United States Court of Appeals
For the First Circuit
No. 05-1230
MARC E. MANDEL,
Plaintiff, Appellee,
v.
THE BOSTON PHOENIX, INC., ET AL.,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, Senior U.S. District Judge]
Before
Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lipez, Circuit Judge.
Robert A. Bertsche, with whom Paige A. Scott Reed and Prince,
Lobel, Glovsky & Tye LLP were on brief, for appellant Lombardi.
Daniel J. Gleason, with whom Rebecca L. Shuffain and Nutter,
McClennen & Fish, LLP were on brief, for remaining appellants.
Stephen J. Cullen, with whom Jennifer J. Coyne, Miles &
Stockbridge P.C., and Mary A. Azzarito were on brief, for appellee.
July 11, 2006
AMENDED OPINION*
*
This opinion has been amended solely to comport with sealing
orders issued by the district court. The amendments do not in any
way affect the substance of the opinion.
SELYA, Circuit Judge. The oenologist's creed teaches
that we should drink no wine before its time. Much the same
principle applies to summary judgment; it is a deliciously helpful
device if properly timed, but one that can leave a sour taste if
brought to bear on an insufficiently fermented record.
This appeal, which follows on the heels of a substantial
verdict in a defamation suit, is a paradigmatic example of the
point. The briefs before us raise a plethora of First Amendment
issues. At the threshold, however, lies the preliminary question
on which the appeal ultimately hinges: did the district court,
ruling on a pretrial motion, appropriately determine that the
plaintiff, a Maryland assistant state's attorney, was a private
figure and not a public official for libel-law purposes?
Concluding, as we do, that the court's ruling was premature, we
answer that question in the negative. Accordingly, we vacate the
judgment below and remand for a new trial.
I. THE LEGAL LANDSCAPE
In order to put this appeal into perspective, we think it
is useful to begin by rehearsing a salient aspect of the
substantive law of defamation: the public official/private figure
dichotomy.
It is apodictic that the First Amendment "prohibits a
public official from recovering damages for a defamatory falsehood
relating to his official conduct unless he proves that the
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statement was made with 'actual malice' — that is, with knowledge
that it was false or with reckless disregard of whether it was
false or not." New York Times Co. v. Sullivan, 376 U.S. 254, 279-
80 (1964). The New York Times rule extends not only to public
officials but also to public figures, whether all-purpose or
limited-purpose. See Gertz v. Robert Welch, Inc., 418 U.S. 323,
345 (1974).
The distinction between public figures and public
officials, on the one hand, and purely private figures, on the
other hand, has potentially profound consequences in a defamation
case. Generally speaking, the status that the plaintiff occupies
along the public/private continuum will determine what he must
prove in order to recover damages. Leaving to one side the
imposition of liability without fault (as to which certain
restrictions pertain), states may shape their own standards of
liability when a defamation action involves a private-figure
plaintiff. See id. at 347. Under Massachusetts law, for example,
that standard is negligence. See Stone v. Essex County Newspapers,
Inc., 330 N.E.2d 161, 168 (Mass. 1975). That is far less
demanding, from the plaintiff's standpoint, than the "actual
malice" standard that obtains when the plaintiff is a public
official or public figure. See New York Times, 376 U.S. at 279-80.
A plaintiff's status, therefore, shapes the course of any
defamation litigation. If he is a public official or public
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figure, he must prove actual malice with "convincing clarity." Id.
at 285-86. If, however, he is a purely private figure, it suffices
(at least in Massachusetts) to prove negligence by a preponderance
of evidence. See Stone, 330 N.E.2d at 174-75.
In defamation cases, public-figure status has the same
legal ramifications as public-official status — but the two terms
are not synonymous. See generally Kassel v. Gannett Co., 875 F.2d
935, 941 n.4 (1st Cir. 1989). Public officials, as the term
implies, are those who hold particular kinds of public office.
