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,
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.

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

PLAINTIFF’S BRIEF IN SUPPORT OF MOTION IN LIMINE
COMES NOW, Plaintiff, Maureen Toffoloni, as Administratrix and
Personal Representative of the Estate of Nancy E. Benoit (“Plaintiff”), through
counsel, and files this her Brief in Support of Motion In Limine to exclude various
documents, testimony and subject matters from introduction and use during the
upcoming trail as follows:

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I. INTRODUCTION
On February 4, 2008, Plaintiff brought suit against Defendant LFP
Publishing Group, LLC (“Defendant”), claiming violation of the right to publicity for
the unauthorized publication of nude images of Ms. Nancy Benoit. This Court granted
Defendant’s Motion to Dismiss on October 3, 2008, on the grounds that the images
came under the “newsworthiness” exception to the right of privacy. Plaintiff appealed
to the Eleventh Circuit Court of Appeals, which reversed the District Court’s ruling,
and held that the images were not newsworthy, and that Ms. Benoit’s and Plaintiff’s
right of publicity had been violated. See Toffoloni v. LFP Publishing Group, LLC,
572 F.3d 1201 (11th Cir. 2009).
On November 23, 2010, this Court granted Plaintiff’s Motion for Partial
Summary Judgment with respect to liability of Defendant for publishing nude images
of Ms. Benoit without her or her Estate’s consent, in violation of her right of publicity.
The Court found that Defendant published the subject images for financial gain, that
the Estate of Nancy Benoit suffered damages, and that the Eleventh Circuit’s ruling
on the legal issue of newsworthiness in Toffoloni v. LFP Publishing Group, LLC, 572
F.3d 1201 (11th Cir. 2009) was conclusive resolution of the issue of newsworthiness
in this case. See Order dated November 23, 2010, pp. 10-12. This Court also declined
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to grant Defendant’s Motion for Summary Judgment as to punitive damages, ruling
that the issue must be decided by a jury. See Order dated November 23, 2010, pp. 1213. Therefore, the only remaining issues in this case are:
(1)

the value to the Defendant of the images of Nancy Benoit that
were illegally published by Defendant;

(2)

whether punitive damages should be assessed against Defendant;

(3)

if punitive damages are awarded, the amount to be assessed for
punitive damages; and

(4)

Plaintiff’s attorneys’ fees and expenses of litigation under
O.C.G.A. 13-6-11.

The trial of this case is scheduled for the trial calendar beginning June 6,
2011. Plaintiff has reason to believe that, at trial, Defendant and/or Defendant’s
counsel may attempt to reference and/or introduce evidence related to several matters
that are wholly irrelevant and unrelated to the remaining issues in the case. Namely,
Plaintiff believes that Defendant and/or Defendant’s counsel may attempt to reference
and/or introduce evidence related to:
(1)

Defendant’s reliance on the advice of legal counsel as a defense
to punitive damages;

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(2)

evidence that Ms. Benoit allegedly, immediately prior to or during
the photo shoot where the nude images of Ms. Benoit at issue in
this case were taken, engaged in sexual activity with her husband,
Jim Daus, while being videotaped by Mark Samansky;

(3)

this Court’s initial October 3, 2008 Order granting Defendant’s
Motion to Dismiss based upon the newsworthiness exception of
the right of publicity;

(4)

the deposition testimony of Tyler Downey;

(5)

the deposition testimony of Christopher Helton;

(6)

the deposition testimony of William Otten;

(7)

the deposition testimony of Kevin Sullivan;

(8)

the deposition testimony of James Daus;

(9)

documents numbered 1, 2, 3, and 4 of Attachment G-2 of the
March 28, 2011 Pretrial Order; and

(10) documents numbered 5, 6, 9, 10, 11, 12, 13, 14, 15, 16, 17, and 18
of Attachment G-2 of the March 28, 2011 Pretrial Order.
As further detailed below, these testimonies, documents, and issues are
irrelevant to the remaining issues of the case, prejudicial to Plaintiff, and should
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properly be excluded from introduction and use at trial. Plaintiff’s Motion in Limine
seeking to exclude these matters should therefore be GRANTED.
II. ANALYSIS AND CITATION TO AUTHORITY
The Federal Rules of Civil Procedure allow for the introduction of
evidence that is relevant to the issues to be decided in the case. If evidence is not
relevant to the remaining issues in the case, it is inadmissable and therefore may not
be introduced at trial. See Federal Rule of Evidence 402.
Even if relevant to the issues in the case, evidence may still properly be
excluded from use at trial if its probative value is substantially outweighed by its
prejudicial effect on the opposing party, or if the evidence is overly confusing,
misleading, or a waste of time. See Federal Rule of Evidence 403. Much of the
evidence that Defendant is seeking to introduce for use at trial falls under this
category.
A.

