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01/15/93 ERIC A. FORETICH v. CBS

DISTRICT OF COLUMBIA COURT OF APPEALS


January 15, 1993

ERIC A. FORETICH, APPELLANT
v.
CBS, INC., ET AL., APPELLEES

Appeal from the Superior Court of the District of Columbia; (Hon. Curtis E. Von Kann, Trial Judge)

Before Rogers, Chief Judge, Terry, Associate Judge and Kern, Senior Judge.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge: This is an appeal from the grant of judgment on the pleadings under Super. Ct. Civ. R. 12 (c) and the denial of a motion to alter and amend the judgment. Appellant contends that the trial Judge erred in (1) dismissing the complaint for defamation and intentional infliction of emotional distress pursuant to Rule 12 when the Judge considered material outside of the pleadings, (2) not viewing the television program videotape before ruling on the meaning of the alleged defamatory statements, (3) finding that fifteen statements could not be defamatory as a matter of law, and (4) not viewing a second videotape that was discovered shortly after judgment was granted to appellees. Finding these contentions unpersuasive, we affirm.

I

This appeal relates to the custody visitation dispute between appellant Eric Foretich and his ex-wife, appellee Jean Elizabeth Morgan, who has alleged that appellant sexually abused their daughter Hilary and his daughter Heather by his former wife appellee Sharon Sullivan. *fn2 Appellant sued appellees C.B.S. Inc., Bristol-Myers Company, CTP, Inc., Reese Schonfeld, Bree Walker, Morgan and Sullivan seeking compensatory and punitive damages for defamation, invasion of privacy, false light, and intentional infliction of emotional distress, as a resultof a television program, "People Magazine on TV," which aired nationally and was seen in Washington, D.C., on August 16, 1989. *fn3 He alleged that appellees had "cooperated in airing" this television program concerning his alleged sexual abuse of his daughters, and, as a result of the false and defamatory statements in it, he had suffered personal and professional injuries. Pursuant to the trial court's order of July 27, 1990, directing appellant to identify, by full quotation, every statement in the television program which he alleged was false and defamatory, appellant filed a supplement to the complaint listing fifteen statements. *fn4 The parties stipulated that appellant and appellee Morgan and Sharon Sullivan were public figures for the purpose of this litigation, see New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964), and that the legal standards applicable to appellant's action against the media appellees are also applicable to his action against appellees Morgan and Sullivan.

Appellee Morgan filed a motion pursuant to Super. Ct. Civ. R. 12 (b)(6) to dismiss the complaint as failing to state a claim upon which relief can be granted because the two statements uttered by her were not defamatory as a matter of law and, regarding appellant's claim for intentional infliction of emotional distress, appellee Morgan's "utterance of those statements, (supra) note 22, was not outrageous as a matter of law." The media appellees moved for judgment on the pleadings pursuant to Super. Ct. Civ. R. 12 (c) on the grounds that the statements "are not 'of and concerning' him, . . . do not injure him beyond the harm caused by the unchallenged portion of the program." *fn5 Attached to the motion was a transcript of the television program preparedby one of the employees of the media appellees. *fn6 Appellant filed oppositions to both motions, arguing that appellee Morgan misapplied the incremental harm doctrine, that the trial Judge would have to examine the entire content of the television program and that Morgan's statements were outrageous and sufficient to show intentional infliction of emotional harm. In addition, appellant argued that by attaching the transcript and relying on information outside of the pleadings, the media appellees had converted their motion under Rule 12 (c) to a motion for summary judgment under Super. Ct. Civ. R. 56, but had failed to set out a statement of material facts as to which there is no genuine dispute. Appellant asserted that there were material disputed facts and, therefore, the media appellees' motion for judgment should be denied.

