Toffoloni v. LFP Publishing Group, LLC

Filing 231

RESPONSE to the 228 OBJECTION: Defendant's Supplemental Objection to Plaintiff's Exhibit List filed by Maureen Toffoloni. (Decker, Richard) Modified on 6/14/2011 to edit text. (aaq).

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
SUPPLEMENTAL OBJECTIONS TO PLAINTIFF’S EXHIBIT LIST
COMES NOW, Plaintiff, Maureen Toffoloni, as Administratrix and
Personal Representative of the Estate of Nancy E. Benoit, through counsel and files
this Her Response To Defendant’s Supplemental Objections to Plaintiff’s Exhibit List
(hereinafter “Supplemental Objections”) with this Court as follows:
In its Supplemental Objections, Defendant objects to Plaintiff’s “Exhibits
5, 7, 8, 9, 10, 11, 12, 13, 14, and 15 on the grounds that each is irrelevant and
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immaterial to any issue in the first phase of this case,” without defining the basis for
its claim that the exhibits are “irrelevant” and “immaterial” or “the first phase of this
case.” The Plaintiff and Defendant are each limited to 7½ hours of time to present
each side of the case to address all of these issues. This Court has made it clear that
there will be a bifurcated evaluation of the types of evidence by the Jury in
determining first, compensatory damages and second,

punitive damages and

attorneys’ fees.
I.

THE TRIAL OF THIS CASE IS CONTROLLED BY THIS
C OURT ’ S D EFINITION OF C OMPENSATORY
DAMAGES.

After confirming that liability has been established, this Court in its
Order dated November 23, 2010 established very clearly and specifically the standard
for the award of compensatory damages as follows:
Second, Toffoloni has produced sufficient evidence that she
suffered damages. The measure of damages in a right of
publicity case is the value of the use of the appropriated
publicity. Martin Luther King, Jr. Ctr. for Soc. Change, 250
Ga. at 143. The evidence shows that LFP made significant
profits off of the March 2008 issue and that the reaction to
the Benoit photographs was ‘huge and overwhelmingly
positive.’ (Johnson Dep. at 11.)
See November 23, 2010 Order, p. 10.

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Indeed, the Court stated in its remarks to the Jury today that the
compensatory damages are the “unjust enrichment” obtained by the Defendant as a
result of its illegal conduct.
Contrary to the totally unsupported argument by Defendant that the listed
exhibits are “irrelevant” and “immaterial,” all of the exhibits that Defendant attempts
to exclude are totally relevant and material to the Court’s established measure of
damages based upon:
(1)

the Court’s clear directions about the measure of compensatory

damages in its November 23, 2011 Order that includes Defendant’s “significant
profits;” and
(2)

the Court’s “unjust enrichment” directions to the Jury today.

Plaintiff’s Exhibits 5, 7, 9, 10, 11, 12, 13, 14 and 15 are the very evidence of
“significant profits” that this Court was referencing in its November 23, 2011 Order.
It is clear from the Defendant’s opening argument and objections to
Exhibits 9, 13, 19, 20, 21, and 22, during the trial today, that the Defendant is
attempting to ignore the agreed-upon Pretrial Order and this Court’s established
parameters for determining compensatory damages. If such conduct is allowed, and

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the Defendant can constantly change the Pretrial Order during trial, there is no reason
for a Pretrial Order.
The Defendant is attempting to create an imaginary new standard of
damages that is based upon what Defendant’s magazine, Hustler, would pay for
photographs from a willing seller, and thereby argue that the referenced Exhibits are
“irrelevant” and “immaterial to compensatory damages.” Such a standard is not only
without any basis in law, but it is totally contrary to this Court’s and the Eleventh
Circuit Court of Appeals’ Orders. See, Toffoloni v. LFP Publ’g Group, LLC, 572 F.3d
1201, 1208-09 (11th Cir. 2009). In addition, such a standard as proposed by Defendant
would mean that any Defendant could illegally publish images and then pay the
harmed party whatever amount the thief of the images chooses to pay based upon
what it pays others. There would be no difference between obtaining permission for
the images and stealing them, since the compensation would be the same in either
circumstance.
II.

THE PRETRIAL ORDER CONTROLS
NOT BE ALTERED.

AND SHOULD

This Court spent much time with the parties to agree upon a Pretrial
Order that, among other agreements created by an absence of objections, deemed
Plaintiff’s Exhibits 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 19, 20, 21, and 22 admitted for
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the trial. Indeed, the Defendant listed Plaintiff’s Exhibits 5 through 15 in its list of
exhibits to be used at trial. Not only has the Plaintiff prepared the presentation of her
case in reliance upon the measure of damages established by this Court, but Plaintiff
relied upon the Pretrial Order for eliciting testimony about the referenced agreed-upon
exhibits to prove her case. It is fundamentally unfair and trial by ambush to now
entertain the Defendant’s motion to exclude evidence that is directly relevant and
material to this Court’s established measure of compensatory damages, after the
Exhibits have been deemed admitted by Plaintiff and Defendant and after the trial has
started.
III.

THE REFERENCED EXHIBITS ARE RELEVANT TO
ALL FORMS OF COMPENSATION.

The evidence of Defendant’s profits and “unjust enrichment” is relevant
and material to the compensatory damages, because that measure of damages, as
established by this Court, is directly related to the profits obtained by the Defendant.
It is also probative to the issue of punitive damages because the profits are a very
plausible reason why the Plaintiff’s ownership of the images was ignored by the
Defendant. The issue of punitive damages is always bifurcated to the jury, and prior
to trial, the Defendant failed to segregate any evidence according to the two parts of

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the trial. Accordingly, the Defendant is bound by the Pretrial Order and must not be
allowed to ambush Plaintiff with these untimely objections.
IV. CONCLUSION
Because the Defendant agreed during negotiation of the Pretrial Order
that the referenced Exhibits were admitted, and because the referenced Exhibits are
totally relevant to the measure of damages as established by the Eleventh Circuit
Court of Appeals and by this Court, Defendant’s Objections to Plaintiff’s Exhibit List
should be denied and the trial should proceed based upon the Pretrial Order agreed
upon and signed by this Court before the trial began.
Respectfully submitted June 13, 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 June 13, 2011, I have electronically filed the
foregoing Plaintiff’s Response to Defendant’s Supplemental Objection to Plaintiff’s
Exhibit List 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.
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Barry J. Armstrong, Esq.
Darrell Jay Solomon, Esq.
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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