Toffoloni v. LFP Publishing Group, LLC

Filing 199

MOTION in Limine to Exclude Evidence with Brief In Support by LFP Publishing Group, LLC. (Attachments: # 1 Brief in Support)(Solomon, Darrell)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA

MAUREEN TOFFOLONI,
as Administrator and Personal
Representative of the ESTATE
OF NANCY E. BENOIT,

CASE NO. 1:08-cv-00421-TWT

Plaintiff,
vs.
LFP PUBLISHING GROUP, LLC,
d/b/a Hustler Magazine, et al.,
Defendant.
DEFENDANT’S MOTION IN LIMINE TO EXCLUDE EVIDENCE
NOW COMES Defendant LFP Publishing Group LLC, d/b/a Hustler
Magazine (“LFP”), and moves this Honorable Court to exclude the following
pieces of evidence listed by Plaintiff in the Pretrial Order as items to be tendered at
trial: (1) a DVD which was packaged and sold with newsstand copies of the
March 2008 issue of Hustler Magazine (the “DVD”); (2) a Georgia Open Records
Act request submitted by LFP to the Georgia Bureau of Investigation relating to
crime scene photographs of murder victim Meredith Emerson, and testimony
pertaining to LFP’s efforts to obtain images of Ms. Emerson (the “Emerson
material”); (3) case law deciding prior legal actions filed against Hustler Magazine,

Inc. (the “Prior Actions”); and (4) a January 2008 article from the British tabloid,
The Sun, titled, “Hustler print nude Nancy pics – SHOCKING topless photos of
Chris Benoit’s murdered wife Nancy have appeared in an American pornographic
magazine” (the “Sun article”) (collectively, the “Contested Evidence”).
The DVD, the Emerson material and the Prior Actions are irrelevant to the
only issues to be tried in this case – the amount of compensatory damages, if any,
to Plaintiff and whether punitive damages should be awarded – and any probative
value they arguably have is substantially outweighed by the danger of unfair
prejudice. The Sun article constitutes inadmissible hearsay within hearsay.
A brief in support of this motion and a request for hearing are being
submitted herewith.
WHEREFORE, for the reasons above and those set forth in the supportive
brief filed herewith, LFP respectfully prays that this Court exclude the Contested
Evidence from the record and direct Plaintiff to refrain from making any reference
to them, either through counsel or witnesses.

Respectfully submitted this 23th day of May 2011.

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/s/ Darrell J. Solomon
James C. Rawls
Georgia Bar No. 596050
Barry J. Armstrong
Georgia Bar No. 022055
S. Derek Bauer
Georgia Bar No. 042537
Darrell J. Solomon
Georgia Bar No. 305922
McKENNA LONG & ALDRIDGE LLP
303 Peachtree Street, NE, Suite 5300
Atlanta, Georgia 30308
[phone]
[phone] (facsimile)
Pro hac vice:
Paul J. Cambria, Jr.
Jeffrey Reina
William M. Feigenbaum
LIPSITZ GREEN SCIME CAMBRIA
LLP
42 Delaware Avenue, Suite 120
Buffalo, New York 14202-3924
[phone]
[phone] (facsimile)
Attorneys for LFP Publishing Group,
LLC

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CERTIFICATE OF SERVICE

This is to certify that I have this day filed the within and foregoing BRIEF
IN SUPPORT OF DEFENDANT’S MOTION IN LIMINE TO EXCLUDE
EVIDENCE via the CM/ECF system which will automatically send notification to
Plaintiff’s attorneys of record, who are participants in the CM/ECF system.

This 23th day of May 2011.
/s/ Darrell J. Solomon
Darrell J. Solomon
McKENNA LONG & ALDRIDGE LLP
303 Peachtree Street, NE, Suite 5300
Atlanta, Georgia 30308
[phone]
[phone] (facsimile)
ATLANTA:5306218.1

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