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Ohrenz v. Donnelly

August 16, 2002


The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge


Now before the Court is defendants' Motion to Strike Declaration and Report of Captain Charles Nesby [139], plaintiff's Memorandum of Points and Authorities in Opposition to defendants' Motion to Strike Declaration and Report of Captain Charles Nesby, defendants' Reply in Support of Motion to Strike Declaration and Report of Captain Charles Nesby, defendants' Motion for Summary Judgment [119-1] and Motion for Oral Hearing [119-2], plaintiff's Opposition to defendants' Motion for Summary Judgment, defendants' Reply in Support of Motion for Summary Judgment, plaintiff's Cross-Motion for Partial Summary Judgment [133], defendants' Opposition to plaintiff's Cross-Motion for Partial Summary Judgment, and plaintiff's Reply in Support of Cross-Motion for Summary Judgment. Upon consideration of the pleadings, relevant decisions of prior federal and state courts, and the record of this case, the Court will DENY defendants' Motion to Strike [139], GRANT defendants' Motion for Summary Judgment [119-1], DENY defendants' Motion for Oral Hearing [119-2], and DENY plaintiff's Cross-Motion for Partial Summary Judgment [133].

I. Background

Plaintiff Carey Dunai Lohrenz alleges that defendants Elaine Donnelly and the Center for Military Readiness (CMR) are liable for libeland slander (Count I) and for invasion of privacy (Count IV). All of these claims are governed by the law of the District of Columbia. Plaintiff Lohrenz had originally brought her case against four specified defendants:Donnelly, CMR, Copley Press, News World Communication Incorporated, and John Does 1-100. This Court granted the motion by Copley Press to dismiss the complaint for lack of jurisdiction, and defendant News World Communication has settled with plaintiff. Defendants Donnelly and CMR now move for summary judgment, and plaintiff Lohrenz has filed a cross-motion for partial summary judgment.

Defendant Donnelly is the President and primary spokesperson of defendant CMR, a public policy organization concerned with military personnel issues. CMR was incorporated in Michigan in 1992. Plaintiff alleges that CMR is supported by a small group of retired military officers named as defendants John Does 1-100.

Plaintiff Lohrenz was sworn into the Navy as an officer candidate in November 1990; after training, she received her commission in May 1991. In 1993, plaintiff Lohrenz received her designation as a naval aviator; shortly thereafter, plaintiff was assigned to the F-14 Tomcat. In July 1993, plaintiff reported to the Fleet Replacement Squadron (FRS) VF 124, based at Miramar Naval Air Station, for F-14 training. Plaintiff was one of two women assigned to VF 124 for F-14 training; the other was the late Lt. Kara Hultgreen. Plaintiff received approximately eleven months of instruction in piloting the F-14 and in August 1994, plaintiff joined fighter squadron 213, then attached to the U.S.S. Abraham Lincoln in the Pacific Fleet.

Throughout her training at Miramar and when she was a member of fighter squadron 213, plaintiff was evaluated for her performance and fitness as an F-14 pilot. Lohrenz asserts that her evaluations show that she was an average to above-average F-14 pilot; defendants assert that Lohrenz's evaluation record shows that she was a sub-standard pilot who often received benefits and training that her male counterparts did not receive. The training records will be discussed at more length infra sections III and IV.

On October 25, 1994, Lt. Hultgreen was killed while landing an F-14 on the U.S.S. Abraham Lincoln. This tragic event signaled the beginning of a series of events which led to the instant lawsuit. After the death of Lt. Hultgreen, there was a barrage of media articles about the wisdom of the military's recent decision to allow women in combat; many commentators were critical of the military's decision.