One month later, on November 2, 1990, appellant filed, in response to the trial court order of October 15, 1990, a Memorandum on Meaning of Statements. In his memorandum, appellant stated that he "does not plan in this action to prove the falsity of the allegation that he sexually abused his two daughters." He "submitted that he has never abused his daughters, sexually or in any other fashion," and explained that "his decision to limit the litigation is . . . in no sense an admission that the accusations of sexualabuse are true." He further stated that he thought appellees acted with malice and that the television broadcast was presented without "any reliance on his version of the facts, and in a sensationalist style that contributed to the ratings." He further claimed that:

the style and presentation of the broadcast, as well as the acts of the participants, including their facial expressions, intonation, and the placing of Sharon Sullivan in a shadow, contribute to the false and defamatory nature of the statements. These impressions cannot be understood or conveyed simply by reading the statements.

Appellant then reviewed why he claimed that the fifteen statements are false and defamatory. Appellee Morgan filed a response that the two statements uttered by her could not form the basis of a libel action since appellant had elected not to litigate the child abuse issue and the statements were not "of and concerning" him.

The trial Judge granted appellees' motions for judgment on the pleadings, *fn7 treating appellee Morgan's motion to dismiss as a motion for judgment on the pleadings in view of appellant's supplement to his complaint. *fn8 Applying Virginia law, because appellant livedin Virginia at the time of the broadcast, *fn9 the trial Judge found, in light of appellant's refusal to litigate the underlying allegedly defamatory statements of his sexual abuse, that the fifteen statements were not defamatory and did not constitute intentional infliction of emotional distress. The trial Judge concluded:

If the statements listed in the supplement to the complaint can only be considered defamatory in conjunction with the assertion that sexually abused one or both of his daughters, then well-settled law regarding public figures, stipulations entered in this case, and [appellant's] statement that he will not prove the falsity of the allegation that he sexually abused his two daughters, would require the Court to conclude, as a matter of law, that these statements are not capable of carrying a defamatory meaning.

Appellant's motion to alter or amend the judgment under Super. Ct. Civ. R. 59 (e) -- on the grounds that the trial Judge erred by not viewing the television program videotape, treating appellees' motions as motions under Rule 56, and viewing a videotape of a program aired on November 28, 1988, and by applying Virginia law where defamation arises from the words and the inducement, citing Wilder v. Johnson Pub. Co., 551 F. Supp. 622, 625 (E.D.Va. 1982) -- was denied.

II

Appellant contends that the trial Judge erred in dismissing the complaint under Rule 12 (c) because the Judge considered material that was outside of the pleadings, an affidavit of J. Leib Dodell and a ten page transcript of the television program. *fn10 The affidavit is that of an attorney at the law firm representing appellee CBS, Inc., and states that he had viewed the videotape segment of "People Magazine on TV" and that "the transcript attached . . . is a fair and accurate representation of all statements made on the segment of the 'People Magazine on TV' episode at issue in this action." The affidavit also refers to certain deletions of names during the program and states that the transcript "presents the broadcast as it sounded to the viewer, after the deletions and dubs were made." Appellant maintains that the Judge should have required full briefing, including a statement of facts at issue, before he made any determination which relied on an affidavit. Appellant claims that he was not afforded an opportunity to file a statement of facts at issue, and that media appellees filed no statement of material facts as to which there is no genuine issue, and he seeks a remand for a full and proper briefing under Rule 56.

Under Rule 12 (b)(6), if "matters outside the pleading are presented to and not excluded by the Court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." The same language appears in Rule 12 (c). See note 5, (supra) . The court has applied a harmless error rule where the trial court's decision to dismiss under Rule 12 can be justified without reference to the material outside of the pleadings. Healey v. Barker Foundation, 469 A.2d 1244, 1246 (D.C. 1983). The court has also treated a Rule 12 (b)(6) motion as a motion for summary judgment under Rule 56 where the motion referred to an affidavit and certain documents. Wemhoff v. Investors Management Corp., supra note 10, 455 A.2d at 898-99; Launay v. Launay, Inc., 497 A.2d 443, 447 (D.C. 1985).