See, e.g., Time, Inc. v. Pape, 401 U.S. 279, 284 (1971) (deputy
chief of detectives); New York Times, 376 U.S. at 283 n.23 (elected
city commissioner). Public figures may or may not be public
officials; they are persons who "have assumed roles of especial
prominence in the affairs of society." Gertz, 418 U.S. at 345.
Commonly, "those classified as public figures have thrust
themselves to the forefront of particular public controversies in
order to influence the resolution of the issues involved." Id.
For present purposes, we need not dwell either on the distinction
between public officials and public figures or on the exact
dimensions of public-figure status; the defendants do not contend
that the plaintiff is a public figure — only a public official.
The public-official classification eludes precise
definition. See Kassel, 875 F.2d at 939. Not every public
employee is a public official for libel-law purposes. See
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Hutchinson v. Proxmire, 443 U.S. 111, 119 n.8 (1979). To the
contrary, only public employees with "substantial responsibility
for or control over the conduct of governmental affairs" should be
deemed public officials for libel-law purposes. Rosenblatt v.
Baer, 383 U.S. 75, 85 (1966). Moving from the general to the
particular is, however, a daunting task; it is difficult to tell
"how far down into the lower ranks of government employees" the
public-official designation extends. New York Times, 376 U.S. at
283 n.23.
II. FACTS AND PROCEEDINGS BELOW
In its January 10-16, 2003 issue, THE BOSTON PHOENIX , a
weekly newspaper, published a "special report" authored by Kristen
Lombardi. Written as an exercise in investigative journalism, the
piece ran for nine pages under the title "Children at Risk." Its
central thesis bemoaned what the reporter had determined to be an
apparent trend in family courts: that when a mother accuses a
father of child abuse in a child custody dispute, those courts,
ill-equipped to handle such charges, often award full custody to
the father. The article reviewed three scientific studies of
custody-dispute outcomes and recounted the personal experiences of
four families enmeshed in the system.
One such case history chronicled a custody clash between
Sarah Fitzpatrick and Marc E. Mandel (who was, at the time, an
assistant state's attorney in Maryland). That case history
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appeared under the subheading "Losing custody to a child molester."
The story recounted the sordid battle waged by the couple over
custody of their two minor children, A.R.M. and J.P.M.
(pseudonymously referred to by Lombardi as "Amy" and "James"), and
dwelt in some detail on Fitzpatrick's allegation that Mandel was a
child molester. For example, it reported Fitzpatrick's suspicions
about Mandel's relationship with J.P.M. and gave prominent play to
a Baltimore County Department of Social Services (DSS)
investigation into allegations that Mandel had abused his daughter
from a previous marriage, A.N.M. In that regard, the article
related that a "report conducted for the Baltimore County DSS
determined that Mandel had assaulted" A.N.M. The article went on
to state that despite the claims of abuse, a Maryland family court
judge awarded Mandel full custody of A.R.M. and J.P.M. and denied
Fitzpatrick any visitation rights, labeling her "a pathological
liar, or a purposeful liar, or both."
After THE PHOENIX published the article in print and on the
internet, Mandel began receiving negative work evaluations. He
later left his post and became self-employed in the private
practice of law.
Invoking diversity jurisdiction, see 28 U.S.C. § 1332(a),
Mandel filed suit for defamation against, inter alia, THE PHOENIX ,
its various corporate personas, two of its editorial gurus (Peter
Kadzis and Susan Ryan-Vollmar), and Lombardi (collectively, the
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defendants) in the United States District Court for the District of
Massachusetts. Shortly after answering the complaint, the
defendants moved for judgment on the pleadings or, in the
alternative, summary judgment. Mandel cross-moved for partial
summary judgment. The district court denied both motions, ordered
discovery to be completed within three months, and offered to
entertain renewed motions at that juncture.
The parties completed discovery and cross-moved for
summary judgment. Following a hearing, the court denied the
defendants' motion and granted Mandel's motion for partial summary
judgment on the public-official issue. Mandel v. Boston Phoenix,
Inc., 322 F. Supp. 2d 39, 44 (D. Mass. 2004). Reasoning that
Mandel was only a low-level prosecutor who "did ordinary legal
work," id. at 42, did not interact with the press, and did not
assume a risk of diminished privacy through his employment, the
court concluded that he was not a public official within the
purview of the libel laws, see id. at 42-43.
