Right on the heels of our post yesterday on defamation comes a case publicly reported just today in which neighbors in a small building in Brooklyn, New York ended up in court after years of screaming, menacing and suing. For the winner, though, there was no financial award to go with the judge’s finding that she had indeed been slandered.

In Heredia v. Taylor, Judge Genine Edwards of the Brooklyn Civil Court ruled that the depression, sleepless nights and low self-esteem plaintiff claimed were caused by her former neighbor’s false statements to the police that she was a whore, a child abuser and a drug user did not entitle her to money damages.

The judge noted  that the plaintiff had simply failed in her burden of proof to show

  • that the slander caused her any actual, financial damages or
  • that plaintiff’s reputation was damaged in any manner or
  • that the defendant knew that the statements were false or that she recklessly disregarded the falsity of the statements

As I’ve said before, defamation cases are extremely difficult to win and then even with proof that there’s been slander or libel, the plaintiff has a heavy burden to show she has been financially damaged (as opposed to one’s feelings being hurt).

The law of defamation is complex and we thank our friends at Torts Prof Blog for tipping us off today to a new scholarly article by University of Tennessee College of Law Professor Joseph King that adds significantly to the body of defamation work. The article focuses on defamation claims based on parody and explains how the law distinguishes actionable from non-actionable statements. It’s available for a fee at the Utah Law Review.

Here are the lessons from all of this, especially for those who think they’ve been defamed:

  1. tread carefully,
  2. think it all through,
  3. consider how and if your reputation may suffer even more if you sue, and
  4. consider how difficult it is to win any kind of real money damages in defamation lawsuits.                                                                                                                                                                Except in the most extreme defamation cases, it’s likely not worth it to sue the bum.

 

 

On December 18, 2008, University of Mississippi’s basketball coach, Andy Kennedy, was arrested in Ohio for assault following an altercation with Mohammed Jiddou, a Cincinnati cab driver. The criminal trial is set for April 20, 2009.

But that’s not what’s prompting this post. What’s blogworthy here is the lawsuit the coach filed the day after his arrest: he sued the cabbie for defamation claiming that the cabbie’s statements to the media (repeating the allegations he made to the police that formed their basis for the arrest) were false and malicious and caused a barrage of media coverage causing the coach "significant distress" entitling him to money damages.

Bear with us, here comes the point: three days later, the coach brought his wife Kimber into it and they filed an amended complaint adding a claim for loss of consortium. The amended complaint states that as a direct result of the false and malicious statements made about Coach Kennedy, Kimber Kennedy has suffered a loss of consortium with her husband.

And the media reaction has been: you’ve got to be kidding coach. And I must say I agree.

This loss of consortium claim is ridiculous, frivolous and worthless. Here’s why:

  • filing a defamation suit one day after his arrest leads many to conclude that the filing was not genuine but instead a strategic ploy, a quick fire reaction
  • it’s unlikely any significant money could ever be recovered from the cabbie, even if the coach were to win his defamation lawsuit
  • filing the loss of consortium claim three days later as an amendment also smacks of a strategic ploy, a measure designed to focus away from the assault and on to the poor coach and his wife and their alleged damages

I don’t buy it and don’t think anyone but the coach, his wife and their attorneys believe there’s any merit to the consortium claim. Nor do some local observers, such as Legal Schnauzer, who refer to Mrs. Kennedy as "hot" and "scorching" suggesting that there’s no way this overachieving in the wife department fellow could have a claim for loss of consortium!

One Ohio attorney reports here that the loss of consortium claim is a speculative one, related to the decreased or limited sexual activity between the injured party and the spouse and the decreased or limited care, companionship and affection between them. It’s therefore to be expected that the loss of consortium claim may make the parties’ sexual activity fair game for questioning and exposure.

Well fair game it is and local media have jumped all over this story, for example here, here and here. And it’s caught the attention of scholars nationwide too, such as Walter Olson at Overlawyered.

Counsel for the coach, Richard L. Katz (who is the founder of KMG Sports Management, an agency for professional athletes and college coaches), howls that the focus on the sexual element of Mrs. Kennedy’s claim is irresponsible and that his client would not file a claim for that, nor would his wife. But counselor: that appears to be just what  you did file on behalf of your clients.

In all due respect, counselor, if you didn’t want any focus on your clients’ sex life then you shouldn’t have filed the loss of consortium claim to begin with. As I’ve said before, this claim is rarely significant without accompanying devastating physical injuries. And that you simply don’t have in this case.

We will follow this case and report on its conclusion – which could all come as soon as next month.