Friedgood v. Peters Pub. Co.

• Decision Date: 24 February 1988
• Docket Number: No. 4-86-2674,4-86-2674
• Citation: 13 Fla. L. Weekly 517,521 So.2d 236
• Parties: 13 Fla. L. Weekly 517, 15 Media L. Rep. 1010 Esther FRIEDGOOD, Appellant, v. PETERS PUBLISHING CO., et al., Appellees.
• Court: Florida District Court of Appeals

Page 236

521 So.2d 236

13 Fla. L. Weekly 517, 15 Media L. Rep. 1010

Esther FRIEDGOOD, Appellant, v. PETERS PUBLISHING CO., et al., Appellees.

No. 4-86-2674.

District Court of Appeal of Florida,

Fourth District.

Feb. 24, 1988.

Rehearing Denied March 28, 1988.

Arnold R. Ginsberg of Horton, Perse & Ginsberg, and Hoppe & Backmeyer, Miami, for appellant.

Thomas R. Julin and Donald M. Middlebrooks of Steel Hector & Davis, Miami, for appellee-Peters Pub. Co.

ANSTEAD, Judge.

This is an appeal from a final summary judgment entered in favor of the defendant publishing company in a defamation action brought by the appellant, Esther Friedgood. We affirm.

Esther Friedgood filed a defamation complaint against Peters Publishing Company, publisher of Us magazine, alleging as defamatory comments about her contained in a review of a book concerning her father, Dr. Charles Friedgood, who had been convicted of the murder of his wife, Esther's mother. Relying on this court's opinion in Della-Donna v. Gore Newspapers Company, 489 So.2d 72 (Fla. 4th DCA 1986), the trial court held that Esther was a "limited public figure" under the defamation law and was required to prove not only that the published comments about her were false and defamatory but were published out of motives of "actual malice" by the publisher. The trial court further held that the record showed no evidence from which a reasonable jury could find actual malice by clear and convincing evidence. On appeal Friedgood challenges the trial court's determination

of her status as a "limited public figure" and holding as to the lack of proof of actual malice.

FACTUAL BACKGROUND

The underlying facts of this case are undisputed ¹ and reflect a family tragedy culminating in a mother's death at the hands of the father by poisoning, the father's subsequent efforts to avoid detection, and his attempts to misuse his emotionally vulnerable children in those efforts. Dr. Charles Friedgood and his wife Sophie lived in Kensington, Long Island. They had had six children who, by June of 1975, were grown and not living at home. Dr. Friedgood had a lucrative medical practice but had run afoul of the tax laws and the abortion laws. He also had a mistress who had given birth to his two out-of-wedlock children. Esther and her husband had just graduated from law school and were planning to visit Esther's parents the same day Dr. Friedgood was later determined to have killed his wife by injection with Demerol.

Dr. Friedgood signed his wife's death certificate stating the cause of death was stroke. Mrs. Friedgood had had a stroke years earlier, but had almost entirely recovered from it. The assistant district attorney was suspicious of the fact a husband had signed the death certificate of his wife. The family was already in Hazelton, Pennsylvania, Mrs. Friedgood's hometown and prospective burial place, when the burial was stopped by court order and an autopsy performed because of the police suspicion. The autopsy revealed no evidence of stroke, and tissue and organ samples were taken before burial proceeded. When the family returned to Kensington they found a police detective waiting who asked the maid, Lydia, to go with him to the police station for questioning. Esther volunteered to go with her. At the station, the assistant district attorney questioned Esther about Dr. Friedgood's private life. She told him about her father's mistress and the two out-of-wedlock children and also disclosed her father's financial problems and tax evasion conviction.

After toxicologists determined that Mrs. Friedgood died of a massive overdose of Demerol, the district attorney obtained a search warrant for Demerol bottles and a hypodermic syringe at the Friedgood home. He and several detectives went to the home with the warrant. Esther answered the door and went to get her husband and Dr. Friedgood. The detectives then showed the warrant and began the search while the family members waited on the porch with friends who were making a condolence call. Dr. Friedgood, standing in the living room doorway, unsuccessfully attempted to speak to Esther in Yiddish. Finally he told her cryptically in English that bottles and syringe were in an upstairs file cabinet. Esther told her sister Beth that their father wanted Beth to get these items, but Beth refused. Esther then went upstairs by a back stairway and took the items from the top drawer of the file cabinet in her father's den, secreting them in her clothing. She went downstairs, then back up to her sister Toba's room and showed her the items. Esther later testified that it was then that Toba told her that the police were looking for Demerol. Esther put the items in a bag and later showed them to her husband, who noticed the word Demerol on the bottle.