The litigation morphed into a ten-day jury trial. Once
Mandel had presented his case in chief, the defendants moved for
judgment as a matter of law. See Fed. R. Civ. P. 50(a). The court
granted that motion in part, concluding that Mandel had not
adequately established actual malice.1 At the close of all the
1
Given the court's pretrial status determination, it is hard
to fathom why actual malice was still an issue in the case. As
best we can tell, this ruling appears to have been part of an
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evidence, the defendants moved again for judgment as a matter of
law. See id. The court denied that motion.
The court submitted the case to the jury, which found for
Mandel and awarded him $950,000 in damages. As indicated on a
special verdict form, it found two statements in the article
actionable: (i) the subheading "Losing custody to a child molester"
and (ii) the comment that "a July 2002 report conducted for the
Baltimore County DSS determined that Mandel had assaulted his 10-
year-old daughter from an earlier marriage. The report states that
Mandel's daughter accused him of seven 'incidents' of fondling . .
. ."
In the aftermath of the trial, the defendants moved to
alter or amend the judgment, see Fed. R. Civ. P. 59(e), on the
ground that evidence adduced at trial and not previously available
demonstrated beyond hope of contradiction that Mandel was a public
official within the purview of the libel laws. The defendants also
moved for judgment as a matter of law, see Fed. R. Civ. P. 50(b),
claiming that Mandel's evidence was insufficient to establish (i)
the falsity of the two statements, (ii) negligence in their
publication, or (iii) any incremental harm. The court denied both
motions. This timeous appeal followed.
effort by the court to "scrub" the complaint and narrow the issues
before submitting the case to the jury.
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III. ANALYSIS
At the epicenter of this appeal lies the district court's
status determination. We start there.2 Finding reversible error
in the timing of that determination, we abjure review of the vast
majority of the other issues raised by the defendants. The lone
exception is the district court's refusal to grant the motion for
judgment as a matter of law. That decision still must be
scrutinized; after all, if Mandel did not present sufficient
evidence of the elements of a private-figure defamation claim, the
case would be over (as he certainly could not meet the heightened
burdens associated with public-official status).
A. The Status Determination.
Typically, courts approach the public-official analysis
as if it were a three-legged stool, taking into account: (i) the
extent to which the inherent attributes of a position define it as
one of influence over issues of public importance; (ii) the
position's special access to the media as a means of self-help; and
(iii) the risk of diminished privacy assumed upon taking the
2
Mandel insists that we cannot consider the district court's
ruling on the public-official issue because appellate courts lack
authority to review pretrial summary judgment rulings after a full
trial on the merits. See, e.g., Lama v. Borras, 16 F.3d 473, 476
n.5 (1st Cir. 1994). That argument is disingenuous. The principle
that Mandel cites applies to the denial of a summary judgment
motion, not the grant of such a motion. We are perfectly capable
of reviewing a pretrial grant of partial summary judgment after a
full trial on the merits of the remaining issues. See, e.g.,
Voutour v. Vitale, 761 F.2d 812, 817 (1st Cir. 1985) (per curiam).
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position. See Kassel, 875 F.2d at 939-40. Here, however, we focus
on a procedural milestone — the district court's pretrial
determination that the record was sufficiently developed to permit
it to decide whether Mandel was — or was not — a public official.
Given the significance of status determinations in libel-
law litigation, it is often perfectly reasonable to attempt to
decide whether a plaintiff is a public official or public figure
during pretrial proceedings. See, e.g., Nicholson v. Promotors on
Listings, 159 F.R.D. 343, 343-45 (D. Mass. 1994); see also Miller
v. Transam. Press, Inc., 621 F.2d 721, 724 (5th Cir. 1980)
(advising that the question of public-figure status "be answered as
soon as possible"). But although status determinations normally
are "grist for the court's — not the jury's — mill," Pendleton v.
