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CLYBURN v. NEWS WORLD COMMUNS.

January 27, 1989

JOHN B. CLYBURN, Plaintiff,
v.
NEWS WORLD COMMUNICATIONS, INC., et al., Defendants


Norma Holloway Johnson, United States District Judge.


The opinion of the court was delivered by: JOHNSON

NORMA HOLLOWAY JOHNSON, UNITED STATES DISTRICT JUDGE

 This is a libel action against the Washington Times (Times). Plaintiff is seeking compensatory and punitive damages for defamation and for intentional infliction of emotional distress. Presently before the Court are defendants' motion for summary judgment and plaintiff's motion for partial summary judgment on the issue of falsity. The Court held a hearing on these motions on January 23, 1989.

 The complaint is based on a series of four news articles and one editorial which appeared in the Washington Times beginning on April 7, 1986. *fn1" These articles and the editorial state that plaintiff and former and current high-ranking District of Columbia officials were present at the time of Joann T. Medina's collapse from a drug overdose on December 10, 1983. Medina died four days later in the hospital. The Times also stated that Medina "lay unconscious on the bathroom floor for several critical hours -- while those at the party fled -- before an ambulance was called." Washington Times, April 7, 1986.

 Plaintiff, on the other hand, argues that he is not a public figure and that there is sufficient evidence from which a reasonable jury could find both negligence (to recover compensatory damages) and actual malice (to recover punitive damages). Plaintiff also argues that the editorial contained unprotected defamatory statements of fact and that defendants are not entitled to summary judgment on his allegation of intentional infliction of emotional distress.

 For the reasons given below, the Court grants the motion of defendants for summary judgment. Plaintiff's motion for partial summary judgment on falsity is denied as moot.

 FACTS

 In February 1986, the Times formed a team of reporters to investigate possible corruption in the D.C. government. The investigation related, in part, to alleged irregularities in the awarding of city contracts and to involvement with illegal drugs among D.C. officials. Reporters Michael Hedges, Jerry Seper, and Robert Welch were assigned to the team. Assistant Managing Editor Theodore J. Agres served as the immediate supervisor.

 According to defendants, early in the investigation, John Clyburn's name surfaced as a contractor with the D.C. government who was also a friend of Mayor Marion Barry. The reporters sought information from potential sources about any possible irregularity in Clyburn's contracting with the city, and other activity of public concern, according to the Times. Clyburn was a founder and co-owner of a consulting firm, the Granville Corporation (later named D.I.S.C.) that had obtained several city contracts.

 Several sources contacted by the Times mentioned Clyburn's presence at the scene of Joann Medina's collapse on December 10, 1983, at 1325 North Capitol Street, N.E., Washington, D.C. Medina collapsed and later died as a result of having ingested substantial amounts of alcohol and illegal drugs on the night of December 9-10, 1983. Clyburn found Medina unconscious in the bathroom at 1325 North Capitol St. on December 10. Medina died on December 14 at Washington Hospital Center. An autopsy and toxicology report found that Medina's body contained substantial amounts of barbiturates, cocaine, and alcohol.

 According to the Times, the investigation of Clyburn and his relation to Medina's death revealed several irregularities that led them to believe that an area of legitimate public interest was involved. These irregularities included:

 
(1) When the reporters contacted the Metropolitan Police, a police spokesperson incorrectly stated that Medina had collapsed at her home in Maryland and not in the District of Columbia.
 
(2) The Washington Post reported that Dr. Douglas Dixon, acting chief medical examiner for the District of Columbia at the time of Medina's death, had stated that political pressure was improperly applied to him to change Medina's death certificate.
 
(3) Articles in the Post and in the Times in 1984 revealed that Clyburn had misrepresented the identity of the person who telephoned the 911 emergency number on December 10, 1983, to assist Medina. Clyburn claimed that he made the call, but official records show that a woman (whom Clyburn now states is Linda Mason) made the call.
 
(4) The Times and the Post reported in August 1984 that federal authorities were investigating Medina's death. The Times states that reporters learned that the FBI, DEA, and Metropolitan Police investigated Medina's death as part of an investigation into possible use of illicit drugs by Mayor Barry.

 At the time of Medina's collapse, Clyburn was involved in an extramarital affair with Medina and was aware of Medina's use of cocaine during this period.

 Clyburn spoke to a reporter for the Post about Medina's collapse and death for a news article published on August 11, 1984, headlined "Death Probed After Autopsy Was Changed." In that article, the Post reported that the U.S. Attorney's office was investigating the circumstances of Medina's death and the alteration of her autopsy. The autopsy report originally ruled Medina's death a suicide, but this was changed to "undetermined causes." Washington Post, Aug. 8, 1984.

 Clyburn stated in the article that he and Medina went to a Georgetown night club and to the Washington Convention Center before going to 1325 North Capitol, where Medina ultimately was found unconscious. Clyburn stated that he and Medina were alone when they went to sleep about 1 a.m. Around 8 a.m., Clyburn found Medina in the bathroom and called the 911 emergency number, according to the article. Clyburn now admits that another woman, Linda Mason, was present in the house and that she called the 911 emergency number. Clyburn also stated in the Post article that he "might have suggested to Medina's father that he call [Director of D.C. Department of Human Services David] Rivers to try to change the medical examiner's ruling from suicide, but [Clyburn] said he never talked with Rivers about the case." Id. Clyburn's name appeared in at least four Times news articles in 1984 in connection with Medina's collapse and death.

 The articles and editorial at issue in this case were published by the Times in April 1986. The sources of information for these articles included five confidential sources, identified as A, B, 1, 2, and 3. Three of the confidential sources were law enforcement officers, one was an assistant United States attorney, and one was a D.C. government employee. The Times asserts that its reporters and editor ...


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