Moore v. Vislosky

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit

4-23-2007

Moore v. Vislosky
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1232

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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 06-1232 & 06-1304

DANIEL MOORE

v.

DOROTHY VISLOSKY,

Appellant in 06-1232

DANIEL MOORE,

Appellant in 06-1304

v.

DOROTHY VISLOSKY

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 04-cv-04563)
District Judge: Honorable Clifford Scott Green

Argued March 13, 2007

Before: FUENTES, VAN ANTWERPEN, and SILER*,
Circuit Judges.

(Filed: April 23, 2007)
_____________
*The Honorable Eugene E. Siler, Jr., Senior Circuit Judge for the United States Court of
Appeals for the Sixth Circuit, sitting by designation.
George Bochetto
David P. Heim (Argued)
Bochetto & Lentz, P.C.
1524 Locust Street
Philadelphia, PA 19102
Counsel for Appellant, Cross-Appellee

Robert O. Baldi (Argued)
123 West Bridge Street
New Hope, PA 18939
Counsel for Appellee, Cross-Appellant

____

OPINION OF THE COURT

PER CURIAM

Appellant Dorothy Vislosky appeals the District Court’s order denying her motion

for judgment as a matter of law and for a new trial after a jury returned a verdict awarding

$100,000 in damages to Daniel Moore in this defamation action. Appellee Daniel Moore

has filed a cross-appeal on the issue of punitive damages.

Vislosky raises three issues on appeal. First, she contends the District Court erred

in denying her motion for judgment as a matter of law because the trial record was

insufficient to establish, by clear and convincing evidence, that Vislosky acted with actual

malice in making the alleged defamatory statements. Vislosky also claims she should be

granted a new trial because: 1) the District Court failed to instruct the jury on the clear

and convincing evidence standard required by Supreme Court precedent, and 2) the

2
District Court erroneously instructed the jury that Moore was entitled to presumed

damages under Pennsylvania law. In his cross-appeal, Moore contends he should be

granted a new trial on the issue of punitive damages only because the District Court

erroneously refused to instruct the jury on such damages.

The District Court had jurisdiction over this diversity action1 pursuant to 28 U.S.C.

§ 1332. We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. We will

affirm.

I. Factual Background

At the heart of this politically-charged defamation action are various statements

concerning corruption and criminal activity in the inspection of road programs made by

Dorothy Vislosky, an active citizen and community leader in Falls Township,

Pennsylvania (“the Township”). Specifically, Vislosky alleged that inspection reports

and punch lists were approved, although the work was not actually performed, and that

inspectors were demanding kickbacks from contractors. Furthermore, she repeatedly

stated she “could prove it.” See, e.g., J.A. at 0722. At the time the alleged defamatory

statements were made, Daniel Moore was employed as an inspector at Unitech, an

1
We recognize that “[w]hen ascertaining matters of state law, the decisions of the
state’s highest court constitute the authoritative source.” Connecticut Mutual Life Ins.
Co. v. Wyman, 718 F.2d 63, 65 (3d Cir. 1983). Where “the Pennsylvania Supreme Court
has not yet passed on the question before us, we must consider the pronouncements of the
lower state courts. Such decisions should be given proper regard, but not conclusive
effect.” Id. (citation omitted).

3
engineering firm hired by the Township to inspect construction and road work projects.2

Moore contends Vislosky’s statements were directed at him and were false.

Moore alleged that Vislosky made defamatory statements about him on two

occasions: 1) she specifically mentioned his name during a hallway conversation that took

place on December 16, 2003 immediately following an executive session of the Board of

Supervisors of Falls Township,3 and 2) she made general references to Unitech inspectors

during four separate Falls Township public meetings.

The parties agree that Vislosky interrupted an executive session of the Township

Supervisors on December 16, 2003 in an effort to speak with them, but that they declined

to meet with her at that time. Nevertheless, the executive session ended shortly

thereafter, and Vislosky began speaking to the Supervisors as they filed out of the

meeting room and into the hallway.

The substance of this hallway conversation was sharply disputed by the parties at

2
Two Township projects are relevant to this appeal. First, Moore was the sole
Unitech inspector responsible for inspections of a building site being developed by the
Dominion Power Company. Second, Moore and one other Unitech inspector named
Jason Nowicki were responsible for inspecting road work projects being done by Trinity
Paving.
3
While Pennsylvania law generally requires that Township meetings be open to the
public, the Board of Supervisors is permitted to meet privately in executive sessions to
discuss limited topics. See 65 Pa. Cons. Stat. Ann. §§ 704, 708 (2000). There were seven
people present at the executive session on December 16, 2003. Of those, six people
testified at trial: Michael Clarke, the Township Solicitor; Wayne Bergman, the Township
Manager; Jonathan Snipes, Chairman of the Board of Supervisors; and William Dayton,
Richard Otto, and Philip Szupka, members of the Board of Supervisors.

4
trial. According to Moore, Vislosky accused Moore of criminal conduct, including

padding his bills and “shaking down” the contractors. Moore maintains that Vislosky

specifically mentioned him by name in the context of these allegations. Vislosky

maintains that the hallway conversation focused on a “car chase” in which she and

another man who was a supervisor at Dominion Power followed Bruce Campbell, the

owner of Unitech, and observed Campbell meeting with James Rhein, whom Vislosky

described as someone with “a very unsavory reputation.” J.A. at 0366. She stated that

she went to the executive session to report these observations to the Supervisors and to

offer them “an olive branch.” Id. at 0368. Both in her pleadings and at trial, Vislosky

specifically denied ever using the name “Daniel Moore” and, in fact, claimed she did not

even know who Dan Moore was at that time. She agreed that she had mentioned

Dominion Power during the hallway conversation, but only in the context of telling the

Supervisors that Dominion was going to do an audit of their SSA accounts.4

A total of six witnesses, all of whom were present at the executive session,

testified at trial about the substance of the hallway conversation. Four witnesses (Clarke,

Otto, Snipes, and Dayton) testified to hearing Vislosky mention Unitech inspectors and

Dominion Power during the course of the conversation. The other two witnesses (Szupka

and Bergman) stated that Vislosky only recounted her observance of the car chase and

Campbell and Rhein together, and that she did not specifically mention Unitech

4
Vislosky explained that SSA accounts are “the construction escrow accounts” J.A.
at 0364.

5
inspectors or Dominion Power.

