Townshend v. Hazelroth, Civ. A. No. 93-72013.

• Decision Date: 03 February 1995
• Docket Number: Civ. A. No. 93-72013.
• Citation: 875 F. Supp. 1293
• Parties: David TOWNSHEND, Plaintiff, v. Mark HAZELROTH, Michael Arrowood, Robert H. White, Michael P. McCarthy, James Dowling, Robert Topp, and James S. Berglund, Jointly and Severally, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

875 F. Supp. 1293

David TOWNSHEND, Plaintiff, v. Mark HAZELROTH, Michael Arrowood, Robert H. White, Michael P. McCarthy, James Dowling, Robert Topp, and James S. Berglund, Jointly and Severally, Defendants.

Civ. A. No. 93-72013.

United States District Court, E.D. Michigan, Southern Division.

February 3, 1995.

COPYRIGHT MATERIAL OMITTED

Michael S. Cafferty, Feikens, Vander Male, Stevens, Bellamy & Gilchrist, P.C., Detroit, MI, for David Townshend.

Donald S. McGehee, Michigan Dept. of Atty. Gen., Tort Defense Div., Lansing, MI, for Mark Hazelroth.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

GADOLA, District Judge.

Plaintiff David Townshend filed this action against defendants Mark Hazelroth, Michael Arrowood, Robert H. White, Michael P. McCarthy, James Dowling, Robert Topp, and James S. Berglund for defamation of character, libel, civil conspiracy and violations of 42 U.S.C. § 1983. Before the court is defendants' motion for summary judgment.¹

I. Facts

Until 1989, David Townshend worked for the Michigan State Police as a forensic scientist, specializing in toolmark examination. In 1989, Townshend retired and started a sole proprietorship business through which he offered his forensic services to testify in various trials as a firearms or toolmark expert.

In 1991, Townshend was retained to review evidence in the criminal prosecution of Steven Kado, a trial covered by the newspapers extensively.² Steven Kado was accused of killing his wife using a splitting wedge as the murder weapon. Expert witnesses for the prosecution included pathologist Werner Spitz and Ljubisa Jovan Dragovic, two experts who concluded that the marks left on the deceased's body were consistent with those which could have been caused by a wedged tool. Townshend testified for the defense that the wedge could not have made the marks on the deceased's body. He received $10,700 for his services on this case. Pathologist Dr. Lawrence Simson also testified that the depression on the victim's skull was not consistent with a wedge. However, Simson did not completely rule out the wedge as a possible tool causing some of the other marks on the victim's skull. No experts were called to rebut the testimony of the defense expert witnesses. Kado was convicted of murder in the first degree.

Defendants Arrowood, Dowling, White, Topp, McCarthy and Berglund are all Michigan State Police firearm and toolmark examiners. They are also members of the Association of Firearm and Toolmark Examiners ("AFTE"). On June 10, 1991 defendant Arrowood filed a complaint against Townshend with the AFTE. Defendants White, McCarthy, Dowling, Topp and Berglund also signed the complaint. The AFTE has been in existence since 1969 and today comprises a membership across the globe of approximately 700 law enforcement personnel. Townshend was a member of the AFTE in 1991 and has remained a member of the AFTE. The AFTE has its own code of ethics. Members agree to follow this code of ethics and consent to the enforcement thereof as part of their membership in the organization. If members violate the standards of ethics in the industry, they are subject to discipline. In July 1991, Townshend heard through a colleague that a complaint had been filed against him with the AFTE. The officials at AFTE sent a copy of the complaint to Townshend on April 1, 1992.

Following are the pertinent parts of the June 10, 1991 letter to AFTE:

It is our contention that Mr. Townshend violated the Code of Ethics by providing testimony which demonstrated a flagrant disregard for accepted "rules of conduct" in that, the testing he conducted, in addition to being without scientific foundation, failed to support his conclusions(s).

The exclusionary conclusion which he reached went beyond the general standards of acceptability and exceeded the practices and procedures generally accepted by the toolmark profession.

Furthermore, his conduct was not an isolated incident or merely an exercise of bad judgment; but rather a disingenuous attempt (utilizing text exemplars, photographs and testimony) to present events in a manner that would lead someone to form inaccurate or improper conclusions.

