New York Times Co. v. Sullivan (1964) supra, 376 U.S. 254, at pp. 285-286 [11 L.Ed.2d 686, at pp. 709-710].) Whether or not there was such malice is a question of fact to be determined by the trier of fact. (Widener v. Pacific Gas & Electric Co. (1977) supra, 75 Cal. App. 3d 415.) However, the reviewing court is required to review the evidence in a libel action by a public figure, to be sure that the principles were constitutionally applied. (Montandon v. Triangle Publications, Inc. (1975) 45 Cal. App. 3d 938, 948 [120 Cal. Rptr. 186, 84 A.L.R.3d 1234].) The court has the duty to examine the record to determine whether it could constitutionally support a judgment in favor of plaintiff, but this does not involve a de novo review of the proceedings below wherein the jury’s verdict is entitled to no weight. (Widener v. Pacific Gas & Electric Co. (1977) supra, 75 Cal. App. 3d at p. 433.)
    [57]     There is clear and convincing evidence to support the jury’s finding that defendant Mitchell entertained actual malice, and that defendant Doubleday had actual malice when it permitted the paperback printing of “Touching,” although there was no actual malice on the part of Doubleday in its original printing of the hardback edition.
    [58]     Mitchell’s reckless disregard for the truth was apparent from her knowledge of the truth of what transpired at the encounter, and the
    [92 CalApp3d Page 73]
    [59]     literary portrayals of that encounter. Since she attended sessions, there can be no suggestion that she did not know the true facts. Since “actual malice” concentrates solely on defendants’ attitude toward the truth or falsity of the material published (Carson v. Allied News Co. (7th Cir. 1976) 529 F.2d 206; Widener v. Pacific Gas & Electric Co. (1977), supra, 75 Cal. App. 3d 415, and not on malicious motives, certainly defendant Mitchell was in a position to know the truth or falsity of her own material, and the jury was entitled to find that her publication was in reckless disregard of that truth or with actual knowledge of falsity.
    [60]     However, plaintiff failed to prove by clear and convincing evidence that the original hardback publication by Doubleday was made with knowledge of falsity or in reckless disregard of falsity. McCormick of Doubleday cautioned plaintiff that the characters must be totally fictitious and Mitchell assured McCormick that the characters in “Touching” were incapable of being identified as real persons. McCormick arranged to have the manuscript read by an editor knowledgeable in the field of libel. The cases are clear that reckless conduct is not measured by whether a reasonably prudent person would have published or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that defendant in fact entertained serious doubts as to the truth of his publication, (St. Amant v. Thompson (1968) supra, 390 U.S. 727, 731 [20 L.Ed.2d 262, 267]), and there is nothing to suggest that Doubleday entertained such doubts prior to the hardback publication.
    [61]     Plaintiff suggests that, since the book did not involve “hot news,” Doubleday had a duty to investigate the content for truth. Courts have required investigation as to truth or falsity of statements which were not hot news (Widener v. Pacific Gas & Electric Co. (1977) supra, 75 Cal. App. 3d 415; Carson v. Allied News Co. (3d Cir. 1976) supra, 529 F.2d 206), but those cases involved factual stories about actual poeple. In the case at bar, Doubleday had beed assured by Mitchell that no actual, identifiable person was involved and that all the characters were fictitious in the novel. Where the publication comes from a known reliable source and there is nothing in the circumstances to suggest inaccuracy, there is no duty to investigate. (See Baldine v. Sharon Herald Co. (3d Cir. 1968) 391 F.2d 703, 707.) There was nothing in the record to suggest that, prior
    [92 CalApp3d Page 74]
    [62]     to the hardback printing, defendant Doubleday in fact entertained serious doubts as to the truth or falsity of the publication, and investigatory failure alone is insufficient to find actual malice.
    [63]     However, prior to the paperback printing there were surrounding circumstances to suggest inaccuracy, such that at that point Doubleday had a duty to investigate. Plaintiff did show that Doubleday sold the rights to the New American Library after receiving a letter from plaintiff’s attorney explaining that plaintiff was Herford and the inscription in the paperback said, “This is an authorized edition published by Doubleday and Company.” Although, after the receipt of the plaintiff’s attorney’s letter, Doubleday again inquired of Mitchell as to whether plaintiff was the character in the book, the jury was entitled to find that Mitchell’s assurance to Doubleday was not sufficient to insulate Doubleday from liability and that Doubleday had some further duty to investigate. The jury could have inferred that at that point Doubleday either had serious doubts, or should have had serious doubts, as to the possibility that plaintiff was defamed by “Touching” and that at that point Doubleday had some duty to investigate.
    [64]     II
    [65]     For similar reasons, the award for punitive damages against Doubleday may stand. A public figure in a defamation case may be awarded punitive damages when there is “actual malice” under the New York Times standard (Maheu v. Hughes Tool Co. (9th Cir. 1977) 569 F.2d 459), and, as we have said above, actual malice was established for Doubleday. The trial court below erroneously struck the award of punitive damages against Doubleday, on the ground that the jury did not award even token punitive damages against Mitchell although she had $165,000 in community property. The judge reasoned that the jury apparently found no fault or “malice attributable to her.” However, the jury must have found that Mrs. Mitchell had “actual malice” to have awarded even compensatory damages against her. And the standard for punitive damages for libel of a public figure is “actual malice,” under the New York Times case, not hatred. Since all that is required for punitive damages of a public figure is actual malice and not hatred (see Maheu v. Hughes Tool Co., supra), and since both Doubleday and Mitchell had
    [92 CalApp3d Page 75]
    [66]     “actual malice,” it follows that punitive damages could have been awarded against both defendants. But since punitive damages are discretionary and wealth may be taken into account (see Sandoval v. Southern Cal. Enterprises, Inc. (1950) 98 Cal. App. 2d 240, 250 [219 P.2d 928]), it was proper to award punitive damages only against one defendant, and not the other.
    [67]     III
    [68]     Appellants claim that, even if there are untrue statements, there is no showing that plaintiff was identified as the character, Simon Herford, in the novel “Touching.”
    [69]     Appellants allege that plaintiff failed to show he was identifiable as Simon Herford, relying on the fact that the character in “Touching” was described in the book as a “fat Santa Claus type with long white hair, white sideburns, a cherubic rosy face and rosy forearms” and that Bindrim was clean shaven and had short hair. Defendants rely in part on Wheeler v. Dell Publishing Co. (7th Cir. 1962) 300 F.2d 372, which involved an alleged libel caused by a fictional account of an actual murder trial. The Wheeler court said (at p. 376): “In our opinion, any reasonable person who read the book and was in a position to identify Hazel Wheeler with Janice Quill would more likely conclude that the author created the latter in an ugly way so that none would identify her with Hazel Wheeler. It is important to note that while the trial and locale might suggest Hazel Wheeler to those who knew the Chenoweth family, suggestion is not identification. In Levy [ Levey v. Warner Bros. Pictures (S.D.N.Y. 1944) 57 F.Supp. 40] the court said those who had seen her act may have been reminded of her by songs and scenes, but would not reasonably identify her.” However, in Wheeler the court found that no one who knew the real widow could possibly identify her with the character in the novel. In the case at bar, the only differences between plaintiff and the Herford character in “Touching” were physical appearance and that Herford was a psychiatrist rather than psychologist. Otherwise, the character Simon Herford was very similar to the actual plaintiff. We cannot say, as did the court in Wheeler, that no one who knew plaintiff Bindrim could reasonably identify him with the fictional character. Plaintiff was identified as Herford by several witnesses and plaintiff’s own tape recordings of the marathon sessions show that the novel was based substantially on plaintiff’s conduct in the nude marathon.