The media appellees maintain that the trial Judge correctly granted judgment under Rule 12 (c) because courts have recognized that when a document is central to the plaintiff's complaint and the plaintiff fails to introduce it, the defendant may introduce the exhibit as a part of his motion attacking the pleading without converting a Rule 12 motion into a motion under Rule 56. See Romani v. Shearson Lehman Hutton, 929 F.2d 875, 879 (1st Cir. 1991) (attaching offering materials for a company in a security action); Miller v. New Am. High Income Fund, 755 F. Supp. 1099, 1103 n.6 (D. Mass. 1991) (prospectus central to plaintiff's claim); In re First Chicago Corp. Sec. Litig., 769 F. Supp. 1444, 1450 (N.D. Ill. 1991) (press releases and annual reports quoted in complaint were pertinent documents that did not convert the Rule 12 motion into a Rule 56 motion). Thus, in Fudge v. Penthouse Int'l, Ltd., 840 F.2d 1012 (1st Cir.), cert. denied, 488 U.S. 821, 102 L. Ed. 2d 42, 109 S. Ct. 65 (1988), the court found no error by the trial court in considering a copy of the article that was the basis for the plaintiff's defamation claim in ruling on the defendant's motion to dismiss the complaint under Rule 12 (b)(6). Acknowledging that "'there is no requirement that the pleader attach a copy of the writing on which his action or defense is based[,] . . . when plaintiff fails to introduce a pertinent document as part of his pleading, defendant may introduce the exhibit as part of his motion attacking the pleading." Fudge, supra, 840 F.2d at 1015. The media appellees point out that appellant has not cited a case involving a defamation action in which the introduction of the publication or transcript of the broadcast at issue converted a Rule 12 motion into a Rule 56 motion.

Here, as in Fudge, supra, the basis for the complaint was identified by reference to specific material which was not attached to the complaint, and hence appellant would have had to introduce that material relating to the television program at trial. In Fudge, supra, however, there was no dispute about the authenticity of the magazine article which the defendant attached to his motion to dismiss the complaint. By contrast, appellant maintains that the written transcript was not part of the complaint and that at trial he would not have introduceda transcript of the television program but, instead, he would have introduced the videotape. Further, he has never agreed that the transcript was an authentic representation of or substitute for the program. On this basis, appellant distinguishes the cases relied on by appellees where financial reports and other documents have been part of a Rule 12 motion.

We hold that the trial Judge erred by not treating appellees' motions under Rule 56. Hill v. District of Columbia, supra note 10, 345 A.2d at 868 ("Since trial court considered that evidence in addition to the pleadings, it properly treated the motion . . . as provided in Superior Court Civil Rule 56."). The language of Rule 12 is mandatory. See note 5, (supra) . The cases relied on by appellees for an exception to the Rule are distinguishable. The transcript attached to media appellees' motion was not the specific material relied on in appellant's complaint; nor did appellant ever concede that the transcript was a satisfactory substitute. Indeed, the trial Judge acknowledged that the written transcript was not the same as the videotape of the television broadcast. Moreover, the trial Judge did not view the videotape to which the complaint referred. Hence, Fudge, supra, 840 F.2d 1012, and like decisions are inapposite. Therefore, the first question is whether the trial Judge's dismissal of the complaint under Rule 12 (c) was harmless error, notwithstanding the media appellees' attachment of the transcript to their motion, because "the decision to dismiss can be justified without reference to the ." Healey v. Barker Foundation, supra, 469 A.2d at 1246; see Miller v. Glanz, 948 F.2d 1562, 1566 (10th Cir. 1991).

The trial Judge explicitly relied on the television program transcript in two portions of his memorandum opinion. The Judge used the transcript to show that appellant had not listed as defamatory statements in his supplement to the complaint certain more damaging statements that were included in his complaint, and to put in context the statement "new revelations in the case of Dr. Elizabeth Morgan." The first use of the transcript is a quote of statements by appellees Morgan and Sullivan during the broadcast that accuse appellant of sexually abusing his daughters. There are seven quotes, the last three *fn11 of which were paraphrased by appellant in his original complaint. *fn12 The trial Judge, therefore, had notice of these phrases from the complaint itself. The other four quotes center around the allegation that appellant had raped both of his daughters. *fn13 The Judge had ample, although not complete, notice of these allegations from the complaint and appellant's memorandum on the meaning of the fifteen alleged defamatory statements. *fn14 The reference to the sister's witnessing and the "jail is heaven" remark appear only in the transcript. Consequently, the trial Judge used the transcript for more than establishing the fact that appellant chose not to litigate the underlying charge of sexual abuse of his daughters.