City of Haverhill, 156 F.3d 57, 67 (1st Cir. 1998), such questions
are inescapably fact-specific, see id. at 70 (describing public-
figure conclusion as "factbound"); Penobscot Indian Nation v. Key
Bank, 112 F.3d 538, 561 (1st Cir. 1997) (acknowledging that "a
finding of public figure status necessitates a detailed fact-
sensitive determination").
In other words, a plaintiff's status, though calling for
a legal determination, is heavily dependent on the underlying
factual record. Consequently, there are cases in which "it may not
be possible to resolve the [public-figure] issue until trial."
Miller, 621 F.2d at 724; cf. Pendleton, 156 F.3d at 62, 68
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(upholding district court's ruling, made at the conclusion of the
evidence, that the plaintiff was a limited-purpose public figure).
It is common ground that appellate review of an order
granting summary judgment is confined to the record before the
district court at the time it made the challenged ruling. See
Voutour v. Vitale, 761 F.2d 812, 817 (1st Cir. 1985) (per curiam).
Such review is de novo and engenders consideration of the record as
then constituted "and all reasonable inferences therefrom in the
light most hospitable to the summary judgment loser." Houlton
Citizens' Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st Cir.
1999). When the facts, so marshalled, show "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," summary judgment is
generally thought to be appropriate. Fed. R. Civ. P. 56(c); see
DePoutot v. Raffaelly, 424 F.3d 112, 117 (1st Cir. 2005). The
presence of cross-motions for summary judgment neither dilutes nor
distorts this standard of review. See Alliance of Auto. Mfrs. v.
Gwadosky, 430 F.3d 30, 34 (1st Cir. 2005); Blackie v. Maine, 75
F.3d 716, 721 (1st Cir. 1996).
As noted above, summary judgment requires that the moving
party exhibit an entitlement to a judgment as a matter of law. See
Fed. R. Civ. P. 56(c). That requirement is not a hollow one.
Summary judgment "should be granted only where . . . [further]
inquiry into the facts is not desirable to clarify the application
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of the law." Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394
(4th Cir. 1950). In the case at bar, the factual record, at the
summary judgment stage, was too uncertain to warrant a legal
conclusion either way about Mandel's status. We explain briefly.
To begin, the factual record was disturbingly thin.
Mandel's summary judgment motion relied almost exclusively on facts
derived from three sources: his own affidavit, his deposition
testimony, and the deposition testimony of his supervisor, Kim
Detrick. These materials indicated that, as an assistant state's
attorney, Mandel received only a modest salary, had little
supervisory authority, neither created nor directed policy, and
made no decisions that significantly affected government
operations. He prosecuted only minor crimes in Maryland's lowest-
tier court and participated in only one jury trial (assisting the
lead attorney). As a matter of practice, he directed all press
inquiries to a supervisor.
The defendants also made some modest contributions to the
summary judgment record. They culled a few additional facts from
the Mandel and Detrick depositions and supplemented them with
excerpts from the deposition of another supervisor (Sue Schenning),
a letter from a vehicular accident victim whose case Mandel had
handled, and Mandel's employment file. This proffer painted a
different, though not altogether inconsistent, picture: as an
assistant state's attorney, Mandel handled crimes with penalties of
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imprisonment, fourth-degree sexual offenses, and violations of
protective orders. He conducted "pray jury" trials at the state
circuit court level, second-chaired a murder trial (in which he
gave the opening statement and conducted some direct examination),
nolle prossed a vehicular accident case, and represented to a court
that a witness could not testify even though she was present. He
interviewed victims of crimes, discussed cases with other
attorneys, and had access to the media. His employment file
indicated that he was "a prosecutor for [the] State of Maryland"
and "a sworn law enforcement [officer] or person whose principal
responsibilities are unique to the criminal justice system."
