NOEL L. HILLMAN, District Judge.
This action concerns plaintiff's claims of defamation and false light. Presently before the Court is defendants' motion for summary judgment. Also pending is plaintiff's motion for partial summary judgment on the burden of proof. For the reasons expressed below, defendants' motion will be granted, and plaintiff's motion will be denied as moot.
Defendant, Michael Capuzzo, wrote a non-fiction book, The Murder Room: The Heirs of Sherlock Holmes Gather to Solve the World's Most Perplexing Cold Cases published by defendant Penguin Group (USA), Inc. in August 2010. The book concerns the history of the Vidocq Society, an association of forensic professional and private citizens from across the United States who gather together in Philadelphia, Pennsylvania to solve cold crimes using their collective investigative talents and resources. One founding member of the Vidocq Society featured in the book is Frank Bender, a renowned forensic artist internationally acclaimed for creating sculptures of the faces of crime victims based on molds he created from their decayed skulls. Bender was also renowned for creating age progression sculptures of the faces of some of the world's most wanted fugitives. Crimes have been solved based upon Bender's work.
Plaintiff, Joan Crescenz, met Bender in 1975, and for almost 30 years worked as his artist's assistant, bookkeeper, and personal assistant. When Bender became terminally ill, Crescenz assisted him with his healthcare needs until his death on July 28, 2011. Bender had been married to Jan Bender for almost 30 years until her death in 2010. They had an "open marriage," and Bender was known for his "overt sexuality" and "self-professed sexual exploits." (Compl. ¶¶ 17, 18.) Crescenz has been married to Peter Crescenz for more than 20 years and has three children.
In her complaint, Crescenz claims that defendants defamed her in the book by Capuzzo's references to Crescenz as one of Bender's girlfriends with whom he had a sexual relationship. Crescenz claims that she never had a sexual relationship with Bender, and that Capuzzo never asked her if she and Bender had a sexual relationship. Crescenz also claims that Capuzzo never provided her with an advance copy of the book so that she could verify the truth of Capuzzo's twelve references to her in the book; if he had, Crescenz claims that she would have corrected the false statements about her. Crescenz claims that Capuzzo, as well as the publisher, Penguin, were negligent and reckless in publishing the false statements about her, particularly after she emailed the book's publisher, William Shinker, on July 28, 2010, before the book's release in August 2010, informing him of the inaccuracies she discovered when Bender provided her with a galley copy.
Capuzzo and Penguin have moved for summary judgment in their favor on Crescenz's claims of defamation and false light invasion of privacy. Crescenz has opposed their motion, arguing that a jury must decide her claims. Crescenz has also filed a motion for partial summary judgment asking the Court to decide what standard of proof is required for each of her claims.
This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332 because there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75,000.
Summary judgment is appropriate where the Court is satisfied that the materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, or interrogatory answers, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor.
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact.
To enjoy one's reputation "free from unjustified smears and aspersions" is a right in this free society, but it must be weighed against "significant societal benefit in robust and unrestrained debate on matters of public interest."
A "statement
Whether a plaintiff has to prove that the defendant acted negligently or with actual malice depends on whether the plaintiff is a private or public figure, and whether the statement is of public or private concern. The New Jersey Supreme Court recently explained the rules governing when to apply the actual-malice standard for liability purposes in defamation cases:
In this case, the parties dispute which standard should apply to Crescenz's defamation claim.
The Court does not need to decide the issue, however, because even if the statements in the book about Crescenz fall into the private-figure/private-concern category, Crescenz cannot meet her burden to demonstrate that defendants were negligent in making their statements. Accepting as true that Crescenz did not have a sexual relationship with Bender,
Prior to the August 2010 publication of the book, the following undisputed facts regarding Bender and Crescenz's relationship existed:
Even though defendants have proffered deposition testimony, certifications, and other evidence to further support their lack of negligence in publishing a book that describes Bender and Crescenz's relationship as a sexual one, these are the undisputed facts as they existed prior to the publication of the book, and they are facts that do not require the assessment of credibility by a jury. Thus, the question to be answered is whether in light of this evidence it could be said that Capuzzo and Penguin acted "negligently in failing to ascertain the truth or falsity of the statement before communicating it."
Crescenz says "yes," and presents other facts she argues should make the question one for a jury. Prior to the publication of the book:
In addition to accepting as true that Crescenz did not have a sexual relationship with Bender and that the depiction of her in the book was false, Crescenz argues that these facts, which also must be accepted as true, demonstrate to a jury that Capuzzo and Penguin did not act reasonably in publishing the book.
