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.

BRIEF IN SUPPORT OF DEFENDANT’S MOTION
IN LIMINE TO EXCLUDE EVIDENCE
NOW COMES Defendant LFP Publishing Group LLC, d/b/a Hustler
Magazine (“LFP”), and respectfully submits this Brief in support of its Motion In
Limine seeking to exclude certain documentary and physical evidence listed by
Plaintiff Maureen Toffoloni (“Plaintiff”) in the Pretrial Order as items to be
tendered at trial. (Docket Index (“D.I.”) 187 at Attachment G-1.)
I.

Introduction

LFP asks the Court to exclude the following pieces of evidence – including
any reference to them by counsel or witnesses: (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”).
LFP respectfully moves this Court to exclude the DVD, the Emerson
material and the Prior Actions on the ground that they 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. But even if any of
them is found to have some relevance to this dispute, they should be excluded
because what little probative value they arguably have is substantially outweighed
by the danger of unfair prejudice.
LFP moves the Court to exclude the Sun article on the ground that it
constitutes inadmissible hearsay within hearsay.

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In the interest of preventing a mistrial and to avoid the prejudice which
would be caused were the jury to hear the evidence which is the subject of this
Motion, even fleetingly or by suggestion, LFP respectfully submits that the Court
should rule on this Motion before the start of trial.
II.
A.

Legal Standards for the Exclusion of Evidence

Relevancy and Exclusion on Grounds of Prejudice

The Federal Rules of Evidence (the “Rules”) define “relevant evidence” as
“evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than
it would be without the evidence.” Fed. R. Evid. 401 (emphasis added). It is
axiomatic that only relevant evidence may be admitted into the record; indeed, the
Rules proscribe the introduction of irrelevant evidence: “[e]vidence which is not
relevant is not admissible.” (Fed. R. Evid. 402.)
The Rules also prohibit the introduction of material that, while relevant and
otherwise admissible, is of such a nature that any probative value it has is
substantially outweighed by the possibility of unfair prejudice. Specifically, Fed.
R. Evid. 403 provides as follows:
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading

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the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.
Fed. R. Evid. 403 (emphasis added). In the context of Rule 403, “unfair prejudice”
means “an undue tendency to suggest decision on an improper basis, commonly,
though not necessarily, an emotional one.”

Fed. R. Evid. 403 advisory

committee’s note.
The Eleventh Circuit has held that where evidence could cause the jury to
make “an irrational decision based on an improper basis…” then it may be
excluded under Rule 403. United States v. Saintil, 753 F.2d 984, 989 n.7 (11th Cir.
1985). See also U.S. v. Dean, 2007 WL 812048, at *2 n.3 (11th Cir. 2007) (Rule
403 is used to “exclud[e] matter of scant or cumulative probative force, dragged in
by the heels for the sake of its prejudicial effect”) (citation omitted).
Under Rule 403, “the trial judge has broad discretion to exclude
evidence….” Will v. Richardson-Merrell, Inc., 647 F. Supp. 544, 547 (S.D. Ga.
1986) (quoting Hopkins v. Britton, 742 F.2d 1308, 1311 (11th Cir. 1984)).
B.

Hearsay

Hearsay is defined as “a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” (Fed. R. Evid. 801(c).) The Rules prohibit the admission of
hearsay unless it meets one of a limited number of exceptions: “Hearsay is not

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admissible except as provided by these rules or by other rules prescribed by the
Supreme Court pursuant to statutory authority or by Act of Congress.” (Fed. R.
Evid. 802.)
“Hearsay within hearsay,” too, is inadmissible unless “each part of the
combined statements conforms with an exception to the hearsay rule provided in
these rules.” (Fed. R. Evid. 405.)
III.
A.

Argument

The DVD Should Be Excluded Because It Is Not Relevant to
Plaintiff’s Claims and Any Probative Value Is Outweighed by the
Danger of Unfair Prejudice

The DVD at issue contains no video footage or images of Ms. Benoit and,
indeed, does not reference Ms. Benoit in any way. In fact, the DVD does not
include any content related to any aspect of the March 2008 issue or, for that
matter, of any other issue of Hustler Magazine. Plaintiff learned this fact during
discovery and also learned that the DVD is not even a part of LFP’s production of
Hustler Magazine:
Q. Who puts [the DVD] together?
A. I don’t know.
Q. So that’s not part of the Hustler magazine publication
process?
A. No.