Any Evidence of Hustler’s Reliance on the Advice
of Legal Counsel as a Defense to Punitive
Damages Must Be Excluded.

Plaintiff anticipates that Defendant and/or Defendant’s counsel may
attempt to inject into this case argument or evidence that the Defendant relied upon
the advice of legal counsel when deciding whether to publish the nude images of
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Nancy Benoit that are at issue in this case. To attempt to introduce such a defense at
this stage of the litigation is both impermissible and improper.
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. Defendant has also consistently informed any witnesses that have been
deposed not to discuss the advice Defendant’s legal counsel gave with regards to the
publication of the nude images of Nancy Benoit. For example, counsel for Defendant
forbade Mr. Downey from discussing what the lawyers for Defendant stated
concerning the publication of the nude images during Mr. Downey’s deposition. See
Downey Deposition, pp. 28, 29, 59, 60, and 61. To later allow Defendant to argue that
it relied upon the advice of counsel in publishing the nude images of Nancy Benoit,
after specifically forbidding discovery on the issue, is wholly improper and
fundamentally unfair. Defendant may not use, or even mention, reliance on the advice
of counsel as a defense against punitive damages, as Plaintiff has been denied the
ability to conduct any discovery in the matter.
Defendant cannot argue that it relied upon the advice of counsel that the
images of Nancy Benoit were newsworthy in order to avoid liability for punitive
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damages. Therefore, any reference to any advice of counsel received by Defendant
with regard to the nude images of Nancy Benoit must be excluded from use at trial.
B.

Any Evidence of an Alleged Video Depicting
Sexual Activity Between Mr. Benoit and Jim Daus
Must Be Excluded.

Plaintiff also anticipates that Defendant and/or Defendant’s counsel may
attempt to reference and/or introduce evidence relating to Nancy Benoit’s past
modeling history. More specifically, Plaintiff anticipates that Defendant and/or
Defendant’s counsel may attempt to introduce oral testimony 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, allegedly engaged in sexual activity with her
husband, James Daus, while being videotaped by Mark Samansky. See Samansky
Affidavit, ¶ 6.
As conclusively established by the Samansky Affidavit, the alleged
videotape was destroyed by Mr. Samansky at the direction of Mr. Daus, and no copies
of the videotape exist. See Samansky Affidavit, ¶ 10. There is no evidence that the
alleged videotape depicting sexual activity between Ms. Benoit and her husband, Mr.
Daus, was ever sold, distributed, or even ever seen by anyone. Not one of the
anticipated witnesses in this case have ever seen the videotape, or can truthfully
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describe its contents. As such, the videotape and the actions of Ms. Benoit and Mr.
Daus have absolutely no bearing on the current issues in this case, namely (1) the
value to the Defendant of the photographs published by Defendant; (2) whether
punitive damages should be assessed against Defendant; and (3) if punitive damages
are awarded, the amount to be assessed for punitive damages.
Plaintiff can only conclude that Defendant may attempt to introduce
evidence of this alleged videotape in an attempt to sully the character of Ms. Benoit,
and/or to imply that Ms. Benoit would have consented to the publication of her image
in a magazine such as Hustler. The fact remains, however, that any reference to the
alleged videotape depicting sexual activity between Ms. Benoit and her husband is
irrelevant, has no probative value, and is prejudicial to Plaintiff. The undisputed
evidence is that Ms. Benoit never did consent to appearing in a pornographic
magazine such as Hustler. As such, any reference to such videotape should properly
be excluded from use at trial.
C.

The October 3, 2008 Order Granting Defendant’s
Motion to Dismiss Must Be Excluded.

Plaintiff also 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
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exception of the right of publicity. This Court originally found that “Ms. Benoit’s
death was a ‘legitimate matter of public interest and concern.’ Therefore the
publication of Ms. Benoit’s nude photographs cannot be described as a mere
commercial benefit for [Defendant].” Toffoloni v. LFP Publishing Group, No. 1:08CV-421-TWT, 2008 U.S. Dist. LEXIS 82287, at *6 (N.D. Ga. 2008).
As this Court is well aware, Plaintiff appealed to the Eleventh Circuit
Court of Appeals, which overturned this Court’s October 3, 2008 Order, and
remanded the case back to the District Court for further consideration. The Eleventh
Circuit conclusively held that the images of Ms. Benoit did not qualify as newsworthy,
did not relate to the incident of newsworthiness in question (Ms. Benoit’s death), and
that the images were published for the economic benefit of Defendant. See June 25,
2009 Order.
On remand, this Court held that Defendant’s liability to Plaintiff for
violation of the right of publicity was conclusively established, and that the Eleventh
Circuit’s opinion had determined the issue that the images of Ms. Benoit did not
qualify as newsworthy under the newsworthy exception to the right of publicity. See
November 23, 2010 Order.

