Butler v. Discovery Communications, Inc.

Filing 59

MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 5/9/2013:Mailed notice(rth, )

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ALPHONSO BUTLER,
Plaintiff,
v.
DISCOVERY COMMUNICATIONS, LLC,
Defendant.

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No. 12 cv 6719
Judge Sharon Johnson Coleman

Memorandum Opinion and Order
Plaintiff, Alphonso Butler, filed a First Amended Complaint with three counts, alleging
false light invasion of privacy, defamation, and negligent infliction of emotional distress
stemming from a television reenactment program produced by defendant Discovery
Communications, LLC (“Discovery”). Discovery moves to dismiss the complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. For the reasons stated
below, this Court grants the motion and dismisses the case with prejudice.
Background
On the evening of February 15, 2000, Alphonso Butler had dinner with his best friend
Marcus Toney. Mr. Butler and Mr. Toney went to Mr. Toney’s house after dinner because Mr.
Toney had received a strange package that he believed to be from his estranged wife. The
package was on the table in Mr. Toney’s living room. The package contained a second box
inside an outer box that Mr. Toney believed might contain a VCR. Butler alleges that Mr. Toney
asked him to open the box, but when he began to do so, Mr. Toney stepped in front of him and
opened the box himself. The box contained a pipe bomb, which detonated when opened. The
blast killed Mr. Toney and injured Butler. Mr. Toney’s estranged wife, Lisa Toney, and her
boyfriend, Sienky Lallemand, are currently serving prison sentences for Mr. Toney’s murder.

Discovery broadcasts a series called “Wicked Attraction” on its Investigation Discovery
Network. An episode called “Lust for Life” that aired as part of the series included a reenactment
depicting the explosion of the pipe bomb that killed Marcus Toney. The episode referenced
Alphonso Butler by name and as Toney’s “best friend”. The episode included actual footage of
Butler on a stretcher being loaded onto an ambulance and a reenactment of the scene leading to
the explosion with actors portraying both Marcus Toney and Alphonso Butler. The episode aired
on June 15, 2012, and again on July 7, 2012.
Butler alleges that no producer, director, or anyone else responsible for the creation of
“Lust for Life” ever contacted him or obtained his permission to use his name, image, or likeness
in connection with the episode. Butler claims that he was portrayed as goading Mr. Toney into
opening the package and thus appears to contribute to his death. Butler further alleges that he has
suffered humiliation, distress, and the loss of a business partnership because of the airing of the
episode.
Legal Standard
Federal Rule of Civil Procedure 8(a)(2) sets forth the basic pleading requirement that a
complaint must contain a “short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 8 does not require the plaintiff to plead
particularized facts, but the factual allegations in the complaint must be enough to raise a
plausible right to relief above the speculative level. See Arnett v. Webster, 658 F. 742, 751-52
(7th Cir. 2011). When ruling on a motion to dismiss, courts accept all well-pleaded allegations in
the complaint as true, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (7th Cir. 2004), and
draw all reasonable inferences in favor of the plaintiff. Pisciotta v. Old Nat. Bancorp, 499 F.3d
629, 633 (7th Cir. 2007).

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Discussion
Defendant Discovery Communications moves to dismiss Butler’s entire First Amended
Complaint for failure to state a claim. Discovery argues that Butler fails to adequately allege a
cause of action because the reenactment scene is substantially true, capable of innocent
construction, and was not made with actual malice. Discovery further asserts that the alleged
conduct is insufficiently outrageous and the alleged injury insufficiently severe to state a claim
for infliction of emotional distress and the First Amendment shields Discovery from liability for
the broadcast. This Court will address each count of the First Amended Complaint in turn.
1. Count I – False Light Invasion of Privacy
A claim for false light invasion of privacy has three elements. Dubinsky v. United
Airlines Master Executive Council, 303 Ill. App. 3d 317, 330, (1st Dist.1999). First, the
allegations in the complaint must show that Discovery’s actions placed Butler in a false light
before the public. Second, this Court must determine “whether a finder of fact could decide that
the false light in which the plaintiff was placed would be highly offensive to a reasonable
person.” Lovgren v. Citizens First Nat'l Bank, 126 Ill. 2d 411, 419-420 (1989). Illinois courts use
the test articulated by the Restatement that states that this element is met “when the defendant
knows that the plaintiff, as a reasonable man, would be justified in the eyes of the community in
feeling seriously offended and aggrieved by the publicity.” Id. at 420 (quoting Restatement
(Second) of Torts § 625E, comment c, at 396 (1977).) Finally, the plaintiffs must allege and
prove that the defendants acted with actual malice, that is, with knowledge that the statements
were false or with reckless disregard for whether the statements were true or false. Dubinsky,
303 Ill. App. 3d at 330.
Here, Butler alleges that the “Lust for Life” episode gave the impression that Butler

