In addition to authoring the Book, defendants have appeared on various news programs. (PSDMF 105-118.) On March 24, 2000, defendants appeared on NBC's "Today Show," a television broadcast in a segment taped in February 2000 with Katie Couric. ( SMF 330 ; PSMF 330 . ) It is from this broadcast that plaintiff's slander claim arises., Defendants did not have any influence or control over the visuals displayed when they spoke, were not told that a photograph of plaintiff would be displayed during their appearance on the show, and were not told before taping what specific questions would be posed to them during the taping. (SMF 331; PSMF 331.) In other words, defendants had no editorial control over how the interview was edited or presented. ( SMF 332; PSMF 332.) During the interview, Mr. Ramsey stated that:
I can tell you when- when we first started looking at at one particular lead early on - my reaction was This is it. This is the killer. And our investigator said Whoa, whoa, whoa.' He'd say, 'Don't do a Boulder Police on me. Don't rush to conclusions' -
(Transcript of Interview attach. as Tab 38 to Defs.' Ex., Vol. 1; J. Ramsey Aff. 19.)
He claims that these statements were not in relation to plaintiff, but rather to Michael Helgoth, 18 although plaintiff's photograph was being superimposed on the telecast by NBC. ( SMF 335 ; 338. ) Plaintiff contends that the above
18 Mr. Helgoth was the suicide victim whose body was found near a stun gun and HI-TEC boots. See, supra at 29.
statement, however, was intended by defendants to relate to him. (PSMF 335, 338.)
For his part, plaintiff too has appeared before the media and profited from discussing and critiquing the murder investigation. (SMF 292; PSMF 292.) In 1997, plaintiff voluntarily gave an interview to Hard Copy, a syndicated television program, in which he claimed to be a suspect in the murder of JonBenet and for which he received $5,000 compensation. (SMF 293; PSMF 293.) In addition, plaintiff discussed his status as a suspect with the news tabloid, The National Enquirer, and received $250 for that interview. (SMF 294; PSMF 294.) In addition, plaintiff provided information to Lawrence Schiller for use in his 1998 book about the murder, entitled Perfect Murder, Perfect Town. In several passages, attributed to plaintiff, the latter discusses his arrest and interrogation by the Boulder Police Department. (SMF 295-296; PSMF 295-296.) 19
Plaintiff also attempted to capitalize on his association with the murder investigation through a book deal. On plaintiff's computer was a letter dated March 2, 1999, addressed to David
19 In addition, sometime during or before 1998, plaintiff wrote a letter to FOX television reporter Carol McKinley recounting his "interrogation as a suspect in the Jon Benet [sic] Ramsey murder investigation." (SMF 292; PSMF 292.) In the letter, he claimed that John Ramsey sexually abused JonBenet Ramsey, that the Ramseys' then-eleven year old son may have killed JonBenet, and that Mr. Ramsey was a "Merchant of Death," responsible for the murder of innocent women and children in third world countries. (SMF 292; PSMF 292.)
Granger of Esquire magazine, discussing his status as a suspect in the murder and his related media and print appearances. (SMF 298; PSMF 298.) The letter requests a "generous fee" in return for plaintiff authoring a book about JonBenet's murder. (SMF 298; PSMF 298.)
Plaintiff's counsel Darnay Hoffman also became interested in the case early in the murder investigation and has contributed to the continued media interest through the filing of various lawsuits. In March 1997, Mr. Hoffman sent a letter to the Boulder County District Attorney Alex Hunter suggesting that Charles Lindbergh had killed his child in a hoax kidnapping and that one of the defendants had killed JonBenet in a similar type hoax. (SMF 339; PSMF 339.) In May 1997, Mr. Hoffman sent Mr. Hunter a second letter in which Mr. Hoffman theorized that Mrs. Ramsey killed her daughter, through a blow to the head, in a fit of rage caused by unhappiness, depression and marital problems. ( SMF 340; PSMF , 340.) The Boulder authorities did not take Mr. Hoffman's unsubstantiated theories seriously and considered much of his submissions to be "off the wall." (SMF 341; PSMF 341.)
