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FORETICH v. ADVANCE MAGAZINE PUBLRS.

June 4, 1991

ERIC A. FORETICH, VINCENT P. FORETICH, and DORIS FORETICH, Plaintiffs,
v.
ADVANCE MAGAZINE PUBLISHERS, INC., THE CONDE NAST PUBLICATIONS, INC., JUDITH COYNE, and BOB TREBILCOCK, Defendants


Gerhard A. Gesell, United States District Judge.


The opinion of the court was delivered by: GESELL

GERHARD A. GESELL, UNITED STATES DISTRICT JUDGE

 The Amended Complaint alleges libel and intentional infliction of emotional distress. Jurisdiction is based on diversity of citizenship. Plaintiffs are Eric Foretich, an oral surgeon, and his parents, Vincent and Doris Foretich. Defendants are a publishing company, one of its editors, and a freelance writer. *fn1" By the end of three rounds of motions to dismiss, the Court had dismissed the bulk of the claims on statute of limitations and other grounds. See Foretich v. Glamour, 741 F. Supp. 247 (D.D.C. 1990); Foretich v. Glamour, 753 F. Supp. 955 (D.D.C. 1990) (two opinions). The remaining claims concern only a letter to the editor and an accompanying editor's note published in the January 1989 edition of Glamour magazine. After discovery, defendants move for summary judgment, and plaintiffs oppose. The motion has been fully briefed and argued. A bench trial has been set for June 24, 1991. *fn2"

 After full consideration, the Court concludes: (1) all defendants must be granted summary judgment on the defamation and emotional distress claims of plaintiff Vincent Foretich; (2) all defendants must be granted summary judgment on the defamation and emotional distress claims of plaintiff Eric Foretich; (3) although plaintiff Doris Foretich is a limited purpose public figure, her defamation and emotional distress claims must proceed to trial, except that defendant Bob Trebilcock must be granted summary judgment as to both claims.

 I. Background

 It is worth briefly repeating the context in which this dispute arises. Eric Foretich is the father and Elizabeth Morgan, a plastic surgeon, is the mother of a minor child, Hilary, born in 1982. After the couple divorced, they became embroiled in a highly publicized proceeding in the Superior Court of the District of Columbia over Foretich's rights to visit with Hilary. Morgan, who had been awarded custody subject to limited visitation rights for her ex-husband, adamantly refused to produce Hilary before the Court, as ordered, and beginning in 1987 she was jailed for 25 months because of her defiance. She justified her actions in various statements claiming, among other things, that Foretich and his parents, Vincent and Doris Foretich, had sexually abused Hilary, a charge they vigorously denied. The dispute was accompanied by vehement accusations back and forth and a rising media interest. Apart from the custody case in Superior Court, the dispute also went to trial in February 1987 in a suit initiated by Morgan in the United States District Court for the Eastern District of Virginia on opposing tort claims by each side. By the time Glamour published its January 1989 issue, the events and issues were being highly publicized nationally on television, radio and in many newspapers and magazines. Foretich made public appearances, as did Morgan.

 The controversy and the rulings of the presiding Superior Court judge engendered discussion on issues of public concern, including child abuse, women's rights, the intrusion of the state into private affairs, and the limits of punishment for contempt of court. Morgan's staunch, unrelenting position attracted both supporting and adverse comment. Ultimately, Congress became involved, enacting in 1989 special legislation signed by the President effecting Morgan's release from jail.

 Glamour, published in New York by the Conde Nast organization, appeared to support Morgan's position, as the series of publications originally challenged by the Amended Complaint reveals. Glamour included in its November 1988 issue, published in early to mid-October 1988, an article entitled "Hiding Hilary," authored by freelance writer Bob Trebilcock. The article, which dealt broadly with the Morgan-Foretich dispute, included the following passage concerning Eric Foretich's background:

 
Eric Foretich was a native Virginian. His mother, a Daughter of the American Revolution, taught art and his father was an engineer. He is his parents' only living child. When Eric was in his twenties, his younger brother was killed in an auto accident; earlier, when he was in his teens, a sister died shortly after birth. Eric's mother handed him the dead infant, and he arranged for the funeral [emphasis added].

 The McGlohn letter, dated October 11, 1988, and stamped as received by Glamour on October 19, 1988, stated:

 
I have just completed reading the "story" entitled "Hiding Hilary" written by Bob Trebilcock in your Nov. issue and I find it totally incredulous that this sort of trash found its way to Glamour Magazine. I thought that this kind of libellous material was only printed by the "rags" such as the "National Enquirer" or "Star," etc..
 
Obviously this writer must be on Elizabeth Morgan's payroll as he has written her heinous lies as facts.
 
How dare he or your magazine print her lies without researching them for credence?
 
One of the sickest lies was the one relating to the death of Dr. Foretich's infant sister when he had just turned 16. She died in the hospital from a blood disorder and was never returned to their home. To state, as a fact, that his mother handed him the "dead infant, and he arranged the funeral is horrendous and inexcusable. [emphasis added]
 
To have this fabrication from the mind of a woman who has been proven to have multiple mental disorders and who is totally evil, labeled as "A true story of love, divorce, etc., is the worse form of irresponsible journalism.
 
Did it ever occur to Bob Trebilcock or your magazine that any sane mother, who had an ounce of love for her daughter, would never smear her picture in every magazine she can get to print it, to follow and stigmatize her for the rest of her life? This woman is totally incapable of "love" and her only objective is to gain total power over Hilary, to seek vengeance to Dr. Foretich and his parents and all the horrid publicity she can muster to promote her "writings."
 
For your magazine to support her evil determination to totally ruin the lives of three honorable, loving, supportive parents as the Foretichs' are and have always been, just to sell magazines is conscienceless.
 
If there is any integrity and fairness within your staff, you will not fail to print any negative reactions you receive in regard to this vile, untrue article.

 The January 1989 Glamour, published in early to mid-December 1988, devoted its entire Letters from Readers page to responses to "Hiding Hilary." The McGlohn letter was selected by Glamour for publication. It was printed in the January 1989 Glamour with deletions and alterations, and followed by an editor's note, as set out below:

 
Your writer must be on Elizabeth Morgan's payroll, because he has written her heinous lies as facts. (One of the sickest was the statement that Dr. Foretich's mother handed him the body of his infant sister just after she died so he could arrange for the funeral.) Did it ever occur to the writer that no sane mother would smear her daughter's picture in every publication willing to print it, so the story could stigmatize her for the rest of her life? This woman is totally incapable of "love"; her only objective is to gain total power over Hilary, seek vengeance on Dr. Foretich and his parents, and get all the publicity she can for her books.
 
J.F. McGlohn
 
Newport News, Va.
 
Editor's note: Our source for the statement concerning Dr. Foretich's infant sister was a deposition made by Nancy Fretta, Ph.D., a clinical psychologist, who testified that Dr. Foretich had told her the story during a professional consultation. [bold in original]

 II. Motion for summary ...


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