Toffoloni v. LFP Publishing Group, LLC

Filing 201

MOTION in Limine to Exclude Evidence and Testimony with Brief In Support by Maureen Toffoloni. (Attachments: # 1 Brief)(Decker, Richard)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
MAUREEN TOFFOLONI,
as Administrarix and Personal
Representative of the
ESTATE OF NANCY E. BENOIT,

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Plaintiff,
v.
LFP PUBLISHING GROUP, LLC,
d/b/a Hustler Magazine,
MARK SAMANSKY, an Individual,
and other distributors and sellers of,
Hustler Magazine, as
Defendants X, Y, and Z,
Defendants.

CIVIL ACTION
FILE NO. 1:08-CV-0421-TWT

PLAINTIFF’S MOTION IN LIMINE
COMES NOW, Plaintiff, Maureen Toffoloni, as Administratrix and
Personal Representative of the Estate of Nancy E. Benoit (“Plaintiff”), through
counsel, and moves the Court for an Order as follows:
(1)
Plaintiff anticipates that Defendant and/or Defendant’s counsel may
attempt to inject into this case argument or evidence that the Defendant relied upon
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the advice of legal counsel when deciding whether to publish the nude images of
Nancy Benoit that are at issue in this case. Defendant has already clearly stated in its
Response to Interrogatory Number 1 of Plaintiff’s Third Continuing Interrogatories
that it does not intend to use reliance on the advice of legal counsel as a defense to
Plaintiff’s claim for punitive damages. To later allow Defendant to use reliance on the
advice of counsel as a defense, when Plaintiff has been unable to conduct any
discovery in the matter, is fundamentally unfair, improper, and would be prejudicial
to Plaintiff. For these reasons, Defendant should not be allowed to introduce evidence
about reliance on legal advice.
(2)
Furthermore, Plaintiff anticipates that Defendant and/or Defendant’s
counsel may attempt to reference and/or introduce evidence relating to another
videotape of Nancy Benoit and her then husband Jim Daus. More specifically,
Plaintiff anticipates that Defendant and/or Defendant’s counsel may attempt to
introduce evidence that Ms. Benoit, immediately prior to or during the photo shoot
where the nude images of Ms. Benoit at issue in this case were taken, allowed a
videotape to be made which allegedly depicted her husband Jim Daus and her engaged
in sexual activity. See Affidavit of Mark Samansky, ¶ 6. As conclusively established
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by the Samansky Affidavit, the alleged videotape was destroyed by Mr. Samansky at
the direction of Mr. Daus. This videotape, if it ever existed, no longer exists, and has
absolutely no bearing on the current issues in this case. Not one of the anticipated
witnesses or parties in this case have ever even seen this alleged videotape, or can
truthfully describe it. Obviously it does not now exist, if it ever did. Therefore, any
reference to the alleged sexual activity videotape is irrelevant, has no probative value,
is prejudicial to Plaintiff and should not be allowed by this Court.
(3)
Furthermore, Plaintiff anticipates that Defendant and/or Defendant’s
counsel may attempt to reference and/or introduce evidence relating to this Court’s
October 3, 2008 Order granting Defendant’s Motion to Dismiss based upon the
newsworthiness exception of the right of publicity. Defendant may attempt to
introduce this Court’s October 3, 2008 Order for some reason, possibly as some
evidence that Defendant could have reasonably believed the nude images of Ms.
Benoit to be newsworthy at the time of publication as a defense against punitive
damages. By virtue of the judgment in this case by the Eleventh Circuit Court of
Appeals, and this Court’s own order dated November 23, 2010 granting partial
summary judgment to the Plaintiff on the issue of the Defendant’s liability, the
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Court’s earlier Order of October 3, 2008 is a legal nullity. It is of no force or effect.
To offer the October 3, 2008 Order into trial evidence is improper, has no probative
value, and would be prejudicial to Plaintiff. As such, any reference to this Court’s
October 3, 2008 Order should not be allowed by this Court.
(4)
Furthermore, Plaintiff anticipates that Defendant and/or Defendant’s
counsel may attempt to reference and/or introduce the deposition testimony of Mr.
Tyler Downey, a former employee of Defendant. Mr. Downey’s entire testimony is
irrelevant to the remaining issues in this case, namely, the value of the images
published by Defendant, whether punitive damages should be assessed against
Defendant, and if so, the amount of those punitive damages. As such, Mr. Downey’s
deposition testimony should be excluded by this Court.
(5)
Furthermore, Plaintiff anticipates that Defendant and/or Defendant’s
counsel may attempt to reference and/or introduce the deposition testimony of Mr.
Christopher Helton, a photographer who was apparently present during the photo
shoot where the nude images of Nancy Benoit at issue in this case were taken. Mr.
Helton’s entire testimony is irrelevant to the remaining issues in this case, namely,
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the value to Defendant of the images published by Defendant, whether punitive
damages should be assessed against Defendant, and if so, the amount of those punitive
damages. As such, Mr. Helton’s deposition testimony should be excluded by this
Court.
(6)
Furthermore, Plaintiff anticipates that Defendant and/or Defendant’s
counsel may attempt to reference and/or introduce the deposition testimony of Mr.
William Otten, another photographer who was apparently present during the photo
shoot where the nude images of Nancy Benoit at issue in this case were taken. Mr.
Otten’s testimony, largely about Nancy Benoit’s fledgling modeling and wrestling
career, is irrelevant to the remaining issues in this case, namely, the value to
Defendant of the images published by Defendant, and whether punitive damages
should be assessed against Defendant, and if so, the amount of those punitive
damages. As such, Mr. Otten’s deposition testimony should be excluded by this
Court.
(7)
Furthermore, Plaintiff anticipates that Defendant and/or Defendant’s
counsel may attempt to reference and/or introduce the deposition testimony of Mr.
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Kevin Sullivan, a former wrestler and ex-husband of Nancy Benoit. Mr. Sullivan’s
entire testimony is irrelevant to the remaining issues in this case, namely, the value to
Defendant of the images published by Defendant, whether punitive damages should
be assessed against Defendant, and if so, the amount of those punitive damages. As
such, Mr. Sullivan’s deposition testimony should be excluded by this Court.
(8)
Furthermore, Plaintiff anticipates that Defendant and/or Defendant’s
counsel may attempt to reference and/or introduce the deposition testimony of Mr.
James Daus, the husband of Nancy Benoit at the time that the nude images of Ms.
Benoit were taken. Mr. Daus’ testimony is irrelevant to the remaining issues in this
case, namely, the value to Defendant of the images published by Defendant, whether
punitive damages should be assessed against Defendant, and if so, the amount of those
punitive damages. As such, Mr. Daus’ deposition testimony should be excluded by
this Court.
(9)
Furthermore, Plaintiff anticipates that Defendant and/or Defendant’s
counsel may attempt to reference and/or introduce documents numbered 1, 2, 3, and
4 of Attachment G-2 of the March 28, 2011 Pretrial Order. These documents are not
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full and complete copies of the referenced magazines, and thus should be excluded
from evidence by this Court.
(10)
Furthermore, Plaintiff anticipates that Defendant and/or Defendant’s
counsel may attempt to reference and/or introduce documents numbered 5, 6, 9, 10,
11, 12, 13, 14, 15, 16, 17, and 18. Attachment G-2 of the March 28, 2011 Pretrial
Order. These documents are improper, irrelevant to the issues remaining in this case,
constitute hearsay, and, in the case of document number 9, was not produced by
Defendant in discovery despite relevant requests by Plaintiff. These documents must
there fore be excluded from evidence by this Court.
(11)
Plaintiff moves in limine for an Order excluding any evidence,
documents, pleadings, questions, statements, arguments, or testimony from counsel
or any witness which in any way relates to Defendant’s reliance on the advice of legal
counsel as a defense to Plaintiff’s claim for punitive damages.
(12)
Plaintiff moves in limine for an Order excluding any evidence,
documents, pleadings, questions, statements, arguments, or testimony from counsel
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or any witness which in any way relates to the video taken by Mark Samansky
allegedly depicting Ms. Benoit and Mr. Daus engaging in sexual activity.
(13)
Plaintiff moves in limine for an Order excluding any evidence,
documents, pleadings, questions, statements, arguments, or testimony from counsel
or any witness which in any way relates to this Court’s October 3, 2008 Order
granting Defendant’s Motion to Dismiss based upon the newsworthiness exception
of the right of publicity.
(14)
Plaintiff moves in limine for an Order excluding any evidence,
documents, pleadings, questions, statements, arguments, or testimony from counsel
or any witness which in any way relates to Tyler Downey’s deposition testimony.
(15)
Plaintiff moves in limine for an Order excluding any evidence,
documents, pleadings, questions, statements, arguments, or testimony from counsel
or any witness which in any way relates to Christopher Helton’s deposition testimony.