The second time the Judge explicitly used the transcript, however, he provided an alternative ground on which to base his finding that the phrases were not defamatory. The Judge relied on the transcript to refute appellant's argument that the "new revelations in the case of Dr. Elizabeth Morgan" statement "implies that the allegations are of a recent event or recently discovered." The Judge, acknowledging that he had to consider not only the words but also the statement "in the entire context in which the statement occurs," quoting Tavoulareas v. Piro, 260 U.S. App. D.C. 39, 56, 817 F.2d 762, 779 (1987), then proceeded to "assume that viewers would have fairly considered this statement to imply that the allegations are of a recent event, what would the recent event be if not the alleged child sex abuse, which allegation has chosen not to prove false?" Based on the assumption that appellant's interpretation of the statement was correct, the Judge found that the statement still would not have been defamatory.

In addition, the Judge acknowledged that he relied on the transcript for the "guts" of the television broadcast. *fn15 Although it appears that the Judge meant that he only relied in order to obtain a general idea of the subject of the broadcast, the transcript was not the material on which the complaint relied. Moreover, the Judge, having never viewed the videotape, was not in a position to determine for himself whether or not the transcript accurately reflected the broadcast; the only evidence on that issue was an affidavit of an attorney for appellee CBS, Inc. Even assuming that appellant's counsel's responses during the colloquy with the trial Judge suggest a concession that the transcript was sufficiently accurate to enable the Judge to understand the "guts" of the broadcast, see note 15, (supra) , it is clear that the Judge considered material outside of the pleadings in granting appellees' motions to dismiss.

By considering material outside of the pleadings in granting the motions to dismiss, the trial Judge was obligated to assure that appellant had an appropriate opportunity to respond. See Rule 56 and Super. Ct. Civ. R. 12-I(k). *fn16 Although we find no indication in the record that the trial Judge informed appellant that appellees' motions had been converted into Rule 56 motions, the record makes clear that the Judge afforded appellant a full opportunity, prior to a hearing on the motions, to amass evidence to show the existence of material disputed facts and to demonstrate that appellees were not entitled to judgment as a matter of law. See Miller v. Glanz, supra, 948 F.2d at 1565; Goldkind v. Snider Bros., Inc., 467 A.2d 468, 472 (D.C. 1983) (this court looks to federal construction of identical rules as persuasive authority); WRIGHT & MILLER, (supra) note 10, § 1371, at 544. First, appellant identified every statement which he alleged to be false and defamatory. Second, appellant filed a Memorandum on Meaning of Statements. *fn17 Third, appellant filed oppositions to the motions to dismiss pointing out, inter alia, the absence of a statement of material issues not in dispute, thereby responding, in effect, to a Rule 56 motion and clearly indicating that appellant was aware of the requirements of Rule 56 and Rule 12-I (k). Appellant has not suggested that he was prevented from bringing any argument or alleged fact to the attention of the trial Judge, or that he was in any way prejudiced by the failure of the Judge expressly to advise that appellees' motions would be converted to a Rule 56 motion. Hence, only appellees could possibly claim any prejudice, and they need not, since, for the reasons that follow, they are entitled to judgment as a matter of law. Accordingly, we turn to appellant's other contentions of trial Judge error.

III

Appellant contends that because any determination of the meaning of the statements made during the television broadcast "absolutely requires a viewing of the videotape at issue," the trial Judge's failure to view the videotape was reversible error. Appellant argues effectively the importance of viewing a visual medium like a television program.

