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September 9, 1993


The opinion of the court was delivered by: EUGENE F. LYNCH

 I. Introduction

 The facts regarding defendant Janet Malcolm's extensive interviews of plaintiff Jeffrey Masson as a subject of a lengthy profile, defendant New Yorker's publication of the profile in a two-part series, and plaintiff's contention that the article defamed him by falsely quoting him have been fully set forth by this Court and the other courts which have considered this action. See Masson v. New Yorker Magazine, Inc., 686 F. Supp. 1396 (N.D. Cal. 1987); Masson v. New Yorker Magazine, Inc., 895 F.2d 1535 (9th Cir. 1989); Masson v. New Yorker Magazine, Inc., 498 U.S. 808, 111 S. Ct. 2419, 115 L. Ed. 2d 447 (1991), Masson v. New Yorker Magazine, Inc., 960 F.2d 896 (9th Cir. 1992). These facts will be repeated here only as necessary.

 Trial was set in this matter on five quotations *fn1" which plaintiff alleged wore false and defamatory to him. After a three-week jury trial and three days of jury deliberation, the jury answered eight of nine special verdict questions. The jury found that all five quotations were false, Special Verdict Questions 1, and all five were defamatory, Special Verdict Questions 2. In considering the case against Janet Malcolm, the jury found that she was aware that the "sex, women, fun" and "wrong man" quotations defamed plaintiff, Special Verdict Question 3, and that Malcolm acted with knowledge of falsity or reckless disregard as to the falsity of those two quotations. Special Verdict Question 4. The jury also found that those two quotations damaged plaintiff, Special Verdict Question 8. However, the jury was unable to reach a unanimous decision on the amount of damages. Special Verdict Question 9. As to the New Yorker, the jury found that Malcolm was an independent contractor rather than an employee, so that her acts were not imputed to the New Yorker. Special Verdict Question 5. The jury also found that the New Yorker was aware of the defamatory meaning of the "sex, women, fun" quotation, Special Verdict Question 6. However, it found that the New Yorker did not act with knowledge that quotation was false or with reckless disregard as to the falsity of that quotation. Special Verdict Question 7.

 The Court is now faced with a number of post-trial motions. These motions include the New Yorker's Motion To Enforce Jury Findings And For Entry Of Judgment; Masson's Motion For Partial New Trial Or, In The Alternative, For New Trial; Malcolm's Motion For Re-Trial On All Issues As To Her; Malcolm's Motion For New Trial On The Grounds That The Verdict Is Against The Weight Of The Evidence; Malcolm's Motion For New Trial On The Grounds Of Erroneously Excluded Evidence; Malcolm's Motion For New Trial On The Grounds of Inconsistent Verdicts; Malcolm's Motion For New Trial On The Grounds Of Erroneous Jury Instructions; Malcolm's Motion In The Alternative Regarding The "Wrong Man" Quote; and Masson's Motion To Strike Juror Declarations. A hearing on these motions was held on August 3, 1993, with all parties represented by counsel. The Court requested additional briefing from the New Yorker and from plaintiff, and those briefs have been filed with the Court.

 Although the Court is presented with nine separate motions, several issues are overlapping, and dispositive, and there is no need to address each of these motions or all of the issues presented by them.

 In resolving the issues before it, the Court will first conduct an independent review of the evidence against the New Yorker to the extent that such a review is necessary. The Court will next consider whether it erred in instructing the jury that Masson had to prove that both defendants wore aware of the defamatory moaning of the five quotations at issue here by a preponderance of the evidence. Third, the Court will determine the merits of plaintiff's arguments regarding defendant Malcolm's employment status. Fourth, the Court must decide whether to enforce any of the jury's actions with respect to the New Yorker and whether it should enter judgment in favor of the Now Yorker. Finally, the Court must determine the scope of the new trial necessitated by the jury's failure to reach a unanimous determination on the issue of damages.

