CRESCENZ v. PENGUIN GROUP (USA) INC. et al
Filing
71
OPINION. Signed by Judge Noel L. Hillman on 12/31/12. (dd, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOAN CRESCENZ,
Plaintiff,
CIVIL NO. 11-0493(NLH)(AMD)
v.
OPINION
PENGUIN GROUP (USA) INC. and
MICHAEL CAPUZZO,
Defendants.
Appearances:
DANIELLE MYRIAH WEISS
CLIFFORD E. HAINES
HAINES & ASSOCIATES
1835 MARKET STREET
SUITE 2420
PHILADELPHIA, PA 19103
On behalf of plaintiff
HOWARD J. SCHWARTZ
NANCY ANN DEL PIZZO
LINDSAY A. SMITH
WOLFF & SAMSON, PC
ONE BOLAND DRIVE
WEST ORANGE, NJ 07052
On behalf of defendants
HILLMAN, District Judge
This action concerns plaintiff’s claims of defamation and
false light.
Presently before the Court is defendants’ motion for
summary judgment.
Also pending is plaintiff’s motion for partial
summary judgment on the burden of proof.
For the reasons
expressed below, defendants’ motion will be granted, and
plaintiff’s motion will be denied as moot.
BACKGROUND
Defendant, Michael Capuzzo, wrote a non-fiction book, The
Murder Room: The Heirs of Sherlock Holmes Gather to Solve the
World’s Most Perplexing Cold Cases published by defendant Penguin
Group (USA), Inc. in August 2010.
The book concerns the history
of the Vidocq Society, an association of forensic professional and
private citizens from across the United States who gather together
in Philadelphia, Pennsylvania to solve cold crimes using their
collective investigative talents and resources.
One founding
member of the Vidocq Society featured in the book is Frank Bender,
a renowned forensic artist internationally acclaimed for creating
sculptures of the faces of crime victims based on molds he created
from their decayed skulls.
Bender was also renowned for creating
age progression sculptures of the faces of some of the world’s
most wanted fugitives.
Crimes have been solved based upon
Bender’s work.
Plaintiff, Joan Crescenz, met Bender in 1975, and for almost
30 years worked as his artist’s assistant, bookkeeper, and
personal assistant.
When Bender became terminally ill, Crescenz
assisted him with his healthcare needs until his death on July 28,
2011.
Bender had been married to Jan Bender for almost 30 years
until her death in 2010.
They had an “open marriage,” and Bender
was known for his “overt sexuality” and “self-professed sexual
exploits.”
(Compl. ¶¶ 17, 18.)
Crescenz has been married to
2
Peter Crescenz for more than 20 years and has three children.
In her complaint, Crescenz claims that defendants defamed her
in the book by Capuzzo’s references to Crescenz as one of Bender’s
girlfriends with whom he had a sexual relationship.
Crescenz
claims that she never had a sexual relationship with Bender, and
that Capuzzo never asked her if she and Bender had a sexual
relationship.
Crescenz also claims that Capuzzo never provided
her with an advance copy of the book so that she could verify the
truth of Capuzzo’s twelve references to her in the book; if he
had, Crescenz claims that she would have corrected the false
statements about her.
Crescenz claims that Capuzzo, as well as
the publisher, Penguin, were negligent and reckless in publishing
the false statements about her, particularly after she emailed the
book’s publisher, William Shinker, on July 28, 2010, before the
book’s release in August 2010, informing him of the inaccuracies
she discovered when Bender provided her with a galley copy.
Capuzzo and Penguin have moved for summary judgment in their
favor on Crescenz’s claims of defamation and false light invasion
of privacy.
Crescenz has opposed their motion, arguing that a
jury must decide her claims.
Crescenz has also filed a motion for
partial summary judgment asking the Court to decide what standard
of proof is required for each of her claims.
3
DISCUSSION
A.