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Plaintiff anticipates that Defendant may attempt to introduce this Court’s
October 3, 2008 Order as 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. However, the introduction of such evidence is improper,
has no probative value, would undermine the authority of this Court, would cause
confusion, and would be prejudicial to Plaintiff.
“[a] general vacation by an appellate court of the lower court’s judgment
vacates the entire judgment below, divesting the lower court’s earlier judgment of its
binding effect. See United States v. M.C.C. of Florida, Inc., 967 F.2d 1559, 1561-62
(11th Cir. 1992). See also, Johnson v. Board of Educ. of City of Chicago, 457 U.S. 52,
102 S. Ct. 2223 (1982); Dorsey v. Continental Casualty Co., 730 F.2d 675 (11th Cir.
1984). “[T]he effect of this reversal was to nullify the entire opinion of the district
court and to place the parties in the position quo ante, subject, of course, to the
holdings of the court of appeals.” See Young v. Georgia, 464 U.S. 1057, 1060, 104 S.
Ct. 740 (1984), quoting Young v. State, 251 Ga. 153, 155, 303 S.E.2d 431 (1983).
The legal effect of the reversal of a judgment on appeal is to nullify the
judgment below and place the parties in the same position in which they were before
judgment. The legal effect of the Eleventh Circuit’s June 25, 2009 reversal and
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remand of the District Court’s October 3, 2008 Order is to place the parties in the
same position they were in before the October 3, 2008 Order was rendered. The
October 3, 2008 District Court Order, for all intents and purposes in this case, never
existed.
Defendant, therefore, may not make any reference whatsoever to the
October 3, 2008 District Court Order, whether to add credence to Defendant’s
argument that it judged the nude images of Ms. Benoit as newsworthy or otherwise.
As such, any reference to this Court’s October 3, 2008 Order, as well as the Order
itself, document number 6 of Attachment G-2 of the March 28, 2011 Pretrial Order,
must be excluded.
D.

The Deposition Testimony of Tyler Downey Must
Be Excluded.

Plaintiff also anticipates that Defendant and/or Defendant’s counsel may
attempt to reference and/or introduce evidence relating to the deposition testimony of
Tyler Downey. Mr. Downey’s deposition was taken on April 21, 2011.
During his deposition, Mr. Downey testified as to his former employment
with Defendant at the time the images of Ms. Benoit were published, as well as his
current relationship with Defendant as a freelance writer. While Mr. Downey did
testify to some degree as to the decision process for the publication of the images of
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Ms. Benoit, such as how the images were originally obtained by Defendant from Mr.
Samansky, Mr. Downey does not provide any concrete testimony as to any of the
three key issues that remain in this case.
When asked “do you have any knowledge whatsoever as to the value that
accrued to Hustler Magazine as a result of it publishing the images of Nancy Benoit
without her permission?” Mr. Downey responded “No, I do not.” See Downey
Deposition, p. 77. Mr. Downey was also not involved in setting the price paid by
Defendant to Mr. Samansky for the photographs if Ms. Benoit. See Downey
Deposition, p. 23 wherein Mr. Downey states:
I showed the photos to Bruce David, who took them, I
believe, to Larry -- I don’t know if -- actually, I don’t know
if he took them to Larry Flynt or not, but that was the
number that was come -- that came back to me. I didn’t
come up with that thousand dollar number. That was a
number that was told to me.
Mr. Downey, therefore, cannot speak in any relevant capacity as to the
value to the Defendant of the images published by Defendant, either the value paid by
Defendant or the value received by the publication of Ms. Benoit’s image.

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With regard to punitive damages, Mr. Downey states that:
the simple fact that she had been in the news so much was
something that really -- you know, was really attractive
about the article for us, in that, you know, it's an addition to
the current reporting going on with her. So we thought we
would be good on that grounds. She was deceased, which,
you know, right to privacy and that kind of thing becomes
a little bit different once a person is not living anymore.
See Downey Deposition pp. 29, 30.
Not only is Mr. Downey incorrect in his assumption that death
eviscerates the right to publicity (See Martin Luther King, Jr. Center for Social
Change, Inc. v. American Heritage Products, Inc., 694 F.2d 674 (11th Cir. 1983)), but
Mr. Downey also states that because Ms. Benoit was in the news, any photographs
published of her were “newsworthy.” As this Court and the Eleventh Circuit have
conclusively ruled, this is not, and has never been, the law. There is no evidence that
Mr. Downey was aware of any analysis conducted by Defendant as to whether the
images of Ms. Benoit related in any way to the subject matter of her newsworthiness,
namely, her untimely murder. Mr. Downey can provide no relevant testimony, other
than his biased and uniformed opinion or the hearsay testimony relating to other of
Defendant’s employees, that Defendant truly believed the images of Nancy Benoit to
be newsworthy at the time they were published. Similarly, Mr. Downey can provide
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no relevant testimony concerning the amount of damages that should be assessed for
punitive damages.
Mr. Downey’s testimony is therefore wholly irrelevant to the remaining
issues in this case, and must be excluded from use at trial.
E.

