Toffoloni v. LFP Publishing Group, LLC

Filing 208

REPLY BRIEF re 199 MOTION in Limine to Exclude Evidence filed by LFP Publishing Group, LLC. (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.

REPLY 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 reply in support of its Motion In
Limine To Exclude Evidence filed with the Court by Plaintiff Maureen Toffoloni
(“Plaintiff”).
I.

Introduction

Plaintiff’s response, Docket Index (“D.I.”) 206, to Defendant’s Motion In
Limine confirms that Plaintiff clearly does not intend to confine her evidence or
argument to the merits of the actual issues to be tried, i.e., what would LFP have

paid to publish the Benoit images as a purely commercial, non-editorial “pictorial”,
and whether LFP sincerely believed that it had the right to publish the images
without Plaintiff’s permission.

Instead, Plaintiff intends to make this trial an

indictment of Hustler Magazine for its content and actions which are not actually
at issue in the case.
None of the evidence sought to be excluded by Defendant in its Motion is
relevant. This case has nothing to do with pornographic DVDs; Defendant’s
research for unpublished articles; or 25 year-old copyright infringement and false
light cases brought by different plaintiffs, against a different corporate defendant,
on different facts, and asserting different claims than those at issue here. Plaintiff
should not be permitted to turn this trial of limited issues into a sensational and
obvious smear campaign designed to elicit a jury verdict on anything but the actual
issues of the case. We respectfully request that the Motion be granted.
II.
A.

Argument

The DVD(s)

According to her brief, D.I. 206 at 2-5, Plaintiff apparently wishes to show
the jury not just the pornographic DVD packaged with the newsstand editions of
the March 2008 issue of Hustler Magazine (the only issue which contained the
Benoit images), but also DVDs packaged with any number of other issues of

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Hustler Magazine having absolutely no connection to the publication of the Benoit
images. Stripped of its rhetoric,1 Plaintiff’s argument is simply that the jury must
watch the “offensive” contents of the DVDs in order to determine “what profits
from the sale of the magazine are attributable to the illegal images of Ms. Benoit.”
(Id. at 3.) This argument lacks merit; and what is plain from it is that Plaintiff
wishes to make the jury angry, not deliberative.
First, Defendant’s profits from the March 2008 or any other issue of Hustler
Magazine is not the legal measure of damages on Plaintiff’s claim. Her recovery
for compensatory damages is limited to the value of Defendant’s use of the Benoit
images “in the manner and for the time [they were] appropriated.” Cabaniss v.
Hipsley, 114 Ga. App. 367, 381, 151 S.E.2d 496, 506 (1966).

Here, the

appropriation was the unauthorized use of Ms. Benoit’s image in an editorial photo
spread most closely analogous to a one-time, non-centerfold, non-cover model
pictorial. The measure of recovery is thus what Defendant would have paid for

1

The suggestion that the DVDs contain depictions of criminal conduct, i.e. “scenes
of violent sexual battery” or unwanted sexual contact, D.I. 206 at 3, is not only a
fiction wholly of Plaintiff’s counsel’s creation, but also a clear warning that
Plaintiff is likely to make grossly misplaced assertions during the trial of this case
in order to provoke an emotional, but inappropriate response from the jury on
extraneous matters. We respectfully submit that it is precisely this risk that
warrants a ruling on Defendant’s Motion before the trial of this case begins.

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such images had it known it was required to, not Defendant’s profits from the sale
of the March 2008 issue of Hustler Magazine.
Second, Plaintiff’s desire not to have Ms. Benoit’s image associated with
Hustler Magazine – or the contents of the DVDs sold with some issues of the
magazine – is inapposite to the measure of compensatory damages. As the parties
and the Court well know, there can be no recovery here for “injury to plaintiff’s
feelings or reputation.” Cabaniss , 114 Ga. App. at 381, 151 S.E.2d at 506.
Third, there is no merit to the suggestion that the actual, known content of
any of the DVDs drove sales of the magazines with which they were sold. This is
because, as Plaintiff acknowledges and understands, the DVDs were sold sealed
together in a package with newsstand copies of Hustler Magazine. No consumer
could see the content of any of the DVDs before deciding to purchase the
associated issues of Hustler Magazine, so Plaintiff’s suggestion the jury must see
the contents to decide what sales should be attributed to the DVDs, as opposed to
some other content, misses the mark.
Finally, as Plaintiff knows, the DVDs do not contain any video footage or
images of Ms. Benoit; do not reference Ms. Benoit in any way; and are not even
produced or seen by the LFP employees who produce the content of Hustler

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Magazine or played any part in the publication of the Benoit feature. (E.g., Bruce
David Deposition at 13.)
The DVDs cannot be shown to make any fact that is of consequence to the
determination of Plaintiff’s claims more or less probable. Plaintiff merely wishes
to incite the jury on issues far afield from the limited issues left for trial, “for the
sake of . . . prejudicial effect.” Fed. R. Evid. 403. We respectfully submit the
DVDs should be excluded.
B.