Two of the witnesses (Otto and Dayton) testified to hearing the name Daniel

Moore during the conversation. Two of the witnesses (Szupka and Bergman) testified

unequivocally that they did not hear the name Daniel Moore. Clarke testified that he did

not hear the name Daniel Moore, but also stated, “I was trying to pay attention but there

was a lot going on in the hallway.” J.A. at 0059. And, in response to a question of

whether he was in the hallway the entire time the conversation was taking place, Clarke

responded, “for about a minute, minute and-a-half I was in the little room down the hall.”

Id. at 0073. Snipes also did not hear Moore’s name mentioned. However, Moore’s

counsel then asked Snipes the following question: “Did you listen long enough or hear

long enough whether or not she mentioned an inspector’s name?” Snipes responded,

“No. No, I don’t remember. She may have. I don’t remember it because, again, I left

very quickly.” Id. at 0184.

Because the public meetings were videotaped, the content of Vislosky’s statements

at those meetings is undisputed. The parties agree that the statements were directed at

“Unitech inspectors” but did not specifically mention the name Daniel Moore. For

example, at the January 27, 2004 public meeting, Vislosky stated: “And if I were to say

that the inspections were not done, were absolutely not done, I’m saying that

emphatically, and I can back it up with documents and with witnesses.” J.A. at 0722. At

the March 2, 2004 public meeting, Vislosky stated: “Punch lists were signed off on by

Unitech inspectors who did not do the inspections. I wouldn’t dare say that if I couldn’t

6
prove it.” Id. at 0723. At the March 16, 2004 public meeting Vislosky stated: “Reports

have been signed by Unitech inspectors when no inspections were done. Yet they were

paid for those inspections.” Id. at 0724. And at the same meeting, she also stated: “The

most serious accusation that I’m going to make is about kickbacks. You better look into

if or not any of these inspectors out there are demanding from contractors money so they

can look the other way.” Id.

Moore’s employer ultimately lost its contract with Falls Township and Moore lost

his job. Moore filed a complaint against Vislosky in the Eastern District of Pennsylvania

on September 28, 2004. On November 8, 2004, Moore filed interrogatories and a request

for document production. Vislosky responded on December 8, 2004, but her answers

were not complete. On May 26, 2005, the District Court granted Moore’s motion to

compel discovery, ordering Vislosky to sit for her deposition, to provide full and

complete answers to interrogatories, and to produce the requested documents.

A jury trial commenced on November 14, 2005. Prior to the jury charge, the

District Court denied Moore’s request that the Court instruct the jury on punitive

damages. On November 17, 2005, the jury found in favor of Moore, awarding him a

$100,000 verdict. Both parties filed post-trial motions. Vislosky filed a motion for a new

trial and judgment as a matter of law and a motion for amendment of judgment. Moore

filed a motion for a new trial on the issue of punitive damages. The District Court denied

both parties’ post-trial motions on December 12, 2005. Vislosky then filed an untimely

nunc pro tunc motion for a new trial, judgment as a matter of law, and to extend the

7
deadline to file an appeal. On January 10, 2006, the District Court granted Vislosky’s

request to extend the deadline to file an appeal but denied her motion for a new trial and

for judgment as a matter of law. Thereafter, Vislosky filed a timely notice of appeal and

Moore filed a timely notice of cross-appeal.

II. Analysis

At the outset, we find it necessary to explain the interplay between state and

federal law in this defamation action. We have noted that “although a defamation suit has

profound First Amendment implications, it is fundamentally a state cause of action.”

Tucker v. Fischbein, 237 F.3d 275, 284 (3d Cir. 2001) (quoting McDowell v. Paiewonsky,

769 F.2d 942, 945 (3d Cir. 1985)). Accordingly, a court presiding over a defamation

action must determine: “‘(1) whether the defendants have harmed the plaintiff’s

reputation within the meaning of state law; and (2) if so, whether the First Amendment

nevertheless precludes recovery.’” Marcone v. Penthouse Int’l Magazine for Men, 754

F.2d 1072, 1077 (3d Cir. 1985) (quoting Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264,

270 (3d Cir. 1980)).

A. Pennsylvania Law

To recover for defamation under Pennsylvania law, the plaintiff bears the burden

of proving the following elements:

(1) The defamatory character of the communication.
(2) Its publication by the defendant.
(3) Its application to the plaintiff.
(4) The understanding by the recipient of its defamatory meaning.
(5) The understanding by the recipient of it as intended to be applied to the

8
 plaintiff.
(6) Special harm resulting to the plaintiff from its publication.
(7) Abuse of a conditionally privileged occasion.

42 Pa. Cons. Stat. Ann. § 8343(a) (2000).

The defendant, on the other hand, bears the burden of showing the truth of the

defamatory communication, the privileged nature of the communication, and that the

communication touched on a matter of public concern. 42 Pa. Cons. Stat. Ann. § 8343(b).

Furthermore, under Pennsylvania law, “a publisher of a defamatory statement is not liable

if the statement was made subject to a conditional privilege and the privilege was not

abused.” Elia v. Erie Ins. Exchange, 634 A.2d 657, 660 (Pa. Super. Ct. 1993) (citing

Chicarella v. Passant, 494 A.2d 1109, 1112-13 (Pa. Super. Ct. 1985)). One instance in

which a conditional privilege arises is “when a recognized interest of the public is

involved.” Id.