The Deposition Testimony of Christopher Helton
Must Be Excluded.

Plaintiff also anticipates that Defendant and/or Defendant’s counsel may
attempt to reference and/or introduce evidence relating to the deposition testimony of
Christopher Helton. Mr. Helton’s deposition was taken on April 22, 2011.
During his deposition, Mr. Helton testified as to the circumstances
surrounding the photo shoot during which the images of Nancy Benoit at issue were
taken, as well as Mr. Helton’s experience of the typical amounts paid for the sale of
his photographs of other models. However, Mr. Helton does not provide any relevant
testimony as to the three remaining issues in this case, and his testimony must
therefore be excluded from trial.
Concerning the value received by Hustler for the publication of the
images of Mr. Benoit, Mr. Helton testified as follows:

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Q.

Do you have any information about the value
received by Hustler Magazine in publishing the
images of Nancy Benoit?

A.

No.

Q.

Do you have any information about how much
money Hustler Magazine made in connection with
its publishing images of Nancy Benoit?

A.

No, I don't.

See Helton Deposition, p. 18.
Concerning the decision-making process undertaken by Hustler in
deciding to publish the photographs of Nancy Benoit, Mr. Helton testified as follows:
Q.

Do you have any information concerning the
decision-making process at Hustler Magazine
concerning their publication of the images of Nancy
Benoit?

A.

No, I do not.

See Helton Deposition, p. 18.

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Any information Mr. Helton does provide as to the payment he receives
for his own photographs that he sells is completely irrelevant and inapplicable to this
case. Mr. Helton employs different models and sells photographs to different
publications than the images of Ms. Benoit at issue in this case. In addition, Mr.
Helton states that he does not sell his photographs to pornographic magazines. See
Helton Deposition, p. 17. The photographs of Ms. Benoit are unique in that they were
the only nude photographs of Ms. Benoit known to exist and they were published
without her or her estate’s knowledge or permission after her infamous murder.
Mr. Helton, therefore, has absolutely no information on either the value
received by Hustler, or whether punitive damages are appropriate in this matter, which
are the only remaining issues in the case. His testimony is therefore wholly irrelevant
and will not assist the trier of fact in any respect in resolving these remaining issues.
Mr. Helton’s testimony must therefore be excluded from use at trial.
F.

The Deposition Testimony of William Otten Must
Be Excluded.

Plaintiff also anticipates that Defendant and/or Defendant’s counsel may
attempt to reference and/or introduce evidence relating to the deposition testimony of
William Otten. Mr. Otten’s deposition was taken on April 1, 2010.

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Mr. Otten testified as to the circumstances surrounding the photo shoot
where the nude images of Ms. Benoit were taken, as well as Ms. Benoit’s wrestling
career and Mr. Otten’s experience with payment for wrestling photographs he has
taken. Defendant has specified that it intends to introduce certain sections of Mr.
Otten’s deposition at trial. See March 28, 2011 Pretrial Order, p. 13.
As stated in the Pretrial Order, Plaintiff objects to the introduction and
use of Mr. Otten’s deposition, as his testimony has nothing whatsoever to do with the
remaining issues in this case. Mr. Otten has no knowledge of, and provides absolutely
no testimony relating to, the value received by Defendant for the publication of the
nude images of Nancy Benoit, whether punitive damages should be assessed in this
case, and if so, the amount of punitive damages to be assessed. Because Mr. Otten’s
testimony is irrelevant to any of the remaining issues in this case, it must be wholly
excluded from use at trial.
G.

The Deposition Testimony of Kevin Sullivan Must
Be Excluded.

Plaintiff also anticipates that Defendant and/or Defendant’s counsel may
attempt to reference and/or introduce evidence relating to the deposition testimony of
Kevin Sullivan. Mr. Sullivan’s deposition was taken on March 1, 2010.

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Mr. Sullivan testified as to Ms. Benoit’s wrestling career and the
promotional endeavors he and Ms. Benoit undertook to further their wrestling careers.
Defendant specified that it intends to introduce certain sections of Mr. Sullivan’s
deposition at trial. See March 28, 2011 Pretrial Order, p. 13.
As stated in the Pretrial Order, Plaintiff objects to the introduction and
use of Mr. Sullivan’s deposition, as his testimony has nothing whatsoever to do with
the remaining issues in this case. Mr. Sullivan has no knowledge of, and provides
absolutely no testimony relating to, the value received by Defendant for the
publication of the nude images of Nancy Benoit, whether punitive damages should be
assessed in this case, and if so, the amount of punitive damages to be assessed.
Because Mr. Sullivan’s testimony is irrelevant to any of the remaining issues in this
case, it must be excluded from use at trial.
H.