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(Deposition of Bruce David at 13.) Rather, the DVD was included only with
newsstand copies (as opposed to subscribers’ copies) as a way to boost retail sales
of the March 2008 issue. (Id. at 13-14.)
Plaintiff purportedly desires to introduce the DVD as evidence of the
damage to Ms. Benoit’s reputation “as the result of her involuntary association
with the worst form of pornography.” (D.I. 158 at 25.) But reputational damages
are not permitted in a Georgia right of publicity case, see, e.g., Cabaniss v.
Hipsley, 114 Ga. App. 367, 381, 151 S.E.2d 496, 506 (1966); Pierson v. News
Group Publ’ns, Inc., 549 F. Supp. 635, 642 (S.D. Ga. 1982) (“…recovery is
gauged solely by the unjust enrichment of the defendant…”), and therefore the
DVD is completely irrelevant to Plaintiff’s punitive damages claim. Neither can
the DVD inform the jury concerning compensatory damages, the only other issue
to be tried in this case, as it bears no relation to the amount LFP would have paid
Plaintiff for permission to publish the images of Ms. Benoit.
Even if the Court finds that the DVD does have some relevance to this
dispute, it should be excluded on the ground that such relevance is substantially
outweighed by the danger of unfair prejudice under Rule 403.

Rule 403 is

appropriate to exclude material “of scant or cumulative probative force, dragged in

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by the heels for the sake of its prejudicial effect,” Dean, 2007 WL 812048 at *2
n.3, and that is precisely the case here.
Unlike the Benoit images which are the subject of this lawsuit, the content of
the DVD is pornographic. LFP submits that Plaintiff filed with the Court and
proposes to publish to the jury this material in order to inflame and prejudice the
jury by provoking an emotional response untethered to any legitimate issue in the
case. As the Advisory Committee’s Note and binding case law make clear, Rule
403 is meant to deter exactly what Plaintiff seeks:

an irrational decision

improperly based on emotion. (See, e.g., Saintil, 753 F.2d at 989 n.7.)
It appears that Plaintiff seeks to introduce the DVD merely “for the sake of
its prejudicial effect” and whatever relevance it could possibly have is clearly and
substantially outweighed by the danger of unfair prejudice.

LFP respectfully

submits that it should be excluded under Rule 403.
B.

The Emerson Material Should Be Excluded Because It Is Irrelevant to
Plaintiff’s Claims and Any Probative Value Is Outweighed by the
Danger of Unfair Prejudice

Plaintiff also seeks to introduce the Emerson material, which consists of
documentary evidence of and, we expect references at trial to, a Georgia Open
Records Act request made by a LFP freelance true crime journalist to obtain the
Georgia Bureau of Investigation’s closed investigative file (including crime scene

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photographs) regarding Meredith Emerson, the hiker who was murdered in the
North Georgia mountains in 2008.
As stated in the Pretrial Order, the issues to be put to the jury in this case are
the amount of compensatory damages due to Plaintiff and whether punitive
damages should be awarded.

The Emerson material has no relationship

whatsoever to Ms. Benoit or the images of her published by LFP; to the March
2008 issue of Hustler Magazine; to the amount LFP would have paid Plaintiff for
the images; to the finances of LFP; or to the state of mind of LFP employees at the
time they decided to publish the Benoit images. It is beyond dispute that the
Emerson material cannot inform the jury as to any of the matters to be tried.
Irrelevant evidence is not admissible. Fed. R. Evid. 402. The Emerson
material has no tendency to make any fact that is of consequence to the
determination of Plaintiff’s claims more or less probable.

Because it is not

relevant to Plaintiff’s claims and can have no legitimate bearing on the outcome of
this case, the Emerson material should be excluded.
In the event the Court does find some relevance in the Emerson material, it
should be excluded on the ground that such relevance is clearly and substantially
outweighed by the danger of unfair prejudice under Rule 403.

The Georgia

residents who will comprise the jury in this case are likely to be familiar with and,

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quite possibly have strong feelings about, the gruesome murder of Meredith
Emerson. It appears Plaintiff seeks to capitalize on this likelihood by using the
Emerson material merely “for the sake of its prejudicial effect” and attempting,
through its introduction, to inflame the passions of the jury against LFP.
Whatever relevance the Emerson material could even arguably have is
clearly and substantially outweighed by the danger of unfair prejudice and LFP
respectfully submits that it be excluded under Rule 403.
C.

The Prior Actions Should Be Excluded Because They Are Irrelevant
to Plaintiff’s Claims and Any Probative Value Is Outweighed by the
Danger of Unfair Prejudice

Plaintiff also intends to tender at trial five Prior Actions in which Hustler
Magazine, Inc. was a defendant.1

The most recent of the Prior Actions was

decided twenty-five years ago; none is related to or even resembles the facts or
legal issues in this case. Two of the Prior Actions are copyright infringement
cases.
LFP submits that the Prior Actions should be excluded under Fed. R. Evid.
401 and 402 because they are in no way relevant to this action. Each of the cases
1

The five Prior Actions are Douglass v. Hustler Magazine, Inc., 769 F.2d 1128
(7th Cir. 1985); Ashby v. Hustler Magazine, Inc., 802 F2d. 856 (6th Cir. 1986);
Blackman v Hustler Magazine, Inc., 800 F.2d 1160 (D.C. Cir. 1986); Brewer v
Hustler Magazine, Inc., 749 F.2d 527 (9th Cir. 1984); Wood v Hustler Magazine,
Inc., 736 F.2d 1084 (5th Cir. 1984).