 II. Discussion

 A. Independent Review

 In defamation cases involving public figure plaintiffs and media defendants, the Court is required to independently review the evidence to ensure that the judgment "does not constitute a forbidden intrusion on the field of free expression." New York Times Co. v. Sullivan, 376 U.S. 254, 285, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964); Bose Corp v. Consumers Union of United States Inc., 466 U.S. 485, 511, 80 L. Ed. 2d 502, 104 S. Ct. 1949 (1984). In Bose v. Consumers Union, the Supreme Court held that "judges, as expositors of the Constitution, must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of 'actual malice.'". Id. at 511. This duty appears to apply to trial courts reviewing post-trial motions. Tavoulareas v. Piro, 260 U.S. App. D.C. 39, 817 F.2d 762, 776-77 (D.C. Cir. 1987). In considering the scope of review, the Ninth Circuit has held that a reviewing court is required to conduct a highly deferential review of credibility determinations, and a less deferential review of the factfinder's evaluation of other evidence. Newton v. National Broadcasting Co., 930 F.2d 662, 672 (9th Cir. 1990), cert. denied, 116 L. Ed. 2d 152, 112 S. Ct. 192 (1991). *fn2"

 In the absence of a finding of liability, the policy reasons for an independent review would appear to carry less force. However, in an abundance of caution, the Court will review the evidence presented against the New Yorker *fn3" regarding knowledge of falsity or reckless disregard of falsity. The Court's review will be limited to four of the five quotations: "sex, women, fun," "intellectual gigolo," "greatest analyst," and "I don't know why I put it in." The parties agreed that the "wrong man" quotation was never brought to the New Yorker's attention because the challenged editing occurred before the manuscript was submitted to the magazine. The parties thus stipulated that the New Yorker was not liable for that quotation.

 1. Ninth Circuit Remand

 After the Supreme Court's decision in this case, Masson v. New Yorker, 115 L. Ed. 2d 447, 111 S. Ct. 2419, the Ninth Circuit ordered the case to proceed against the New Yorker on remand in Masson v. New Yorker, 960 F.2d 896. In reviewing the evidence presented at the summary judgment stage and construing the facts as alleged by plaintiff in the light most favorable to him, Masson v. New Yorker, 111 S. Ct. at 2434-35, the Ninth Circuit held that a reasonable jury could find in his favor if his version of events were proved at trial.

 The court of appeal found that there were several possible scenarios which, if proved, would support a finding for plaintiff. First, the court supposed that events preceding the publication of the article may have made the New Yorker aware of falsity or may have given it obvious reasons to doubt the veracity of Malcolm's reporting. The court focused in particular on the fact-checking conversation between plaintiff and the New Yorker's fact-checker, construing the facts most favorable to plaintiff and extrapolating from his version of events. Second, the court supposed that information about the editing of the "sex, women, fun" quotation could have given the New Yorker pause about that quotation and the article as a whole. The Ninth Circuit did not refer to any evidence directly related to the "intellectual gigolo" quotation, the "I don't know why I put it in" quotation, or the "greatest analyst who ever lived" quotation.

 a. Fact-Checking Incident

 The Ninth Circuit put great weight on the fact-checking "incident". The evidence presented at the summary judgment phase showed that a fact-checker for the Nov Yorker named Nancy Franklin telephoned plaintiff to check various facts in the article, some of which were contained in plaintiff's quotations. Plaintiff alleged that during a short conversation, he pointed out a number of inaccuracies in several quotations. *fn4" He contended that this upset him and gave him concern about the accuracy of the piece, and that he expressed these feelings to Franklin. He further alleged that he asked Franklin to speak with Malcolm about the accuracy of the quotations, and asked for permission to review his quotations. Plaintiff alleges that Franklin assured him that all quotations would be verbatim and accurate, and that she brushed him off with promises to speak to Malcolm and to get back to him regarding a review of his quotations.

 Additional evidence introduced at the summary judgment phase related to the fact-checking process showed that several of the inaccuracies pointed out by plaintiff were corrected on a set of galleys. For instance, a notation was made changing "she is a Pole" to "she is a Polish Jew." However, this change was not ultimately included in the published article.

 The Ninth Circuit held that based on this incident, a jury could conclude that the New Yorker was aware of falsity or acted in reckless disregard of falsity. The court held that "a jury could reasonably conclude that claims of inaccuracy raised in [the] context [of a fact-checking process initiated by the New Yorker] would be taken seriously." It also suggested that the fact that some of Masson's changes were made temporarily supports "the inference that The New Yorker did not dismiss Masson's charges of inaccuracy out of hand." Id. at 901. The court of appeal posited:


 b. Sex, Women, Fun

 The summary judgment evidence also included a typed draft of the manuscript which included the sentence: "Sun would have come pouring in, people would have come, there would have been parties and laughter and fun." Malcolm crossed out that sentence and replaced it with the handwritten sentence: "Maresfield Gardens would have been a center of scholarship, but it would also have been a place of sex, women, fun."