The Deposition Testimony of James Daus Must
Be Excluded.

Plaintiff also anticipates that Defendant and/or Defendant’s counsel may
attempt to reference and/or introduce evidence relating to the deposition testimony of
James Daus. Mr. Daus’ deposition was taken by Defendant on April 2, 2010.
Mr. Daus testified as to the circumstances surrounding the photo shoot
where the nude images of Ms. Benoit at issue in this case were taken. Defendant
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specified that it intends to introduce certain sections of Mr. Daus’ deposition at trial.
See March 28, 2011 Pretrial Order, p. 13.
As stated in the Pretrial Order, Plaintiff objects to the introduction and
use of Mr. Daus’ deposition, as his testimony has nothing whatsoever to do with the
remaining issues in this case. Mr. Daus has no knowledge of, and provides absolutely
no testimony relating to, the value received by Defendant for the publication of the
nude images of Nancy Benoit, whether punitive damages should be assessed in this
case, and if so, the amount of punitive damages to be assessed. Because Mr. Daus’
testimony is irrelevant to any of the remaining issues in this case, it must be excluded
from use at trial.
I.

The Documents Numbered 1, 2, 3, and 4 of
Attachment G-2 of the March 28, 2011 Pretrial
Order Must Be Excluded.

In the March 28, 2011 Pretrial Order, Defendant specifies certain
documents that it intends to introduce for use at trial. The documents are listed,
numbered 1 through 30, in Attachment G-2 of the Pretrial Order. Plaintiff objected
to several of the documents listed by Defendant in Attachment G-2 on the grounds
that they are irrelevant to the remaining issues in the case, constitute hearsay, and were

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not produced by Defendant in discovery. Plaintiff now further argues that these
documents should not be admitted or introduced at trial, and must be excluded.
Document 1 (Hustler Magazine, March 2006), Document 2 (Hustler
Magazine, Holiday 2007), Document 3 (Hustler Magazine, January 2008), and
Document 4 (Hustler Magazine, March 2008) of Attachment G-2 of the Pretrial Order
must be excluded from use at trial because they are not complete copies of the
referenced magazine, and they omit relevant information that could affect the damages
owed to Plaintiff.
Attachment G-2 specifies that the magazine issues referenced in
documents 1-4 consist of the cover and article excerpt of the magazine only. They do
not include the other material typically included in each issue of Hustler Magazine.
This additional material includes materials that are highly offensive to certain
community standards, such as the DVD that was included in the sale of the March
2008 issue of Hustler Magazine depicting graphic sexual intercourse.

These

materials, as well as the full content of each magazine issue, may be necessary for the
trier of fact to review in order to learn the full extent of the violation of the right of
publicity that occurred in this case, and the value gained by Defendant by the
publication of Ms. Benoit’s image. Ms. Benoit, or her estate, has the legal right to
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control her image, and the uses of her image, and the right to refrain from being
associated with the offensive content found in the typical issue of Hustler Magazine.
The trier of fact must have access to that offensive content to judge the full scope of
damages in this case.
Copies of writings and other documents may be excluded from evidence
if they are incomplete. See Thrower v. C.I.R., T.C. Memo. 2003-139, 2003 WL
21107675, 85 T.C.M. (CCH) 1312 (U.S. Tax Court 2003) where the court sustained
petitioner’s objection to the admission of photocopied pages into evidence, where the
photocopies were incomplete and therefore unreliable. Because full and complete
copies of the Hustler Magazine in question must be made available to the trier of fact
in order to make a fully informed decision on damages in this case, documents 1-4 of
Attachment G-2 are inadmissable, and should be replaced with the full and complete
copies of these specific issues Hustler Magazine.
J.

The Documents Numbered 5, 6, 9, 10, 11, 12, 13,
14, 15, 16, 17, 18, and 30 of Attachment G-2 of the
March 28, 2011 Pretrial Order Must Be
Excluded.

In the March 28, 2011 Pretrial Order, Defendant specifies certain
documents that it intends to introduce and use at trial. The documents are listed,
numbered 1 through 30, in Attachment G-2 of the Pretrial Order. Plaintiff objected
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to several of the documents listed by Defendant in Attachment G-2, on the grounds
that they are irrelevant to the remaining issues in the case, constitute hearsay, and were
not produced by Defendant in discovery. Plaintiff now further argues that these
documents should not be admitted or introduced at trial, and must be excluded.
1.

Document 5 - Representative Entertainment Media Exhibit.