In mid-December of 1994, defendant Donnelly spoke on the telephone with and received a letter from a Lt. Patrick Jerome "Pipper" Burns asserting that both Hultgreen and plaintiff had been promoted because of political pressure to incorporate more women into the Navy, and that neither was a qualified pilot. On January 6, 1995, defendant Donnelly met with Adm. Stanley Arthur who was one officer responsible for the training of F-14 pilots; at that meeting, she informed Arthur of her belief that Hultgreen and plaintiff had been carrier-qualified as F-14 pilots only because they were women, and that both should actually have failed out of the program. Admiral Arthur promised to investigate her suspicions, but he neither confirmed nor denied the facts in defendant Donnelly's possession. On January 16, 1995, defendant Donnelly sent a letter to Senator Strom Thurmond (hereinafter the "Thurmond letter"), repeating and describing the facts and allegations made in the letter from Lt. Burns. Defendant Donnelly asserted that both Lt. Hultgreen and plaintiff Lohrenz were unqualified to be fighter pilots, and had received their positions as a result of political pressure. In the Thurmond letter, plaintiff Lohrenz was not identified by name; she was referred to only as "Pilot B" in a purported effort to protect her identity. It was, however, well known that there were only two women carrier-qualified as F-14 pilots, so plaintiff's identity as "Pilot B" was no mystery to other naval aviators, other officers and crew aboard the U.S.S. Abraham Lincoln, and any other individuals who were familiar with the naval aviation community. In addition, plaintiff Lohrenz's actual identity as "Pilot B" was subsequently revealed by various newspapers. See Defs. Mot. for Summary Judgment, Exh. 11 to Lohrenz Dep. (San Diego Union-Tribune article); id., Exh. 14 to Lohrenz Dep. (Washington Times article).

Sometime between October 28, 1994 and April 1995, the FRS training records of Hultgreen and plaintiff were removed from confidential Navy files by fellow officers who served with them at VF 124 or at fighter squadron 213. *fn1 Portions of those records were transmitted to defendant Donnelly by Lt. Burns. Defendant Donnelly had two further meetings with Adm. Arthur (on Febraury 8 and March 24, 1995), one telephone conversation with Adm. Arthur (March 6, 1995), one meeting with Adm. Mike Boorda (on March 6, 1995), who was also involved with the F-14 training program, and one conversation with Commander Thomas Sobieck (date unknown), the commanding officer of the FRS. During those conversations, Arthur, Boorda and Sobieck discussed defendant Donnelly's research and information with her; all three believed that defendant Donnelly was incorrect in her conclusions, and they communicated this to her. At the March 24, 1995 meeting with Adm. Arthur, defendant Donnelly was shown a copy of a Report authored by Rear Adm. Lyle G. Bien, which had been prepared in response to the allegations made by Donnelly in her March 6 meeting with Arthur. That report confirmed many of the facts then known to defendant Donnelly, but concluded that Hultgreen and plaintiff had been promoted according to the usual Navy standards.

On April 25, 1995, defendants Donnelly and CMR published a Special Report entitled "Double Standards in Naval Aviation" (hereinafter "the Donnelly Report"). See Pl. Cross-Mot. for Summary Judgment, Exh. 17 (Donnelly Report). The Donnelly Report republished the letter sent to Senator Thurmond and included additional excerpts from plaintiff's training records and comments from letters from male aviators criticizing plaintiff Lohrenz and Lt. Hultgreen. The allegations in the Donnelly Report were that female and male naval aviators were treated differently because female aviators were promoted on a lower standard, that female aviators received special concessions, that people who criticized the Navy's policy of incorporating women into combat positions were unfairly attacked, and that plaintiff was one pilot who received special treatment which permitted her to advance. In the Donnelly Report, plaintiff Lohrenz was referred to only as "Pilot B," but her training records-with particular dates, locations, and scores-were reported.

Copies of the Donnelly Report were circulated on the U.S.S. Lincoln and among the naval aviation community at large, the general public, and the national news media. After the publication and circulation of the Report, plaintiff Donnelly was contacted by Commander Thomas Sobieck, commander of VF 124 where plaintiff and Hultgreen received their F-14 training. Sobieck told Donnelly that he believed her report to be false and misleading, and he urged her to withdraw the report because of its falsity and because he believed that the report would be harmful to the continued training of plaintiff as an F-14 pilot. Defendant Donnelly declined, and continued to promote the Report and its findings through various media sources. In addition to various press releases by defendants, on March 28, 1996, defendant Donnelly gave a speech at the Army-Navy Club in Washington, D.C., essentially repeating the findings of the Report and again referring to plaintiff only as "Pilot B."

After the publication of the Donnelly Report, plaintiff alleges that her performance declined, and her commanders became overly critical. Plaintiff was eventually removed from flight status on May 30, 1995. She then appeared before a Field Naval Aviation Evaluation Board (FNAEB). An FNAEB may be convened to evaluate the performance, potential, and motivation of a particular service person for a particular assignment. The FNAEB considered the evidence against plaintiff and concluded that she should retain flight status but be assigned to fly in a different aircraft. Plaintiff was not, in fact, returned to flight status at that time because her commanding officer, Adm. Yakely, recommended that she be removed from flight status entirely.