Jurisdiction
This Court has jurisdiction over this matter pursuant to 28
U.S.C. § 1332 because there is complete diversity of citizenship
between the parties and the amount in controversy exceeds $75,000.
B.
Summary Judgment Standard
Summary judgment is appropriate where the Court is satisfied
that the materials in the record, including depositions,
documents, electronically stored information, affidavits or
declarations, stipulations, admissions, or interrogatory answers,
demonstrate that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of
law.
Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R.
Civ. P. 56(a).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
party’s favor.
(1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
A fact is “material” if, under the governing substantive
law, a dispute about the fact might affect the outcome of the
suit.
Id.
In considering a motion for summary judgment, a
district court may not make credibility determinations or engage
in any weighing of the evidence; instead, the non-moving party's
evidence “is to be believed and all justifiable inferences are to
be drawn in his favor.”
Marino v. Industrial Crating Co., 358
4
F.3d 241, 247 (3d Cir. 2004)(quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating
the absence of a genuine issue of material fact.
Catrett, 477 U.S. 317, 323 (1986).
Celotex Corp. v.
Once the moving party has met
this burden, the nonmoving party must identify, by affidavits or
otherwise, specific facts showing that there is a genuine issue
for trial.
Id.
Thus, to withstand a properly supported motion
for summary judgment, the nonmoving party must identify specific
facts and affirmative evidence that contradict those offered by
the moving party.
Anderson, 477 U.S. at 256-57.
A party opposing
summary judgment must do more than just rest upon mere
allegations, general denials, or vague statements.
Saldana v.
Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
C.
Analysis
To enjoy one’s reputation “free from unjustified smears and
aspersions” is a right in this free society, but it must be
weighed against “significant societal benefit in robust and
unrestrained debate on matters of public interest.”
G.D. v.
Kenny, 15 A.3d 300, 310 (N.J. 2011) (quoting Senna v. Florimont,
958 A.2d 427 (N.J. 2008)) (other quotations omitted).
The law of
defamation attempts to strike “the proper balance between
protecting reputation and protecting free speech.”
omitted).
5
Id. (citation
A “statement1 is defamatory if it is false, communicated to a
third person, and tends to lower the subject’s reputation in the
estimation of the community or to deter third persons from
associating with him.”
W.J.A. v. D.A., 43 A.3d 1148, 1153 (N.J.
2012) (citations omitted).
In order to prevail on a defamation
claim, a plaintiff must show that (1) the statement was false, (2)
the defendant communicated it to another person, and (3) when the
defendant communicated that false statement, he acted negligently
or with actual malice.
G.D., 15 A.2d at 310 (citations omitted).2
1
“The short and simple distinction” between the terms libel
and slander “is that libel is defamation by written or printed
words, or by the embodiment of the communication in some tangible
or physical form, while slander consists of the communication of
a defamatory statement by spoken words, or by transitory
gestures.” W.J.A. v. D.A., 43 A.3d 1148, 1153 (N.J. 2012)
(citation and quotation omitted). The distinction between libel
and slander is not “a quaint vestige of old common-law
vocabulary” because the elements of the torts are not identical,
and they most diverge in connection with damages. Id. at 1154
(citation omitted). It is not disputed that Crescenz is seeking
damages for libel.
2
The Model Jury Charge for private defamation describes
“five elements in addition to damages which plaintiff must prove:
(1) a defamatory statement of fact; (2) concerning the plaintiff;
(3) which was false; (4) which was communicated to a person or
persons other than the plaintiff; and (5) with actual knowledge
by the defendant that the statement was false, or with reckless
disregard by the defendant of the statement's truth or falsity,
or with negligence by the defendant in failing to determine the
falsity of the statement.” Stonehill v. Nesta, 2007 WL 4258328,
*3 (N.J. Super. Ct. App. Div. 2007) (quoting Model Jury Charge
(Civil), 3.11B, “Private Defamation” (2002)). Specific or
compensatory damages do not need to be proven, however, in
private citizen/private concern cases in order to survive summary
judgment and receive nominal damages for the vindication of the
“dignitary and peace-of-mind interest in one’s reputation.”