After the police left, Esther's husband called Dr. Friedgood's attorney, John Palmer. Esther, Richard and Toba met with Palmer later in the day, but Palmer said he had a conflict of interest and could not advise them. When the trio returned to the house Esther washed all fingerprints from the items, put them back in the bag and put the bag in a coat pocket in a closet. On her father's inquiry she told him where they were. Some days later, when Esther checked the coat pocket, the items were gone. Three days after the police search of the Friedgood home, Dr. Friedgood called home from Kennedy Airport to say Two weeks later, Esther's sister Toba, after revealing to maternal relatives the information about Esther's concealment of the bottles and syringe, went to the police with the same information. The police then went to the house and told Esther they thought she was guilty of obstruction of justice by her actions. She called a lawyer with the firm for which her husband was clerking, and accompanied the police to the station at their request. Her husband's law firm asked Jonathan Rosner, a criminal attorney, to represent her and he went to the station house. According to Rosner, the assistant district attorney told him Esther had been arrested for being an accessory after the fact in her mother's killing. Rosner was concerned about the impact of the charges on her legal career as well as on her and her husband personally. Ultimately, Rosner reached an understanding with the assistant district attorney: If Esther voluntarily gave a truthful statement, there would be no arrest record, and she would be free to go. Esther gave the statement. The assistant district attorney stated for the record that the chief assistant district attorney had authorized him to say she would not be prosecuted; Rosner elaborated, for the record, on the understanding reached, to indicate there was to be no formal record of her being arrested by the officers.

                he was leaving his car there and was going away for a few days' rest.  His daughter Dvorah's husband called the assistant district attorney, and Dr. Friedgood was removed by police from a London-bound airplane, already out on the runway. 2  He was carrying a large bag.  Esther seized the bag after Friedgood was returned to the house by his attorney.  In it she found substantial and valuable personal property of her mother, which she dispersed to various hiding places.  Later she returned them to the bag and turned it over to her father-in-law, who had an attorney inventory the items
                

Subsequently Esther, her husband and her sisters testified before the grand jury. Dr. Friedgood was indicted and eventually tried. Esther testified against him, but only after resisting extradition from Florida on the ground she feared injury to the baby she was carrying. Dr. Friedgood's trial was highly publicized. Media articles told of Esther's hiding the hypodermic and Demerol bottle during the police search of the house, her discovery of her mother's property in her father's bag at the time of his aborted flight attempt, Toba's telling the assistant district attorney about Esther's concealment of the evidence, and other matters. Dr. Friedgood told a newspaper reporter his children had set him up for the conviction so they could inherit their mother's estate; that Esther was "misinformed" about the finding of the bottles and syringe, and that he was trying to secrete his wife's valuables on Esther's advice, in order to keep the IRS from getting them. Dr. Friedgood was convicted of second degree murder and second degree grand larceny and sentenced to 25 years to life in prison.

In 1980, Leonard Levitt, a news reporter who had covered the story extensively, published a book about Dr. Friedgood's career and the murder of his wife. Its thrust was to use the Friedgood case to suggest that members of the medical profession covered up for each other--even for a chronic mal-practitioner. Anita Shreve, a free lance writer, was asked by the editor of Us magazine to write a review of this book. Ms. Shreve read the book, interviewed the author, and submitted her review to the editor. Kaplan assigned a researcher, Vicki Jo Radovsky, to check the facts. Radovsky wrote the captions under the photographs obtained by Us to accompany the review and submitted the package to Kaplan for approval. The review together with pictures and captions appeared in the April 14, 1981, issue of Us. The pictures were obtained from the publisher of the newspaper, Newsday, in which Levitt's original news articles on the case had

appeared. The same photos appeared on the dust jacket of Levitt's book.

THE DEFAMATION ACTION

Esther alleged that comments about her in the Us article were false and defamatory. Specifically, she cites a photograph of her with a caption that stated: "The accomplice: Esther Friedgood hid evidence of the crime in an upstairs file cabinet at her father's request." Esther also claimed the following passage in the review was defamatory:

When the police arrived with a search warrant, Friedgood confided in his daughter Esther, and convinced her to hide the evidence, thus involving her in the murder. L...