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encouraged Mr. Toney to open the package that contained the pipe bomb that killed him and
portrayed Mr. Toney as reluctant to open the box. (First Am. Comp. Dkt. 33 at ¶ 28). Butler
further alleges that the reenactment placed him in “the light of having been the direct impetus to
his best friend’s death, in that the scene depicted [Butler] as having persuaded the decedent to
open the package containing the pipe bomb when [the decedent] did not want to open it.” Id. at ¶
30.
This Court does not see a substantial difference between Butler saying to Toney
something akin to “go ahead and open it or I will” and Toney saying to Butler “Go ahead, tear it
open” when both Butler’s testimony from the criminal trial and the reenactment scene show
Butler starting to open the package and Toney stepping in to finish opening it. Furthermore,
there is no suggestion in the allegations in the complaint or in the reenactment that Discovery
portrayed Butler as being aware of the threat posed by the package. Without such knowledge of
the danger or involvement in the plot to kill Toney, Butler’s appearance of encouraging or
goading Toney into opening the package is benign. Contrary to Butler’s allegation that the
reenactment placed Butler in the light of being a direct impetus to his best friend’s death, the
depiction showed Butler as a second victim of the bomb. There is no implication that Butler
knew what was in the package. Therefore, this Court finds that Butler was not placed in a false
light that would be highly offensive to a reasonable person.
The situation here is substantially different than, for example, in Kolegas, where the
court found that statements broadcast about a couple constituted a false light invasion of privacy.
Kolegas v. Heftel Broad. Corp., 154 Ill. 2d 1, 20 (1992). There, the defendants falsely implied
that the plaintiffs’ heads were deformed as a result of their Elephant Man illness, and the
defendants claimed that they must have had a shotgun wedding because of the unattractiveness

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of one of the plaintiffs. The court found that a reasonable trier of fact would find these
statements highly offensive and would not offend only a hypersensitive individual. Id.
2. Defamation
“A statement is defamatory if it tends to harm a person’s reputation to the extent that it
lowers that person in the eyes of the community or deters others from associating with that
person.” Tuite v. Corbitt, 224 Ill. 2d 490, 501 (2006). “A statement is defamatory per se if its
defamatory character is obvious and apparent on its face and injury to the plaintiff’s reputation
may be presumed.” 1 Id. In defamation per quod action, the plaintiff must plead and prove
special damages because damage to the plaintiff’s reputation is not presumed. Id.
Here, this Court finds that the statement is not defamatory. As this Court noted above,
without any implication that Butler was aware the package contained a bomb or was otherwise
involved in the plot to kill Toney, the portrayal of him as cajoling Toney into opening the
package cannot reasonably be interpreted that Butler in any way caused Toney’s death. “If a
statement is reasonably capable of a nondefamatory interpretation, given its context, it should be
so construed; there is no balancing of reasonable constructions.” Id. at 502. This Court finds the
statement is not defamatory and is substantially true. Accordingly, Butler’s defamation claim is
dismissed.
3. Negligent Infliction of Emotional Distress
To establish negligent infliction of emotional distress, the essential question is whether
the plaintiff properly alleged negligence on the part of the defendant. Corgan v. Muehling, 143
Ill. 2d 296, 306 (1991). “A complaint for negligence, to be legally sufficient, must set out facts
that establish the existence of a duty owed by the defendant to the plaintiff, a breach of that duty,
and an injury proximately caused by that breach.” Id. The primary issue here is whether
1 Butler has waived any claim of defamation per se by failing to respond to that portion of the motion to dismiss. See Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010).

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Discovery owed Butler a duty. “The determination of whether a duty exists--whether the
defendant and the plaintiff stood in such a relationship to one another that the law imposed upon
the defendant an obligation of reasonable conduct for the benefit of the plaintiff--is an issue of
law to be determined by the court.” Id.
Butler argues that he adequately alleges that Discovery owed him a duty as the only
surviving witness of the fatal explosion to contact him to obtain his recollection and explanation
of events. Butler asserts that this Court should impose a duty on Discovery to investigate based
on “policy” considerations referred to in Corgan v. Muehling. In Corgan, the Illinois Supreme
Court enumerated a list of policy considerations including, “the likelihood of harm, the gravity
of the injury, the burden of guarding against the injury, and the relationship between the parties.”
143 Ill. 2d at 306. However, a duty to investigate arises only after the publisher discovers “an
obvious reason to doubt” the accuracy of story. Kisser v. Coalition for Religious Freedom, 1994
U.S. Dist. LEXIS 18818, 11-12, 1995 WL 3996 (N.D. Ill. Dec. 23, 1994).
As this Court has noted throughout this opinion, the alleged differences between Butler’s
testimony at the criminal trial, ostensibly his account of events, and the reenactment are
insubstantial. There is no real distinction between the court record and the reenactment other
than which of the friends initiated the conversation about opening the box. Clearly, Toney
opened the box of his own volition in each version of events and Butler was unaware of the
danger lurking inside. This is a distinction without a difference and does not undermine the
accuracy of the material portion of the story; that Butler was present with Toney when Toney
opened the package, triggering the bomb that killed Toney and injured Butler. Further
investigation by Discovery, would not have materially altered that depiction. Therefore, this
Court finds that Discovery had no reason to doubt the accuracy of the portrayal and owed no

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duty to further investigate the incident by directly contacting Butler. This Court dismisses
Butler’s claim for negligent infliction of emotional distress.
Conclusion
For the reasons stated herein, this Court grants defendant Discovery Communications,
LLC’s Motion to Dismiss the Complaint [41]. Plaintiff’s First Amended Complaint is dismissed
with prejudice.
IT IS SO ORDERED.
Date: May 9, 2013

Entered: _____________________________
Sharon Johnson Coleman

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