W.J.A. v. D.A., 43 A.3d 1148, 1160 (N.J. 2012).
6
Whether a plaintiff has to prove that the defendant acted
negligently or with actual malice depends on whether the plaintiff
is a private or public figure, and whether the statement is of
public or private concern.
The New Jersey Supreme Court recently
explained the rules governing when to apply the actual-malice
standard for liability purposes in defamation cases:
The actual-malice standard will apply when the alleged
defamatory statement concerns a public figure or a
public official or involves a matter of public concern.
When published by a media or media-related defendant, a
news story concerning public health and safety, a highly
regulated industry, or allegations of criminal or
consumer fraud or a substantial regulatory violation
will, by definition, involve a matter of public interest
or concern. In all other media and non-media cases, to
determine whether speech involves a matter of public
concern or interest that will trigger the actual-malice
standard, a court should consider the content, form, and
context of the speech. Content requires that we look at
the nature and importance of the speech. For instance,
does the speech in question promote self-government or
advance the public's vital interests, or does it
predominantly relate to the economic interests of the
speaker? Context requires that we look at the identity
of the speaker, his ability to exercise due care, and
the identity of the targeted audience.
This much we can say for certain. Discourse on
political subjects and critiques of the government will
always fall within the category of protected speech that
implicates the actual-malice standard. Public policy
and common sense also suggest that the same protections
be given to speech concerning significant risks to
public health and safety. On the other hand, there is
no great societal benefit or higher free speech value in
providing heightened protection for the defamatory and
false statements uttered by one business competitor
against another. That form of commercial speech,
generally, will call for the application of the
negligence standard.
7
W.J.A., 43 A.3d at 1157 (quoting Senna v. Florimont, 196 N.J. 469,
958 A.2d 427, 443-44 (N.J. 2008)) (internal citations omitted).
In this case, the parties dispute which standard should apply
to Crescenz’s defamation claim.3
Defendants argue that Crescenz
is a limited-purpose public figure, the statements are a matter of
public concern, and, therefore, the “recklessness,” or “actualmalice” standard applies.
In contrast, Crescenz contends that she
is a private figure and the matter is of private concern, and,
accordingly, the negligence standard applies.
The Court does not need to decide the issue, however, because
even if the statements in the book about Crescenz fall into the
private-figure/private-concern category, Crescenz cannot meet her
burden to demonstrate that defendants were negligent in making
their statements.
Accepting as true that Crescenz did not have a
sexual relationship with Bender,4 and in his book Capuzzo falsely
3
Crescenz also advances a claim for false light, which
applies a “recklessness” standard. See Durando v. Nutley Sun, 37
A.3d 449, 458 (N.J. 2012) (explaining that to prove the tort of
false light, a plaintiff must satisfy two elements: she must show
(1) that the false light in which she was placed would be highly
offensive to a reasonable person, and (2) that the defendant had
knowledge of or acted in reckless disregard as to the falsity of
the publicized matter and the false light in which the plaintiff
would be placed (citations omitted)). Because the Court finds
that plaintiff cannot sustain her burden of proof on the lesser
negligence standard, the Court finds that she therefore cannot
prove defendants’ recklessness to support her false light claim.
4
Defendants argue that based on the evidence in the record,
Crescenz cannot prove the falsity of the statement that she had a
sexual relationship with Bender. Crescenz, however, testified in
her deposition that she did not have a sexual relationship with
Bender. If Crescenz had been able to defeat defendants’ motion
8
stated that she did, Crescenz cannot meet her burden of showing
evidence such that a reasonable jury could return a verdict in her
favor.
Prior to the August 2010 publication of the book, the
following undisputed facts regarding Bender and Crescenz’s
relationship existed:
1.
Bender had an open marriage.
2.
Bender was very sexual.
3.
