Pozner v. Fetzer

• Decision Date: 18 March 2021
• Docket Number: 2020AP1570,Appeal Nos. 2020AP121
• Citation: 959 N.W.2d 89 (Table),2021 WI App 27,397 Wis.2d 243
• Parties: Leonard POZNER, Plaintiff-Respondent, v. James FETZER, Defendant-Appellant. In re the Finding of Contempt in Pozner v. Fetzer: Leonard Pozner, Plaintiff-Respondent, v. James Fetzer, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

397 Wis.2d 243

959 N.W.2d 89 (Table)

2021 WI App 27

Leonard POZNER, Plaintiff-Respondent, v. James FETZER, Defendant-Appellant.

In re the Finding of Contempt in Pozner v. Fetzer:

Leonard Pozner, Plaintiff-Respondent, v. James Fetzer, Defendant-Appellant.

Appeal Nos. 2020AP121

2020AP1570

Court of Appeals of Wisconsin.

March 18, 2021

FITZPATRICK, P.J.

¶1 Leonard Pozner brought this defamation lawsuit against James Fetzer because of statements published by Fetzer concerning a copy of a death certificate for Pozner's son, N., ¹ which Pozner posted on the internet. In the statements, Fetzer alleged that the death certificate released by Pozner is a "fake," "forgery," and a "fabrication." The Dane County Circuit Court granted partial summary judgment to Pozner and determined that Fetzer's statements are defamatory. The issue of Pozner's damages was tried to a jury, which returned a verdict awarding $450,000.

¶2 In appeal number 2020AP121, Fetzer appeals the partial summary judgment decision of the circuit court that his statements are defamatory and the circuit court's rulings on Fetzer's motions for a new trial. In a separate appeal, number 2020AP1570, Fetzer appeals the post-trial order of the circuit court granting Pozner's request for a monetary remedial contempt sanction against Fetzer based on Fetzer's second intentional violation of a protective order entered by the circuit court. ² For the following reasons, we affirm each of the circuit court's rulings.

BACKGROUND

¶3 The following material facts are taken from the summary judgment submissions and trial testimony, as discussed in more detail in the Discussion section of this opinion. There is no reasonable dispute regarding the following facts.

¶4 On December 14, 2012, a mass shooting occurred at Sandy Hook Elementary School in Newtown, Connecticut. ³ Tragically, twenty-six people were killed, including six staff members and twenty children who were aged six and seven. See, e.g. , Jones v. Heslin , No. 03-19-00811-CV, 2020 WL 1452025, at *1, *4 (Tex. Ct. App. Mar. 25, 2020) (stating "Neil Heslin's son ... was killed in the Sandy Hook Elementary School Shooting in December 2012" and rejecting the substantial truth doctrine as a basis to dismiss Heslin's defamation claim related to statements disputing Heslin's assertion that he held his deceased son in his arms); Soto v. Bushmaster Firearms Int'l, LLC , 202 A.3d 262, 272 (Conn. 2019) ("On December 14, 2012, twenty year old Adam Lanza forced his way into Sandy Hook Elementary School in Newtown and, during the course of 264 seconds, fatally shot twenty first grade children and six staff members, and wounded two other staff members."). Pozner's six-year-old son, N., was one of the children killed during the Sandy Hook shooting.

¶5 Fetzer, a Wisconsin resident, takes the position that the Sandy Hook shooting was an "elaborate hoax" which, according to Fetzer, was staged by government authorities with the "agenda to deprive U.S. citizens of their rights pursuant to the Second Amendment of the U.S. Constitution." Fetzer takes the position that no one was killed during the Sandy Hook shooting and that part of the "elaborate hoax" included the fabrication of a "fiction[al]" person "called [N.]" Before and during this litigation, Fetzer has asserted that Pozner is a "fraud," "liar," "hypocrite," and "con-artist," and he has accused Pozner of concealing his true identity. Fetzer has also accused Pozner of "engaging in a massive cover-up" with regard to the Sandy Hook shooting. Fetzer is an editor of the book NOBODY DIED AT SANDY HOOK : IT WAS A FEMA DRILL TO PROMOTE GUN CONTROL (2d ed. 2016), and is the co-author of chapter 11 of that book, which is titled "Are Sandy Hook skeptics delusional with ‘twisted minds’?"

¶6 In November 2018, Pozner brought this defamation action against Fetzer. ⁴ In his complaint, Pozner alleged that, following N.’s murder, "conspiracy theorists began to claim that [N.] was not killed in the tragedy, that [Pozner] was not N.’s father, and that [Pozner] was complicit in a grand conspiracy to fake the massacre." To debunk those claims and to prove that N. was killed during the Sandy Hook shooting, Pozner posted a copy of N.’s death certificate on the internet. ⁵ Pozner alleged that, in NOBODY DIED AT SANDY HOOK (2016), Fetzer made the following defamatory statements concerning Pozner and the copy of N.’s death certificate released by Pozner:

• "[N.]’s death certificate is a fake, which we have proven on a dozen or more grounds." NOBODY DIED AT SANDY HOOK 183 (2016).