In a 1963 opinion, the Pennsylvania Supreme Court indicated that negligence on

the part of the defendant in making defamatory statements is sufficient to show that a

conditional privilege has been abused and, thus, has been lost. Purcell v. Westinghouse

Broadcasting Co., 191 A.2d 662, 668 (Pa. 1963). The Purcell Court stated, “[t]he failure

to employ such ‘reasonable care and diligence’ can destroy a privilege which otherwise

would protect the utterer of the communication.” Id. Accordingly, Pennsylvania cases

following Purcell regularly stated that abuse of a conditional privilege occurs when:

the publication is actuated by malice or negligence, is made for a purpose other
than that for which the privilege is given, or to a person not reasonably believed to
be necessary for the accomplishment of the purpose of the privilege, or includes

9
 defamatory matter not reasonably believed to be necessary for the accomplishment
of the purpose.

Miketic v. Baron, 675 A.2d 324, 329 (Pa. Super. Ct. 1996) (quoting Beckman v. Dunn,

419 A.2d 583, 588 (Pa. Super. Ct. 1980)) (emphasis added).

However, more than a decade after Purcell was handed down, the United States

Supreme Court announced its decision in Gertz v. Robert Welch, Inc., 418 U.S. 323

(1974), holding that a private-figure plaintiff must show some fault (i.e., at least

negligence) to recover against a defendant where the speech at issue relates to matters of

public concern. In light of the Supreme Court’s pronouncement in Gertz, the

Pennsylvania Superior Court has recognized that where the allegedly defamatory speech

relates to matters of public concern, a private-figure plaintiff is required to show more

than mere negligence to defeat a conditional privilege. Am. Future Sys. Inc. v. Better Bus.

Bureau of E. Pa., 872 A.2d 1202, 1211 (Pa. Super. Ct. 2005) (citing Banas v. Matthews

Int’l Corp., 502 A.2d 637 (Pa. Super. Ct. 1985); Rutt v. Bethlehems’ Globe Publ’g Co.,

484 A.2d 72 (Pa. Super. Ct. 1984)); see also Moore v. Cobb-Nettleton, 889 A.2d 1262,

1269-70 (Pa. Super. Ct. 2005) (rejecting the argument that a conditional privilege can be

lost on a showing of negligence where the challenged speech related to a matter of public

concern) (citations omitted).

This view finds support in section 600 of Restatement (Second) of Torts, which

states, in relevant part, “one who upon an occasion giving rise to a conditional privilege

publishes false and defamatory matter concerning another abuses the privilege if he (a)

10
knows the matter to be false, or (b) acts in reckless disregard as to its truth or falsity.”

Restatement (Second) of Torts § 600 (1977). As the Comment to this section explains,

One consequence of the holding [of Gertz v. Robert Welch, Inc.] is that mere
negligence as to falsity, being required for all actions of defamation, is no longer
treated as sufficient to amount to abuse of a conditional privilege. Instead,
knowledge or reckless disregard as to falsity is necessary for this purpose.

Id. cmt. b. Based upon this authority, we are comfortable predicting that the

Pennsylvania Supreme Court would now require a private-figure plaintiff suing on

matters of public concern to show that the statements were made with actual malice to

defeat a conditional privilege under Pennsylvania law.

B. First Amendment Implications

As to the constitutional implications, in the landmark case, New York Times Co. v.

Sullivan, 376 U.S. 254, 270 (1964), the Supreme Court struck a balance between a state’s

interest in protecting an individual’s reputation through its defamation law and the

“profound national commitment” to the First Amendment principle “that debate on public

issues should be uninhibited, robust, and wide-open.” The Court concluded that the

constitutional guarantees of the First and Fourteenth Amendments require “a federal rule

that prohibits a public official from recovering damages for a defamatory falsehood

relating to his official conduct unless he proves that the statement was made with ‘actual

malice.’” Id. at 279-80. Accordingly, the Court held that “the Constitution delimits a

State’s power to award damages for libel actions brought by public officials against critics

of their official conduct.” Id. at 283 (emphasis added). Moreover, the public-figure

11
plaintiff has the burden of proving actual malice and must do so by clear and convincing

evidence. Bose Corp., 466 U.S. at 511 n.30 (citing New York Times, 376 U.S. at 280).

Supreme Court caselaw has clarified application of the New York Times actual

malice standard in defamation suits where the plaintiff is a private figure. In Gertz v.

Robert Welch, Inc., 418 U.S. 323 (1974), the Court considered the necessity of

constitutional safeguards in a defamation suit brought by a private-figure plaintiff against

a defendant for speech that related to matters of public concern. Gertz held that “so long

as they do not impose liability without fault, the States may define for themselves the

appropriate standard of liability for a publisher or broadcaster of defamatory falsehood

injurious to a private individual.” 418 U.S. at 347 (emphasis added). However, the Court

further held that States may not allow a private-figure plaintiff to recover presumed or

punitive damages except upon “a showing of knowledge of falsity or reckless disregard

for the truth[,]” i.e., actual malice. Id. at 349. In sum, “the private defamation plaintiff

who establishes liability under a less demanding standard than that stated by New York

Times may recover only such damages as are sufficient to compensate him for actual

injury.” Id. at 350.

In Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986), the Court

addressed the issue of what party bears the burden of proving falsity in a defamation

action brought by a private-figure plaintiff for speech related to matters of public concern.

Expounding on Gertz, the Court stated:

When the speech is of public concern but the plaintiff is a private figure, as in

12
 Gertz, the Constitution still supplants the standards of the common law, but the
constitutional requirements are, in at least some of their range, less forbidding than
when the plaintiff is a public figure and the speech is of public concern.