In the fall of 1997 Mr. Hoffman began to solicit the involvement of various handwriting experts, claiming that, although prior expert reports given to the Colorado Bureau of Investigation showed Mrs. Ramsey to be at the "very lowest end of the spectrum, i.e. there is little or no basis for a match," it
would be a "career move" for an expert to submit an affidavit for use by Mr. Hoffman. (SMF, 343; PSMF 343.) Indeed, forensic document examiners were eager to jump into the high-profile investigation. In July 1997, Ms. Wong, now plaintiff's expert, had originally contacted defendants' attorneys and offered to analyze the Ransom Note and point out weaknesses in analysis by "Government handwriting experts." (SMF 342; PSMF 342. ) Defendants declined such an offer. In September 1998, Ms. Wong wrote District Attorney Hunter, Assistant District Attorney Michael Kane, and Judge Roxanne Bailin, asking to testify before the Grand Jury. (SMF 347; PSMF 347.) By letter dated January 20, 1999, Mr. Hunter rejected the request, informing Ms. Wong that it was his opinion that she did not use scientifically reliable methods, her testimony would be inadmissible, and that she lacked' credibility. (SMF 348; PSMF 348.) In addition, Mr. Epstein. defendants' other handwriting expert, also wrote to Mr. Hunter, at sometime before the end of 2000, to offer his assistance in examining the Ransom Note. (SMF 349; PSMF 349.) Mr. Hunter did not take Mr. Epstein up on his offer, either. (SMF 349; PSMF 349.)
On November 14, 1997, Mr. Hoffman filed a Complaint in the District Court for Boulder County, Colorado, on his own behalf as a plaintiff, asking that Mr. Hunter be forced to explain why he had not filed murder charges against Mrs. Ramsey. (SMF 344;
PSMF 344.) Attached to the Complaint was the affidavit of Ms. Wong who, notwithstanding her earlier overture to the Ramseys, now claimed that Mrs. Ramsey had written the Ransom Note. (SMF 345; PSMF 345.) Mr. Hoffman's complaint was dismissed on January 20, 1998. (SMF 346; PSMF 346.)
In March 2000, Mr. Hoffman again filed suit, again on his own behalf as plaintiff, against defendants in the Supreme Court of New York, County of New York, for $25,000,000 in damages based on the allegation that he was defamed by certain passages in the defendants' Book. (SMF 353; PSMF 353.) On April 21, 2000, Mr. Hoffman dismissed this complaint. (SMF 354; PSMF 354.)
In addition, Mr. Hoffman has served as a long time source to news tabloids for information about the investigation. ( See, e.g. , John Latta, "JonBenet's Dad Was Framed by Mom, say, insiders," NATIONAL EXAMINER, June 24, 1997 (insider referred to is Mr. Hoffman); Art Dworkin, "JonBenet's Dad Lied Under Oath to Hide Death Fight," NATIONAL EXAMINER dated March 7, 2000 (quoting Mr. Hoffman's comments about Mr. Ramsey's deposition testimony); Art Dworkin, "Five Years Later JonBenet Parents Are Doing Little To Find Killer," NATIONAL EXAMINER, December 11, 2001 (quoting Mr. Hoffman as stating, among other things, that defendants "JUST DON'T CARE" about their daughter's murder investigation.) 20
20 In the course of representing his clients, Lin Wood, the attorney for defendants, has also served as a source for articles on the investigation and has appeared on NBC's
v. History of This Case
Plaintiff filed suit on May 11, 2000, alleging intentional infliction of emotional distress. He amended his Complaint on June 15, 2000 to add claims for libel and slander stemming from the Book and from comments by Mr. Ramsey on NBC's "Today" show, respectively. Mr. Wolf has stipulated that he is a limited public figure. (See Stipulation [8).) On February 9, 2001, the Court denied defendants' motion to dismiss. (See Order dated February 12, 2002 [15).)
After discovery ended, plaintiff withdrew his claim for intentional infliction of emotional distress. (See Stipulation of Dismissal .) The libel and slander claims still remain. On August 30, 2002, defendants filed the present motion for summary judgment .
There are also other motions currently pending before the Court. On August 28, 2002, defendants filed a motion in limine to exclude the testimony of Cina Wong and Gideon Epstein as plaintiff's experts . On the same day, defendants also moved for oral argument on defendants' motion for summary judgment as to the remaining claims .
"Today" Show on multiple occasions. Both attorneys have litigated their position in the court of public opinion at almost every opportunity presented.
I. Motion in Limine to Exclude Testimony
Defendants have filed a motion in limine to exclude the expert testimony of Cina Wong and Gideon Epstein  , two witnesses proffered by plaintiff as "forensic document examiners." For the reasons discussed below, the Court concludes that defendants' motion should be GRANTED as to Ms. Wong and GRANTED in part and DENIED in part as to Mr. Epstein.