    [92 CalApp3d Page 76]
    [70]     Defendant also relies on Middlebrooks v. Curtis Publishing Co. (4th Cir. 1969) 413 F.2d 141, where the marked dissimilarities between the fictional character and the plaintiff supported the court’s finding against the reasonableness of identification. In Middlebrooks, there was a difference in age, an absence from the locale at the time of the episode, and a difference in employment of the fictional character and plaintiff; nor did the story parallel the plaintiff’s life in any significant manner. In the case at bar, apart from some of those episodes allegedly constituting the libelous matter itself, and apart from the physical difference and the fact that plaintiff had a Ph.D., and not an M.D., the similarities between Herford and Bindrim are clear, and the transcripts of the actual encounter weekend show a close parallel between the narrative of plaintiff’s novel and the actual real life events. Here, there were many similarities between the character, Herford, and the plaintiff Bindrim and those few differences do not bring the case under the rule of Middlebrooks. (See Fetler v. Houghton Mifflin Co. (2d Cir. 1966) 364 F.2d 650.) There is overwhelming evidence that plaintiff and “Herford” were one.
    [71]     IV
    [72]     However, even though there was clear and convincing evidence to support the finding of “actual malice,” and even though there was support for finding that plaintiff is identified as the character in Mitchell’s novel, there still can be no recovery by plaintiff if the statements in “Touching” were not libelous. There can be no libel predicated on an opinion. The publication must contain a false statement of fact. (Gregory v. McDonnell Douglas Corp. (1976) 17 Cal. 3d 596 [131 Cal. Rptr. 641, 552 P.2d 425].)
    [73]     Plaintiff alleges that the book as a whole was libelous and that the book contained several false statements of fact. Plaintiff relies in part on the above quoted conversation between plaintiff and the minister as one libelous statement of fact. Plaintiff also argues that a particular incident in the book is libelous. That incident depicts an encounter group patient as so distressed upon leaving from the weekend therapy that she is killed when her car crashes. Plaintiff also complains of an incident in the book where he is depicted as “pressing,” “clutching,” and “ripping” a patient’s cheeks [buttocks?] and “stabbing against a pubic bone.” Plaintiff complains, too, of being depicted as having said to a female patient, “Drop it, bitch.” There are also other incidents alleged to be libelous.
    [92 CalApp3d Page 77]
    [74]     Our inquiry then, is directed to whether or not any of these incidents can be considered false statements of fact. It is clear from the transcript of the actual encounter weekend proceeding that some of the incidents portrayed by Mitchell are false: i.e., substantially inaccurate description of what actually happened. It is also clear that some of these portrayals cast plaintiff in a disparaging light since they portray his language and conduct as crude, aggressive, and unprofessional.
    [75]     Defendants here rely on the cases which have considered the difference in published materials between factual statements and matters of mere opinion. While, as we discuss below, we do not feel that those cases necessarily express the rules applicable where, as here, the published material purports to state actual facts concerning the characters in a novel, we proceed, first, to examine the cases on which defendants rely.
    [76]     Many cases discuss the difference between fact and opinion. The court in Greenbelt Pub. Assn. v. Bresler (1970) 398 U.S. 6 [26 L.Ed.2d 6, 90 S.Ct. 1537], examined the use of the term “blackmail” in a controversy between the parties over zoning, and found that, although the use of that term in some circumstances could constitute libel, in the Bresler case the term was being used figuratively and did not connote actual commission of a crime.
    [77]     In Letter Carriers v. Austin (1974) 418 U.S. 264 [41 L.Ed.2d 745, 94 S.Ct. 2770], Jack London called someone a “scab,” and defined the term with the phrase as a “traitor to his God, his country, his family and his class.” (Id., at p. 268 [41 L.Ed.2d, at p. 753].) Again, the Austin court held that the statements were used loosely and figuratively, and there was no libel in the use of the term “traitor.” Thus, words that appear factual at first glance, such as “blackmail,” and “traitor” may not be factual, depending on the context in which they were used, and whether they were used figuratively.
    [78]     The courts have set guidelines in determining what is fact and what is opinion. One guideline is that an alleged defamatory statement may constitute a fact in one context and an opinion in another and content of the communication is taken as a whole. In certain settings fiery rhetoric and hyperbolic statements of fact may well assume the character of opinion. (Gregory v. McDonnell Douglas Corp. (1976) supra, 17 Cal. 3d 596.) Where the statements are unambiguously fact or opinion, Gregory applies, and the court determines as a matter of law whether the statements are fact or opinion. However, where the alleged defamatory
    [92 CalApp3d Page 78]
    [79]     remarks could be determined either as fact or opinion, and the court cannot say as a matter of law that the statements were not understood as fact, there is a triable issue of fact for the jury. (Good Government Group of Seal Beach, Inc. v. Superior Court (1978) 22 Cal. 3d 672 [150 Cal. Rptr. 258, 586 P.2d 572].)
    [80]     If viewed as a case involving an issue of “opinion,” those cases, and other cases involving that issue, make it clear that, since there was evidence that people had identified plaintiff with the Dr. Herford of the book, the jury’s finding against defendants is conclusive on that issue.
    [81]     However, as we have indicated above, we regard the case at bench as involving a different issue. Defendants contend that the fact that the book was labeled as being a “novel” bars any claim that the writer or publisher could be found to have implied that the characters in the book were factual representations not of the fictional characters but of an actual nonfictional person. That contention, thus broadly stated, is unsupported by the cases. The test is whether a reasonable person, reading the book, would understand that the fictional character therein pictured was, in actual fact, the plaintiff acting as described. (Middlebrooks v. Curtis Publishing Co. (4th Cir. 1969) supra, 413 F.2d 141, 143.) Each case must stand on its own facts. In some cases, such as Greenbelt Pub. Assn. v. Bresler (1970) supra, 398 U.S. 6, an appellate court can, on examination of the entire work, find that no reasonable person would have regarded the episodes in the book as being other than the fictional imaginings of the author about how the character he had created would have acted. Similarly, in Hicks v. Casablanca Records (S.D.N.Y. 1978) 464 F.Supp. 426, a trier of fact was able to find that, considering the work as a whole, no reasonable reader would regard an episode, in a book purporting to be a biography of an actual person, to have been anything more than the author’s imaginative explanation of an episode in that person’s life about which no actual facts were known. We cannot make any similar determination here. Whether a reader, identifying plaintiff with the “Dr. Herford” of the book, would regard the passages herein complained of as mere fictional embroidering or as reporting actual language and conduct, was for the jury. Its verdict adverse to the defendants cannot be overturned by this court.More coment from Larry Pollack Esq.:

    Of course, come to think of it, that’s not to say the fictionalized version isn’t funny as well.  But the actual transcript–well, let’s just say that the snake in the Garden of Eden would’ve been proud of Dr. Bindrim.  As the good Dr. Feelgood tries to coax the minister into bringing his wife to a nude session, the minister confides that he simply can’t imagine his wife participating in a nude encounter session, then realizes, come to think of it, that not too long ago, when he was living a normal, Christian minister’s life, he couldn’t have imagined himself in such a session!

    So what’s going on here? Is this really a case of defamation, of “actual malice” against a public figure? Why did the doctor stipulate that he even was a “public figure,” thereby requiring the higher threshold of “actual malice by clear and convincing evidence” required by the U.S. Supreme Court in the landmark case of N.Y. Times Co. v. Sullivan? Seems to me that this case was really about a breach of contract–the contract the writer/defendant signed not write about her sessions.  Because of the confines of contract law–what are the damages for breach of that contract, anyway?–the plaintiff’s attorney cleverly pleaded the matter in the form of a defamation action seeking punitive damages against the publishing company–which was not a party to the contract.  As for actual malice, here the tail wagged the dog; by stipulating that he was a public figure and that actual malice was required, plaintiff actually seems to be compelling the jury to find that since he was a public figure, the publication must have been malicious–enough to justify a punitive damages award. The moral of this story, stripped to its bare essentials?

    OFTEN, THE PLAINTIFF HAS A DECISIVE ADVANTAGE IN HIS ABILITY TO FRAME THE NATURE OF THE CAUSE OF ACTION IN BOTH THE PLEADINGS AND THE PRESENTATION AT TRIAL. 

    Plaintiff’s attorney grabbed the jury by its cunscience and the jury saw through defendant’s naked gambit.  By the way, defendant was paid an advance of $150,000, a particularly hefty sum when you consider that it was over 35 years ago.  Since the total judgment was only $38,000, you can hardly say that plaintiff took the shirt off defendant’s back.  That’s probably why the jury felt so uninhibited, and maybe that’s why the Bindrim court groped its way through an opinion that otherwise leaves little to the imagination. 

    Final Thought: Didn’t the ancient Greeks run their marathons (as well as all their olympic events) in the nude?  Hmm. Perhaps the Greek government should file to copyright the term “nude marathon.” 

    Tags: , , , , , ,
    Posted in Hilarious Published Court Decisions | Comments (0) »
    October 28, 2009
    Trying to Sue Your Health Insurer: David vs. Goliath
    Larry Pollack

    Back in February, 1999 I published a guest editorial in the Herald News. With the current debate over health insurance reform, and an article I read in the Herald News today (10/26/09) claiming that health insurers’ profits are relatively weak, it brought the editorial to my mind and I thought I should post it in my blog. It is as timely today as it was over ten years ago, because nothing has changed: it is still practically impossible to sue one’s health insurer over their refusal to pay a claim, due to the anti-consumer, pre-exemption provisions of ERISA and the anti-consumer, restrictive Federal court opinions interpreting ERISA, such as Pilot Life v. Dedeaux.  As discussed in the editorial, health insurers spare no expense to defeat these cases, and remove them to the lofty confines of the Federal District Court.  The ERISA statute must be changed to allow challenges in state court, or even through a statewide arbitration service (as is done in automobile PIP claim disputes, with referral of thousands of cases each year to the National Arbitration Forum).  Punitive damages and liberal attorney fees must be allowed where the consumer is successful, or the consumer will not be able to find an attorney to take on the case (particularly where the denied claim is for a medical bill or service that is for “only” a few thousand dollars). 

    Of further interest, is the fact that the fate of the health insurer, Mutual Benefit Life, which spectacularly imploded shortly after the case was finished, brings to mind other recent cases of large insurance company fiscal mismanagement and lack of oversight by government regulators, such as AIG.  It seems Mutual Benefit Life was a harbinger of our recent financial meltdown.

    Here is the editorial:

    As a trial lawyer, I feel compelled to speak out regarding HMO reform and ERISA, by way of the true story of my David vs. Goliath battle against one large health insurer back in 1990-1991. I agreed to represent a lovely, charming woman in her early sixties who was dying of cancer, in an attempt to force her health insurer, Mutual Benefit Life, to pay a $9,000 medical bill for visiting nurses, home health aides and private duty nursing, which should have been covered items under the terms of the health insurance policy.  I filed suit against the insurer in the Superior Court of Bergen County. The insurer hired a large law firm to defend against the suit. Citing the federal ERISA statute, the defense attorneys promptly sought to have the matter removed to the federal court, that is, the New Jersey District Court in Newark. I objected strenuously but the motion to remove was granted. The defense firm then proceeded to bombard me with discovery requests, motions and legal maneuvers over the next eighteen months. Because of ERISA, as interpreted by the Supreme Court in the case of Pilot Life vs. Dedeaux, my client was deprived of the right to a jury trial, punitive damages, common law causes of action, and even, quite possibly, the right to attorney fees even if successful!  Incredibly, the health insurance company ultimately spent over $100,000 to defeat a $9,000 claim (that we would have settled for even less!).  At long last, the matter was tried–not in front of a jury, but in front of an obviously unsympathetic federal magistrate. My client could not afford the $5,000 required to bring in crucial medical experts to testify, and without the possibility of punitive damages, without a guarantee of reasonable attorney fees, and facing an unsympathetic judge, my firm was unwilling to lay this money out for her.  Her personal physician testified for her as a favor, while the defense brought in expensive “hired gun” physicians as experts, who falsely testified that my client–who died from her cancer three months after the trial–was little more than a hypochondriac.  After the closing arguments, the federal magistrate wasted little time finding in favor of the insurance company.

    When I asked the leader of the defense team why his client would spend over $100,000 to defeat a valid $9,000 claim, he candidly admitted that the health insurers have a “scorched earth,” no settlement policy, and would spare no expense to dissuade individuals from daring to challenge the insurers’ claims decisions. They wanted to send the message to attorneys, that taking on these cases would be a losing proposition no matter what. The strategy certainly worked in this case: I spent hundreds of hours, and thousands of dollars, on the case, and vowed never again to accept another health insurance case, until the ERISA pre-emption is removed, allowing state court jury trials, and punitive damages where the insurer is shown to have denied the claims in bad faith.  The threat of numerous large monetary awards, is truly the best, and perhaps the only, means of compelling health insurers to act humanely and in good faith.  Allowing full recourse in state courts, is the only real way to protect consumers and deter callous, capricious and miserly behavior by HMOs and health insurers.

    Incidentally, there is an interesting epilogue to this case: shortly after the case was closed and only days after my client had passed away, the defendant, Mutual Benefit Life, suddenly went bankrupt due to shoddy investments and mismanagement, amidst allegations of fraud against its CEO, Hank Kates.  I had actually managed to meet personally with Mr. Kates and he was coldly unwilling to intervene or even inquire into my client’s plight. Now it came to light that he had arrogantly mismanaged the company and dissipated its once considerable assets, investing in speculative artworks and real estate deals, all while drawing an extremely generous salary and living an extravagant lifestyle. Although the State of New Jersey’s insurance guarantee fund took over the insolvent insurer, thousands of innocent consumers lost  pensions, cash values, and health insurance coverage.  Mr. Kates fled the State of New Jersey, and Mutual Benefit Life was totally liquidated, including its flagship building in Newark (which was sold to IDT).

    Perhaps most interesting of all, however, is that ironic fact that shortly after winning the case, the lead defense attorney (and “name partner”), a man in his early fifties whose “dirty trick” tactics, take-no-prisoners approach and cold-blooded demeanor prevailed in this case, was himself diagnosed with cancer and died, and his law firm was disbanded. I guess what goes around, comes around.