Hepps, 475 U.S. at 775. Hepps rejected the common law’s presumption that defamatory

speech is false, holding that the private-figure plaintiff bears the burden of proving falsity

and fault in actions against defendants for speech that touches on matters of public

concern. Id. at 776-77.

To summarize, a private-figure plaintiff suing a defendant for speech related to

matters of public concern must prove actual malice when: 1) the plaintiff is seeking

presumed damages, Gertz, 418 U.S. at 349; 2) the plaintiff is seeking punitive damages,

id.; or 3) the defendant’s speech is conditionally privileged, Am. Future Sys., Inc., 872

A.2d at 1211. Moreover, Hepps alters Pennsylvania law by requiring the plaintiff in such

a case to bear the burden of proving fault and falsity. Compare Hepps, 475 U.S. at 776-77

(plaintiff suing on matters of public concern bears burden of showing fault and falsity)

with 42 Pa. Cons. Stat. Ann. § 8343(b) (defendant bears burden of proving truth of

defamatory communication).

Here, the District Judge made several key findings that impact the standard that

governs this case. First, he found that Moore was a private figure. See J.A. at 0560.

Second, he stated that the subject matter of the allegedly defamatory statements was one

of public concern. Id. Third, he determined that Vislosky’s statements were

conditionally privileged under Pennsylvania law because she was speaking out, as a

citizen, on matters of public concern. Id. at 0642-43. The parties have not challenged

13
any of these findings on appeal; thus, we deem them conclusively established.5

To recover presumed or punitive damages as a private-figure plaintiff suing on

speech that relates to a matter of public concern, Gertz requires Moore to prove actual

malice. 418 U.S. at 349. In addition, under Pennsylvania law, Moore must show actual

malice to defeat Vislosky’s conditional privilege. American Future Systems, Inc., 872

A.2d at 1211. Finally, Hepps places the burden on Moore to prove the falsity of the

communications and fault on the part of Vislosky. 475 U.S. at 776-77.

New York Times and its progeny guide our determination of whether actual malice

has been shown. In reviewing a determination of actual malice in a case governed by

New York Times, “[a]ppellate judges . . . must exercise independent judgment and

determine whether the record establishes actual malice with convincing clarity.” Bose

Corp. v. Consumers Union of United States, 466 U.S. 485, 514 (1984). “We must make

an independent examination of the whole record so as to assure ourselves that the

judgment does not constitute a forbidden intrusion on the field of free expression.” New

York Times, 376 U.S. at 285 (internal quotation and citation omitted). However,

determinations of witness credibility are reviewed under the clearly erroneous standard

because “the trier of fact has had the ‘opportunity to observe the demeanor of the

witnesses.’” Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 688

5
See United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) (citation omitted)
(“It is well settled that an appellant’s failure to identify or argue an issue in his opening
brief constitutes waiver of that issue on appeal.”).

14
(1989) (quoting Bose, 466 U.S. at 499-500).

A statement is made with “actual malice” when it is made with “knowledge that it

was false or with reckless disregard of whether it was false or not.” New York Times, 376

U.S. at 280. Reckless conduct “is not measured by whether a reasonably prudent man

would have published, or would have investigated before publishing.” St. Amant v.

Thompson, 390 U.S. 727, 731 (1968). Rather, to show reckless disregard for the truth or

falsity of a statement, “[t]here must be sufficient evidence to permit the conclusion that

the defendant in fact entertained serious doubts as to the truth of his publication.” Id.

This is a subjective inquiry6 that requires “sufficient evidence to permit the conclusion

that the defendant actually had a ‘high degree of awareness of . . . probable falsity.’”

Harte-Hanks Communications, Inc., 491 U.S. at 688 (quoting Garrison v. Louisiana, 379

U.S. 64, 74 (1964)). We turn now to the issues Vislosky has raised.

C. Vislosky’s Motion for Judgment as a Matter of Law

Vislosky claims the District Court erred in denying her motion for judgment as a

matter of law because the record evidence is insufficient to establish that she made the

defamatory statements with actual malice. We review the District Court’s order denying

Vislosky’s motion for judgment as a matter of law under a plenary standard, viewing the

6
Even though the actual malice standard is a subjective one, the defendant cannot
“automatically insure a favorable verdict by testifying that he published with a belief that
the statements were true. The finder of fact must determine whether the publication was
indeed made in good faith.” St. Amant, 390 U.S. at 732. Thus, Vislosky’s repeated
declarations to the jury that “I don’t lie,” J.A. at 0298, and “I always tells the truth,”id. at
0300, are not dispositive of the issue.

15
evidence and all reasonable inferences in the light most favorable to Moore, the non-

moving party. Brennan v. Norton, 350 F.3d 399, 424 n.20 (3d Cir. 2003) (citing

Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993)).

Vislosky claims the evidence at trial was insufficient to establish actual malice by

clear and convincing evidence for two reasons. First, she asserts Moore did not prove she

intended to defame him and, therefore, could not have proven actual malice. Second,

Vislosky argues Moore did not present any affirmative proof that she entertained serious

doubts about the truthfulness of her statements.

1.

Vislosky argues that Moore did not prove she intended to refer to him in making

the defamatory statements because she consistently denied using Moore’s name during

the course of the hallway conversation and because four witnesses to the hallway

conversation testified that she never mentioned Moore’s name. In addition, she contends

that her repeated reference to “Unitech inspectors” during the public meetings was too

ambiguous to show an intention to defame Moore personally.