A. Daubert Principle
Federal Rule of Evidence 702 is quite liberal in the scope of evidence it deems properly admissible. The Rule states in relevant part that:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed. R. Evid. 702. The trial court must, however, act as a gatekeeper and determine, at the outset, whether the purported expert is qualified to express a reliable opinion based on sufficient facts or data and the application of accepted methodologies. Kumho Tire Co., Ltd. v. Carmicnael, 526 U.S. 137,
152 (1999). See also Daubert v. Merrell Dow Pharm., 509 U.S. 579, 592-93 (1993) .:21
In performing this gate-keeping responsibility, the Supreme Court has articulated four factors the court may consider:
(1) Whether a theory or technique can be or has been tested;
(2) Whether it has been subjected to peer review and publication;
(3) Whether, in respect to a particular technique, there is a high known or potential rate of error and whether there are standards controlling the technique's operation; and
(4) Whether the theory or technique enj oys general acceptance within a relevant scientific community.
Kumho Tire, 526 U.S. at 149-50 (citing Daubert, 509 U.S. at 592 94) (internal quotations marks and alterations omitted). These various factors are not an exhaustive list of all possible ways to assess reliability, nor must all of the factors be applied in every case. Id. at 150. Depending on the facts of the case and the type of testimony being challenged, it may very well be
21 As the Supreme Court explained in Daubert and Kumho, Rule 702 requires the district judge to ensure that the expert's testimony is both relevant and reliable before it may be admitted, regardless of whether the testimony is scientific or based on technical or other specialized knowledge. See Kumho, 526 U.S. at 147; Daubert, 509 U.S. at 589. When the expert's testimony's "factual basis, data, principles, methods, or their application are called sufficiently into question, the trial judge must determine whether the testimony has 'a reliable basis in the knowledge and experience of the relevant discipline.'" Kumho, 526 U. S. at 149 (emphasis added(quoting Daubert, 509 U.S. at 592).
unreasonable to apply all of these factors. Id. at 151. Accordingly, the trial judge is given discretion in determining how and in what manner to make reliability determinations pursuant to Daubert.
"The burden of laying the proper foundation for the admission of expert testimony is on the party offering the expert, and admissibility must be shown by a preponderance of the evidence." Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999). Accord U.S. v. Gilliard, 133 F.3d 809, 815 (11th Cir. 1998) (stating that expert testimony is admissible only if its proponent demonstrates the underlying methodology is reliable and relevant) .
B. Background on Handwriting Analysis
Defendants argue that the opinions of plaintiffs' expert should not be admitted because the field of forensic document examination is not sufficiently reliable. In their Brief in Support of the Motion in Limine, defendants argue that the "science" of handwriting analysis does not meet the reliability standards of Rule 702: as the theoretical bases underlying this science have never been tested; error rates are neither known nor measured; and the field lacks both controlling standards and meaningful peer review. (Br. In Supp. Of Mot. In Limine  at 2. )
In examining defendants' contention, the Court notes that both parties agree that the field of forensic document examination
is premised on the assumption that no two persons' handwriting is exactly alike; instead, each person has a unique handwriting pattern that allows the person to be identified through a comparison of proper handwriting specimens. 22 (SMF 209; PSMF 209. ) Forensic document examination involves the subjective analysis and assessment of writing characteristics found in a persons's handwriting or handprinting style, by examination of subtle and minute qualities of movement such as pen lifts, shading, pressure and letter forms. (SMF 210; PSMF 210.) Handwriting identification is an inexact endeavor that "cannot boast absolute certainty in all cases." (SMF 212; PSMF 212.) Two or more handwriting experts can reach different conclusions of authorship, even when examining the same questioned document and handwriting exemplars. (SMF 213; PSMF 213.)
Forensic document examiners are generally trained through a "guild-type" apprenticeship process, in which supervised trainees study methods of document examination described by the field's leading texts. (Defs.' Mot. In Limine  at 3; Epstein Dep. at 40-41.) The only recognized organization for accrediting forensic document examiners is the American Board of Forensic Document Examiners ("ABFDE"). (Defs.' Mot. In Limine ; Epstein Dep. At
22 Defendants agree that this is the bedrock assumption of practitioners in this area; they disagree that this assumption has any validity, inasmuch as it has never "been seriously tested, much less proven." (Defs.' Mot. In Lim.  at 16 and n. 9).
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