Bender walked around his studio naked in front of
Crescenz.
4.
Bender lived and worked in his studio which contained
many nude paintings, phallic symbols, at least one
sculpture of the genitalia of one of his girlfriends,
and a separate room accessed through an opening in the
middle of the studio floor which had a full bar, a
nearby bed, and was used for drinking, parties and
sexual encounters.
5.
In an April 1, 2004 Esquire magazine article about
Bender, the author described Crescenz as Bender’s
for summary judgment on the negligence issue, the issue of
whether Capuzzo’s statement is false would have been one for the
jury. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986) (in considering a motion for summary judgment, a district
court may not make credibility determinations or engage in any
weighing of the evidence).
9
assistant and “second wife.”5
6.
Capuzzo was told pre-publication by Bender and others6
that Bender had a long-term sexual relationship with
Crescenz.7
5
Crescenz testified that she believed that Bender probably
implied to the author that he was having sex with Crescenz (as
well as with two other girlfriends), but she did not believe that
the text of the article made it appear that she was having sex
with Bender.
6
It is undisputed that the other two members of the Vidocq
Society, William Fleisher and Richard Walter, both told Capuzzo
that based on their observations of the two and Bender’s
statements that they believed that Bender and the Plaintiff had a
sexual relationship. Fleisher was a retired FBI agent and
experienced polygraph examiner and interrogator. Walter was an
experienced forensic psychologist and criminal profiler. Capuzzo
would have been justified in attributing substantial weight to
their opinions. Although plaintiff asserts that Capuzzo knew
Crescenz had a different view pre-publication, failed to ask her
directly, and viewed Bender himself as a “psychopath,” none of
these facts undermine the reasonableness of Capuzzo’s reliance on
the contrary evidence. It is not negligence simply because some
evidence contrary to a believed fact exists. Very few things are
that black and white. The issue is whether sufficient facts
would justify a jury verdict that Capuzzo was negligent. To hold
otherwise is to conflate the issue of truth/falsity with
negligence. In light of the substantial evidence supporting the
challenged statement, a jury would not be justified in viewing
the statement as negligently made even if ultimately proved
false.
7
Capuzzo states in his affidavit that Bender, as well as
numerous other people, told him that Bender and Crescenz had a
sexual relationship. Despite the opportunity in discovery to
develop contrary evidence, Crescenz does not dispute these
statements are made. Although hearsay if offered to prove the
relationship, that is not the relevance of those statements.
Rather, they are relevant and admissible to show Capuzzo’s state
of mind regardless of whether the statements were true (i.e.,
whether he had a reasonable basis to conclude they had a sexual
relationship and was therefore not negligent in saying so). See
Fed. R. Evid., Fed. R. Evid. 801(c)(defining hearsay as out of
court statements offered for the truth).
10
7.
Capuzzo observed Bender and Crescenz, together and
individually, over the course of seven years, during
interviews, formal black-tie events, and dinner with
Capuzzo and his wife.
8.
Crescenz often stayed overnight at Bender’s house.
9.
Bender and Crescenz traveled together more than 10 times
and took vacations together, including to the New Jersey
shore, San Francisco, New York, and the Inn of the Dove,
and they stayed in the same room.
10.
When Bender and Crescenz visited Capuzzo at his home in
Wellsboro, Pennsylvania, they stayed overnight at a
hotel in the same room with one bed.
11.
Handwritten notes, written by Bender and his wife Jan
and given to Capuzzo, state that Bender and Crescenz
would indulge in all night dancing and drinking.
12.
The other two members of the Vidocq Society, William
Fleisher and Richard Walter, whom the book is also
about, did not make any changes to the galley copy of
the book with regard to Bender’s sexual relationship
with Crescenz.
13.
When the Benders’ daughter reviewed the galley copy of
the book, she did not make any changes with regard to
Bender’s sexual relationship with Crescenz.
14.