We disagree. At trial, six witnesses who were present at the executive session

testified. Two witnesses, Supervisors Otto and Dayton, testified to hearing Moore’s name

during the hallway conversation. Witnesses Clarke and Snipes testified that they did not

hear Moore’s name, but also testified that they were not present for the entire

conversation. Furthermore, Clarke and Snipes testified consistently with Otto and Dayton

with respect to whether they heard the words “Unitech inspectors” and “Dominion

16
Power” during the conversation. Contrary to Vislosky’s characterization of the evidence,

only two witnesses, Szupka and Bergman, unequivocally testified that they did not hear

Moore’s name mentioned. Notably, Moore’s counsel impeached Szupka’s credibility by

highlighting inconsistent statements Szupka made on direct and cross examination.

Szupka’s attempt to reconcile the two statements could easily have been found by the jury

to be unbelievable and could have served as a basis to discredit his entire testimony.7 See

J.A. at 0632 (instructing jury that if it finds witness intentionally testified falsely, jury

may choose to disbelieve the witness in whole or in part); see also Lambert v. Blackwell,

7
On direct examination, Szupka stated, “Mrs. Vislosky has never contacted me
privately about anything that has ever gone on in the Township for the whole time I have
served.” J.A. at 0163. On cross examination, however, Szupka recalled a meeting with
Vislosky at her home about the road program. Id. at 0172. When Moore’s counsel
highlighted this inconsistency on redirect, the following exchange took place:
A: What I said was, Mrs. Vislosky never contacted me about any other, any
Township issues. She never called me to talk to me about any other Township
issues.
Q: And how was it that you found yourself in her house if she didn’t contact you?
A: She had information.
Q: How was it that you got yourself into her house? What brought you to her
house? Did she contact you? Did she say, come on over, I want to show you some
things?
A: I wanted to see what was there. I went over.
Q: My question for you is, did she contact you and call you and invite you to her
house to review that material?
A: No.
Q: You called her?
A: I went over.
Q: You just showed up without calling?
A: Yeah. I don’t have a phone number that works.
Id. at 0177-78. In addition to the implausibility of this explanation, Vislosky herself
contradicted Szupka’s testimony by testifying at trial that she did in fact call Szupka to
come visit her to look at documents. Id. at 0252.

17
387 F.3d 210, 256 (3d Cir. 2004) (discussing “falsus in uno, falsus in omnibus” charge,

which permits jury to discredit all of a witness’ testimony if it finds that a witness

testified falsely about any material fact).

Even under the meaningful appellate review given to a finding of actual malice

under New York Times, it is within the province of the jury to credit the testimony of one

witness over another. Harte-Hanks Communications, Inc., 491 U.S. at 688 (quoting Bose

Corp., 466 U.S. at 499-500). By crediting the testimony of Otto and Dayton, a reasonable

jury could have found that Vislosky did specifically mention Moore’s name during the

hallway conversation, which could establish by clear and convincing evidence that

Visloskly intended to defame Moore.

With respect to her references to “Unitech inspectors” during the public meetings,

Otto testified that he understood Vislosky to be speaking about Moore when he heard

those statements, J.A. at 0145, and Dayton testified that he thought she was talking about

Moore and another Unitech inspector, Jason Nowicki, id. at 0203. When asked why he

identified Moore and Nowicki, Dayton stated, “[t]hey were the main inspectors for

Unitech engineers. They were the only inspectors doing the work that she was talking

about.” Id. Moreover, at trial Vislosky reaffirmed her statement that Unitech inspectors

(plural) were engaging in wrongdoing, but she also testified that her accusations were

directed at only one Unitech inspector, Nowicki. A reasonable jury could have credited

Otto and Dayton’s testimony, concluding that Vislosky was actually referring to both

Moore and Nowicki during the public meetings, and that her trial testimony to the

18
contrary was fabricated to assist her defense in the defamation lawsuit.

2.

Second, Vislosky maintains that Moore failed to prove she entertained serious

doubts about the truthfulness of her statements because Moore presented no affirmative

evidence that she acted with reckless disregard for the truth or falsity of her statements.

However, Vislosky presents no authority to support the proposition that affirmative

evidence is always required.

In Harte-Hanks Communications, Inc. v. Connaughton, the Supreme Court stated

that “[a]lthough courts must be careful not to place too much reliance on such factors, a

plaintiff is entitled to prove the defendant’s state of mind through circumstantial evidence

. . . and it cannot be said that evidence concerning motive or care never bears any relation

to the actual malice inquiry.” 491 U.S. at 668. Similarly, this Court has acknowledged

that “[a] plaintiff may ‘rarely be successful in proving awareness of falsehood from the

mouth of the defendant himself.’” Schiavone Construction Co. v. Time, Inc., 847 F.2d

1069, 1089 (3d Cir. 1988) (quoting Herbert v. Lando, 441 U.S. 153, 170 (1979)).

Accordingly, “objective circumstantial evidence can suffice to demonstrate actual malice”

and can even “override defendants’ protestations of good faith and honest belief that the

report was true.” Id. at 1090 (citing St. Amant, 390 U.S. at 732). A court may infer actual

malice from objective facts that provide evidence of “negligence, motive, and intent such

that an accumulation of the evidence and appropriate inferences supports the existence of

actual malice.” Id. at 1090 n.35 (citations omitted). Actual malice can be shown

19
“[t]hrough the defendant’s own actions or statements, the dubious nature of his sources,

[and] the inherent improbability of the story [among] other circumstantial evidence[.]”

Celle v. Filipino Reporter Enterprises Inc., 209 F.3d 163, 183 (2d Cir. 2000) (quoting

Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1293 (D.C. Cir. 1988)).