• "As many Sandy Hook researchers are aware, the very document [(N.’s death certificate)] Pozner circulated in 2014, with its inconsistent tones, fonts, and clear digital manipulation, was clearly a forgery." Id. at 242.

• "[Pozner] sent [Kelly Watt] ⁶ a death certificate, which turned out to be a fabrication." Id. at 232.

Beyond that, Pozner alleged that Fetzer falsely stated the following in an August 5, 2018 post on a blog concerning the death certificate released by Pozner: "[N.’s death certificate] turned out to be a fabrication, with the bottom half of a real death certificate and the top half of a fake, with no file number and the wrong estimated time of death at 11 AM, when ‘officially’ the shooting took place between 9:35-9:40." Fetzer does not dispute that he published each of the alleged defamatory statements. ⁷

¶7 Pozner filed a motion for partial summary judgment requesting a determination from the circuit court that Fetzer defamed Pozner by publishing the alleged defamatory statements. Fetzer opposed Pozner's motion for summary judgment, and Fetzer filed a motion for summary judgment requesting a determination from the circuit court that the alleged defamatory statements are not false. Pozner and Fetzer each filed materials supporting their motions, and the circuit court heard lengthy arguments about the motions. The circuit court granted partial summary judgment in favor of Pozner, and denied Fetzer's motion for summary judgment, based on the circuit court's determination that there are no genuine issues of material fact, and Fetzer's statements are defamatory.

¶8 Prior to trial, the circuit court found Fetzer in contempt of court for intentionally disclosing Pozner's video deposition taken in this action to a person not allowed to have the deposition in violation of the protective order ⁸ previously entered by the circuit court. As part of the remedy for that contumacious act, Pozner was allowed to introduce evidence of Fetzer's contempt of court during the trial.

¶9 The issue of Pozner's damages caused by Fetzer's defamatory statements was tried to a jury. The jury was tasked with answering one special verdict question:

Question 1: What sum of money, if any, will fairly and reasonably compensate Mr. Pozner because of Mr. Fetzer's defamatory statements?

The jury's answer was $450,000.

¶10 Fetzer filed post-verdict motions requesting that the circuit court's order of partial summary judgment be vacated, and that he be granted a new trial. We will discuss those motions later in this opinion. The circuit court denied Fetzer's post-verdict motions. Based on Pozner's post-trial motion, the circuit court entered an order permanently enjoining Fetzer from repeating the alleged defamatory statements.

¶11 Also post-trial, Pozner filed a second motion requesting a finding of contempt of court because Fetzer violated the protective order a second time by again providing Pozner's deposition in this case to a person not allowed to have the deposition under the terms of that order. The circuit court found that Fetzer had for a second time intentionally violated the court's protective order and, for reasons stated by the circuit court that are discussed later in this opinion, the circuit court granted a remedial contempt monetary sanction of $650,000 against Fetzer.

¶12 Fetzer appeals. Additional material facts are set forth in our discussion.

DISCUSSION

¶13 Fetzer argues that the circuit court erred in: granting partial summary judgment in favor of Pozner and determining that Fetzer's statements are defamatory; denying Fetzer's motions for a new trial; and granting the remedial contempt monetary sanction based on Fetzer's second intentional violation of the protective order. We begin by addressing Fetzer's arguments concerning the circuit court's grant of partial summary judgment.

I. Partial Summary Judgment in Favor of Pozner.

¶14 Fetzer makes three separate arguments on appeal challenging the circuit court's grant of partial summary judgment in favor of Pozner on the defamation issue: (1) the circuit court committed "structural error" by preventing Fetzer from presenting a particular defense theory at the summary judgment stage; (2) there were material facts in dispute regarding the falsity of the defamatory statements; and (3) because Fetzer now alleges that he is a member of the "media," the circuit court was required to determine whether Fetzer was negligent in making the defamatory statements. Before we address each of those arguments, we next explain summary judgment procedure, our standard of review, and governing principles regarding defamation.

A. Summary Judgment Procedure, Standard of Review, and Governing Principles.

¶15 Summary judgment is proper, and the moving party is entitled to judgment as a matter of law, "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." WIS. STAT. § 802.08(2) ; see Bank of N.Y. Mellon v. Klomsten , 2018 WI App 25, ¶31, 381 Wis. 2d 218, 911 N.W.2d 364. This court views the summary judgment materials "in the light most favorable to the party opposing summary judgment." United Concrete & Constr., Inc. v. Red-D-Mix Concrete, Inc. , 2013 WI 72, ¶12, 349 Wis. 2d 587, 836 N.W.2d 807. We...