When Bender reviewed a galley copy of the book, he did
11
not make any changes with regard to his sexual
relationship with Crescenz.
Even though defendants have proffered deposition testimony,
certifications, and other evidence to further support their lack
of negligence in publishing a book that describes Bender and
Crescenz’s relationship as a sexual one, these are the undisputed
facts as they existed prior to the publication of the book, and
they are facts that do not require the assessment of credibility
by a jury.
Thus, the question to be answered is whether in light
of this evidence it could be said that Capuzzo and Penguin acted
“negligently in failing to ascertain the truth or falsity of the
statement before communicating it.”
Feggans v. Billington, 677
A.2d 771, 775 (N.J. Super. App. Div. 1996).
Crescenz says “yes,” and presents other facts she argues
should make the question one for a jury.
Prior to the publication
of the book:
1.
Keith Hall, a detective who worked on a cold case Bender
help solve, sent an email to Penguin indicating that
Capuzzo did not accurately describe how the case was
solved.8
8
Crescenz characterizes that this error is about “how the
case was solved,” but the content of Hall’s email, Pl. Ex. I,
states that Hall objected to Capuzzo’s mention of Hall at Richard
Walter’s house and Hall’s comment on a cookie recipe. Hall
states that he was not at that meeting, and requests a prepublication copy of the entire manuscript. The Court accepts the
characterization of Hall’s email to be a demonstration of a prepublication error.
12
2.
During the editing process, someone noted that Capuzzo’s
reference to Japanese foot-binding was an error--it
should have been Chinese foot-binding.
3.
Crescenz emailed the publisher, William Shinker, on July
28, 2010, expressing her concern of Capuzzo’s “very
degrading characterization” of her, and listing the
“problems” with the references to her in the book.
4.
Penguin did not independently fact-check the book prior
to, or after, Crescenz raised her concerns.
5.
Capuzzo never asked Crescenz directly if she had a
sexual relationship with Bender.
6.
Jan Bender never told Capuzzo that Bender had a sexual
relationship with Crescenz.
In addition to accepting as true that Crescenz did not have a
sexual relationship with Bender and that the depiction of her in
the book was false, Crescenz argues that these facts, which also
must be accepted as true, demonstrate to a jury that Capuzzo and
Penguin did not act reasonably in publishing the book.
In order to determine whether Crescenz has provided enough
evidence to support a claim that defendants were negligent in
printing a false statement about her, the Restatement is helpful:
Negligence is conduct that creates an unreasonable risk
of harm. The standard of conduct is that of a
reasonable person under like circumstances. Insofar as
the truth or falsity of the defamatory statement is
concerned, the question of negligence has sometimes been
expressed in terms of the defendant's state of mind by
13
asking whether he had reasonable grounds for believing
that the communication was true. Putting the question
in terms of conduct is to ask whether the defendant
acted reasonably in checking on the truth or falsity or
defamatory character of the communication before
publishing it.
Restatement (Second) of Torts § 580B (1977) (defamation of private
person), cited in Feggans, 677 A.2d at 775.
With regard to a book
publisher and professional writer, they are “held to the skill and
experience normally possessed by members of that profession.”
Id.
“Customs and practices within the profession are relevant in
applying the negligence standard, which is, to a substantial
degree, set by the profession itself, though a custom is not
controlling.”
Id. (explaining that evidence of custom within the
profession would normally come from an expert who has been shown
to be qualified on the subject, but in the absence of expert
testimony, a “court should be cautious in permitting the doctrine
of res ipsa loquitur to take the case to the jury and permit the
jury, on the basis of its own lay inferences, to decide that the
defendant must have been negligent because it published a false
and defamatory communication”; “[t]his could produce a form of
strict liability de facto and thus circumvent the constitutional
requirement of fault”).
Crescenz’s evidence cannot support her burden.
First, with
regard to Penguin’s lack of a fact-checking process, Crescenz has
not produced any evidence, from an expert or otherwise, to
demonstrate that a book publisher must independently check every
14
fact in a non-fiction book.