This exhibit has nothing whatsoever to do with the value received by
Defendant through publication of Ms. Benoit’s image, or whether punitive damages
should be assessed in this case, and if so, what amount should be assessed. As such,
document 5 is irrelevant to the issues to be decided in this matter, and should not be
admitted or introduced at trial. See Federal Rule of Evidence 402.
In addition, there is no authentication of document 5, which is being
introduced to prove the truth of the matter asserted therein. As such, this document
constitutes inadmissible hearsay that does not fall under any recognized exception.
Document 5 is therefore inadmissible at trial, and must be excluded by this Court.
2.

Document 6 - October 3, 2008 Order Issued
by Hon. Thomas W. Thrash.

Document 6, dated October 3, 2008, is listed as the “Dismissal Order
Issued by Hon. Thomas W. Thrash, Docket Index 13.” As discussed in Section C
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above, this Court’s Order granting Defendant’s Motion to Dismiss may not be allowed
into evidence in this case, and is therefore inadmissable. The Eleventh Circuit’s June
25, 2009 reversal of this Court’s October 3, 2008 decision has the legal effect of
placing the parties in the same position as if the Order granting Defendant’s Motion
to Dismiss had never been issued. It is therefore improper to introduce this Court’s
October 3, 2008 Order into evidence during the trial of the remaining issues in this
case.
3.

Document 9 - LFP March 2008 Geographic
Circulation Analysis.

Document 9, dated March, 2008, is listed as “LFP March 2008
Geographic Circulation Analysis.” During the course of discovery, Plaintiff requested
“all documents which reflect the total number of Hustler Magazines produced and the
total number of Hustler Magazines sold worldwide for each month in calendar years
2006, 2007, 2008 and 2009, to date.” See Plaintiff’s First Request for Production of
Documents Number 13. However, the March 2008 Geographic Circulation Analysis
was never produced by Defendant. Though possibly relevant to the issue of damages,
Plaintiff cannot conclusively make such a determination, as Plaintiff and her counsel
have not had the opportunity to review the document. Because document 9 was not
produced in discovery, Defendant may not introduce such document for use at trial.
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4.

Document 10 - Sport Review Wrestling, May
1983.

Document 10 is listed as “Sport Review Wrestling, May 1983 (Otten Ex.
2).” This exhibit was introduced during the deposition of William Otten. As
discussed in Section F above, the entirety of Mr. Otten’s deposition testimony must
be excluded from use at trial, as it is irrelevant to the remaining issues to be decided
in this case.
Similarly, any exhibits to Mr. Otten’s deposition must also be excluded.
Exhibit 2 to Mr. Otten’s deposition is a wrestling magazine which contains
photographs of Nancy Benoit and another female model posing and wrestling in
swimsuits. Both models are clothed in the photographs. Mr. Otten testified that he
was paid $250 for the photographs, of which he gave Ms. Benoit $75. In addition,
Mr. Otten testifies that Ms. Benoit signed a release in order to have these photographs
published by the magazine, and that Ms. Benoit’s main form of compensation was the
publicity that the photographs would provide within the wrestling community. See
Otten Deposition, pp. 29-31.
The pictures themselves are entirely dissimilar from those published by
Defendant, and were both taken, and published, at an entirely different time in Ms.
Benoit’s life and career than those images published by Defendant after Ms. Benoit’s
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death. The value of the photographs in Exhibit 2 of Mr. Otten’s Deposition holds
absolutely no relevance to the value realized by Defendant by the publication of Ms.
Benoit’s nude image. Document 10, therefore, has no probative value relating to the
issues to be decided at trial, and may in fact be prejudicial to Plaintiff. Document 10
must therefore be excluded from use at trial.
5.

Document 11 - Photograph Is Ms. Benoit
on the Cover of The Grapevine.

Document 11 is listed as “Photo of Nancy Benoit used on the cover of
The Grapevine (Otten Ex. 3).” As discussed in Section F above, the entirety of Mr.
Otten’s deposition testimony must be excluded from use at trial, as it is irrelevant to
the remaining issues to be decided in this case.
Similarly, any exhibits to Mr. Otten’s deposition must also be excluded.
Exhibit 3 to Mr. Otten’s deposition is a photograph of Ms. Benoit used for the cover
of the wrestling magazine The Grapevine. The amount Ms. Benoit was paid for the
use of the photograph in Document 11 is entirely irrelevant to the value received by
Defendant in publishing Ms. Benoit’s nude image. The photograph in Document 11
was taken at a different time in Ms. Benoit’s life and career than the images published
by Defendant. In addition, the images in Document 11 were published by a different

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magazine, and did not depict nudity. Document 11 is therefore irrelevant to the
remaining issues to be decided in this case, and must be excluded from use at trial.
6.

Document 12 - Advertisement Featuring
Fallen Angel Photographs.