 In reviewing this evidence, the appellate court stated,

If the jury determines that The New Yorker's editors were aware of this alteration, it could easily infer that the editors knew Malcolm was fiddling with the quotations, but still decided to shut their ears to Masson's protestations of inaccuracy. All of this would support a conclusion that The New Yorker 'in fact entertained serious doubts' as to the accuracy of Malcolm's quotations, but chose not to investigate the matter.

 Id. at 901. The court concluded that a jury could believe that Masson's protestations of inaccuracy, plus the New Yorker's awareness that Malcolm was "fiddling with the quotations" supported a finding that "The New Yorker had developed 'obvious reasons to doubts the accuracy of the quotations, but in an effort to 'purposefully avoid[] . . . the truth,' failed to conduct a reasonable investigation of Hanson's claims of inaccuracy." Masson v. New Yorker, 960 F.2d at 901.

 The Ninth Circuit additionally held that,

If the New Yorker believed the conversations in question were not on tape, it could have confronted Malcolm with its doubts and asked her to verify the accuracy of those quotations by producing her notes and her notes and other supported materials.

 Masson v. New Yorker, 960 F.2d at 902. In the Ninth Circuit's view, "had The New Yorker produced evidence that it took these steps and then concluded (even unreasonably) that the quotations were accurate, it would have been entitled to summary judgment." Id.

 Based on this evidence, and the possible scenarios it envisioned, the Ninth Circuit held that the jury should be presented with the case against the New Yorker.

 2. Evidence At Trial

 At trial, considerably more evidence was presented regarding the New Yorker's editing and publication of the article. In addition to the testimony of plaintiff and Franklin regarding the fact-checking incident, the jury and the Court were presented with the manuscript and galleys, the testimony relating to the editing of the piece by Gardner Botsford, the editor of the article (and Janet Malcolm's husband) and William Shawn, *fn5" editor-in-chief of the New Yorker, expert testimony regarding journalistic practices, and evidence regarding plaintiff's contact with the New Yorker after he received the first part of the article and galleys of the second part.

 a. Fact-Checking Incident

 Plaintiff testified to his version of the fact-checking incident. He testified that Nancy Franklin contacted him and that during the course of a short conversation, he told her that a number of the facts she was checking were incorrect. He asked if he could review the quotations, but she told him he could not. He also asked to be able to speak to Malcolm, and requested that Franklin call him back. According to plaintiff, he was angry and the conversation was emotionally charged. Denise Cammell, plaintiff's then-girlfriend, testified that she was with plaintiff at the time of the telephone call and overheard his portion of the conversation. She testified that he seemed upset by it.

 Franklin's description of the telephone conversation differed greatly from plaintiff's. She described the telephone conversation as uneventful and somewhat lengthy. She testified that she checked a number of facts with him, and made some corrections on the galleys. However, she did not recall making a promise of further action. She also did not recall the conversation as emotionally charged or angry.

 Additional evidence was presented. Telephone records indicating that the conversation lasted for forty-five minutes were introduced. The fact-checking galleys wore produced. Those showed that certain facts wore marked as checked, others were marked as being "on author" or on the author's authority, and others were corrected or modified. The jury was also given evidence regarding fact-checking policies. The New Yorker introduced its fact-checker's "bible", in which fact-checkers were instructed to check facts within quotations, but not quotations themselves. Frederick Taylor of the Wall Street Journal, testified as an expert witness that journalists generally do not check the accuracy of quotations with people who are being quoted. *fn6"

 The jury also heard Botsford's testimony that he reviewed the Franklin's fact-checking galley and that he decided not to make the changes plaintiff sought for a number of reasons. For instance, in discussing his decision not to change "she is a Pole" to "she is a Polish Jew", Botsford testified first that he thought the change came late in the process, and second that, "it seemed redundant. She is Polish, she is in the Warsaw ghetto. It tells you all you need to know. . . . She was Polish, apparently there is no debate about that, and she certainly was Jewish if she was in the Warsaw ghetto." Botsford also testified that he discussed some of the proposed changes with Malcolm, but that he does not recall the substance of the discussions.