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    Posted in Medical, insurance claims | Comments (0) »
    October 11, 2009
    Contingency Fees
    Larry Pollack

    If you have been involved in an accident in which you have sustained personal injury, it can be a very frustrating and traumatic experience. In addition to physical injuries, an accident can also lead to financial problems for the victim because of expenses involved in medical treatment, property damage and loss of earnings. It can be frustrating and difficult to deal with insurance companies, police, investigators, body shops and hospital bill collectors, all while trying to recover from painful injuries.  Fortunately, due to the universal use of contingency fee agreements, victims of someone else’s carelessness do not need to spend a single penny to retain a competent personal injury attorney, such as Larry M. Pollack Esq. Similarly, victims of workplace injuries need not advance a single penny to retain a competent workers compensation attorney, such as Larry M. Pollack Esq., because such fees are set at the end of the case by the workers compensation judge, and are paid solely out of the money recovered from the workers compensation insurance carrier.

    At the Law Offices of New Jersey Personal Injury Attorney Larry Pollack, we understand your situation and we can help. Although Larry M. Pollack Esq. is highly experienced, you pay us only when we win/settle and recover for you. This is referred to as a “contingency fee” in legal parlance.  Contingency fees are strictly regulated in New Jersey. In New Jersey, personal injury attorneys are allowed to charge a one-third commission on the first $500,000 recovered for adults, and 25% of the first $500,000 recovered for minors (fees above $500,000 are covered by a scale set by the NJ Supreme Court’s Rules).

    The contingency fee system is an important and ancient bulwark of America’s legal system, because without it, only the wealthy would have the means to hire an attorney to seek compensation for their personal injuries. Without the contingency fee system, only the wealthy would have the means to bear the cost and risk of litigation to obtain legal redress for injuries caused by the negligence of others.  Unlike large, powerful insurance companies, who keep defense firms on a regular retainer or have their own in-house lawyers working for them around the clock as “house counsel,” few ordinary individuals could afford the thousands of dollars that would otherwise be needed, to retain an attorney and pay him by the hour, and to pay the costs of investigating and litigating a case, if the contingency fee system did not exist. 

    There is therefore no reason whatsoever to delay in hiring an attorney; in fact, delay in hiring an attorney can cause irreparable damage to your claim.  Should you lose your case or we are unable to obtain any compensation for you, you owe us nothing. We guarantee that you do not need to pay us anything till you receive your compensation. You do not need to worry about paying us by the hour and therefore there is no financial burden on you for making the injury claim. Assuming we take your case, we will advance the money that is required to provide the best possible legal representation until we get succeed in obtaining compensation for you. Furthermore, in America, in contrast to parts of Europe, if you lose your case, you do not owe anything to your adversary, either. 

    It is important to note that the Law Office of Larry M. Pollack
    Esq. does not charge any consultation fees in personal injury or workers compensation cases, and since there is no obligation to retain us after a free consultation, there is no reason to delay contacting us.  And, if you already have an attorney but are so dissatisfied with that attorney’s performance you wish to change attorneys, be advised that under New Jersey law, a client may always change attorneys, with or without cause.  Even if a client changes attorneys numerous times, the maximum total attorney fee always remains one-third (for cases under $500,000); the one-third is split between the current and previous attorneys, usually based on the relative contribution of the previous attorneys.  If you have an existing case with an attorney but feel you may now need to change attorneys, you may feel free to telephone Larry M. Pollack Esq. to discuss the situation directly, in complete confidence.

    Since our attorney fees are totally dependent on winning/settling the case and the amount of settlement, you are assured that we will aggressively pursue the maximum amount we can obtain for you. Larry M. Pollack has many years of experience as well as a history of successful settlements in personal injury and workers compensation cases throughout the State of New Jersey.

    Please contact NJ personal injury attorney Larry Pollack to discuss representation in a contingency fee arrangement.



    Posted in Personal Injury | Comments (0) »
    December 30, 2008
    Negligent Infliction of Emotion Distress: A Funeral Fit for a Dog
    Larry Pollack

    Today’s Post revisits the topic of negligent infliction of emotional distress, an area rich in bizarre and humorous published court cases, such as–

    KAY CORSO v. CRAWFORD DOG AND CAT HOSPITAL

    415 N.Y.S.2d 182 (1979):

    Seymour Friedman, J.

    OPINION OF THE COURT

    On or about January 28, 1978, the plaintiff brought her 15-year-old poodle into the defendant’s premises for treatment. After examining the dog, the defendant recommended euthenasia and shortly thereafter the dog was put to death. The plaintiff and the defendant agreed that the dog’s body would be turned over to Bide-A-Wee, an organization that would arrange a funeral for the dog. The plaintiff alleged that the defendant wrongfully disposed of her dog, failed to turn over the remains of the dog to the plaintiff for the funeral. The plaintiff had arranged for an elaborate funeral for the dog including a head stone, an epitaph, and attendance by plaintiff’s two sisters and a friend. A casket was delivered to the funeral which, upon opening the casket, instead of the dog’s body, the plaintiff found the body of a dead cat. The plaintiff described during the non-jury trial, her mental distress and anguish, in detail, and indicated that she still feels distress and anguish. The plaintiff sustained no special damages.
     
    The question before the court now is twofold. (1) Is it an actionable tort that was committed? (2) If there is an actionable tort is the plaintiff entitled to damages beyond the market value of the dog?
     
    Before answering these questions the court must first decide whether a pet such as a dog is only an item of personal property as prior cases have held (Smith v Palace Transp. Co., 142 Misc 93). This court now overrules prior precedent and holds that a pet is not just a thing but occupies a special place somewhere in between a person and a piece of personal property.
      
    As in the case where a human body is withheld (Zaslowsky v Nassau County Public Gen. Hosp., 27 Misc. 2d 379; Diebler v American Radiator & Std. Sanitary Corp., 196 Misc 618), the wrongfully withholding or, as here, the destruction of the dog’s body gives rise to an actionable tort.
      
    In ruling that a pet such as a dog is not just a thing I believe the plaintiff is entitled to damages beyond the market value of the dog. A pet is not an inanimate thing that just receives affection; it also returns it. I find that plaintiff Ms. Corso did suffer shock, mental anguish and despondency due to the wrongful destruction and loss of the dog’s body.
     
    She had an elaborate funeral scheduled and planned to visit the grave in the years to come. She was deprived of this right.
     
    This decision is not to be construed to include an award for the loss of a family heirloom which would also cause great mental anguish. An heirloom while it might be the source of good feelings is merely an inanimate object and is not capable of returning love and affection. It does not respond to human stimulation; it has no brain capable of displaying emotion which in turn causes a human response. Losing the right to memoralize a pet rock, or a pet tree or losing a family picture album is not actionable. But a dog — that is something else. To say it is a piece of personal property and no more is a repudiation of our humaneness. This I cannot accept.
     
    Accordingly, the court finds the sum of $700 to be reasonable compensation for the loss suffered by the plaintiff.

    COMMENT BY LARRY POLLACK ESQ.:

    So who says the courts are going to the dogs? If Leona Helmsley wants to bequeath her entire fortune to her dog, why can’t Mrs. Corso throw an “elaborate funeral” for her beloved poodle (what was that dog’s name, anyway?) So she wants a headstone for her poodle’s grave–didn’t the ancient Egyptians build elaborate tombs to royal dogs? No, wait–it was cats, I think.  Well, clearly the Crawford Dog and Cat Hospital made a big mistake in sending Mrs. Corso Fifi instead of Fido; but why didn’t the funeral home notice the mistake, when they opened the casket to dress the poodle in its fanciest outfit? And surely someone would have noticed the switch at the wake, when the cat in the casket didn’t resemble the dog in the framed picture.  I understand that the aborted funeral was well attended, and the guests were all howling when the coffin was opened.  And how about that dog coffin–I wonder what one of those costs, anyway. See, we Jews don’t believe in fancy pet coffins; we bury our dogs in plain cardboard boxes.