Document 12 is listed as “Advertisement featuring Fallen Angel
photographs (Otten Ex. 5).” As discussed in Section F above, the entirety of Mr.
Otten’s deposition testimony must be excluded from use at trial, as it is irrelevant to
the remaining issues to be decided in this case.
Similarly, any exhibits to Mr. Otten’s deposition must also be excluded.
Exhibit 5 to Mr. Otten’s deposition is a photograph of Ms. Benoit labeled under her
wrestling alter ego, “Fallen Angel.” This photograph was published in various
wrestling magazines in an advertisement to sell photographs of Ms. Benoit to the
public.
While the photograph in Document 12 may give the implication of
nudity, it does not depict Ms. Benoit’s nude body. The photographs were taken at a
different time in Ms. Benoit’s life and career, and were published at a different time
and in a different magazine than the nude images published by Defendant in this case.
In addition, Ms. Benoit signed a release in connection with these photographs, and
received compensation for the photographs. See Otten Deposition, pp. 45-46. The
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photograph in Document 12 is irrelevant to the remaining issues to be decided in this
case. Document 12 is therefore inadmissible, and must be excluded by this Court.
7.

Document 13 - “Fallen Angel” Photographs

Document 13 is listed as “‘Fallen Angel’ photographs (Otten Ex. 6).” As
discussed in Section F above, the entirety of Mr. Otten’s deposition testimony must
be excluded from use at trial, as it is irrelevant to the remaining issues to be decided
in this case.
Similarly, any exhibits to Mr. Otten’s deposition must also be excluded.
Exhibit 6 to Mr. Otten’s deposition are photographs of Ms. Benoit labeled under her
wrestling alter ego, “Fallen Angel.” These photographs were used for sale to the
general public pursuant to advertisements in various wrestling magazines.
The photographs in Document 13 are totally irrelevant to the issues to be
decided at trial in this case. While the photographs in Document 13 may give the
implication of nudity, they do not depict Ms. Benoit’s nude body. The photographs
were taken at a different time in Ms. Benoit’s life and career, and were published at
a different time than the nude images published by Defendant in this case. In addition,
Ms. Benoit signed a release in connection with these photographs, and received
compensation for these photographs.
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See Otten Deposition, pp. 45-46.
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The

photographs in Document 13 are irrelevant to the remaining issues to be decided in
this case. Document 13 is therefore inadmissible, and must be excluded by this Court.
8.

Document 14 - Edited Advertisement
Featuring Fallen Angel Photographs.

Document 14 is listed as “Edited Advertisement featuring Fallen Angel
photographs (Otten Ex. 7).” As discussed in Section F above, the entirety of Mr.
Otten’s deposition testimony must be excluded from use at trial, as it is irrelevant to
the remaining issues to be decided in this case.
Similarly, any exhibits to Mr. Otten’s deposition must also be excluded.
Exhibit 7 to Mr. Otten’s deposition is a photograph of Ms. Benoit labeled under her
wrestling alter ego, “Fallen Angel.” This photograph was published in various
wrestling magazines in an edited advertisement to sell photographs of Ms. Benoit to
the public.
The photograph in Document 14 does not depict Ms. Benoit’s nude body.
The photograph was taken at a different time in Ms. Benoit’s life and career, and was
published at a different time and in a different magazine than the nude photographs
published by Defendant in this case. In addition, Ms. Benoit signed a release in
connection with this photograph, and received compensation for the photograph. See
Otten Deposition, pp. 45-46. The photograph in Document 14 is irrelevant to the
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remaining issues to be decided in this case. Document 14 is therefore inadmissible,
and must be excluded by this Court.
9.

Document 15 - Nancy Benoit Photographs
Taken from the Internet.

Document 15 is listed as “Nancy Benoit photographs taken from the
Internet (Otten Ex. 8).” As discussed in Section F above, the entirety of Mr. Otten’s
deposition testimony must be excluded from use at trial, as it is irrelevant to the
remaining issues to be decided in this case.
Similarly, any exhibits to Mr. Otten’s deposition must also be excluded.
Exhibit 8 to Mr. Otten’s deposition consists of several photographs of Ms. Benoit
taken by Defendant’s counsel from the Internet. The photographs have nothing
whatsoever to do with the remaining issues to be decided in this case.

The

photographs in Document 15 do not depict Ms. Benoit’s nude body. They were taken
and published at a different time in Ms. Benoit’s life and career, and never appeared
in any pornographic magazine, unlike the nude photographs published by Defendant
in this case.
The photographs in Document 15 do not relate in any way to the value
received by Defendant for the publication of Ms. Benoit’s nude image.

The

photographs in Document 15 do not relate in any way as to whether punitive damages
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should be assessed against Defendant, and if so, the amount of punitive damages to
be assessed. Document 15 is therefore irrelevant to the remaining issues in this case,
and must be excluded from use at trial.
10.

Document 16 - Composite.