 No evidence was presented that either Franklin or Botsford formed a belief, based on the inaccuracies pointed out by plaintiff, that Malcolm was falsifying quotations. There was likewise no evidence that anyone "spot-checked" the tapes following the fact-checking conversation.

 b. Sex, Women, Fun Quotation

 Evidence regarding the New Yorker's awareness of the "sex, women, fun" quotation was also presented at trial. The evidence showed that Mr. Greenstein, the libel lawyer who reviewed the article, suggested deleting the phrase "sex, women, fun" because it was potentially libelous. Botsford testified that when he saw Greenstein's notation, he advised Greenstein that the phrase was on tape, and therefore accurate. Thereafter, Botsford asked Malcolm to confirm the words were on tape. She informed him that they were not, but that they appeared in her notes. He looked at her notes, and saw those words. When questioned about his review, Botsford testified, "in my view what is on tape and what is in the notes are the same. Many reporters don't use tape. I never used tapes. But reporter's notes are as valid as tape." Botsford also testified that he saw the phrase "intellectual gigolo" when he reviewed Malcolm's notes, but that he was not concerned that the phrase was likewise not on tape.

 The jury was also presented with evidence that even if the New Yorker editors were aware of any "fiddling" with the quotations, it did not concern them in the way the Ninth Circuit supposed it might. Shawn was asked, "Is it the policy of The New Yorker Magazine to take a partial quote from the same person in another context and put then together to create the image that it is all one quote?" Shawn Depo. at 45:22-25. Shawn replied,

It is not a policy to do that, but it is a practice that has to be followed in many, many instances, and if it is done, again, to make something coherent or to -- or for literary reasons and not to in any way violate the truth of the situation or of what the person is saying or distorting anything or deceive anybody, it is a practice that has been followed in many instances. I would say that it is an acceptable Literary practice.

 Shawn Depo. at 46:1-9.

 Additionally, expert witness Nicholas Pileggi testified that this process of putting together different parts of conversations, known as "compression", was an accepted journalistic device.

 c. Additional Evidence

 The jury was presented with other evidence which was not before the Ninth Circuit. Plaintiff presented evidence that upon reading the piece, he immediately contacted his attorney, James Brosnahan. Brosnahan testified at trial that he called the New Yorker to complain about the article on his client's behalf. He testified that he informed the New Yorker's legal counsel that the author had "trivialized" a major issue regarding Freud, and that he thought the second part of the article could be changed in a way that would satisfy his client. He additionally referred to "personal nature" of the article. He did not at that time mention misquotations or false quotations, nor did he specifically mention the five quotations before the jury.

 The only evidence regarding the "intellectual gigolo" quotation was that Botsford was aware that the phrase appeared in Malcolm's notes. Plaintiff presented no evidence regarding the New Yorker's state of mind with respect to the falsity of the "I don't know why I put it in" quotation and the "greatest analyst" quotation.

 3. Jury's Findings

 Presented with this evidence, the jury found that the New Yorker did not act with knowledge of falsity or with reckless disregard of falsity with respect to the "sex, women, fun" quotation. Because the jury found that the New Yorker was not aware of the defamatory meaning of the "intellectual gigolo" quotation, the "I don't know why I put it in" quotation and the "greatest analyst" quotation, it did not reach the question of whether the New Yorker acted with knowledge of falsity or with reckless disregard of falsity as to these quotations. *fn7"

 The jury did not find liability for the quotation which presented the strongest case for the plaintiff; it is apparent that it did not believe that the New Yorker entertained doubts about the article as a whole. While the Ninth Circuit placed great weight on the fact-checking incident, the jury either did not credit plaintiff's account, or did not believe that the evidence supported a finding that the inaccuracies uncovered during the fact-checking conversation gave the New Yorker reasons to doubt the truth of Malcolm's reporting.

 While at the summary judgment phase, disputed facts were construed in the light most favorable to the plaintiff, at trial the jury was permitted to make a credibility determination in deciding which version of the events to believe. The jury may well have determined that Franklin's version of the fact-checking event more credible, and that the conversation as Franklin described it did not give rise to "obvious reasons to doubt" the truth of Malcolm's quotations. There was no evidence that Franklin had "developed a serious doubt" about the accuracy of the quotations, nor was there evidence that Franklin either approached Malcolm or listened to the tapes herself, as the Ninth Circuit supposed she might have.