To the contrary, defendants have
submitted declarations from William Shinker, the president of The
Murder Room’s publisher, Gotham Books (which is an imprint of
defendant Penguin) who has 40 years of experience in the book
selling and trade publishing, and Alexander Gigante, Senior Vice
President/Legal Affairs for Penguin, who has 30 years experience
in the publishing field, both of whom certify that the custom and
practice in the publishing industry is for book publishers to rely
on their authors to warrant and stand for the truth of the words
they write, which warranty is memorialized in a signed agreement
with the authors.9
Publishers do, however, have most of their
non-fiction books vetted prior to publication by outside counsel
experienced in publishing matters, and The Murder Room was so
vetted prior to publication.
There is insufficient evidence that
the fact-checking process at issue here was negligent.
Second, Crescenz’s email to the publisher days before the
book’s release does not establish that Penguin acted negligently
in releasing it.
Crescenz was disgruntled about several passages
in the book about her, but she never explicitly stated in her
email that she did not have a sexual relationship with Bender.
9
The publisher here states that it reasonably relied upon
Capuzzo’s education, extensive writing and reporting experience,
reputation and accolades, which include nominations for the
Pulitzer Prize for two non-fiction books. Crescenz has not
provided any evidence to show that Penguin’s reliance on
Capuzzo’s author warranty was negligent. As related herein,
pointing out two minor errors in a 440-page book is not
sufficient.
15
Even if her email could be read to mean that she refuted having a
sexual relationship with Bender, Crescenz’s email does not provide
any proof, other than her personal concerns, to discredit the
other resources upon which Capuzzo based his reporting.
Moreover,
Crescenz has not produced evidence to refute defendants’
certifications that it is not industry custom or practice to have
every subject in a non-fiction book read and approve an advance
copy prior to it being published.10
Third, Capuzzo’s failure to directly ask Crescenz if she had
a sexual relationship with Bender is insufficient either alone or
10
Indeed, although the galley of the book was reviewed by
the three main subjects - Bender, William Fleisher, and Richard
Walter - as well as Bender’s daughter, Crescenz has not produced
evidence that all changes requested by these subjects were
incorporated into the book. As defendants point out, many
subjects are not totally pleased with how they are portrayed in a
non-fiction book. Even Bender, in his February 24, 2011
affidavit prepared “in contemplation of the probability of my
impending death,” states that “I have my issues with Michael
Capuzzo and some of his generalizations in the book and I feel he
sensationalized my story in a somewhat degrading way . . . .”
(Def. Ex. L.) Presumably Bender expressed concern over these
issue to Capuzzo prior to the book’s publication, but Capuzzo did
not make all the changes Bender requested.
Bender’s affidavit details his sexual relationship with
Crescenz, and states that after reading her complaint in this
case, “I could not believe that Crescenz . . . would blatantly
lie about us never having sex together. . . . [T]his claim by
Crescenz is bogus.” (Def. Ex. L.) Although there is reason to
conclude that Bender’s affidavit might be admissible to rebut
plaintiff’s claim that the book’s recitation of a relationship is
false, see Fed. R. Evid. 804(6) (addressing admissibility of
trustworthy statements by deceased declarants in civil cases), we
need not consider or rely on it here. Neither the affidavit or
Bender’s deposition, both taken post-publication, are relevant to
Capuzzo’s state of mind, and Penquin’s knowlege, pre-publication.
16
in conjunction with other evidence to demonstrate that Capuzzo
acted unreasonably in evaluating the truth or falsity of that
statement before publishing it.
Capuzzo reported in his book
about Bender and Crescenz’s relationship based upon his
observations of Bender and Crescenz over the course of seven
years, and from what others had told him.
Even if Capuzzo had
directly asked Crescenz whether she had a sexual relationship with
Bender, and she denied that she did,11 it would have been
reasonable for Capuzzo to conclude that she was not being truthful
based on other information he had gathered.