This factual record, on which the district court based
its status determination, contains several gaps, and what facts
there are give rise to conflicting inferences. Perhaps most
notably, neither side seems to have focused on the question of
whether Mandel's experience as an assistant state's attorney was a
reflection of the attributes inherent in the position or,
alternatively, whether he simply was given less responsibility
because of his particular proclivities. This is a crucial
distinction in the public-official calculus. See Kassel, 875 F.2d
at 930 (recognizing that "[t]he inherent attributes of the
position, not the occurrence of random events, must signify the
line of demarcation" between public-official and private-figure
status). Moreover, the record, as it stood, cried out for a
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special sort of judgment call: which job characterizations —
Mandel's, given in anticipation of litigation, or those contained
in his employment file — more accurately depicted the inherent
attributes of the position. That judgment call could not be made
under the constraints of Rule 56. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986) (explaining that "[c]redibility
determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts" are not functions to be
performed by a judge on summary judgment). At trial, however, the
district court, as the arbiter of Mandel's status, could have
resolved those uncertainties. Cf. Pendleton, 156 F.3d at 62, 68;
Miller, 621 F.2d at 724.
Finally, better evidence was readily obtainable. There
was a high likelihood that a full-dress trial (or, perhaps, even
more pointed discovery) would lead to materially improved
development of the record and, thus, clarify the application of the
law to the facts. Indeed, at the motion hearing Mandel's counsel
candidly admitted that the question was "so fact-specific" that the
status determination could only be made after the court and the
jury had "all the evidence."3
3
At that point, the district judge interrupted Mandel's lawyer
to inquire: "So, you're not asking me . . . to determine whether
[Mandel] is or is not a public official?" Counsel replied: "No, I
am — I have to do that." The court proceeded to make that
determination.
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The testimony actually adduced at trial confirms the
accuracy of this prediction. For instance, Mandel testified that
his reputation was important to him professionally because he was
"dealing with the public on a daily basis . . . prosecuting
criminal cases." Similarly, Schenning offered insights not
apparent from her deposition, especially her trial testimony that
assistant state's attorneys "are the face of [the] State's
Attorney," with "tremendous power, even at a very early point in
their career[,] . . . making decisions whether to [nolle prosse] a
case, dismiss a case, . . . go forward with a case, [and] what kind
of sentence to ask for." The fact that this testimony came to
light even though the status determination had been made prior to
trial is telling; with the issue on the table, it seems evident
that even greater clarification of an assistant state's attorney's
role would have emerged.
It is also significant in our situation that neither this
court nor the Massachusetts appellate courts have addressed the
question of whether an assistant state's attorney (or someone in a
comparable position) is a public official for First Amendment
purposes. What little case law there is suggests that such a
person might be a public official, see, e.g., Henry v. Collins, 380
U.S. 356, 356-57 (1965) (per curiam) (treating a "county attorney"
as a public official, albeit without discussion of the status
determination); Murray v. Bailey, 613 F. Supp. 1276, 1280 (N.D.
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Cal. 1985) (treating a San Francisco assistant district attorney as
a public official without discussion of the status determination),
but in any event, the inquiry is too fact-dependent to rely
exclusively on labels. Further factual development would have
allowed for a more precise, more nuanced application of the law.
We recognize that a showing of inadequate factual support
for a claim or defense sometimes may be enough to warrant summary
judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986);
In re Varrasso, 37 F.3d 760, 763 n.1 (1st Cir. 1994). That
doctrine is inapplicable here: the parties failed sufficiently to
develop the record, and the evidence that they managed to adduce
was inherently imprecise. Still, that evidence, though thin,
pointed in different directions; that is, it tended to support
conflicting inferences. Summary judgment cannot be predicated on
so vacillatory a record. See Varrasso, 37 F.3d at 764 (concluding
that when a court must choose between competing plausible
inferences, "[that] choice cannot be made under the banner of
summary judgment").
To be sure, the public-official question is ultimately a
question of law. We have no doubt that, with sufficient evidence
before it, a court — especially a court freed from the constraints
attendant to summary judgment — will be capable of making the
public-official/private-figure determination. See Pendleton, 156
F.3d at 67. This determination, however, is necessarily a
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factbound one, see id. at 70, and the district court in this case
made its ruling under the strictures of the summary judgment
standard. Given those impediments, we think that the district
court's resolution of the status question was premature.
