292 F.3d 282 (1st Cir. 2002), 01-1648, Riley v. Harr

Docket Nº:01-1648.
Citation:292 F.3d 282
Party Name:John J. RILEY, Jr. and Diana W. Riley, Plaintiff
Case Date:June 11, 2002
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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292 F.3d 282 (1st Cir. 2002)

John J. RILEY, Jr. and Diana W. Riley, Plaintiff’s , Appellants,


Jonathan HARR; Random House, Inc., New York; Vintage Books; Random House Audio Publishing, Inc., Defendants, Appellees.

No. 01-1648.

United States Court of Appeals, First Circuit

June 11, 2002

Heard Dec. 7, 2001.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Peter A. Riley for appellants.

Steven M. Gordon, with whom Lucy J. Karl, Shaheen & Gordon, P.A., and Linda Steinman were on brief, for appellees.

Before BOUDIN, Chief Judge, ROSENN,[*] Senior Circuit Judge, and LIPEZ, Circuit Judge.

LIPEZ, Circuit Judge.

Objecting to his portrayal in Jonathan Harr's best-selling book A Civil Action, an account of toxic tort litigation over contaminated well water in Woburn, Massachusetts, that allegedly caused the death of several children, John J. Riley, Jr., sued Harr and his publisher for defamation and related torts. He was joined in that lawsuit by his wife, Diane W. Riley. The district court granted summary judgment for the defendants on most of the Rileys' claims on First Amendment grounds. The Rileys appeal the district court's disposition of their claims. We affirm.

I. Background

We begin with a brief overview of the events described in A Civil Action (the Book) that pertain to this case; the specific statements to which Riley objects are discussed in turn infra, and are also set forth in an appendix to this opinion.1 The Book, first published in 1995, was on the New York Times Bestseller List for over two years and has been made into a motion picture. The Book received much critical acclaim and has been required reading in law school courses. It purports to be a nonfictional account of a toxic tort lawsuit (the "Anderson litigation") brought by some residents of Woburn, Massachusetts, alleging that defendants Beatrice Foods Company (Beatrice), W.R. Grace & Company (Grace), and others were responsible for the contamination of two municipal water wells (Wells G and H) in the Aberjona River Valley with toxic solvents, including trichloroethylene (TCE).2 The Anderson plaintiff’s claimed that contaminated well water had caused them and their children to contract various ailments, including several fatal cases of leukemia, and that some of the TCE found in Wells G and H had come from a tannery operated by Riley (the "tannery"). Beatrice had assumed the tannery's environmental liabilities when it purchased the tannery in 1978.3 The plaintiff’s ' theory was that Riley

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or his subordinates had dumped TCE on a fifteen acre parcel of undeveloped land between the tannery and the contaminated wells (the "fifteen acres"), and that the TCE had migrated into Wells G and H.

The Book tells the story of the Anderson litigation primarily from the perspective of the plaintiff’s ' attorney, Jan Schlichtmann, recounting his struggle to prove that Riley's tannery and defendant Grace were responsible for the contamination of Wells G and H.4 The Book describes evidence which, in Schlichtmann's view, tended to show that the tannery had dumped waste laced with TCE on the fifteen acres, and repeatedly suggests that Riley's denials that such dumping had occurred were false. Although Schlichtmann is the Book's protagonist, and granted Harr extensive access to his law firm during the litigation, Harr's account of his efforts is by no means uncritical. As Schlichtmann builds his case, Harr points out both its strengths and its weaknesses. Harr also conducted extensive interviews with attorneys for the Anderson defendants, and the Book recounts the grounds for their rejection of Schlichtmann's theories. The Book also notes Schlichtmann's failure to find direct proof of dumping by the tannery, Riley's steadfast denials of Sehliehtmann's allegations, the conflicting views of experts on each side of the case, and the 1986 jury verdict in federal district court which rejected the plaintiff’s ' claims against the tannery:5