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(16)
Plaintiff moves in limine for an Order excluding any evidence,
documents, pleadings, questions, statements, arguments, or testimony from counsel
or any witness which in any way relates to William Otten’s deposition testimony.
(17)
Plaintiff moves in limine for an Order excluding any evidence,
documents, pleadings, questions, statements, arguments, or testimony from counsel
or any witness which in any way relates to Kevin Sullivan’s deposition testimony.
(18)
Plaintiff moves in limine for an Order excluding any evidence,
documents, pleadings, questions, statements, arguments, or testimony from counsel
or any witness which in any way relates to James Daus’ deposition testimony.
(19)
Plaintiff moves in limine for an Order excluding any evidence,
documents, pleadings, questions, statements, arguments, or testimony from counsel
or any witness which in any way relates to documents numbered 1, 2, 3, and 4 of
Attachment G-2 of the March 28, 2011 Pretrial Order.

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(20)
Plaintiff moves in limine for an Order excluding any evidence,
documents, pleadings, questions, statements, arguments, or testimony from counsel
or any witness which in any way relates to documents numbers 5, 6, 9, 10, 11, 12, 13,
14, 15, 16, 17, and 18 of Attachment G-2 of the March 28, 2011 Pretrial Order.
WHEREFORE, Plaintiff prays that, for the reasons outlined above and
further detailed in her Brief in Support filed contemporaneously herewith that
Plaintiff’s Motion In Limine to exclude the listed issues and materials is GRANTED.
Respectfully submitted May 23, 2011.
/s/ Richard P. Decker
RICHARD P. DECKER
State Bar of Georgia #215600
[e-mail]
F. EDWIN HALLMAN, JR.
State Bar of Georgia #319800
[e-mail]
For HALLMAN & WINGATE, LLC
Attorneys for Plaintiff
166 Anderson Street, S.E.
Suite 210
Marietta, Georgia 30060
[phone]

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