We hold, therefore, that the district court should not
have essayed a definitive status determination on the exiguous
information available to it at summary judgment but, rather, should
have demanded more detailed factual development (even if that meant
deferring the status determination to the time of trial). Cf.
Askew v. Hargrave, 401 U.S. 476, 478-79 (1971) (per curiam)
(observing that pleadings and an affidavit provided an inadequate
basis for deciding an equal protection claim because they did "not
sufficiently present the facts").
We have pondered whether we should attempt to decide, on
the full record (that is, the record including the trial testimony)
whether Mandel is a public official or a private figure for First
Amendment purposes. On reflection, that is not a satisfactory
alternative. Because of the premature summary judgment ruling, the
parties had no incentive to offer further evidence at trial on the
status question. That some new insights made their way into the
trial transcript is more a harbinger of tales yet to be told than
a completion of the evidentiary presentation.
Nor is there any other basis on which we can deem the
error harmless. The premature summary judgment ruling determined
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a question of enormous importance and cast a wide shadow over the
entirety of the litigation. Thus, we have no real choice but to
vacate the jury verdict and order a new trial in which the facts
bearing upon Mandel's status can be fully and fairly aired.
B. Sufficiency of the Evidence.
In their Rule 50(b) motion, the defendants challenged the
sufficiency of the evidence to support jury findings that: (i) the
two statements were false; (ii) the defendants were negligent in
publishing them; and (iii) the false statements caused incremental
harm (i.e., harm apart from that caused by similar non-actionable
statements).
Ordinarily, we review the disposition of a motion for a
judgment as a matter of law de novo. See Gibson v. City of
Cranston, 37 F.3d 731, 735 (1st Cir. 1994). In so doing, "we
scrutiniz[e] the proof and the inferences reasonably to be drawn
therefrom in the light most hospitable to the nonmovant, refraining
entirely from differential factfinding," and "may not consider the
credibility of witnesses, resolve conflicts in testimony, or
evaluate the weight of the evidence." Cook v. R.I. Dep't of MHRH,
10 F.3d 17, 21 (1st Cir. 1993) (alteration in original) (citations
and internal quotation marks omitted). We "can overturn a jury's
verdict and grant judgment in favor of the verdict loser only if
the evidence, so viewed, is such that reasonable minds could not
help but reach an outcome at odds with the verdict." Id.
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This case, however, is out of the ordinary. Appellate
deference to the jury is muted when a case implicates First
Amendment principles. See Veilleux v. Nat'l Broad. Co., 206 F.3d
92, 106 (1st Cir. 2000). In such an instance, we must undertake
independent review of the evidence insofar as it bears on the
constitutional issues. See Bose Corp. v. Consumers Union of U.S.,
Inc., 466 U.S. 485, 508 (1984).
Independent review is not a limitless ransacking of the
record as a whole. See Veilleux, 206 F.3d at 107; see also Bose,
466 U.S. at 514 n.31 (recognizing that independent review is not
equivalent to de novo review of the judgment itself). It does not
extend "to all determinations concerning a particular legal claim,
but only to those that specifically involve the application of
First Amendment law to specific facts." Veilleux, 206 F.3d at 107.
Purely factual determinations (such as credibility calls) remain
subject to the usual degree of deference. See id.; see also
Eastwood v. Nat'l Enquirer, Inc., 123 F.3d 1249, 1252 (9th Cir.
1997) (recognizing that appellate courts undertaking independent
review defer "on questions of credibility, which the jury is
uniquely qualified to answer").
In this case, we must independently review whether Mandel
satisfied his constitutionally imposed burden of showing the
falsity of each of the disputed statements and establishing that
the defendants, at the very least, failed to exercise due care in
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publishing them. See Veilleux, 206 F.3d at 108 & n.7. But because
the question of whether Mandel proved that the statements
incrementally harmed him does not implicate the First Amendment,
that question remains subject to the conventional standard of
review applicable to orders granting or denying Rule 50(b) motions.
See Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 523 (1991)
(rejecting "any suggestion that the incremental harm doctrine is
compelled as a matter of First Amendment protection for speech");
cf. Fiori v. Truck Drivers, Local 170, 354 F.3d 84, 89 (1st Cir.
2004) (recognizing that "[w]hether a libel was the but-for cause of
subsequent economic loss does not directly implicate the First
Amendment, as long as it is clear that the finding was not a hidden
award of punitive damages").
We have undertaken a painstaking perusal of the evidence
and find that the verdict passes muster.4 A step-by-step excursion
through the record would serve no useful purpose; instead, we forgo
such a journey in favor of a synopsis of our conclusions. Cf.
DiMillo v. Sheepscot Pilots, Inc., 870 F.2d 746, 750 (1st Cir.
1989) (noting that "[t]here is no rule which requires an appellate
court to string together facts solely because [litigants] choose[]
to challenge factbound determinations").
4
For purposes of this conclusion, we assume, without deciding,
that the challenges to the admissibility of evidence raised by the
defendants in their appellate briefs would be resolved in their
favor.
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We begin with the question of falsity. The district
court charged the jury (and we assume, for purposes of this
analysis) that Mandel was a purely private figure. The
Constitution requires that, "at least where a newspaper publishes
speech of public concern, a private-figure plaintiff cannot recover
damages without also showing that the statements at issue are
false." Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 768-69
(1986). Mandel cleared this constitutional hurdle with ease,
presenting strong evidence that the two statements in question were
false (i.e., that he was not "a child molester" and that no "report
conducted for the Baltimore County DSS" in July of 2002 had
"determined that [he] had assaulted" his daughter by his first
marriage).
As to the first statement, Mandel's proof included
medical records, a Massachusetts DSS investigation that failed to
uncover any conclusive evidence of abuse as to J.P.M., a specific
finding by the Maryland family court judge that Mandel was not a
child molester, a Virginia DSS investigation concluding that
allegations concerning A.N.M. were unfounded, and Mandel's trial
testimony that he had never inappropriately touched any of his
children. As to the second statement, the proof included testimony
from a Baltimore County DSS official that the Baltimore County DSS
did not retain Dr. Eliana Gil (the author of the July 2002 report)
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to investigate on its behalf, as well as testimony that the report
contained no definitive conclusion that Mandel had molested A.N.M.
In the course of independent review, we are bound by the
jury's credibility determinations. See Eastwood, 123 F.3d at 1252.
Given that the jury must have accepted the main thrust of Mandel's
testimony on these points, we conclude that his testimony and the
other evidence, in cumulation, established falsity as to both
statements.
Private figures also must adduce "proof of negligent
publication of a defamatory falsehood." Stone, 330 N.E.2d at 168;
see Veilleux, 206 F.3d at 108 (recognizing a constitutional
requirement that "private individuals must prove fault amounting at
least to negligence on the part of a media defendant, at least as
to matters of public concern"). Put another way, a private-figure
plaintiff must show that a media defendant failed "to act
reasonably in checking on the truth or falsity . . . of the
communication before publishing it." Appleby v. Daily Hampshire
Gazette, 478 N.E.2d 721, 724 (Mass. 1985) (alteration in original)
(citations and internal quotation marks omitted). The question of
fault engenders independent review. See Veilleux, 206 F.3d at 108.
We need not tarry. It suffices to say that the reporter,
Lombardi, neither read pertinent documents available to her (even
though some of them were referenced by others) nor contacted
several individuals who might have provided opposing views. She
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also incorrectly characterized the July 2002 report,
misrepresenting its findings and the identity of the party for whom
it was prepared.5 Lombardi further admitted that she did not have
access to the full Baltimore County DSS file and guessed at its
contents. Considering these facts and the strong evidence of
falsity at the time the article went to press, an unconditional
branding of Mandel as "a child molester" may well have been
negligent. This is especially so given our obligation, on
independent review, to respect the jury's credibility
determinations. See id. at 107; Eastwood, 123 F.3d at 1252.
