The VLW Blog

Self-promotion, especially on a matter of public interest, makes it very tough to win a libel case. That’s the clear, if hardly new, message from the 4th Circuit in Hatfill v. The New York Times Co.

The suit was based on a series of five columns in 2002 by Times writer Nicholas Kristof taking the FBI to task for not thoroughly investigating Dr. Steven J. Hatfill as the source of letters containing anthrax that were mailed in September and October 2001. Five people died from exposure to the toxin.

U.S. District Judge Claude M. Hilton in Alexandria granted summary judgment for Kristof and The Times after ruling that Hatfill, an expert on biological weapons, was a limited-purpose public figure. As such, Hatfill had to show that Kristof wrote the columns with reckless disregard for the truth, and the evidence demonstrated that Kristof believed that Hatfill was the prime suspect and had some information to support that belief, Hilton held.

Writing for the 4th Circuit panel, Judge Paul V. Niemeyer agreed. One can become a limited-purpose public figure by attempting to influence the outcome of a public controversy, Neimeyer noted. Hatfill attempted to limit the controversy to “who committed the anthrax attacks in 2001,” while The Times contended that the controversy was much broader – the threat from bioterrorism and the nation’s lack of preparation for it.

Niemeyer agreed that the broader topic was the one at issue and emphasized that Hatfill had sought out reporters, researchers and government agencies to offer his opinion on it. Hatfill therefore fit so squarely in the category of limited-purpose public figure that the panel had no need to consider Hilton’s alternative findings that he also was public official and an involuntary public figure, Niemeyer said.

The 4th Circuit opinion came less than three weeks after the federal government agreed to pay Hatfill $5.82 million to settle his claim that the FBI and the Justice Department had invaded his privacy and ruined his career in the anthrax investigation.
By Alan Cooper

Richmond personal injury attorney Jay Tronfeld has settled his lawsuit alleging that a Nationwide adjuster defamed him by telling a client that Tronfeld “just takes people’s money.”

The case had been scheduled for trial yesterday in Petersburg Circuit Court, but David P. Baugh, Tronfeld’s attorney, said it was settled under confidential terms.

The adjuster also told the client that Tronfeld’s clients would get more money if they dealt with the adjuster directly rather than hiring Tronfeld. The trial judge ruled that those comments could not be defamatory because they were statements of opinion rather than fact.

The Supreme Court of Virginia disagreed in Tronfeld v. Nationwide. The test for differentiating a statement of fact from opinion is whether the comment can be proved true or false.

Tronfeld should have been allowed to attempt to prove that that he did not take money without providing services and that he obtained more money from clients than the adjuster offered, the court said.

By Alan Cooper

A former executive who said she was defamed by her job performance review has come up empty-handed, after winning one of the largest verdicts in 2005.

Cynthia Hyland had been with defense contractor Raytheon Corporation for 21 years and served as a senior vice president prior to being fired in 2003 after the business unit she led lost money. In 2005, a Fairfax County jury awarded Hyland $3.5 million in a suit alleging the company president made defamatory remarks in Hyland’s performance evaluation.

Fairfax Circuit Court Judge Arthur Vieregg reduced the $2 million punitive damage award to the statutory cap of $350,000, and the case went up on appeal.

In March 2007, the Supreme Court of Virginia reversed Hyland’s $1.85 million award, saying that only two of the five allegedly defamatory statements cited by Hyland could support the jury verdict. The justices sent the case back for another look at the factual accuracy of statements relating to Hyland’s role in the bidding process for two government contacts and her team’s being “off plan” on their financial targets.

Last month, Vieregg granted summary judgment for Raytheon and its president in Hyland v. Raytheon Technical Services, saying Hyland admitted that she oversaw or was the project manager for the two government contracts at issue and was responsible for identified financial losses.

Neither statement identified by the Supreme Court was defamatory, the circuit court said.

Andrew Marsinko, a Botetourt County poultry farmer, wasn’t happy when he learned that a photo taken of him at the 1996 Virginia State Fair showed up on a greeting card.

The card shows him wearing a cowboy hat and holding a goose on his knee. The speech balloon on the cover says, “Since it’s your birthday, you decide — Would you rather get spanked …” (Open the card) “Or goosed? Happy birthday!”

Marsinko is a figure of note in poultry circles and went to fairs and auctions where people would rib him about the photo.

His response: a $7.5 million lawsuit against the photographers, the greeting card company, just about everyone involved. He claims defamation, unauthorized use of image and infliction of emotional distress, among other things. The Roanoke Times reports that Marsinko says he never signed a release for the photo, the key to whether he can recover anything.