"Television touches more senses than does the print media, and the standards for finding defamation cannot be woodenly applied without taking into account the kind of medium by which the message was delivered." White v. Fraternal Order of Police, 285 U.S. App. D.C. 273, 287, 909 F.2d 512, 526 (1990). In looking at an alleged defamatory statement in a television program, or in a video format, the court must consider the program "'as a whole' and in the sense in which it would be understood by the average viewer." Southern Air Transport v. American Broadcasting Companies, Inc., 278 U.S. App. D.C. 222, 227, 877 F.2d 1010, 1015 (1989) (quoting Afro-American Publishing Co. v. Jaffe, 125 U.S. App. D.C. 70, 76, 366 F.2d 649, 655 (1966) (action for libel and invasion of privacy based on newspaper article and photograph)). Thus, the United States Court of Appeals for the District of Columbia Circuit stated that because, at the time, an inference that Southern Air was engaged in dealings with the South African government "clearly would have a defamatory meaning because of the intense antipathy felt by a great number of Americans towards South Africa," the court was required to consider the news report as a whole. "We must also take into account the impact of the visual effects as well as the text because 'the television medium offers the publisher the opportunity, through visual presentation, to emphasize certain segments in ways that cannot be ascertained from a mere reading of the transcript.'" Southern Air Transport v. American Broadcasting Companies, Inc., supra, 278 U.S. App. D.C. at 227, 877 F.2d at 1015 (quoting Lasky v. American Broadcasting Inc., 631 F. Supp. 962, 970 (S.D.N.Y. 1986)). This is because "only by considering the text in conjunction with the accompanying visual images can one understand the possible emotive impact of the story, as it is the juxtaposition of the audio and visual elements that conveys the meaning intended." Id., 877 F.2d at 1015 (citing Lasky v. American Broadcasting Companies, Inc., supra, 631 F. Supp. at 1015 ("it is the entirety of the program, both audio and video, that must be considered . . . .")).

Obviously, a trial Judge could miss subtle, or not so subtle, graphics, visuals or vocal expressions in the absence of actually viewing a television broadcast. In a defamation action based on a television broadcast, only highly unusual circumstances could explain a failure to view the television broadcast before ruling on a dispositive motion. This is such a case.

In his complaint and in identifying the fifteen allegedly defamatory statements, appellant refers expressly to "the content, form and style of the show, including the methods and actions used by Ms. Walker in conducting interviews with Dr. Morgan and Ms. Foretich" and to the tone or demeanor of the speaker a number of times in alleging that he was defamed. But, in this particular case, this was not enough to make clear why viewing the videotapeof the broadcast was relevant to showing that appellees were not entitled to judgment as a matter of law. Appellant never indicated how the intonation or shading of Sharon Sullivan's appearance or behavior of the participants or style of presentation of the program would indicate, upon viewing the videotape, that the fifteen statements were capable of a defamatory meaning separate and apart from the claim that appellant had sexually abused his daughters. He has never claimed that there was a voice-over or data shown as background to other scenes during the broadcast that would indicate the statements were independently defamatory. Indeed, he has never even explained how the statements are capable of being defamatory if the underlying allegation of child sexual abuse of his daughters is not false, and appellant has elected not to prove that he did not abuse his daughters. In those instances where appellant claimed that the defamatory meaning was clear as a result of intonation, which would be apparent from a viewing but not a written transcript of the broadcast, appellant failed at any point to identify the independent defamatory inference that he alleged arose from the fifteen statements, much less what inference would arise from viewing the videotape that would not be clear from reading a transcript. The trial Judge afforded appellant a full opportunity to identify the independent defamatory inference on which he was relying. Even on appeal, appellant has not suggested any such inference, arguing only that the trial Judge was required to view the videotape. Nor has appellant identified errors in the written transcript.

Such a response, barren of any explanation of the nature of appellant's defamatory claim or theory in the absence of disproof of child sexual abuse, is insufficient. Under these highly unusual circumstances, involving public figures subject to the standard of New York Times Co. v. Sullivan, supra, 376 U.S. at 279, we hold, in light of the analysis in Part IV, (infra), that the Judge's failure to view the videotape of the television program was harmless.

IV

Appellant contends that the trial Judge erred in finding that the fifteen statements, which he identified as false and defamatory, were not defamatory as a matter of law. He maintains that the Judge failed to consider whether the statements were capableof a defamatory meaning, and, instead, used a hybrid analysis of whether there was a defamatory meaning independent of an allegation of sexual abuse. He further maintains that the trial Judge erred in undertaking the factual and comparative evaluation of the relationship between possible meanings of the statements and the rest of the television program because it was for the jury to decide among a choice of defamatory meanings. Finally, appellant contends that the Judge erred by looking to the broadest and most inclusive interpretation of defamation rather than the narrow interpretation followed under Virginia law.