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involves a different set of facts; different legal issues; different claims; different
jurisdictions with different laws; and different plaintiffs. The fact that, twenty-five
years ago or more, LFP (or one of its predecessor entities) was sued and lost on
claims which are wholly unrelated to any fact or claim asserted by Plaintiff here
has no probative value to the limited and unique issues in this case.
Further, any probative value the Prior Actions may have is substantially
outweighed by the risk of unfair prejudice.

Indeed, it appears that the Prior

Actions are being tendered so that the jury might speculate that if LFP committed a
legal wrong in the past, it should be punished more severely for its conduct in this
case even if the “wrongs” have no relation to one another.
Courts have routinely held that such use of prior litigation is likely to
confuse the issues and unfairly prejudice the jury. See, e.g., Williams v. Asplundh
Tree Expert Co., 2006 WL 2868923, at *2 (M.D. Fla. 2006) (“[o]n weighing the
probative value of the two lawsuits against their potential for unfair prejudice, the
Court determines that the risk of unfair prejudice substantially outweighs the
probity of this evidence”); Crawford v. Muscletech Research & Dev., 2002 WL
31852833, at *1 (W.D. Okla. 2002) (“[t]he Court finds evidence of other lawsuits
to be more prejudicial than probative”); Stair v. Lehigh Valley Carpenters Local
Union No. 600, 813 F. Supp. 1116, 1119-20 (E.D. Pa. 1993) (excluding evidence

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of prior lawsuit under Fed. R. Evid. 403); Foster v. Berwind Corp., 1991 WL
83090, at *1 (E.D. Pa. 1991) (granting motion in limine to exclude evidence of
other lawsuits because “they are dispositive of nothing and would confuse the
complex issues”).
Moreover, the Rules prohibit the introduction of the Prior Actions to the
extent they are used to show that LFP’s actions at issue in this case conform with
prior bad acts. Fed. R. Evid. 404(b) provides that “[e]vidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person in order to
show action in conformity therewith.”
LFP shows that the Prior Acts are not relevant to this case and whatever
probative value the Prior Actions have is outweighed by the danger of unfair
prejudice; LFP respectfully submits that they be excluded.
D.

The Sun Article Should Be Excluded Because It Is Inadmissible
Hearsay

Plaintiff seeks to introduce the Sun article, apparently to show the jury the
content of a statement contained therein by then-LFP employee Mark Johnson.
Mr. Johnson is quoted in the article concerning the public’s purported interest in
the Benoit images.

However, Mr. Johnson’s statements in the Sun article

constitute hearsay within hearsay and are inadmissible under Fed. R. Evid. 801,
802 and 805.

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First, the article is hearsay because it is an out-of-court statement offered to
prove the truth of the matter asserted. This Court has held that articles contained in
periodicals may not be relied upon for that purpose under the Rules. See Rylee v.
Chapman, 2008 WL 3538559, at *4 (N.D. Ga. 2008) (Story, J.) (holding plaintiff’s
reliance on newspaper articles to be “insufficient because such evidence is hearsay
and inadmissible to demonstrate the truth of the matters asserted therein”); see also
U.S. v. Baker, 432 F.3d 1189, 1211-12 (11th Cir. 2005) (“The Miami Herald
articles are also inadmissible hearsay, as they are relevant primarily to establish the
truth of their contents.”).
Second, the Mark Johnson quote contained within the Sun article is, itself,
inadmissible hearsay in that it too is an out-of-court statement offered for its own
truth. Thus, the Sun article sought to be tendered by Plaintiff constitutes hearsay
within hearsay and is doubly prohibited by the Rules. See Baker, 432 F.3d at 1212
n.23 (“In fact, the [Miami Herald] articles are likely a reporter’s account of what
eyewitnesses reported; in other words, double hearsay forbidden by Rule 805.”)
This double hearsay problem is compounded by Mr. Johnson’s own testimony that
he does not specifically recall making the comments attributed to him in the Sun
article, and that if he did in fact make them, they were made at the suggestion of

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others at LFP and not based on his own personal knowledge of the matters
commented upon. (Deposition of Mark Johnson at 11-12.)
LFP respectfully submits that the Sun article constitutes hearsay within
hearsay, that there is no applicable hearsay exception that would cure its
inadmissibility, and that it should be excluded under Fed. R. Evid. 801, 802 and
805.
IV.

Conclusion

For all of the foregoing reasons, LFP respectfully requests 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.

/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

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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:5305801.2

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