Ruzicka v. Conde Nast Publications, Inc.

• Decision Date: 27 March 1990
• Docket Number: No. Civ. 4-88-904.,Civ. 4-88-904.
• Parties: Jill RUZICKA, Plaintiff, v. The CONDE NAST PUBLICATIONS, INC. and Claudia Dreifus, Defendants.
• Court: U.S. District Court — District of Minnesota

733 F. Supp. 1289

Jill RUZICKA, Plaintiff, v. The CONDE NAST PUBLICATIONS, INC. and Claudia Dreifus, Defendants.

No. Civ. 4-88-904.

United States District Court, D. Minnesota, Fourth Division.

March 27, 1990.

Elliot Rothenberg, Minneapolis, Minn., for plaintiff.

Thomas Tinkham and Leslie J. Anderson, Dorsey & Whitney, Minneapolis, Minn., for defendants.

MEMORANDUM AND ORDER

MacLAUGHLIN, District Judge.

This case is before the Court on defendants' motion for summary judgment. The motion will be granted.

FACTS

This lawsuit concerns an article about sexual abuse by therapists published in the September 1988 issue of Glamour magazine. Plaintiff Jill Ruzicka was interviewed for the article. Her experience of sexual abuse was discussed in the article. Ruzicka is a Minnesota resident. Complaint ¶ 1. Defendant The Conde Nast Publications, Inc. is the publisher of Glamour. Conde Nast is incorporated and has its principal place of business in New York. Defendants' Answer ¶ 1. Defendant Claudia Dreifus is the author of the article and a resident of New York. Id.

In 1981, plaintiff and her daughter sued their psychiatrist, Dr. Jerome Bach, charging him with improper sexual conduct during therapy sessions from May 1979 to January 1980. Plaintiff also sued the Minnesota Board of Medical Examiners (Board) for its alleged failure to properly supervise Bach while he was on probation for having had sexual contact with his patients. In 1982, plaintiff received an out-of-court settlement on her claims and the Board suspended the psychiatrist's license.

Plaintiff's malpractice suit against Bach and the Board's action on the psychiatrist's license were covered in the press. In August 1981, an article in the Minneapolis Tribune described the suit. The article contained the names and ages of plaintiff and her daughter, stated where plaintiff worked, and quoted plaintiff's allegations that she was "repeatedly fondled, kissed and embraced" by the psychiatrist. Appendix to Defendant's Memorandum, Exh. 1 (hereinafter App. 1). A smaller article which reported her name was also carried in the Minneapolis Star. App. 3. In July 1982, the Minneapolis Tribune and the St. Paul Pioneer Press carried reports on the psychiatrist's suspension. The July 1982 article in the Minneapolis Tribune named the plaintiff and described her allegations against the psychiatrist. App. 3. The article in the St. Paul Pioneer Press briefly described plaintiff's suit but did not give her name. App. 4.

Plaintiff was later appointed to the Minnesota Task Force on Sexual Exploitation by Counselors and Therapists when it was formed in 1984. Plaintiff's membership on the task force was reported in the Minneapolis Tribune. App. 5.

In November 1984, plaintiff testified in a public hearing before the Health and Human Services Committee of the Minnesota State Senate investigating the Board's handling of patient complaints of sexual abuse. App. 7 (tape recording of testimony). Her testimony before the committee was reported in an article in the St. Paul Pioneer Press. App. 6. Plaintiff again spoke publicly about her experiences in June 1986 when she appeared before a national conference held in Minneapolis on the subject of sexual exploitation by therapists. Plaintiff's statements before the conference were reported in two separate articles in the Minneapolis Tribune. App. 8, 9. Plaintiff's name was not mentioned in these articles.

In March 1987, Dreifus contracted with Conde Nast to write an article on the subject of patient-therapist sex for publication in Glamour. App. 17. While researching the article, Dreifus learned that Minneapolis had a unique center that specialized in counseling victims of sexual abuse by therapists: The Walk-In Counseling Center. Dreifus contacted two of the center's staff members who scheduled a series of interviews for Dreifus, including an interview with plaintiff. Deposition of Claudia Dreifus at 14-16 (App. 10).

Plaintiff claims that, upon being introduced to Dreifus, she told Dreifus that she was willing to be interviewed "only if I not be identified or identifiable." Deposition of Jill Ruzicka at 36 (App. 11). Plaintiff claims to have mentioned that she had just started a new job and was therefore particularly concerned about confidentiality. Id. Plaintiff states that Dreifus agreed to her condition. Id.

