Toffoloni v. LFP Publishing Group, LLC

Filing 206

RESPONSE re 199 MOTION in Limine to Exclude Evidence filed by Maureen Toffoloni. (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 RESPONSE TO DEFENDANT’S
MOTION IN LIMINE TO EXCLUDE EVIDENCE
COMES NOW, Plaintiff, Maureen Toffoloni, as Administratrix and
Personal Representative of the Estate of Nancy E. Benoit (hereinafter “Plaintiff”)
through counsel and files this her Response to Defendant’s Motion in Limine to
Exclude Evidence and shows this Court the following:
Defendant LFP Publishing, LLC d/b/a Hustler Magazine (hereinafter
“Hustler” or “Hustler Magazine”) has filed a Motion in Limine which seeks to prevent
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Plaintiff from introducing four particular items of evidence at trial. Plaintiff will
respond to Hustler’s Motion in the order in which it was presented.
A.

The DVD which was packaged and sold with
newsstand copies of the March 2008 edition of
Hustler Magazine. (Plaintiff’s Exhibit 2).

The March 2008 edition of Hustler Magazine (Plaintiff’s Exhibit 2),
which contained images of Nancy Benoit published by Hustler without permission or
consent, also contained a “free” DVD sold with each newsstand edition of the
magazine. The DVD was packaged and wrapped with the magazine and was part and
parcel of the newsstand edition. A buyer of the magazine could not purchase the
magazine without also getting the DVD, and could not purchase the DVD without
getting the magazine. The DVDs were provided by Hustler to “boost sales” of the
magazine. See Deposition of Bruce David, p. 14.
As it turns out, every edition of Hustler Magazine, at least for five
months before the March 2008 edition, and for the six months after, also contained a
“free DVD.” See Plaintiff’s Exhibits 29 through 33. Thus, apparently, each issue of
Hustler Magazine comes with a “free” DVD.

The DVDs are therefore an

indispensable part of each magazine, presumably to “boost sales” of the newsstand
edition, just like any other photo spread or feature within the magazine itself.
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It is also indisputably true that the DVDs, including the March 2008
edition DVD, contain what can only be described as extreme hard core pornography,
including scenes of violent sexual battery. The DVDs are disturbing; some would say
disgusting, vile and horrible, but are quite similar to much of the content of the
magazine itself. Be that as it may, however, the fact that the DVD’s might be
disturbing to the average person is the fault of the Defendant, not the Plaintiff.
The finder of fact in this case must review the entire magazine for the
purposes of determining damages in this case. Such a review must include all the
photo spreads, articles, and advertisements within the magazine, as well as the
included DVD material, and not just the images of Nancy Benoit. To refuse the
review of the DVD would be to provide the finder of fact with an incomplete picture
of what was sold to the public, and thus, what profits from the sale of the magazine
are attributable to the illegal images of Ms. Benoit.
As established by the Eleventh Circuit’s opinion in this case, Ms. Benoit,
or her estate, has the legal right to control her image, as well as 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 all of that offensive content in order
to judge the full scope of damages in this case.
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As the Eleventh Circuit said in its review of this case in 2009:
We agree with the Seventh Circuit that this ‘unauthorized
publication’ impaired the commercial exploitation of
Benoit’s image. Certainly an important aspect of the right
of publicity is being able to control the place as well as time
and number of one’s public appearances. Crude though the
concept may seem in this context, Toffoloni is entitled to
control when and whether images of her daughter are made
public in order to maximize the economic benefit to be
derived from her daughter’s posthumous fame.
Toffoloni v. LFP Publishing LLC, d/b/a Hustler Magazine, 572 F.3d 1201, 1213 (11th
Cir. 2009).
The “place” where Hustler Magazine chose illegally to publish images
of Nancy Benoit is a pornographic magazine that is packaged with a pornographic
DVD. The items are sold together, the content is sold together, and presumably, both
the magazine and the DVD are viewed together by each purchaser. To artificially
exclude the DVD because it is vile or disturbing to the average person, which is
Defendant’s implicit argument, would be the same as tearing pages from the magazine
in order to present a sanitized, less shocking version of the magazine to the jury.
Neither practice would be consistent with presenting the jury with the actual facts of
the case.