    This case, by allowing emotional distress damages despite the lack of any physical impact to Mrs. Corso, or any other human for that matter, seems to be an oddity. Indeed, in Fowler v. Ticonderoga, 516 N.Y.S.2d 368 (1987) the court specifically denied emotional distress damages for any “psychic trauma” other than that connected with a direct physical injury to oneself or to a close relative nearby in the “zone of danger.” In essentially overruling Corso, the Fowler court refused to allow any emotional distress damages for the death of a pet, regardless of how beloved. 

    As noted in the opinion itself, it may be said that the Corso case is akin to those numerous cases that wrestle with the issue of damages for the improper withholding, disposition or handling of a dead (human) body.  This is a distinct exception to the general common law rule that emotional distress damages are not allowed in tort claims.  Even the failure to disclose the fact that one’s husband has died, for over a week, was held actionable for emotional distress damages. Finn v. City of New York, 335 N.Y.S.2d 516 (1972).

    Similarly, we find another discreet exception in some negligent diagnosis cases, such as Molien v. Kaiser Foundation Hospitals, 27 Cal.3d 916 (1980)(wife negligently diagnosed with syphilis, husband informed, marriage kaput).

    HOMEWORK:

    Is a hotel responsible for the emotional trauma caused to relatives, when it fails to notice that one of its guests passed away in his room–a week ago? Hint: The body was so decomposed, that it could not properly be prepared or displayed.


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    Posted in Hilarious Published Court Decisions, Personal Injury | Comments (0) »
    July 26, 2008
    Hand Holding Gives Jockey a Lift in Absurd Libel Case
    Larry Pollack

    Burton v. Crowell Pub. Co., 82 F.2d 154 (2nd Cir. 02/10/1936)

    1. CIRCUIT COURT OF APPEALS, SECOND CIRCUIT

    2. No. 258

    3. 82 F.2d 154

    4. February 10, 1936

    5.BURTON
    v.
    CROWELL PUB. CO.

    6. Appeal from the District Court of the United States for the Southern District of New York.

    7. Author: Hand

    8. Before L. HAND, SWAN, and CHASE, Circuit Judges.

    9. L. HAND, Circuit Judge.

    10. This appeal arises upon a judgment dismissing a complaint for libel upon the pleadings. The complaint alleged that the defendant had published an advertisement — annexed and incorporated by reference — made up of text and photographs; that one of the photographs was “susceptible of being regarded as representing plaintiff as guilty of indecent exposure and as being a person physically deformed and mentally perverted”; that some of the text, read with the offending photograph, was “susceptible of being regarded as falsely representing plaintiff as an utterer of salacious and obscene language”; and finally that “by reason of the premises plaintiff has been subjected to frequent and conspicuous ridicule, scandal, reproach, scorn, and indignity.” The advertisement was of “Camel” cigarettes; the plaintiff was a widely known gentleman steeple-chaser, and the text quoted him as declaring that “Camel” cigarettes “restored” him after “a crowded business day.” Two photographs were inserted; the larger, a picture of the plaintiff in riding shirt and breeches, seated apparently outside a paddock with a cigarette in one hand and a cap and whip in the other. This contained the legend, “Get a lift with a Camel”; neither it, nor the photograph, is charged as part of the libel, except as the legend may be read upon the other and offending photograph. That represented him coming from a race to be weighed in; he is carrying his saddle in front of him with his right hand under the pommel and his left under the cantle; the line of the seat is about twelve inches below his waist. Over the pommel hangs a stirrup; over the seat at his middle a white girth falls loosely in such a way that it seems to be attached to the plaintiff and not to the saddle. So regarded, the photograph becomes grotesque, monstrous, and obscene; and the legends, which without undue violence can be made to match, reinforce the ribald interpretation. That is the libel. The answer alleged that the plaintiff had posed for the photographs and been paid for their use as an advertisement; a reply, that they had never been shown to the plaintiff after they were taken. On this showing the judge held that the advertisement did not hold the plaintiff up to the hatred, ridicule, or contempt of fair-minded people, and that in any event he consented to its use and might not complain.

    11. We dismiss at once so much of the complaint as alleged that the advertisement might be read to say that the plaintiff was deformed, or that he had indecently exposed himself, or was making obscene jokes by means of the legends. Nobody could be fatuous enough to believe any of these things; everybody would at once see that it was the camera, and the camera alone, that had made the unfortunate mistake. If the advertisement is a libel, it is such in spite of the fact that it asserts nothing whatever about the plaintiff, even by the remotest implications. It does not profess to depict him as he is; it does not exaggerate any part of his person so as to suggest that he is deformed; it is patently an optical illusion, and carries its correction on its face as much as though it were a verbal utterance which expressly declared that it was false. It would be hard for words so guarded to carry any sting, but the same is not true of caricatures, and this is an example; for, notwithstanding all we have just said, it exposed the plaintiff to overwhelming ridicule. The contrast between the drawn and serious face and the accompanying fantastic and lewd deformity was so extravagant that, though utterly unfair, it in fact made of the plaintiff a preposterously ridiculous spectacle; and the obvious mistake only added to the amusement. Had such a picture been deliberately produced, surely every right-minded person would agree that he would have had a genuine grievance; and the effect is the same whether it is deliberate or not. Such a caricature affects a man’s reputation, if by that is meant his position in the minds of others; the association so established may be beyond repair; he may become known indefinitely as the absurd victim of this unhappy mischance. Literally, therefore, the injury falls within the accepted rubric; it exposes the sufferer to “ridicule” and “contempt.” Nevertheless, we have not been able to find very much in the books that is in point, for although it has long been recognized that pictures may be libels, and in some cases they have been caricatures, in nearly all they have impugned the plaintiff at least by implication, directly or indirectly uttering some falsehood about him. 5 Coke, 125 a & b; Cropp v. Tilney, 11 Mod. 99 (semble); DuBost v. Beresford, 2 Camp. 511; Austin v. Culpepper, 2 Shower, 313; Ellis v. Kimball, 16 Pick. (33 Mass.) 132; Brown v. Harrington, 208 Mass. 600, 95 N.E. 655; Merle v. Sociological, etc., Co., 166 App. Div. 376, 152 N.Y.S. 829.