On February 10, 1997, the Navy Inspector General released a report (hereinafter "the Inspector General Report") which is the subject of extreme disagreement between the parties. The Inspector General Report reviewed allegations by plaintiff and her parents against the FNAEB Report, and concluded that one of their allegations was substantiated.

In the fall of 1997, the Navy decided to remove Lt. Burns' name from the promotion list because he had admitted to sending defendants copies of plaintiff's training records and had spoken out against the Navy's carrier-qualification of Lt. Hultgreen and plaintiff. In November of 1997, defendants issued a press release entitled, "Navy Faces Crucial Choice:Principle or Public Relations?" which criticized the Navy for disciplining Burns. In that press release, defendants repeated their allegations that plaintiff was not a qualified pilot and had benefitted from preferential treatment.

Plaintiff asserts that defendants were aware of, recklessly disregarded, or were negligent about the possibility that the allegations against plaintiff were, in fact, false. Defendant Donnelly never reviewed a complete copy of plaintiff's training records, and from January to Mayof1995, defendant Donnelly spoke with various Navy officers who disputed the conclusions that defendant Donnelly had drawn about the training of female pilots. After the publication of the Donnelly Report, plaintiff alleges that defendants were informed that the allegations were false, and defendants refused to retract the Donnelly Report and continued to publicize their allegations. Plaintiff further asserts that in the Donnelly Report, plaintiff's training records were selectively edited and mislabeled to create the impression that plaintiff was not a qualified pilot. Defendant Donnelly asserts that she was not aware, did not recklessly disregard, and was not negligent about the possibility that the allegations might be false; in fact, defendant continues to assert that the allegations about plaintiff are true.

Plaintiff asserts that as a result of the actions of defendants Donnelly and CMR, plaintiff has suffered great embarrassment and humiliation, irreparable injury to reputation and good standing in the naval aviation community, economic losses, and loss of her career as both a naval aviator and any opportunity for a career in civil aviation.

II. Motions to Strike

The parties have filed various motions to strike materials submitted in opposition to their motions. In ruling upon these motions to strike, the Court notes that both parties appear to be engaged in fairly transparent attempts to use motions to strike in order to control the merits of the case. A motion to strike is not an appropriate vehicle through which to contest the credibility of a witness or to draw further attention to the fact that one piece of evidence is contradicted by another.

A. Defendants' Motion to Strike the Declaration and Report of Captain Charles Nesby

Defendants move to strike the Declaration and Report of Captain Charles Nesby, included as Exhibit 1 to plaintiff's Cross-Motion for Partial Summary Judgment and Opposition to Defendants' Motion for Summary Judgment. *fn2 Plaintiff seeks to designate Nesby as an expert in F-14 training and piloting, and represents that Nesby will testify about plaintiff's training records and evaluations, his own personal observations of plaintiff's performance, the validity of the evaluations by other pilots, general and specific principles of pilot training and F-14 pilot training, and other issues related to F-14 pilot training and evaluation such as terminology, common practices, and standards. See Pl. Designation of Expert Witnesses, filed August 12, 1999, at 8-11. In his Declaration, Report, and Supplemental Report, Nesby details his qualifications as an expert witness in piloting F-14s and training F-14 pilots. Nesby entered flight school in 1974 and was designated a naval aviator in 1975. In 1977, Nesby was trained to fly the F-14; in 1981, Nesby became an F-14 flight instructor. Nesby trained F-14 pilots for three years, was in charge of developing and writing the manual for operating and piloting the F-14, and received several levels of qualification to train new pilots. Captain Nesby ascended through various ranks, and has now been appointed the Director of the Center for Minority Veterans in the Department of Veterans Affairs. In short, it appears that Captain Nesby is intimately familiar with flying the F-14 and training F-14 pilots. His opinions that he now asserts are based on

my own personal observations of LT Lohrenz when she went through Advanced Jet Training course at NAS Kingsville while I was Commander of Training Air Wing TWO, my own background and experience as an F-14 pilot, my experience as an instructor in the F-14 Fleet Replacement Squadron, the objective facts disclosed by the Navy's records pertaining to LT Lohrenz training, the reports and evaluations of the naval officers who conducted her FRS training at VF 124, and the several reports of Navy and Department of Defense investigations into Ms. Donnelly's allegations against LT Lohrenz and the Navy personnel responsible for her training in the F-14 Fleet Replacement Squadron. Pl. Opp., Exh. 1 (Nesby Decl.) at 13. Based on those materials and experiences, Nesby avers that plaintiff was a qualified pilot and that the practices for which defendants' report find fault were actually quite common among F-14 pilots of experience comparable to plaintiff's.