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The Defendant, not the Plaintiff, chose to create this DVD; the
Defendant, not the Plaintiff, chose to include it as part of its magazine; and the
Defendant, not the Plaintiff, chose to publish images of Plaintiff’s decedent alongside
these pornographic images, for its own financial gain. The Defendant should be stuck
with its entire unsanitized handiwork in front of the jury in order for the finder of fact
to properly establish damages in this case.
B.

The Meredith Emerson Material (Plaintiff’s
Exhibit 17).

The horrible murder of Meredith Emerson in the North Georgia
mountains occurred in January, 2008, about the time Hustler illegally published
images of Nancy Benoit. By the time Ms. Emerson’s murder investigation was
completed, in March of 2010, Hustler had already received the opinion of the Eleventh
Circuit Court of Appeals dated June 25, 2009, condemning Hustler’s conduct in the
Toffoloni case. Undeterred by the Eleventh Circuit’s opinion, and the United States
Supreme Court’s refusal to review that decision, in February of 2010 Hustler
nonetheless aggressively sought to obtain the Georgia Bureau of Investigation crime
scene photographs of Ms. Emerson’s nude and decapitated body. Hustler’s efforts in
this regard are memorialized in Plaintiff’s Exhibit 17, which Defendant seeks to
exclude.
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According to the Supreme Court of the United States, one of the wellaccepted grounds for the imposition of punitive damages is the Defendant’s
“recidivism.” See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 123 S.
Ct. 1513 (2003), BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S. Ct. 1589
(1996).
To determine a defendant's reprehensibility-the most
important indicium of a punitive damages award's
reasonableness-a court must consider whether: ... the
conduct involved repeated actions or was an isolated
incident; and the harm resulted from intentional malice,
trickery, or deceit, or mere accident. Gore, 517 U.S., at
576-577, 116 S.Ct. 1589. It should be presumed that a
plaintiff has been made whole by compensatory damages,
so punitive damages should be awarded only if the
defendant's culpability is so reprehensible to warrant the
imposition of further sanctions to achieve punishment or
deterrence. Id., at 575, 116 S.Ct. 1589.
See State Farm Mut. Auto. Ins. Co. v. Campbell at 409.
Recidivism is defined as “a tendency to relapse into a habit of criminal
activity or behavior.” See Black’s Law Dictionary 1021 (7th ed. 2000). In this case,
on June 25, 2009, Hustler received a virtual road map from the Eleventh Circuit Court
of Appeals, spelling out in plain terms the legal limits of the “newsworthy” doctrine
in this Judicial Circuit. Apparently, the lesson did not take, because on February 25,
2010 Hustler was back in Georgia again, petitioning the Georgia Bureau of
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Investigation to obtain crime scene photographs showing the nude and decapitated
body of the victim of a horrible crime. Only a public outcry by the victim’s family,
and action by the Georgia General Assembly, prevented Hustler Magazine from
obtaining and publishing the crime scene photographs in its magazine. As a part of
her claims for punitive damages, Plaintiff should be entitled to show the jury Hustler’s
recidivist conduct in this matter.
Certainly, evidence that a defendant has repeatedly engaged
in prohibited conduct while knowing or suspecting that it
was unlawful would provide relevant support for an
argument that strong medicine is required to cure the
defendant's disrespect for the law. Our holdings that a
recidivist may be punished more severely than a first
offender recognize that repeated misconduct is more
reprehensible than an individual instance of malfeasance.
See BMW of North America, Inc. v. Gore, 517 U.S. 559, 576-77, 116 S. Ct. 1589
(1996) (internal citations omitted)
Because Defendant has repeatedly engaged in the prohibited conduct of
publishing nude images of women without their consent, while knowing that such
conduct is unlawful, evidence of Defendant’s recidivist conduct must be admitted.
C.

The Prior Actions.