    12. The defendant answers that every libel must affect the plaintiff’s character; but if by “character” is meant those moral qualities which the word ordinarily includes, the statement is certainly untrue, for there are many libels which do not affect the reputation of the victim in any such way. Thus, it is a libel to say that a man is insane (Totten v. Sun Printing & Pub. Co. [C.C.] 109 F. 289; Southwick v. Stevens, 10 Johns. [N.Y.] 443; Belknap v. Ball, 83 Mich. 583, 47 N.W. 674, 11 L.R.A. 72, 21 Am. St. Rep. 622); or that he has negro blood if he professes to be white (Stultz v. Cousins [C.C.A. 6] 242 F. 794); or is too educated to earn his living (Martin v. Press Pub. Co., 93 App. Div. 531, 87 N.Y.S. 859); or is desperately poor (Moffatt v. Cauldwell, 3 Hun [N.Y.] 26); or that he is a eunuch (Eckert v. Van Pelt, 69 Kan. 357, 76 P. 909, 66 L.R.A. 266); or that he has an infectious disease, even though not venereal (Villers v. Monsley, 2 Wils. 403; Simpson v. Press Pub. Co., 33 Misc. 228, 67 N.Y.S. 401); or that he is illegitimate (Shelby v. Sun P. & P. Ass’n, 38 Hun [N.Y.] 474, affirmed on opinion below, 109 N.Y. 611, 15 N.E. 895); or that his near relatives have committed a crime (Van Wiginton v. Pulitzer Pub. Co., 218 F. 795 [C.C.A. 8]; Merrill v. Post Pub. Co., 197 Mass. 185, 83 N.E. 419); or that he was mistaken for Jack Ketch (Cook v. Ward, 6 Bing. 409); or that a woman was served with process in her bathtub (Snyder v. New York Press Co., 137 App. Div. 291, 121 N.Y.S. 944). It is indeed not true that all ridicule (Lamberti v. Sun P. & P. Ass’n, 111 App. Div. 437, 97 N.Y.S. 694), or all disagreeable comment (Kimmerle v. New York Evening Journal, Inc., 262 N.Y. 99, 186 N.E. 217; Cohen v. New York Times Co., 153 App. Div. 242, 138 N.Y.S. 206), is actionable; a man must not be too thin-skinned or a self-important prig; but this advertisement was more than what only a morbid person would not laugh off; the mortification, however ill-deserved, was a very substantial grievance.

    13. A more plausible challenge is that a libel must be something that can be true or false, since truth is always a defense. It would follow that if, as we agree, the picture was a mistake on its face and declared nothing about the plaintiff, it was not a libel. We have been able to find very little on the point. In Dunlop v. Dunlop Rubber Co. (1920) 1 Irish Ch. & Ld. Com. 280, 290-292, the picture represented the plaintiff in foppish clothes, and the opinion seems to rely merely upon the contempt which that alone might have aroused, but those who saw it might have taken it to imply that the plaintiff was in fact a fop. In Zbyszko v. New York American, 228 App. Div. 277, 239 N.Y.S. 411, however, though the decision certainly went far, nobody could possibly have read the picture as asserting anything which was in fact untrue; it was the mere association of the plaintiff with a gorilla that was thought to lower him in others’ esteem. Nevertheless, although the question is almost tabula rasa, it seems to us that in principle there should be no doubt. The gravamen of the wrong in defamation is not so much the injury to reputation, measured by the opinions of others, as the feelings, that is, the repulsion or the light esteem, which those opinions engender. We are sensitive to the charge of murder only because our fellows deprecate it in most forms; but a head-hunter, or an aboriginal American Indian, or a gangster, would regard such an accusation as a distinction, and during the Great War an “ace,” a man who had killed five others, was held in high regard. Usually it is difficult to arouse feelings without expressing an opinion, or asserting a fact; and the common law has so much regard for truth that it excuses the utterance of anything that is true. But it is a non sequitur to argue that whenever truth is not a defense, there can be no libel; that would invert the proper approach to the whole subject. In all wrongs we must first ascertain whether the interest invaded is one which the law will protect at all; that is indeed especially important in defamation, for the common law did not recognize all injuries to reputation, especially when the utterance was oral. But the interest here is by hypothesis one which the law does protect; the plaintiff has been substantially enough ridiculed to be in a position to complain. The defendant must therefore find some excuse, and truth would be an excuse if it could be pleaded. The only reason why the law makes truth a defense is not because a libel must be false, but because the utterance of truth is in all circumstances an interest paramount to reputation; it is like a privileged communication, which is privileged only because the law prefers it conditionally to reputation. When there is no such countervailing interest, there is no excuse; and that is the situation here. In conclusion therefore we hold that because the picture taken with the legends was calculated to expose the plaintiff to more than trivial ridicule, it was prima facie actionable; that the fact that it did not assume to state a fact or an opinion is irrelevant; and that in consequence the publication is actionable.

    14. Finally, the plaintiff’s consent to the use of the photographs for which he posed as an advertisement was not a consent to the use of the offending photograph; he had no reason to anticipate that the lens would so distort his appearance. If the defendant wished to fix him with responsibility for whatever the camera might turn out, the result should have been shown him before publication. Possibly any one who chooses to stir such a controversy in a court cannot have been very sensitive originally, but that is a consideration for the jury, which, if ever justified, is justified in actions for defamation.

    15. Judgment reversed; cause remanded for trial.

    COMMENT BY LARRY POLLACK ESQ:

    Learned Hand was one of the most famous and respected judges in the history of American jurisprudence. The Burton opinion, however, was rarely cited. Judge Hand’s dry and formal description of the offensive photo almost seems to get funnier each time one reads it. He was a relatively young man at the time–this is one of his earliest opinions–and I wonder if he was laughing as he wrote it. Hand went on to a very distinguished career at the head of the Second Circuit Court of Appeals, but despite calls for his elevation to the Supreme Court, that was as far as he went. He retired in the ’50s. As for the Burton decision, it strikes me that today, celebrities are upset if their photos aren’t raunchy or shocking enough! Magazines have been “enhancing” pictures of female models for decades. But photographers and ad agencies are usually very careful to obtain detailed, iron-clad releases from their model subjects. With the advent of computers, photos are now particularly easy to artificially “modify.” I wonder just how “unintentional” the picture of the jockey was in the Burton case. Say–Where can I find a picture of that exhibit, anyway?



    Posted in Hilarious Published Court Decisions | Comments (0) »
    April 29, 2008
    Strange But True Court Decisions: Too Old to Commit Statutory Rape?
    Larry Pollack

    The following opinion has achieved a kind of “cult status” in numerous underground law libraries around the country (including the law library at my alma mater law school, the University of Michigan, where the old printed pages of the decision are “well thumbed”): Lason v. State, 12 So.2d 305 (1943) [all emphasis added by LP!].

     LASON V. STATE (two cases). Supreme Court of Florida, Division A, March 2, 1943. Appeal from Circuit Court, Walton County; R.A. McGeachy, Judge.

    John Lason was convicted under two informations of committing the abominable and detestable crime against nature per os and he appeals. Affirmed.

    W.W. Flournoy, of De Funiak Springs, for appellant.  J. Tom Watson, Atty. Gen., and Woodrow M. Melvin, Asst. Atty. Gen., for appellee.

    BUFORD, Chief Justice.

    The accused, having been convicted under two separate informations, in one of which it was charged, “that on the 20th day of March, 1942, at and in the County of Walton, State of Florida, John Lason, unlawfully did then and there commit the abominable and detestable crime against nature per os [see LP's commentary below] with one Ruby Cawthon, a female person, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Florida”; and in the other the like offense was charged in the identical language except for the difference in the name of the person with whom the accused is alleged to have committed the offense.

    Counsel has requested that we consider both cases together, which we do.

    There is no question about the facts in either case.  Aside from the evidence produced by the State, the accused testified as a witness in his own behalf, that he was seventy-six years of age;  that he had not experienced an erection in many years, but that on several occasions he had indulged in venereal affairs with each of the girls named in the information when both girls were present; that in accomplishing these affairs he had licked and extended his tongue into the genital orifice of each of the girls and had allowed and permitted each of the girls to take his sexual organ into her mouth, the result of which he testified was “pleasurable”.