The defendants' last point — incremental harm — is a non-
starter. The district court charged the jury, at the defendants'
behest, about the need to show incremental harm. No party
challenges that instruction and it is not patently wrong;
therefore, we treat it as the law of the case. See Milone v.
Moceri Family, Inc., 847 F.2d 35, 38-39 (1st Cir. 1988).
We owe substantial deference to the jury's ensuing
finding. On this record, there is no sound reason to disavow that
deference. For example, the jury rationally may have found the
5
Dr. Gil, the report's author, met with A.N.M. on referral
from the Virginia DSS for a developmental assessment. Dr. Gil
shared some of her findings with the Baltimore County DSS in a
conversation that took place in April of 2002. Gil's July 2002
report, erroneously referred to in Lombardi's article as a
Baltimore County DSS report, was added to the Baltimore County DSS
file in August 2002. This was roughly three months after the
agency's finding had been issued.
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statements that unflinchingly branded Mandel as a child molester
especially harmful. Or, alternatively, the jury rationally may
have found other, non-actionable statements simply unharmful.
Either way, we are bound to conclude that Mandel presented adequate
evidence to support the finding of incremental harm.6
IV. CONCLUSION
To recapitulate, we hold that the district court did not
err in denying the defendants' motion for judgment as a matter of
law. We nonetheless vacate the judgment due to the court's
premature pretrial decision on the linchpin public-official issue.
Summary judgment is proper only when it is appropriately timed —
and, given the lack of factual development in the summary judgment
record, the timing here was inauspicious. There was no principled
way for the district court to hold, at that juncture, that either
side was entitled to judgment as a matter of law on the status
question.
That leaves the scope of the remand. We recognize that
we have wide discretion to remand for a new trial on all, or only
some, of the issues in the case. See Dopp v. HTP Corp., 947 F.2d
506, 518 (1st Cir. 1991). The touchstone is that a new trial
should not "be limited to fewer than all the issues unless it
6
Our conclusion that Mandel presented adequate evidence to
support a finding of incremental harm makes it unnecessary for us
to address the (apparently open) question of whether the
incremental harm doctrine is part and parcel of Massachusetts law.
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clearly appears that the issues to be retried are so distinct and
separable from the other issues that a trial of those issues alone
may be had without injustice." La Plante v. Am. Honda Motor Co.,
27 F.3d 731, 738 (1st Cir. 1994). In the final analysis, then, the
scope of a remand is normally a judgment call for the appellate
court. See Wilson v. Mar. Overseas Corp., 150 F.3d 1, 13 (1st Cir.
1998).
In this case, there are arguably three categories of
issues that are eligible for retrial: liability as to the
statements that the jury found actionable, liability as to the
statements that the jury found not to be actionable, and damages.7
We are confident that retrial is necessary as to the first and
third sets of issues. The status determination is intimately
intertwined with the question of liability as to the two actionable
statements, and the question of damages is dependent on the
liability conclusion.
The second category presents a closer call. Arguably,
the error that tainted this litigation never influenced the jury's
findings that two statements were not actionable. Yet this case is
complex, and it is difficult to determine how the specter of those
7
The district court's directed verdict on the issue of actual
malice does not operate to narrow the scope of our remand. Due to
the premature status determination, Mandel had no incentive to
adduce evidence of actual malice at trial; after all, the district
court set negligence as the standard for liability, and
Massachusetts does not permit punitive damages in defamation
actions. See Mass. Gen. Laws ch. 231, § 93.
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two statements may have affected other aspects of the trial. In
any event, retrial as to these statements will require the parties
and the district court to muster only marginally greater resources
than otherwise would be the case. We therefore decree that the
retrial encompass all the issues.
We need go no further. We caution, however, that a new
trial will generate a new record and a new set of credibility
determinations. For that reason, our assessment of the evidence
adduced at the first trial will not be binding on the lower court
or the jury when the case is retried.
Vacated and remanded.
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Mandel v. Boston Phoenix, Inc.
Court: Court of Appeals for the First Circuit
Date filed: 2006-08-03
Citations: 456 F.3d 198
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