As is well settled under Federal Rule of Evidence 404(b), similar acts,
including similar claims and litigation, may be introduced into evidence to establish
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a party’s motive, intent, state of mind, or absence of accident or mistake. See Fed. R.
Evid. 404(b). This is especially true in cases in which a claim for punitive damages
for violation of the right of publicity is being made. In this case, the state of mind of
Defendant, and whether the Defendant truly believed that the publication of Ms.
Benoit’s images were newsworthy at the time they were published, is critical to the
issue of whether punitive damages should be awarded, and if so, the amount to be
assessed.
In this case, Plaintiff seeks to show that Hustler Magazine has been
repeatedly successfully sued for damages because it has repeatedly published images
of women without their consent, violating their right to privacy, and right to publicity.
Indeed, one of the cases being offered by Plaintiff (Plaintiff’s Exhibit 23), Douglass
v. Hustler Magazine, Inc., 769 F.2d 1128 (7th Cir. 1985)) was extensively quoted by
the Eleventh Circuit Court of Appeals in its opinion in the Toffoloni case. Obviously,
the Eleventh Circuit has already held that the Douglass case (Plaintiff’s Exhibit 23)
and the case at bar are substantially similar. In fact, a review of the facts of both cases
clearly shows that Hustler’s conduct in both cases is disturbingly consistent. Judge
Posner stated in his opinion in the Douglass case that over the years Hustler has
shown a “propensity, well-documented in several cases … to invade people’s legal
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rights.” Douglass at 1145. This propensity demonstrates Defendant’s knowledge that,
at the time the images of Ms. Benoit were being published, Defendant knew what it
was doing was wrong, and the action was therefore done with malice and reckless
indifference.
In considering punitive damages, the jury is entitled to know that Hustler
Magazine has committed almost exactly the same conduct at least five (5) times in the
past. See State Farm Mut. Auto. Ins. Co. v. Campbell, BMW of N. Am., Inc. v. Gore,
supra.
D.

The Sun Article Quote Attributed to Hustler
Magazine Employee, Mark Johnson.

In its Order dated November 23, 2010, granting summary judgment to
Plaintiff on the issue of Defendant’s liability, this Court quoted part of the statement
attributed to Hustler Magazine employee, Mark Johnson, as follows: “The feedback
was huge and overwhelmingly positive.” Order, p. 10. Thus, there is no doubt that
the Court believes that Mark Johnson said to The Sun magazine the words attributed
to him in the article; indeed, he admitted saying or writing these words to The Sun in
his deposition. See Johnson Deposition, pp. 11-12. The article is admissible to show
Defendant’s state of mind at the time the images of Nancy Benoit were published, and

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is therefore relevant for the purpose of establishing punitive damages. See Fed. R.
Evid. 401, 404(b).
As stated in Herbert v. Lando, 441 U.S. 153, 99 S. Ct. 1635 (1979), in
reference to the case of Curtis Pub. Co. v. Butts, 388 U.S. 130, 87 S. Ct. 1975 (1967),
a libel action against a magazine publisher in Georgia, evidence is properly introduced
to discover the defendant’s state of mind for the purposes of punitive damages.
In Butts, the Court affirmed the substantial award of
punitive damages which in Georgia were conditioned upon
a showing of “wanton or reckless indifference or culpable
negligence” or “ ‘ill will, spite, hatred and an intent to
injure . . . .’ ” 388 U.S., at 165-166. Neither Mr. Justice
Harlan, id., at 156-162, nor Mr. Chief Justice Warren,
concurring, id., at 165-168, raised any question as to the
propriety of having the award turn on such a showing or as
to the propriety of the underlying evidence, which plainly
included direct evidence going to the state of mind of
the publisher and its responsible agents.
Herbert at 162-163 (emphasis added).
Direct evidence of Defendant’s and its responsible agents’ state of mind
is necessary for a showing of punitive damages in this case. The quote from Mr.
Johnson is the best evidence available to show Defendant’s state of mind at the time
the images of Ms. Benoit were illegally published.

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CONCLUSION
Not one of the documents objected to by Defendant is inadmissible on
the grounds stated by Defendant in its Motion. Each document is relevant to the
remaining issues to be decided at trial. Therefore, Defendant’s Motion in Limine
should be denied.
Respectfully submitted May 27, 2011.
/s/ Richard P. Decker
RICHARD P. DECKER
State Bar of Georgia #215600
F. EDWIN HALLMAN, JR.
State Bar of Georgia #319800
RICHARD A. WINGATE
State Bar of Georgia #770617
ZACHARY M. WILSON III
State Bar of Georgia #559581
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.

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

CERTIFICATE OF SERVICE
This is to certify that on May 27, 2011, I have electronically filed the
foregoing Response to Defendant’s Motion in Limine to Exclude Evidence 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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