Significantly, Vislosky did not simply allege that Moore and Unitech inspectors

were padding their bills, signing off on inspections that were not done, and taking

kickbacks. Rather, Vislosky repeatedly gave added force to her allegations by stating that

she is a retired judge, that she understands libel and slander, and that she can prove her

allegations. See, e.g., J.A. at 0724. A reasonable jury could find by clear and convincing

evidence that, at the time she claimed she could prove the allegations against Moore, she

either knew she could not prove or entertained serious doubts as to whether she could

prove the substance of these allegations. Several objective facts could support this

conclusion.

First, and most damaging to her defense, Moore demonstrated that Vislosky never

produced the documentary evidence she claimed to have in support of her allegations.

Moore requested this documentary evidence on November 8, 2004, during pre-trial

discovery. Vislosky answered Moore’s request for document production on December 8,

2004, stating that she was “in the process of assembling voluminous documents” that she

would “provide . . . upon assembly.” J.A. at 0719. She continued, “[s]ome are available

now but, we do not wish to send them piece meal.” Id. When the documents were not

forthcoming, Moore filed a motion to compel document production, which the District

20
Court granted on May 26, 2005. Even in the face of the District Court’s order, Vislosky

did not produce the documents. A reasonable jury could conclude by clear and

convincing evidence that: 1) Vislosky never had the documentation she claimed to have,

or 2) she refused to produce the documents because they established her awareness that

there was no basis for making the specific allegations of wrongdoing that were leveled

against Moore and Unitech inspectors. See Brown & Williamson Tobacco Corp. v.

Jacobson, 827 F.2d 1119, 1134 (7th Cir. 1987) (finding the destruction of critical

documents compelling evidence of actual malice that gives rise to a presumption that the

documents would be unfavorable to the party destroying them).

Second, a reasonably jury could find that Vislosky’s story as to why she did not

produce the documents was not believable. At trial, Vislosky stated that she did not

produce the documents because “I had them and lost them almost immediately.” J.A. at

0289. She claimed that Trinity Paving, from whom she obtained the documents, had

requested that she return them because Trinity was going out of business and needed the

records back. Vislosky testified that she had the documents when she received Moore’s

request for document production but lost them before she could assemble the documents.

Vislosky does not explain why she failed to copy the documents that she was legally

obligated to produce before giving them back to Trinity.

Moreover, prior to giving the aforementioned explanation as to why she did not

retain the documents, Vislosky stated, “I did not hold on to them because I didn’t think

there was a need to.” J.A. at 0263. This explanation is implausible in light of the fact

21
that, at trial, Vislosky admitted that she knew she would be obligated to produce the

documents if a lawsuit was filed. Prior to initiating the lawsuit, Moore’s attorney sent a

letter to Vislosky, dated April 1, 2004, requesting “a factual basis for the contentions,

including the identification of sources of the alleged information, including individuals

and documents, which you say support your contentions.” Id. at 0265. In response,

Vislosky wrote a letter stating, “I will not provide you with any documents or any names

or anything else on your ‘request list.’ If you will recall, this information can be acquired

through ‘discovery’ after you file a lawsuit against me.” Id. at 0268-69. Despite repeated

attempts, Moore was unable to acquire this information through discovery or otherwise.

Third, Vislosky admitted that she had never seen an inspection report or punch list

that had been signed off on by a Unitech inspector where the work was not done. And

when Moore’s counsel attempted to ask her during trial whether, during discovery, she

ever provided Moore with the details of the allegedly unlawful, corrupt, or improper

conduct by Unitech inspectors that she claimed occurred, Vislosky gave non-responsive

and evasive answers.8

In addition to her failure to produce documents incriminating Moore or to provide

factual details to substantiate her allegations, Vislosky’s own testimony supports a finding

8
Vislosky had in fact failed to provide this information during pre-trial discovery,
despite the Court order directing Vislosky to fully answer Interrogatory 6, which asked
whether or not Vislosky was “aware of any unlawful, corrupt, or improper conduct by any
Unitech inspector, which is relevant to statements made by her, or which she believes is
relevant to this litigation, or which might be referred by her during the course of the
litigation.” J.A. at 0731 & 0743.

22
of actual malice. At trial, Vislosky’s defense was that her statements were not directed at

Moore. Vislosky claimed that Jason Nowicki was the Unitech inspector she was referring

to during the public meetings and adamantly maintained that she never mentioned Daniel

Moore by name during the hallway conversation. Significantly, she admitted that she had

no evidence of wrongdoing by Moore. Vislosky consistently maintained that she did not

know who Daniel Moore was until he initiated the lawsuit against her.9 Yet, as discussed

supra, there was sufficient evidence for a jury to find that Vislosky made defamatory

statements about Unitech inspectors (plural) at the public meetings and specifically about

Moore at the executive session. Accordingly, the jury could have found that Vislosky

acted with actual malice by making defamatory statements about Moore while admitting

she had no evidence of Moore’s wrongdoing.

Vislosky claims that because her statements were based on varied and reliable

sources, Moore could only demonstrate actual malice by showing obvious reasons for her

to doubt the veracity of those sources. However, evidence of the dubious nature of one’s

sources is only one way by which a plaintiff can demonstrate actual malice. Moore’s case

emphasized that the documentation Vislosky emphatically claimed would prove her

accusations was curiously absent from the case, even after a court order compelled her to

produce it. Not only did Vislosky not produce the documents she claimed to have, she

9
Moore also produced evidence at trial suggesting that Vislosky did know who
Daniel Moore was prior to the initiation of the lawsuit against her. Specifically, Vislosky
sent an email dated April 2, 2004, in which she stated “Concerned peopled talked to
Dayton about what Unitech, Jason, Dan and the inspectors were doing . . .” J.A. at 0303.

23
did not even provide Moore with the specific factual information that formed the basis of

her allegations. Even if we presume the reliability of the sources, Moore presented

evidence from which a reasonable jury could conclude that Vislosky never had the

sources in the first place.