Document 16 is listed as “Composite Otten Ex. 9.” As discussed in
Section F above, the entirety of Mr. Otten’s deposition testimony must be excluded
from use at trial, as it is irrelevant to the remaining issues to be decided in this case.
Similarly, any exhibits to Mr. Otten’s deposition must also be excluded.
Exhibit 9 to Mr. Otten’s deposition consists of several wrestling magazines and
photographs of Nancy Benoit. The photographs have nothing whatsoever to do with
the remaining issues to be decided in this case. The photographs in Document 16 do
not depict Ms. Benoit’s nude body. They were taken and published at a different time
in Ms. Benoit’s life and career, and never appeared in any pornographic magazine,
unlike the nude photographs published by Defendant in this case.
The photographs in Document 16 do not relate in any way to the value
received by Defendant for the publication of Ms. Benoit’s nude image.

The

photographs in Document 16 do not relate in any way as to whether punitive damages
should be assessed against Defendant, and if so, the amount of punitive damages to
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be assessed. Document 16 is therefore irrelevant to the remaining issues in this case,
and must be excluded from use at trial.
11.

Document 17 - Email from Mark Samansky
to LFP.

Document 17, dated July 11, 2007, is listed as “Email from Mark
Samansky to LFP (LFP 0073 - 0074).” The email consists of an offer from Mr.
Samansky to sell the nude images of Ms. Benoit to Defendant. However, the email
itself does not discuss value in any way, nor does it discuss the potential
newsworthiness of the images. Because the value received by Defendant for
publication of the nude images, as well as the issue of punitive damages, are the only
matters left to be decided in this case, and because the July 11, 2007 email from Mr.
Samansky substantially addresses neither of these issues, it is irrelevant and must
therefore be excluded from use in this case.
In addition, there is no authentication of Document 17, which is being
introduced to prove the truth of the matter asserted therein. As such, Document 17
constitutes inadmissible hearsay that does not fall under any recognized exception.
Document 17 is therefore inadmissible at trial, and must be excluded by this Court.

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12.

Document 18 - Independent Contractor
Agreement.

Document 18, dated January 22, 1996, is listed as “Independent
Contractor Agreement between Nancy Benoit and World Championship Wrestling,
Inc. (UWC 005 - 016). This is the employment agreement signed by Ms. Benoit when
she worked as a wrestling personality for World Championship Wrestling.
This Agreement has absolutely nothing to do with the remaining issues
in this case, and is therefore inadmissible. Document 18 does not relate in any way
to the value received by Defendant for the publication of Ms. Benoit’s nude image.
Document 18 does not relate in any way as to whether punitive damages should be
assessed against Defendant, and if so, the amount of punitive damages to be assessed.
These are the only issues left to be decided in this case, and because Document 18
does not even remotely address any of these issues, it is irrelevant and must be
excluded from use at trial.
In addition, there is no authentication of Document 18, which is being
introduced to prove the truth of the matter asserted therein. As such, Document 18
constitutes inadmissible hearsay that does not fall under any recognized exception.
Document 18 is therefore inadmissible at trial, and must be excluded by this Court.

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III. CONCLUSION
Defendant is attempting to cloud and confuse the remaining issues in this
case by introducing irrelevant and prejudicial evidence for use at trial. Only three
issues remain to be determined by the trier of fact:
(1)

the value to Defendant of the images published by Defendant;

(2)

whether punitive damages should be assessed against Defendant;
and

(3)

if punitive damages are awarded, the amount to be assessed for
punitive damages.

All of the issues and materials discussed above and listed in Plaintiff’s Motion in
Limine have nothing whatsoever to do with these three core issues. All tangential
issues and documents attempting to be introduced by Defendant are therefore
irrelevant and must be excluded at trial. This Court must therefore GRANT Plaintiff’s
Motion in Limine to exclude all irrelevant evidence from use at trial.

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

CERTIFICATE OF SERVICE
This is to certify that on May 23, 2011, I have electronically filed the
foregoing Motion in Limine and Brief in Support thereof with the Clerk of Court
using the CM/ECF system which will automatically send email notification of such
filing to the following attorney(s) of record:
James Clifton Rawls, Esq.
S. Derek Bauer, Esq.
Barry J. Armstrong, Esq.
Darrell Jay Solomon, Esq.
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Jeffrey F. Reina, Esq.
Paul J. Cambria, Esq.
and by placing a copy of same in the United States Mail in a properly addressed
envelope with adequate postage thereon to:
William M. Feigenbaum, Esq.
Lipsitz, Green, Scime, Cambria, LLP
42 Delaware Avenue, Suite 120
Buffalo, NY 14202
/s/ Richard P. Decker
RICHARD P. DECKER
State Bar of Georgia #215600
For HALLMAN & WINGATE, LLC
Attorneys for Plaintiff
166 Anderson Street, S.E.
Suite 210
Marietta, Georgia 30060
[phone]

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