    The controlling factor to be determined is presented by the appellant’s first question posed in the following language:

    1. “Does the one specific crime definitely defined and limited by Section 7567, C.G.L. -1927; 3534 G.S. (1906) 5424 R.G.S.–1920; Ch. 1637, Sub. Ch.8, Acts 1868, Sec. 17, comprehend or include the action of a 76 year old, aged Indian War Veteran, feeble physically and mentally, in, after having met the two girls of 11 and 13 years of age who solicited him, went to his residence and there they both get on the bed, pull up their dresses and drop down their panties, when he in turn on his back in the same bed allowed them to diddle with his rag-like penis, unerectable, lifeless and useless except to connect the bladder with the outside world for more than six years since the death of his wife, utterly incapable of either penetration or emission, and wad it like a rag into their mouths, and then, in his feeble and aged condition impelled by the irresistable impulse, in turn he would kiss and put his tongue in their little though potentially influential and powerful vaginas?”

    It appears to us that we have determined this question contrary to appellant’s contention.

    In Ephriam v. State, 82 Fla. 93, 89 So. 344, we said:

    “The question presented is whether the crime defined by section 3534 Gen.Stats. 1906 comprehends the act of copulation between two human beings per os. The statute above referred to is the only one upon the subject.  It provides for punishment for the commission of the ’abominable and detestable crime against nature.’ If the statute includes the act committed by the two defendants upon the person named Son Gary, there is no merit in the assignments of error and the judgment should be affirmed. 

    “The evidence is undisputed. The act for which the defendants were indicted under the statue referred to was proven. A discussion of the loathsome, revolting crime would be of no edification to the people, nor interest to the members of the bar. [Wanna bet?] The creatures who are guilty are entitled to a consideration of their case because they are called human beings [!] and are entitled to the protection of the laws.

    “Other courts in the discharge of the duties devolving upon them have been compelled to consider the same question as is presented in this case, and held that acts like those proven in this case constituted the ‘detestable crime against nature.’ ”

    We held the act as charged to be within the inhibition [sic] of the statute and cited numerous cases supporting that view.

    In Jackson v. State, 84 Fla. 646, 94 So. 505, we re-affirmed the holding in the Ephriam case. 

    Appellant’s attorney has presented an exhaustive brief contending that the crime denounced by the statute may be committed only per anus, making a strong argument and citing many cases in support of his contention. We are not persuaded, however, that we should follow either the argument or authorities so cited because we hold to the view that the authorities cited by Mr. Justice Ellis in the Ephriam case, supra, and also the authorities cited in Woods v. State, 10 Ala.App. 96, 64 So. 508; in State v. Guerin, 51 Mont. 250, 152 P. 747, and in Glover v. State, 179 Ind. 459, 101 N.E. 629, enunciate the correct construction of the statute under consideration. Much might be written concerning the history and prevalence of the crime in various times and in different countries, and of the methods of its commission, as well as the baneful effects which it has had upon the mental, moral and physical condition of those peoples amongst whom it is and has been prevalent. It is sufficient to say here, however, that all unnatural forms and methods of coitus have proven themselves detrimental to both health and morals.

    Other questions and contentions have been presented and carefully considered. We find no reversible error reflected in either record.

    Both judgments are affirmed. So ordered.

    TERRELL, CHAPMAN and ADAMS, JJ., concur.

    COMMENT BY L. POLLACK ESQ.:

    No matter how many times I read this opinion, I can’t help but burst out laughing at some point. If I didn’t know any better, I would think the publication of this decision was a hoax. Even the southern judge’s name, “Justice Buford,” seems like a joke (remember the fictional movie character Judge Buford T. Justice?).  But although the opinion may seem to ”lack penetration” in its analysis, it is not just “tongue in cheek.” 

    To begin with, in order to fully understand this opinion, one needs to know what the court meant by the term,  ”the abominable and detestable crime against nature per os.”     Webster’s New Universal Unabridged Dictionary defines “os” as from the Latin, meaning “in anatomy, an opening, as a mouth; an entrance, as the orifice of the vagina.”  Mr. Lason was guilty of the “crime against nature” of allowing his tongue to enter the girls’ ”little though potentially influential and powerful vaginas.”

    The defense argued that this abomination can only be committed “per anus.”  In fact, counsel’s brief was “exhaustive” on this point.  The court, however, was convinced “that all unnatural forms and methods of coitus have proven themselves detrimental to both health and morals.” Defendant’s “oral argument” failed to penetrate the court’s naked prejudice; no doubt about it, Mr. Lason took a licking back in ‘42.  

    The seminal (unseminal?) Lason case and its progeny, like the Fine case (see below) achieved a kind of comic irony through their singular focus on, and disgust with, the mechanics of the sex acts themselves, while minimizing or essentially ignoring, any issues relating to the abuse and victimization of the minors involved.

    Decision’s History:

    The Lason case was cited with approval several times over the next 50 years.  Just a few months after the Lason case, the Florida courts went into an even deeper (and hence, more ludicrous) analysis of the topic: “Considering the conduct condemned and object attempted to be accomplished by the law this writer sees no distinction between the insertion of the male organ in the mouth as described in Lason v. State supra, and placing the tongue in the female organ, as here. Both, unquestionably, are abominable and detestable; both offend nature’s laws; both, doubtless, spring from a depraved sexual desire. The base immorality displayed in either case justifies any punishment which may be meted out under the law. At one state in the progress of Anglo-Saxon Jurisprudence the penalty was burning or burying alive.”  Fine v. Florida, 14 So.2d 408 (1943).

    In Delaney v. Florida, 190 So.2d 578 (1966), the court stated “Although the opinions of this court are not always the essence of clarity, and never as lucid as we would have them, in this instance those previously rendered on this subject clearly advise all people that in this state the abominable crime against nature includes copulation either by mouth or by anus.”

    Finally, however, the Florida courts became sensitive to the fact that by emphasizing the “abominable and detestable” and “unnatural” nature of oral sex, they were missing the forest for the trees. By focusing on the issue of whether oral sex included “penetration,” the courts were missing the real point of the law, that minors need to be protected against any and all type of sexual abuse and contact.  Thus in Swain v. Florida, 172 So.2d 3 (1965), the court indicated its annoyance with the question of whether Lason required actual penetration, and announced that the focus of the law should be on the unlawful sexual contact with a minor, rather than whether “a crime against nature” had been committed.

    Finally, in 1971, the Florida Supreme Court declared that statutes which banned “unnatural” sexual acts using language such as “abominable and detestable” were outdated and unconstitutionally vague. Franklin v. Florida, 257 So.2d 21 (1971). The Franklin court noted that the statutory language at issue in Lason dated to 1868, and stated “We do not, of course, here sanction historically forbidden sexual acts, homosexuality or bestiality. We only say that in this, as in any other conduct which is made a crime by statute, the forbidden conduct must be stated in terms which meet the constitutional test, i.e., that it is understood by the average man of common intelligence.” 

    As for the Lason case, it has acquired a kind of legendary status in Florida jurisprudence, for the highly descriptive, yet oddly formal, way in which the sexual activities of John Lason and Ruby Cawthon were detailed.  In fact, in a 2005 case, Kasischke v. State, the Florida Supreme Court itself derided the Lason case, stating “Unlike Lason v. State, 12 So. 2d 305 (Fla. 1943), we do not believe that more graphic descriptions are necessary.”