In sum, we are confident that, on this record, a jury could find by clear and

convincing evidence that Vislosky acted with actual malice in making the defamatory

statements about Moore. Accordingly, the District Court correctly denied Vislosky’s

motion for judgment as a matter of law.

B. Vislosky’s Motion for a New Trial based on the District Court’s Failure to give
a Clear and Convincing Jury Instruction

Vislosky contends she should be granted a new trial because the District Court

failed to instruct the jury that Moore was required to prove actual malice by clear and

convincing evidence. A new trial may be granted pursuant to Federal Rule of Civil

Procedure 59(a), where “substantial errors were made in the admission or rejection of

evidence or the giving or refusal of instructions.” Lighting Lube, Inc. v. Witco Corp., 802

F.Supp. 1180, 1186 (D.N.J. 1992) (citing Northeast Women’s Ctr., Inc. v. McMonagle,

689 F.Supp. 465 (E.D. Pa. 1988)). It is undisputed that in its charge to the jury, the

District Court omitted any instruction on the standard of proof to be applied.

To preserve an objection to jury instructions, a party must follow the procedure

outlined in Federal Rule of Civil Procedure 51. Rule 51 states, in pertinent part: “No

party may assign as error the giving or the failure to give an instruction unless that party

24
objects thereto before the jury retires to consider its verdict, stating distinctly the matter

objected to and the grounds of the objection.” F.R.Civ.P. 51. We have repeatedly

stressed “the important policy objectives served by Rule 51[,]” which “affords the trial

judge an opportunity to correct any error that may have been made in the charge before

the jury begins its deliberations.” Fashauer v. New Jersey Transit Rail Operations, 57

F.3d 1269, 1288 (3d Cir. 1995) (internal quotations and citations omitted).

Vislosky did not object to the omission of an appropriate burden of proof

instruction at trial. Therefore, we apply discretionary plain error review. Franklin

Prescriptions, Inc. v. New York Times Co., 424 F.3d 336, 339 (3d Cir. 2005) (citing Fed.

R. Civ. P. 51(d)(2)) (“Where a party fails to object properly, we may review for ‘plain

error in the instructions affecting substantial rights.’”). Under the plain error standard,

“there must be an error that is plain and that affect[s] substantial rights.” United States v.

Olano, 507 U.S. 725, 732 (1993) (internal quotation and citation omitted). An “error” is

defined as a “[d]eviation from a legal rule” and an error is “plain” if it “clear under

current law.” Id. at. 732-34. An error affects substantial rights if it is prejudicial, i.e., if it

“affected the outcome of the district court proceedings.” Id. at 734.

Furthermore, under this discretionary standard, “we will reverse the trial court only

where a plain error was ‘fundamental and highly prejudicial, such that the instructions

failed to provide the jury with adequate guidance and our refusal to consider the issue

would result in a miscarriage of justice.’” Franklin Prescriptions, Inc., 424 F.3d at 339

(quoting Ryder v. Westinghouse Elec. Corp., 128 F.3d 128, 136 (3d Cir. 1997)). In

25
determining whether to exercise our discretion, we consider whether “the error ‘seriously

affect[s] the fairness, integrity or public reputation of judicial proceedings.’” Fashauer,

57 F.3d at 1289 (internal citation omitted). We are also mindful that plain error review

“‘should be exercised sparingly’ and ‘should only be invoked with extreme caution in the

civil context.’” Franklin Prescriptions, Inc., 424 F.3d at 341 (quoting Fashauer, 57 F.3d

at 1289). To do otherwise would risk “emasculat[ing] the important policies served by

Rule 51.” Fashauer, 57 F.3d at 1289.

We find the learned District Judge committed plain error in failing to instruct the

jury that Moore must prove actual malice by clear and convincing evidence and other

elements of the case by a preponderance of the evidence. Such error was plain in light of

established Supreme Court caselaw requiring the clear and convincing standard in

private-figure defamation cases where presumed damages are sought. Gertz, 418 U.S. at

342.

However, we decline to exercise our discretion to reverse the District Court

because we believe the error was not fundamental or highly prejudicial to Vislosky’s

rights. Vislosky’s trial counsel had ample opportunity to request a clear and convincing

evidence instruction before the jury began its deliberations, either at the charge

conference or immediately after the deficient jury charge was given. At this time, the

error could have been easily corrected by the District Court before a verdict was reached.

Instead, Vislosky chose not to raise the objection until after a verdict had been entered

against her and the District Court had denied one round of post-trial motions. In

26
declining to reverse, we continue to strictly follow the proposition, embodied in Rule 51,

that “an appellate court will not predicate error on an issue upon which the district court

was not provided with an opportunity to rule.” Fashauer, 57 F.3d at 1288.

We believe it would be prejudicial and fundamentally unfair to Moore to require

him to re-litigate the case. The District Court did not affirmatively mislead the jury into

thinking that a lower burden of proof applied in this case. Rather, the District Court gave

an otherwise accurate and comprehensive jury charge, in which it instructed the jury on

the definition of actual malice and told the jury at least four times that the burden rests

with Moore to prove his case. Moreover, in light of Vislosky’s obstinate refusal to

cooperate with the discovery order in the proceedings below, this Court is wary of

exercising discretion in her favor. Notwithstanding the importance of proper instructions

on the burden of proof, on this particular record, the error did not affect the integrity of

the trial, and we decline to reverse the District Court.

C. Vislosky’s Motion for a New Trial based on Jury Instruction on Presumed
Damages

Vislosky argues that she should be granted a new trial because the District Court

erroneously instructed the jury that Moore was entitled to presumed damages under

Pennsylvania law. “Presumed damages allow a defamation plaintiff to recover

compensatory damages without proving the defamatory statement caused actual harm.”