According to Dreifus, plaintiff "wanted some kind of masking," but "was very casual about it." Dreifus Dep. at 24 (App. 10). Dreifus understood plaintiff's principle concern to be that her new colleagues not identify her from the article. Id.

With a single exception, plaintiff did not specify what information would threaten her anonymity. At one point during the interview, plaintiff described some problems she had at one of her previous jobs. Ruzicka Dep. at 37-38 (App. 11). She then said that she did not want that information in the article "because it would identify me." Id.¹

Plaintiff provided Dreifus with extensive and detailed information about her experience of therapist abuse. Dreifus later decided to use plaintiff's experience as one of two case histories described in the published article. In August 1987, Dreifus called plaintiff and read her a draft of the article. Ruzicka Dep. at 37, 42 (App. 11). Dreifus, however, told plaintiff that she would be rewriting the article at the request of her editors. Id. Plaintiff claims that at that point Dreifus asked to use plaintiff's name. Plaintiff answered by saying no and reminding Dreifus that she did not want to be identified or identifiable. Ruzicka Dep. at 37 (App. 11).

There is no evidence that the Glamour employees who edited Dreifus' article had any knowledge of plaintiff's request for anonymity, beyond knowing that Dreifus had changed the names of the persons whose experiences were described and that the article concerned a sensitive subject. Dreifus Dep. at 25, 62 (App. 10); Deposition of Rona B. Cherry at 29-30 (App. 12); Deposition of Linda Barbara Peterson at 9 (App. 13); Deposition of Kaye Neil Noble at 7 (App. 14). Glamour's editors trusted that Dreifus would take care of any confidentiality concerns that existed. Cherry Dep. at 101 (App. 12).

Dreifus' editors reviewed Dreifus' first draft and returned it to her with comments. The second draft was accepted, edited, sent through fact-checking and published in the September 1988 issue of the magazine.

In the article, plaintiff is given the name "Jill Lundquist"—a pseudonym that uses her real first name. App. 15. The article describes the plaintiff's experience of abuse, and states that plaintiff filed a complaint with the State Board of Medical Examiners and subsequently sued the psychiatrist. It further states that plaintiff attended law school after the suit settled, that she is now a Minneapolis attorney and that she served on a state task force which helped draft a statute, enacted in 1985, criminalizing therapist-patient sex. Plaintiff is portrayed as someone who successfully recovered from an exploitative situation.

Plaintiff does not know anyone who identified her from the article, except for two former therapists of hers. Affidavit of Jill Ruzicka ¶ 11 and Supplemental Response to Interrogatory 6 (Exh. C to Plaintiff's Memorandum of Law). Both of the former therapists had extensive prior knowledge of plaintiff's history of abuse and other background data. Plaintiff's Answers to Interrogatories—Set I (Exh. C to Defendant's Reply Brief).

On October 21, 1988, plaintiff filed her complaint alleging (1) breach of contract; (2) fraudulent misrepresentation; (3) invasion of privacy by publication of private facts; (4) false light invasion of privacy; (5) intentional infliction of emotional distress; and (6) unjust enrichment. Plaintiff also seeks punitive damages.

DISCUSSION

Defendants move for summary judgment against all of plaintiff's claims. The arguments on five of the six claims are simple and straightforward, but the questions raised by plaintiff's breach of contract claim are both interesting and difficult. Those questions will be addressed first.

I. Breach of Contract

A. Background

Beginning in 1964 with New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the law of defamation has been rewritten in order to protect the constitutional rights of free speech and a free press. In order to balance the individual's interest in protecting his or her reputation and "the principle that debate on public issues should be uninhibited, robust, and wide-open," 376 U.S. at 270, 84 S.Ct. at 720, the Supreme Court has "constitutionalized" the law of defamation.

Some tension necessarily exists between the need for a vigorous and uninhibited press and the legitimate interest in redressing wrongful injury.... In our continuing effort to define the proper accommodation between these competing concerns, we have been especially anxious to assure to the freedoms of speech and press that "breathing space" essential to their fruitful exercise. To that end this Court has extended a measure of strategic protection to defamatory falsehood.

Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974) (citations omitted).

The common law of defamation has been altered by the elimination of strict liability, a shift in the burden of proving the truth or falsity of the allegedly defamatory statement, the requirement that actual malice be proven with convincing clarity whenever the plaintiff is a public official or a public figure, the replacement of the privilege of fair comment with an absolute constitutional privilege for statements of opinion, and restrictions on the recovery of presumed and punitive damages. Moreover, because these constitutional protections are inextricably linked with questions of fact, the courts are empowered to "make an independent examination of the whole record" to ensure that "the judgment does not constitute a forbidden...