A public figure may recover damages for defamation by showing that an allegedly defamatory statement about the plaintiff was made with "'actual malice,' -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times Co. v. Sullivan, supra, 376 U.S. at 297. See St. Amant v. Thompson, 390 U.S. 727, 731, 20 L. Ed. 2d 262, 88 S. Ct. 1323 (1968) (plaintiff must show defendant "in fact entertained serious doubts as to the truth of his publication"); Moss v. Stockard, 580 A.2d 1011, 1022 & n.22 (D.C. 1990) (plaintiff must plead and prove statements were false and defamatory and "published with some degree of fault") (citing Harrison v. Washington Post, 391 A.2d 781, 783 (D.C. 1978) (other citations omitted)). Likewise, a public figure may recover for intentional infliction of emotional distress by showing that there was "a false statement of fact," which was made with such "actual malice." Hustler Magazine v. Falwell, 485 U.S. 46, 56, 99 L. Ed. 2d 41, 108 S. Ct. 876 (1988). "Actual malice" must be proved by clear and convincing evidence in both causes of action. Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974).

Under Virginia law, a statement is defamatory if it tends "to injure reputation, 'diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant feelings or opinions against him.'" General Products Co. v. Meredith Corp., 526 F. Supp. 546, 549 (E.D. Va. 1981) (quoting PROSSER, LAW OF TORTS § 111 (4th ed. 1971)); see Wilder v. Johnson Pub. Co., supra, 551 F. Supp. at 624. The trialJudge must determine at the outset that, as a matter of law, a phrase is capable of a defamatory meaning before sending the case to a jury. White v. Fraternal Order of Police, supra, 285 U.S. App. D.C. at 279, 909 F.2d at 518; Tavoulareas v. Piro, supra, 260 U.S. App. D.C. at 56, 817 F.2d at 779; Chaves v. Johnson, 230 Va. 112, , 335 S.E.2d 97, 335, S.E.2d 97, 102 (1985); Moss v. Stockard, supra, 580 A.2d at 1023; *fn18 Foretich v. Glamour, 753 F. Supp., 955, 966 (D.D.C. 1990). The defamatory statement must also be "of and concerning plaintiff." Gazette, Inc. v. Harris, 229 Va. 1, 28, 325 S.E. 2d 713, 738, cert. denied, 472 U.S. 1032, 87 L. Ed. 2d 643, 105 S. Ct. 3513 (1985); General Products Co. v. Meredith Corp., supra, 526 F. Supp at 550. However, it is clear that a plaintiff may not "combine the damaging nature of certain true statements with the falsity of other, immaterial statements in order to provide the basis for a defamationclaim." AIDS Counseling & Testing Centers v. Group W Television, Inc., 903 F.2d 1000, 1004 (4th Cir. 1990). "('It is not necessary [for a defendant] to establish the literal truth of the precise statements made. Slight inaccuracies of expression are immaterial provided that the defamatory charge is true in substance.')" See Liberty Lobby, Inc. v. Dow Jones & Co., supra note 9, 267 U.S. App. D.C. at 346, 838 F.2d at 1296 (quoting RESTATEMENT (SECOND) OF TORTS § 581A cmt. f (1977)).