 Additionally, regardless of its credibility determination, the jury may also have concluded that the corrections suggested by plaintiff did not relate to mistakes of the degree or kind that would cast doubt upon the entirety of Malcolm's reporting. The jury may have determined that the change from an interest in psychoanalysis to an interested in writing about psychoanalysis or the change from "she is a Pole" who grew up in the Warsaw ghetto to "she is a Polish Jew" were minor alterations in phrasing rather than major errors symptomatic of falsity plaguing the entire article.

 In sum, it appears from the jury's finding of no liability on this quotation that in its view, neither the knowledge that Malcolm was editing quotations nor the knowledge that that quotation was not on tape gave the New Yorker knowledge of falsity or reckless disregard of truth or falsity. It likewise appears that in the jury's view, nothing that occurred prior to publication, including the fact-checking incident or Brosnahan's call to the New Yorker, constituted proof by clear and convincing evidence that the New Yorker knew that quotations were false or acted with reckless disregard as to the falsity of quotations.

 4. Independent Review

 Upon its independent review of the evidence, the Court finds that the New Yorker neither knew that the quotations were false, nor acted with reckless disregard as to falsity. The Court saw no evidence at trial that would support the scenarios envisioned by the Ninth Circuit following the fact-checking incident. There was no evidence that Franklin developed doubts about the accuracy of the article as a whole, nor was there evidence that the New Yorker suspected falsity and yet deliberately shut its eyes to the possibility. To the extent that the Court is bound by the jury's credibility determinations, Newton v. National Broadcasting Co., 930 F.2d at 672, the Court believes that the jury must have found Franklin a more credible witness than plaintiff. And to the extent that its own credibility determinations are relevant, id., the Court finds that Franklin was an extremely credible witness. Franklin's version is supported by the evidence. For example, the telephone records indicate that the conversation took nearly forty-five minutes, which was much closer to Franklin's estimate of time. Her version of events comports with the policies set forth in the fact-checker's bible, in that she checked facts contained within quotations and not quotations themselves. The galleys illustrate that Franklin made a number of factual corrections, not all of which were to plaintiff's quotations. Thus, although the fact-checking conversation as described by plaintiff may have given rise to doubts about Malcolm's reporting, the Court finds the conversation as more believably described by Franklin did not give the New Yorker obvious reasons to doubt Malcolm.

 The Court also finds that the New Yorker's knowledge that Malcolm edited her quotations, as well as its knowledge that the "sex, women, fun" quotation and the "intellectual gigolo" quotation were in Malcolm's notes rather than on tape, did not give rise to knowledge of falsity or reckless disregard of truth or falsity with respect to those quotations. The New Yorker presented evidence that notes were considered as trustworthy as tapes. It also presented evidence that editing quotations was an accepted practice at the New Yorker. Finally, the Court finds that there was no evidence with respect to the remaining quotations. Accordingly, in its independent review of the evidence, the Court concludes that plaintiff did not meet his burden of showing by clear and convincing evidence that the New Yorker acted with knowledge of falsity or reckless disregard as to truth or falsity. The Court will therefore enforce the jury's answer to Special Verdict Question 7.

 The Court will now address plaintiff's arguments regarding awareness of defamatory meaning. In his Motion for Partial New Trial, or in the Alternative, for New Trial, plaintiff argues that the Court erred in requiring him to show that the defendants were aware of the defamatory meaning of the challenged quotations. In the reply to his motion, plaintiff argues alternatively that the Court erred in failing to include an instruction regarding reckless disregard of defamatory meaning. Both Malcolm and the New Yorker argue that the awareness of defamatory meaning was properly made an element of this case, but that plaintiff should have been required to prove awareness by clear and convincing evidence. The New Yorker additionally argues that there was no evidence of reckless disregard of awareness of defamatory meaning on the part of the New Yorker, and that plaintiff waived his objection to the Court's failure to instruct on reckless disregard.

 1. Correctness of Awareness Instruction

 The question of awareness of defamatory meaning was briefed, argued, and considered before and during the trial, and little has been added by the post-trial briefs. However, the Court will readdress the issue. Based on the same authorities the Court considered before, the Court reaffirms its ...

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