In order to determine whether Crescenz has provided enough evidence to support a claim that defendants were negligent in printing a false statement about her, the
Restatement (Second) of Torts § 580B (1977) (defamation of private person),
Crescenz's evidence cannot support her burden. First, with regard to Penguin's lack of a fact-checking process, Crescenz has not produced any evidence, from an expert or otherwise, to demonstrate that a book publisher must independently check every fact in a non-fiction book. To the contrary, defendants have submitted declarations from William Shinker, the president of
Second, Crescenz's email to the publisher days before the book's release does not establish that Penguin acted negligently in releasing it. Crescenz was disgruntled about several passages in the book about her, but she never explicitly stated in her email that she did not have a sexual relationship with Bender. Even if her email could be read to mean that she refuted having a sexual relationship with Bender, Crescenz's email does not provide any proof, other than her personal concerns, to discredit the other resources upon which Capuzzo based his reporting. Moreover, Crescenz has not produced evidence to refute defendants' certifications that it is not industry custom or practice to have every subject in a non-fiction book read and approve an advance copy prior to it being published.
Third, Capuzzo's failure to directly ask Crescenz if she had a sexual relationship with Bender is insufficient either alone or in conjunction with other evidence to demonstrate that Capuzzo acted unreasonably in evaluating the truth or falsity of that statement before publishing it. Capuzzo reported in his book about Bender and Crescenz's relationship based upon his observations of Bender and Crescenz over the course of seven years, and from what others had told him. Even if Capuzzo had directly asked Crescenz whether she had a sexual relationship with Bender, and she denied that she did,
Even less convincing is evidence of an error regarding the misstatement of Japanese foot binding instead of Chinese foot binding, and a purported error regarding a detective's different recollection of a meeting. These mistakes do not cast a net of unreasonableness over the undisputed facts upon which Capuzzo based his depiction of Bender's relationship with Crescenz.
Capuzzo is an experienced, Pulitzer Prize nominated nonfiction writer who spent seven years observing, interviewing, and interacting with Bender, his close associates, his family, and Crescenz. Penguin is an established publishing company that, when it chose to publish the book, followed industry custom in relying upon the author's warranty of the veracity of the non-fiction work, as well as the vetting of the book by an seasoned attorney. Accepting as true that Crescenz did not have a sexual relationship with Bender and Capuzzo's depiction of their relationship as sexual was false, based on the undisputed facts as they existed in August 2010 when the book was released, Crescenz has not presented sufficient evidence to show that Penguin or Capuzzo did not act reasonably in checking on the falsity or defamatory character of Crescenz and Bender's relationship before publishing it.
In the milieu of the Vidocq Society this matter might be called the classic "He said, she said." Ordinarily such cases call upon a jury to decide which version is true. However, that description in this case would be misleading. This case need not turn on the resolution of whether Frank Bender or Joan Crescenz told the truth about their relationship. Indeed, the issue of the true nature of the relationship between the two is unlikely to ever be resolved. The two primary participants in these tangled relationships are both deceased, and there is reason to doubt both versions.
Regardless, however, of each party's personal point of view on the nature of Crescenz and Bender's relationship, or even the actual truth, the evidence in the record does not support a finding that either Capuzzo or Penguin were negligent in writing about or publishing one version of that story — a depiction of Bender and Crescenz having a sexual relationship.
For the reasons expressed above, defendants' motion for summary judgment in their favor on all of plaintiff's claims against them must be granted, and plaintiff's motion for partial summary judgment on the burden of proof must be denied as moot.
An appropriate Order will be entered.
Bender's affidavit details his sexual relationship with Crescenz, and states that after reading her complaint in this case, "I could not believe that Crescenz . . . would blatantly lie about us never having sex together. . . . [T]his claim by Crescenz is bogus." (Def. Ex. L.) Although there is reason to conclude that Bender's affidavit might be admissible to rebut plaintiff's claim that the book's recitation of a relationship is false, see Fed. R. Evid. 804(6) (addressing admissibility of trustworthy statements by deceased declarants in civil cases), we need not consider or rely on it here. Neither the affidavit or Bender's deposition, both taken post-publication, are relevant to Capuzzo's state of mind, and Penquin's knowlege, pre-publication.