These are the legal standards which the trial Judge applied, and we find no error in his application of them. The Judge examined whether any of the fifteen statements "are capable of carrying a defamatory meaning independent of the core assertion that decided not to prove false, namely the defamatory statement that he sexually abused his two daughters," and found that none were. *fn19 Appellant's contention, that the trial Judge erred because he should have established whether the statements were capable of carrying any defamatory meaning, citing Tavoulareas v. Piro, supra, 260 U.S. App. D.C. at 59 n.23, 817 F.2d at 782 n.23, is apparently a reference to a meaning independent of the child sex abuse allegation. But appellant never provided a description of the independent defamatory inference on which he was relying in the absence of proof that the allegations of child sexual abuse were false. *fn20 To the extent that appellant contends the Judge erred because the statements were defamatory, in that they created the impression by innuendo that he was a child abuser, the trial Judge properly looked to whether or not the words were reasonably susceptible of that meaning where appellant elected not to prove that he had not abused his children. Hence, we find no error by the trial Judge in undertaking the evaluation that he did. *fn21

Upon examining the Judge's findings on the fifteen statements with regard to a defamatory meaning independent of the allegation of child sexual abuse, we find no clear error, nor do we find that the Judge erred in concluding that the statements were "not reasonably capable of any defamatory meaning and cannot be reasonably understood in any defamatory sense." *fn22 Southern Air Transport v. American Broadcasting Companies, Inc., (supra) , 278 U.S. App. D.C. at 226, 877 F.2d at 1014 (citing McBride v. Merrell Dow and Pharmaceuticals, Inc., 230 U.S. App. D.C. 403, 408, 717 F.2d 1460, 1465 (1983) (quoting Levy v. American Mutual Liability Ins. Co., 196 A.2d 475, 476 (D.C. 1964)). All of the fifteen statements center around the allegation of sexual abuse by appellant of his daughters. Without proving that that allegation is false, appellant cannot demonstrate that the other statements are capable of being defamatory. Nothing in the statements impugns appellant's reputation or character unless the child sexual abuse charges are true. Assuming the truth of appellant's allegations regarding voice tone, hand-holding and whispering by the interviewer to Sharon Sullivan, appellant still has failed to demonstrate that the statements were thereby capable of a defamatory meaning. Appellant's suggestion that "false allegations are so easy to make and, once made, so difficult to disprove," states a reality to which the law of defamation has given less weight than other interests. While we take no position on whether appellant sexually abused his children, we readily acknowledge the difficulty presented to appellant by having to prove what he alleges is a negative. But, in view of the parties' stipulations, see page 3, (supra) , appellant's difficulty arises from what the Supreme Court expressly acknowledged in Gertz v. Robert Welch, Inc., supra, 418 U.S. at 342, namely, that even "many deserving plaintiffs, including some intentionally subjected to injury, will be

Similarly, we find no error by the trial Judge in granting judgment to appellees on appellant's claim for intentional infliction of emotional distress. A statement will support a claim for intentional inflictionof emotional distress where the wrongdoer's conduct was intentional or reckless, the conduct was outrageous or intolerable because offensive to generally accepted standards of decency and morality, there was a causal connection between the conduct and the plaintiff's emotional distress, and that distress was severe. Ruth v. Fletcher, 237 Va. 366, 377 S.E.2d 412, 412-13 (1989) (citing Womack v. Eldridge, 215 Va. 338, 210 S.E.2d 145, 148 (1974)). See Howard University v. Best, 484 A.2d 958, 985 (D.C. 1984). The trial Judge found that none of the fifteen statements "can be considered 'outrageous', such that the might be considered, as a matter of law, to have committed the tort of intentional infliction of emotional distress." Appellant has not shown that appellees made false statements of fact with actual malice, and for the reasons noted in note 22, (supra) , we find no error.

V

Finally, appellant contends that the trial Judge erred by failing to permit appellant to use a second television program videotape, involving Sharon Sullivan, to refute the statements in the first television program that she was a "surprise witness" or that the show had a "late-breaking exclusive." *fn23

Assuming that the trial Judge, under Rule 56, should have allowed appellant to use this late-found second videotape, appellant states that it would only show that certain statements made by Sharon Sullivan were false. The trial Judge properly found that both statements -- "a surprise witness in the case" and "late-breaking exclusive on the Morgan case . . ." -- could not be defamatory regardless of whether they were true or not. Accordingly, we find no abuse of discretion by the trial Judge in denying appellant's Rule 59 (e) motion. See Wallace v. Warehouse Employees Union, 482 A.2d 801, 810 (D.C. 1984).

Accordingly, we affirm the judgments for appellees and the order denying appellant's motion to vacate the judgments.


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