The Meredith Emerson Materials

Plaintiff argues, D.I. 206 at 5-6, that it is necessary for the jury to hear of the
efforts by a freelance true crime journalist on assignment for Hustler Magazine to
obtain, through an open records request, the Georgia Bureau of Investigation’s
closed investigative file regarding the murder of Meredith Emerson because it is
evidence of LFP’s “recidivism,” that is, relapsing criminal conduct. No article
about, much less any image of, Meredith Emerson has ever been published by
Defendant; and there is no basis for Plaintiff to suggest, much less prove, to the
jury that Defendant intended to publish any such images (much less crime scene
images of the body of the victim).
We respectfully suggest the obvious: Plaintiff’s purpose here is not to show
the jury actual evidence of repeated, much less relevant, criminal conduct by

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Defendant (there is none!), but to seize upon the jury’s likely familiarity with the
murder of Ms. Emerson and foster the entirely unfounded suggestion that
Defendant intended to publish images of her “nude and decapitated body,” D.I. 206
at 7. The lack of relevance of the proposed evidence is self-evident, as is the
prejudice its admission would cause Defendant in the defense of this unrelated
case.
C.

The Prior Actions

Contrary to Plaintiff’s argument, D.I. 206 at 8, none of the five (5) “prior
actions” involving Hustler Magazine Plaintiff proposes to admit into evidence at
trial is “substantially similar” to the case at bar. All are at least 25 years old. Two
of the cases are copyright infringement cases (Blackman and Brewer); two are
false light cases where non-parties were alleged to have stolen images of noncelebrity women, forged model’s releases and submitted them for publication in
Hustler Magazine under a false name (Ashby and Wood); only one, the Douglass
case out of the 7th Circuit, involved a right of publicity claim, and there the court
found evidence of a forged release and, of course, the subject of the images was
not contemporaneously part of a significant international news story.
Plaintiff’s efforts to conflate the issues notwithstanding, this case is nothing
like the “prior actions,” much less “exactly the same,” D.I. 206 at 9. Plaintiff has

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not explained, because she cannot, how these ancient cases on unrelated facts and
claims could possibly help the jury decide whether Defendant believed that it had
the legal right to publish the images as part of a news story. The “prior actions”
are irrelevant, and should be excluded.
Moreover, Plaintiff’s claim that the Prior Actions qualify for the “state of
mind” exception to Fed. R. Evid. 404(b) is misplaced. The Prior Actions are so
dissimilar to this case that neither the “state of mind” exception, nor any other
exception to that rule, applies. For this reason, the Prior Actions are inadmissible
under Fed. R. Evid. 404(b) (“Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith.”).
D.

The Sun Article Quote Attributed to Mark Johnson

In its summary judgment order, this Court cited the quote at issue and
attributed to Mark Johnson as evidence that Plaintiff is entitled to recover damages
because Defendant did benefit from publishing the Benoit images, but did not pay
Plaintiff anything for them. (D.I. 173 at 10.) That is where the relevance of this
hearsay evidence to this case ended, however.2 The comments clearly have no

2

Notably, Mr. Johnson testified he did not even specifically recall making the
statements attributed to him, and if he did make them, they were comments made

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relevance to the standard to the measure of damages in this case; that is, what
Defendant would have paid to Plaintiff for the images. Nor could the comments,
even if sufficiently authenticated (which they are not), be relevant to the issue of
punitive damages: the comments do not even reflect Defendant’s state of mind at
the time it decided to publish the Benoit images – the comments attributed to Mr.
Johnson were made on or about January 30, 2008, well after the decision to publish
the Benoit feature had been made, and the images had been already been
published. (See Pretrial Order, D.I. 176 at Attachment G-1, Plaintiff’s Exhibit 15.)
Finally, the evidence is clearly double hearsay. Mr. Johnson never admitted
the accuracy of the quote. No one from The Sun will testify about it either.
Plaintiff could not possibly show the quote to be competent evidence.
We respectfully submit that the so-called “Mark Johnson quote” has no
relevance to the issues remaining in this case for trial. The only effect it could
have on the jury would be to cause confusion by falsely suggesting that the
measure of damages in this case is how big of a media reaction Defendant’s
publication of the Benoit images received, not what Defendant should have paid
Plaintiff for the use of the images. For this reason, it should be excluded.

at the direction of his superiors to promote the magazine, and not literal statements
about the value of the images to Defendant. (M. Johnson Deposition at 10-12.)

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II.

Conclusion

For all of the foregoing reasons, LFP respectfully requests that its Motion in
Limine to Exclude Evidence, D.I. 199, should be granted.
Respectfully submitted this 31st 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
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)

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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 REPLY
IN SUPPORT OF 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 31st 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:5307653.1

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