Townshend argues that each of these allegations is false. He argues that there was nothing improper about the testing techniques which he used and cites to a portion of Berglund's affidavit where Berglund cannot explain the basis for this claim. Townshend also argues that there were no other incidents which defendants have alleged. Berglund and White admit that they did not know of other incidents. Lastly, Townshend argues that defendants cannot show that Townshend engaged in a "disingenuous attempt to present events in a manner that would lead someone to form inaccurate or improper conclusions."

The allegations in an AFTE complaint are intended to be confidential. However, defendants admit that they discussed the content of the complaint with other members of the toolmark profession. Berglund admitted that, even though he received a call from the president of AFTE reminding him of the confidentiality of the matter, he determined that the president's instructions were not binding on his actions.

In accordance with AFTE's provisions, a three-panel ethics committee first investigated and evaluated the complaint for presentation of its findings to the AFTE nine-member board for ultimate determination. The three-panel ethics committee found that Townshend had failed to meet certain provisions of the ethics code. The committee found fault with Townshend's evaluation of scientific methods and materials tested and his conclusions based on the tests performed on dissimilar materials. The committee found fault with Townshend's interpretations of the tests and his ability to evaluate all possible interpretations and present his opinions in an impartial manner. Townshend argues that defendants had failed to inform the committee that the photographs of Townshend's test marks, which defendants had submitted with their ethics complaint, had been altered. Townshend also argue that defendants failed to provide the AFTE ethics committee with Dr. Simson's testimony supporting Townshend's scientific conclusions. A hearing was held in May of 1993 in Raleigh, North Carolina before the Board of Directors of AFTE during which Townshend was provided with an opportunity to respond to the complaint and present evidence to support his contention that he did not violate the ethics code. After the hearing, the AFTE sent Townshend a letter informing him that the Board of Directors of the AFTE determined that the allegation against him was unfounded. The complaint filed against Townshend was one of the first taken through the whole process with the AFTE.

Defendant Hazelroth was not a signatory to the complaint filed with the AFTE because he was not a member of the AFTE. Hazelroth wrote a letter to the President of the AFTE accusing Townshend or perjury and being the "worst kind of industry whore." Exhibit 1 to plaintiffs response to defendants' motion for summary judgment. On May 16, 1992, defendant Hazelroth made a speech at the Michigan/Ontario Identification Conference at the Dearborn Hyatt Regency Hotel. Townshend alleges that during this speech Hazelroth accused Townshend of being a "paid whore" and perjurer. Defendant Hazelroth, the only defendant who is not a forensic scientist, was the detective from the state police assigned to the Kado criminal trial.

On May 13, 1993, Townshend filed this action in this court.³ On October 27, 1993, Townshend filed a first amended complaint which alleges four counts. Count I alleges a claim for defamation of character based upon statements made by defendant Hazelroth concerning Townshend on May 16, 1992 in front of police officers and firearm and toolmark examiners at a conference.⁴ Count II alleges a claim for libel based on defendant Hazelroth's letter submitted to the AFTE in 1991.⁵ Count III alleges a claim for civil conspiracy, to destroy Townshend's reputation and livelihood.⁶ Count IV alleges that defendants violated 42 U.S.C. § 1983 by violating Townshend's First, Fourth, Fifth, Eighth and Fourteenth Amendment rights.⁷

II. Standard of Review

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may be granted "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 judgment as a matter of law." "A fact is `material' and precludes grant of summary judgment if proof of that fact would have the effect of establishing or refuting one of the essential elements of the cause of action or defense asserted by the parties, and would necessarily affect the application of appropriate principles of law to the rights and obligations of the parties." Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.1984) (quoting Black's Law Dictionary 881 (6th ed. 1979)) (citation omitted). The Court must view the evidence in a light most favorable to the nonmovant as well as draw all reasonable inferences in the nonmovant's favor. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Bender v. Southland Corp., 749 F.2d 1205, 1210-11 (6th Cir.1984).

The movant bears the burden of demonstrating the absence of all genuine issues of material fact. See Gregg v. Allen-Bradley Co., 801 F.2d 859, 861 (6th Cir.1986). The initial burden on the movant is not as formidable as some decisions have indicated. The moving party need not produce evidence showing the absence of a genuine issue of material fact; rather, "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554,...