Defendants move to strike Nesby's Declaration on several grounds: (1) because the declaration does not comply with Federal Rule of Civil Procedure 26(a)(2)(B); (2) because Nesby is incompetent to render opinions under Federal Rule of Evidence 702, which governs testimony by experts; and (3) because Nesby's instant Declaration is contradicted by testimony that he gave before the Navy Inspector General and other evidence now before the Court.

1. Plaintiff's Failure to Comply with Federal Rule of Civil Procedure 26(a)(2)(B

Federal Rule 26(a)(2)(B) provides a party submitting expert testimony must provide: a written report prepared and signed by the witness, a complete statement of all opinions to be expressed and the basis and reasons therefor, the data or other information considered by the witness in forming the opinions, any exhibits to be used as a summary of or support for the opinions, the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years, the compensation to be paid for the study and testimony, and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years. Fed. R. Civ. P. 26 (a)(2)(B).

It appears plain that plaintiffs have not complied with this rule. Plaintiffs have failed completely to disclose a list of all publications authored by Nesby, the compensation paid to Nesby, and a listing of any other cases in which Nesby has testified or been deposed. Plaintiff's only explanations of the failure to provide this information are that defendant should have complained about this earlier, that defendant failed to provide similar information, and that plaintiff is in the process of compiling this information. The first two explanations are meritless-finger-pointing by the parties misunderstands the purpose of the rule mandating these disclosures. See Nguyen v. IBP, Inc., 162 F.R.D. 675 (D. Kan. 1995) ("The 1993 amendments to the Federal Rules of Civil Procedure which instituted the disclosure requirement were an attempt to assure that all parties disclosed certain information concerning their expert witnesses, including certain background facts which would enable a party to prepare for cross-examination at deposition or trial").

Despite plaintiff's failure to comply with Rule 26, the failure to comply with the disclosure rule will not result in that expert's testimony being stricken unless the failure was prejudicial to the party entitled to the disclosure. See id. Defendants do not aver that any prejudice resulted from the plaintiff's failure to make the required disclosures. Accordingly, the motion to strike will not be granted for plaintiff's failure to comply with the terms of Rule 26 (a)(2)(B).

2. Defendants' Objection that Nesby Is Not Qualified as an Expert

Defendants second objection is that Nesby's declaration is incompetent and inadmissible pursuant to Federal Rule of Evidence 702, which provides as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Fed. R. Evid. 702. The Court must ensure that the testimony of the proffered expert testimony is both relevant and reliable. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999).

Defendants first assert that Captain Nesby is unqualified to render the opinions included in his Declaration and attached letter, and that his Declaration should therefore be stricken. They assert that Captain Nesby did not observe plaintiff when she trained at NAS Miramar or while she served in Fighter Squadron 213 aboard the Abraham Lincoln, and that Captain Nesby has not published anything about F-14 training, has never testified anywhere, and is not paid. Contrary to defendants' assertions, it is not necessary for Nesby to have had any contact with plaintiff; it is quite ordinary and, in fact, expected for an expert witness of this type not to have had long-term, prolonged interaction with a party. Defendants' assertions that Nesby is not published (although apparently Nesby is in the process of compiling a list of publications for the parties), has not testified, and is not being paid are similarly unconvincing; these are not prohibitions on Captain Nesby's status as an expert witness, particularly in his asserted area of expertise-piloting F-14s and training F-14 pilots-because it is certain that this area would require intense practical experience, and F-14 pilots are probably not frequently called to testify about their expertise. According to the uncontested statements in his Declaration, Captain Nesby has had a long history of piloting the F-14 and of training and evaluating other F-14 pilots. It appears that he is intimately familiar with the method and practice of evaluating F-14 pilots, and what may be reasonably expected from an officer who seeks to become an F-14 pilot. This is an area of fact where technical expertise dominates and where the Court and jurors would likely be inexperienced; Captain Nesby would likely be able to "assist the trier of fact." Fed. R. Evid. 702.