Even less convincing is evidence of an error regarding the
11
Indeed, just as we assume that the alleged defamatory
statement was false, we also assume that if asked Crescenz would
have denied the relationship. The issue in this case is whether
the defendants would have been negligent in publishing the
contrary statement even in the face of the denial. We hold that
even if Crescenz had been asked and given the presumed answer,
the defendants would not have been negligent in the light of the
undisputed facts known to them in asserting the opposite.
Another way of looking at this issue is to assess the effect a
mere denial would have on the free exchange of ideas and opinion.
Defamation law must be viewed through this lens. We assume that
when accused of a scandalous act a person falsely accused would
deny the claim. The issue here is not whether the denial is true
(we assume it is); rather, the issue is whether the author acted
negligently in asserting the opposite despite the denial. If
that were not the rule, a person accused of a scandalous act
could insure a jury trial on the issue of the truth or falsity of
defamatory statement by merely issuing a simple denial. Many
reasonable authors and publishers would shy away for publishing
such statements when a denial had been made, was forthcoming, or
was even likely. It is of little comfort to one falsely accused,
but it is well to remember that the tort of defamation is not
designed to provide a remedy for every false statement. For a
private citizen, it provides a remedy for only those false
statements negligently made.
17
misstatement of Japanese foot binding instead of Chinese foot
binding, and a purported error regarding a detective’s different
recollection of a meeting.
These mistakes do not cast a net of
unreasonableness over the undisputed facts upon which Capuzzo
based his depiction of Bender’s relationship with Crescenz.
Capuzzo is an experienced, Pulitzer Prize nominated nonfiction writer who spent seven years observing, interviewing, and
interacting with Bender, his close associates, his family, and
Crescenz.
Penguin is an established publishing company that, when
it chose to publish the book, followed industry custom in relying
upon the author’s warranty of the veracity of the non-fiction
work, as well as the vetting of the book by an seasoned attorney.
Accepting as true that Crescenz did not have a sexual relationship
with Bender and Capuzzo’s depiction of their relationship as
sexual was false, based on the undisputed facts as they existed in
August 2010 when the book was released, Crescenz has not presented
sufficient evidence to show that Penguin or Capuzzo did not act
reasonably in checking on the falsity or defamatory character of
Crescenz and Bender’s relationship before publishing it.
In the milieu of the Vidocq Society this matter might be
called the classic “He said, she said.”
Ordinarily such cases
call upon a jury to decide which version is true.
description in this case would be misleading.
However, that
This case need not
turn on the resolution of whether Frank Bender or Joan Crescenz
18
told the truth about their relationship.
Indeed, the issue of the
true nature of the relationship between the two is unlikely to
ever be resolved.
The two primary participants in these tangled
relationships are both deceased, and there is reason to doubt both
versions.
Regardless, however, of each party’s personal point of view
on the nature of Crescenz and Bender’s relationship, or even the
actual truth, the evidence in the record does not support a
finding that either Capuzzo or Penguin were negligent in writing
about or publishing one version of that story - a depiction of
Bender and Crescenz having a sexual relationship.12
Unless
plaintiff has sufficient evidence as to both falsity and
negligence, her claim of defamation fails.
Plaintiff having
failed to proffer sufficient evidence on negligence, an essential
element of the tort of defamation, defendants are entitled to
judgment as a matter of law.
CONCLUSION
For the reasons expressed above, defendants’ motion for
summary judgment in their favor on all of plaintiff’s claims
against them must be granted, and plaintiff’s motion for partial
12
Crescenz’s remedy, however imperfect, is to marshal her
evidence, issue a denial, and let whoever may be interested in
the topic reach their own conclusion. We note also that
Crescenz’s name has been changed in the paperback and the
subsequent printings.
19
summary judgment on the burden of proof must be denied as moot.
An appropriate Order will be entered.
Date: December 31, 2012
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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