    Posted in Hilarious Published Court Decisions | Comments (0) »
    March 29, 2008
    Strange But True Court Decisions: Negligent Infliction of Emotional Distress by Circus Horse
    Larry Pollack

    For amusement, each month I will post an actual published court opinion my research has uncovered, that is in my humble opinion absolutely hilarious or ridiculous. Since this is the first time I have blogged, I think it is appropriate to start with a personal favorite of mine, Christy Bros. Circus v. Turnage, 38 Ga. App. 581, 144 S.E. 680(1928), in which the court wrestled with the issue of damages for emotional distress without physical injury. After all, Christy Bros. is more than just another “crappy” opinion;  it is the very touchstone of horseshit court decisions:

    “Action by Velna Turnage against the Christy Bros. Circus. Judgment for plaintiff, and defendant brings error. Affirmed.

    STEPHENS, J. There may be a recovery of damages for mental suffering, humiliation or embarrassment resulting from a physical injury of which they are inseparable components.

    Any unlawful touching of a person’s body, although no actual physical hurt may ensue therefrom, yet, since it violates a personal right, constitutes a physical injury to that person. The unlawful touching need not be direct, but may be indirect, as by the precipitation upon the body of a person of any material substance.

    Since the right to recover for a mental condition induced by the tortious act of another is dependent upon the existence of a physical injury, a person suffering a mental condition dependent upon an injury to the person may, in suing to recover damages for the injury, limit the damages to the mental suffering alone, and it is not essential to his right to the recovery of damages for mental suffering that the physical injury out of which the mental suffering arose, was productive of any actual physical hurt or damage, or that he should seek a recovery for such physical hurt or damage.

    Where a petition alleged that the plaintiff was an unmarried white lady, and that while in attendance as a guest of the defendant at a circus performance given by the defendant, and while seated in one of the seats provided by the defendant for the defendant’s guests at the circus, a horse, which was going through a dancing routine immediately in front of where plaintiff was sitting, was by the defendant’s servant, who was riding upon the horse, caused to back towards the plaintiff, and while in this situation the horse evacuated his bowels into her lap, that this occurred in full view of many people, some of whom were the defendant’s employees, and all of whom laughed at the occurrence, that as a result thereof the plaintiff was caused much embarrassment, mortification, and mental pain and suffering, to her damage in a certain amount, that the damage alleged was due entirely to the defendant’s negligence and without any fault on the part of the plaintiff, the petition set out a cause of action and was good as against a general demurrer.

    The evidence authorized the inference that the plaintiff was damaged, by reason of humiliation and embarrassment, in the sum of $500, and the verdict found for her in that amount was authorized.”

    Commentary by Larry Pollack: 

    Christy Bros.   set forth what came to be known as the “impact rule,” that in order for someone to recover damages for mental/emotional distress, that person must have been hit or “touched” [splattered?] by something in a physical sense. Believe it or not, this case was an important case in Georgia jurisprudence for 60 years, until it was expressly overruled by the Georgia Supreme Court in 1989 in the case of OB-GYN Assoc. v. Littleton, 259 Ga. 663.  There, the court modified the rule to require that the individual sustain an actual physical harm; the court noted that the rule articulated in the Christy Bros. case was an “absurdity.”  One thing is certain: that the horse was definitely not “impacted” at the time it committed its foul assault upon the nice “white lady.”  

    The issue of damages for the negligent infliction of emotional distress is actually an important and ever evolving aspect of personal injury law. Traditionally, under the common law, damages for emotional distress are not, and have really never been, allowed except as part-and-parcel of a physical injury to the plaintiff.  Yet interestingly, at a time when some more liberal/progressive courts in states like California and New Jersey were taking “baby steps” towards allowing people to recover for emotional distress without physical harm under certain extremely limited conditions, the Georgia courts were apparently far ahead of their time–until the Georgia Supreme Court moved in the opposite direction and restricted such damages in 1989. See the famous case of Dillon v. Legg, 68 Cal. 2d 728, 441 P.2d 912 (1968) (recovery of emotional distress damages allowed for shock of watching daughter die in an auto accident); or the infamous case of Eyrich v. Dam, 193 N.J. Super. 244 (App. Div. 1984) 473 A.2d 539 (five-year-old boy fatally mauled by leopard at a circus performance dies in father’s arms; father allowed to collect damages for psychological injury).   

    Tort law is often regarded as a form of “social engineering,” and cases discussing whether to allow damages for negligent infliction of emotional distress must decide between competing public policy interests. Without limits on the availability of damages for negligent infliction of emotional distress, the results would be absurd. For example, thousands of TV viewers, including relatives of those aboard, watching an airline disaster, could sue for psychological injuries. See Saunders v. Air Florida, 558 F. Supp. 1233 (D.C. Cir. 1983); Burke v. Pan Am, 484 F. Supp. 850 (SD NY 1980).

    So courts have limited recovery to those involuntarily finding themselves directly in the “zone of danger of emotional impact.” Society expects individuals to absorb a lot of emotional harm, with the expectation that, alas, life is filled with pain and embarrassment and one’s skin must be thick. As one commentator noted, “To allow all of these feelings to be the basis of legal claims would overwhelm the courts with trivialities, sap people’s emotional resiliency, and seriously restrict freedom of movement in a society in which the tiniest social error could lead to a lawsuit.” Note, Bystander Recovery, 54 S. Cal. L. Rev. 847, 868 (1981).

    But freedom of movement also has its limits, as the circus found out in Christy Bros.

    Homework:

    Should a woman who finds an unwrapped condom in her chicken salad wrap at Applebees, be allowed to recover for ”emotional distress?” For the answer, see Chambley v. Apple Restaurants, 233 Ga. App. 498, 504 S.E. 2d 551 (1998). Hint: testing proved that the condom was never “used.”  



    Posted in Hilarious Published Court Decisions | Comments (0) »
    March 26, 2008
    First Post: Poet’s Corner
    Larry Pollack

    Well, here I am about to start a law weblog or “laweblog,” and just to get it off the ground, in the spirit of late March and the imminent approach of Spring, I offer this original poem I wrote some time ago, about a dog I once knew named Travis:

    TRAVIS FROM HIS FUNK

    When the morning breaks, and sunshine fills his eyes,
    Confusion grips him in a vise:
    Travis wakes.

    What unseen sights lie ahead?
    He wags his tail and wonders;
    He trumpets forth a fearless yelp
    As down the stairs he stumbles
    –serves him right, the silly whelp
    (his Mistress softly mumbles)

    Dogs hear things that humans don’t:
    A whistle, ghost, or hind;
    But Travis hears the Song of Spring,
    And he replies in kind.

    Travis rises with the sun
    And dances all day long;
    He celebrates his happy youth
    And barks a springtime song
    –his mistress scarcely knows the truth
    (she thinks his brain’s gone wrong)

    Forward joyful Travis!
    Incapable of being taught
    That one’s own shadow can’t be caught,
    His springtime folly brings to mind
    Remembrance of a long-lost time:
    Locked inside an attic trunk,
    The relics of my youthful springs
    Gather dust until March brings
    Travis from his Funk.



    Posted in Uncategorized | Comments (0) »
    March 14, 2008
    Are you a victim of Personal Injury? We are here to help
    Larry Pollack

    At the Law Offices of Larry M. Pollack, Esq., New Jersey Personal Injury attorneys can help you if you have been a victim of the following types of cases or injuries:

    • Personal Injury
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    Contact the New Jersey personal injury attorneys today for a free consultation.



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