After the trial was over, Schlichtmann discovered a report which Yankee Environmental Engineering and Research Services, Inc. (Yankee) had completed for Riley in 1983. The report stated that tannery waste had been dumped on a hillside leading to the fifteen acres, and that groundwater under the tannery flowed toward Wells G and H. Schlichtmann moved to set aside the verdict on the basis of this newly discovered evidence, which he argued should have been produced during discovery, and tracked down new witnesses who described the removal from the fifteen acres of what Schlichtmann believed to have been tannery waste. The district court conducted a hearing and found that Riley had engaged in "concealment" of the Yankee report that was "deliberate," a determination which the Book reports as follows: "The judge found that Riley had committed perjury and that [his attorney] was guilty of 'deliberate misconduct' in failing to give Schlichtmann the Yankee report." The court concluded, however, that a new trial was not warranted because "there was no available competent evidence tending to establish the disposal of complaint chemicals by the defendant . . . either at the tannery site or on the 15 acres." Anderson v. Beatrice Foods Co., 129 F.R.D. 394, 400 (D.Mass. 1989).6

Riley took exception to a number of statements about him in the Book. In 1998 he commenced this action against Harr and his publishers, Random House, Inc. and Vintage Books (a division of Random House), in New Hampshire Superior Court. Defendants removed the case to federal district court on the basis of diversity of citizenship.7 Riley's amended complaint

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challenged twelve statements in the Book in seven counts: (I) intentional infliction of emotional distress; (II) slander (against Harr only); (III) defamation; (IV) invasion of privacy—public disclosure of private facts; (V) invasion of privacy— placing the plaintiff in a false light; (VI) loss of consortium; and (VII) a demand for enhanced compensatory damages. Reduced to its essence, Riley's action seeks to hold Harr liable for wrongly describing him as a liar (see Statements C, D, E, F, H, I, J, and K infra), a perjurer (see Statement A infra), a "kille[r]" (see Statement G infra), a depressive (see Statement L infra) (or, in the alternative, for disclosing the private fact of his depression), and a bully (see Statement B infra).

The defendants moved to dismiss Riley's complaint, or in the alternative for summary judgment. The district court treated their motion as one for summary judgment, and in a lengthy, thoughtful order dated March 31, 2000, granted the motion with respect to most of Riley's claims. The order denied Harr's motion for summary judgment as to two of the twelve statements, and denied his motion to dismiss Riley's slander claim.8 Following limited discovery, the parties stipulated on March 26, 2001, to the dismissal of those claims that had survived the district court's order of March 31, 2000. On April 25, 2001, Riley filed a notice of appeal of the district court's order.

II. Defamation

We first set out the general principles which guide our inquiry, and then turn to the challenged statements.

A. General Principles

"[T]he First Amendment to the United States Constitution placets] limits on the application of the state law of defamation." 9 Milkovich v. Lorain Journal Co., 497 U.S. 1, 14, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990). In the wake of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the Supreme Court has developed an elaborate body of law that defines those limits. In the case of a public-figure plaintiff the First Amendment requires clear and convincing proof of actual malice on the part of the defendant.10 Gertz v. Robert Welch, Inc., 418 U.S. 323, 342-43, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). A private-figure

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plaintiff such as Riley need not demonstrate actual malice, but "must bear the burden of showing that the speech at issue is false before recovering damages for defamation from a media defendant." 11] Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986).

The Supreme Court has also recognized "constitutional limits on the type of speech which may be the subject of state defamation actions." Milkovich, 497 U.S. at 16, 110 S.Ct. 2695 (emphasis in original). In Milkovich, a case involving a media defendant, the Court held that "a statement on matters of public concern must be provable as false before there can be liability under state defamation law." 497 U.S. at 19, 110 S.Ct. 2695. Milkovich also rejected the proposition that the First Amendment creates a blanket exception to state defamation law for "statements which are categorized as 'opinion' as opposed to 'fact.'"12 Id. at 17, 110 S.Ct. 2695. The Court pointed out that "expressions of 'opinion' may often imply an assertion of objective fact," id. at 18, 110 S.Ct. 2695, and "[it] would be destructive of the law of libel if a writer could escape liability for accusations of [defamatory conduct] simply by using, explicitly or implicitly, the words, 'I think.' " Id. at 19, 110 S.Ct. 2695 (citation and internal quotation marks omitted). As we observed in a subsequent decision, "[a] statement couched as an opinion that presents or implies the existence of facts which are capable of being proven true or false can be actionable." Levinsky's, Inc. v. Wal-Mart Stares, Inc., 127 F.3d 122, 127 (1st Cir. 1997).

However, and of central importance in this case, even a provably false statement is not actionable if " 'it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in...

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