Defendants next seek to have the Nesby declaration stricken from the record because they believe that the plaintiff has submitted the declaration to prove malice, which would be a required element of liability for Counts I and IV if plaintiff were to be found a limited-purpose public figure. Defendants argue that Nesby is not an expert in libel or slander, and therefore may not render any opinion on actual malice. Defendants are correct in asserting that courts have generally disfavored expert testimony in determining actual malice, which is essentially a determination of defendants' subjective state of mind. See Tilton v. Capital Cities/ABC Inc., 938 F. Supp. 751, 753 (N.D. Okla. 1995); World Boxing Council v. Cosell, 715 F. Supp. 1259 (S.D.N.Y. 1989). It is true that there are some statements in Nesby Declaration and attachments that could be construed to imply malice by defendants. For example, Nesby asserts that "Donnelly was careful to protect the identity of her informant, which persuades me that she knew when she asked the officer to provide her with copies of the training records that she was encouraging him to violate federal law." Pl. Cross-Mot. for Summary Judgment, Exh. 1 (Nesby Decl.), Att.2 at 2. Further, Nesby avers that

[t]he selective use of a few records, the misrepresentations of the meaning of the records she did use, and the magnitude of the deception dictates only one conclusion-that Elaine Donnelly and the people who helped her intended to deceive the Senate Armed Services Committee, LT Lohrenz' superiors in her chain of command, and, after release of the CMR report, LT Lohrenz' fellow officers and the general public. Id., Exh. 1 (Nesby Decl.), Att. 2 at 2.

It is clear that the plaintiff may not establish malice, a subjective state of mind, solely through expert testimony, and that an expert in piloting F-14s and training F-14 pilots may not render legal opinions concerning defendants' alleged malicious or deceptive motives. The Court will therefore not consider any statements made by Captain Nesby to render any expert opinion as to whether defendants acted maliciously or deceptively; this limitation on the Court's construction and interpretation of Captain Nesby's Declaration, however, still falls far short of supporting the notion that Captain Nesby's Declaration should be stricken from the record.

Defendants also assert that Captain Nesby's Declaration cannot be used to support any possible conclusions about damages; that is, Captain Nesby asserts that but for Donnelly's statements and the CMR Report, plaintiff would be a pilot in civil commercial aviation or would be "flying missions over Afghanistan today." Id., Exh. 1 (Nesby Decl.), Att. 2 at 2. Captain Nesby further opines that "the false allegations concerning the content of Lohrenz' FRS training records made and publicized by Elaine Donnelly created unusually [sic] stresses on LT Lohrenz which ultimately caused her to lose her career as a combat pilot." Id., Exh. 1 (Nesby Decl.), Att. 2 at 13. According to the qualifications listed in his Declaration, Nesby is not qualified to render opinions about the standards of piloting in civil commercial aviation, nor does he have a true basis upon which to draw a connection between the stress plaintiff felt as a result of the CMR report and her ultimate termination. Again, though the Court does not consider Nesby an expert in civil commercial aviation or in psychology and will not construe any statements in his Declaration which might support any possible calculation about damages, defendants do not contest his expertise in piloting F-14s and training F-14 pilots, and his Declaration therefore shall not be stricken from the record.

Defendants' last assertion with respect to Nesby's qualification as an expert and his ability to render opinions is that Nesby relies on hearsay and other forms of inadmissible evidence. Experts are entitled to rely on inadmissible forms of evidence, as long as the evidence is "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." Fed. R. Evid. 703. Therefore, Nesby is entitled to rely on hearsay and other forms of inadmissible evidence, if those inadmissible forms of evidence would normally be relied upon by others with expertise in the area of flying F-14s and training F-14 pilots.

3. Defendants' Objection that Nesby's Declaration and Opinions Contained Therein Are Contradicted by Other Evidence

Defendants assert that Capt. Nesby gave contradictory testimony before the Navy Inspector General, see Defs. Reply in Support of Mot. for Summary Judgment, Exh. 5 to Donnelly Suppl. Aff., and that his Declaration in this case is contradicted by the FNAEB Report, see Defs. Mot. for Summary Judgment, Exh. 9 to Donnelly Aff., and by the Navy Inspector General Report, id., Exh. 10 to Donnelly Aff. Mere inconsistency and contradiction is insufficient to support a motion to strike a document from the record, particularly where, as here, the document that defendants seek to strike is a sworn Declaration signed under penalty of perjury.

In sum, the Court finds that defendants have failed to proffer sufficient reasons that the Declaration of Captain Nesby should be stricken from the record of this case, and ...

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