Franklin Prescriptions, Inc., 424 F.3d at 341. Because Vislosky did not object to the

presumed damages instruction at trial, we apply plain error review. An error is

27
considered “plain” if it is “clear under current law.” Olano, 507 U.S. at 734.

Accordingly, we must determine whether, at the time of the trial, Pennsylvania law

clearly prohibited a plaintiff from recovering presumed damages in a defamation action.

Vislosky cites Walker v. Grand Central Sanitation, Inc., 634 A.2d 237 (Pa. Super.

Ct. 1993), for the proposition that Pennsylvania law does not allow presumed damages.

In Walker, the Pennsylvania Superior Court held that “a defendant who publishes a

statement which can be considered slander per se is liable for the proven, actual harm the

publication causes.” 634 A.2d at 244. However, in a Third Circuit case decided after

Walker, we stated, “[u]nder Pennsylvania law, where a defendant acts with actual malice,

there is no need to prove actual damages.” Beverly Enterprises, Inc. v. Trump, 182 F.3d

183, 188 n.2 (3d Cir. 1999) (emphasis added). We explicitly recognized this distinction

in Franklin Prescriptions, stating that “[a]lthough Walker appears generally to foreclose

presumed damages under Pennsylvania law, it is not entirely clear whether presumed

damages remain available where the plaintiff proves actual malice.” 424 F.3d at 342.

Following Beverly Enterprises, Inc. v. Trump, we conclude that the District Court

was correct to instruct the jury that, under Pennsylvania law, it may presume damages

upon a finding that Moore had proven actual malice. 182 F.3d at 188 n.2. The District

Court’s jury charge properly limited the availability of presumed damages by stating, “if

you find that the defendant acted either intentionally or recklessly in publishing the

defamatory communications [i.e., with actual malice] you may presume [damages].” J.A.

at 0641. Accordingly, the District Court’s jury instruction on presumed damages was not

28
error, let alone plain error, under Pennsylvania law.

D. Moore’s Motion for a New Trial on the Issue of Punitive Damages

Moore argues that the District Court erred in refusing to instruct the jury on the

issue of punitive damages. We review the District Court’s refusal to give certain jury

instructions under an abuse of discretion standard. United States v. Coyle, 63 F.3d 1239,

1245 (3d Cir. 1995).

In DiSalle v. P.G. Publishing Company, 544 A.2d 1345 (Pa. Super. Ct. 1988), the

Pennsylvania Superior Court held that a plaintiff in a defamation action must make a

showing of both actual malice and common law malice in order to recover punitive

damages.10 Common law malice in Pennsylvania “involves conduct that is outrageous

(because of the defendant’s evil motive or his reckless indifference to the rights of

others), and is malicious, wanton, reckless, willful, or oppressive.” Sprague v. Walter,

656 A.2d 890, 922 (Pa. Super. Ct. 1995) (citing DiSalle, 544 A.2d at 1364). The

difference between actual malice and common law malice is instructive: “[W]hen a

defendant acts with common law malice, and thereby becomes susceptible to punitive

damages, he does so with a necessary degree of evil volition toward the plaintiff . . . .

Actual malice, on the other hand, focuses exclusively on the defendant’s attitude toward

10
We believe the holding in DiSalle v. P.G. Publishing Company is consistent with
how the Pennsylvania Supreme Court would rule on this issue. See Feld v. Merriam, 485
A.2d 742, 747-48 (Pa. 1984) (landlord-tenant dispute in which Pennsylvania Supreme
Court adopted Restatement (Second) of Torts § 908(2), which requires proof of common
law malice to support award of punitive damages).

29
the truth of the statement made.” DiSalle, 544 A.2d at 1369. Thus, to prove common law

malice, “the plaintiff must prove that the defendant displayed ‘actual or apparent ill will.’

This is so because punitive damages in public official defamation actions are specifically

intended to punish and deter [such conduct].” Sprague, 656 A.2d at 922 (quoting DiSalle,

544 A.2d at 1370-71).

As discussed above, we have determined that the evidence was sufficient to

support a finding of actual malice by clear and convincing evidence. Therefore, the key

issue is whether the record could support a finding of common law malice by a

preponderance of the evidence. See DiSalle, 544 A.2d at 560 n.24 (explaining that the

standard of proof for punitive damages in Pennsylvania traditionally has been proof by a

preponderance of the evidence).

Because this issue is admittedly a close question, we will defer to the District

Court’s discretion in refusing to give a punitive damages jury instruction. The District

Judge found no evidentiary basis for a finding that Vislosky engaged in outrageous

conduct. While his ruling on Moore’s request for punitive damages may have reached

some improper factual conclusions, his determination that outrageous conduct had not

been shown was sound. Moore presented insufficient proof from which a jury could

conclude by a preponderance of the evidence that Vislosky acted with evil intent toward

him when she accused him and Unitech inspectors of corruption and criminal activity.

The bulk of the evidence shows that Vislosky’s statements were intended to spur Falls

Township Supervisors into investigating her allegations and were not aimed at personally

30
damaging Moore.11 Contra Sprague, 656 A.2d at 923-24 (evidence that defendant

outwardly expressed an intention to destroy plaintiff’s career and took action to carry out

that intention sufficient to establish common law malice). Accordingly, on this record,

the District Court did not abuse its discretion in refusing to instruct the jury on punitive

damages.

III. Conclusion

We have considered all other arguments made by the parties on appeal and

conclude that no further discussion is necessary. For the foregoing reasons, we will

affirm the order of the District Court.

11
Our conclusion that there was insufficient evidence to show common law malice
does not impact our determination that actual malice could be proven by clear and
convincing evidence on this record. As explained in DiSalle, the former focuses on the
defendant’s attitude toward the plaintiff, while the latter focuses on her attitude toward
the truth of the statements she made. 544 A.2d at 1369.

31