LEXIS(R) Case Law Signal: Citing Refs. with Analysis Available <AC>
------------------------------------------------------------------------------
LEVEL 1 - 8 OF 15 CASES
MERCO JOINT VENTURE v. HUGH B. KAUFMAN, et al.
P-94-CA-55
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF
TEXAS, PECOS DIVISION
923 F. Supp. 924; 1996 U.S. Dist. LEXIS 9926
February 15, 1996, Decided
February 20, 1996, FILED
DISPOSITION: [**1] Defendant Tri-State's motion for summary judgment denied
as MOOT in light of Plaintiff's voluntary dismissal of its claim against
Tri-State. Defendants Roy Sekoff's and TriStar's motions for summary judgment
DENIED.
COUNSEL: For PETER SCALAMANDRE & SONS, INC., JOHN P. PICONE, INC., RGM LIQUID
WASTE REMOVAL CORPORATION, plaintiffs: Susan E. Potts, Brown, and Potts,
923 F. Supp. 924, *; 1996 U.S. Dist. LEXIS 9926, **1
Austin, TX. Robert E. Birne, Olson, Gibbons, Sartain, et al., Dallas, TX. Joseph
D. Tydings, David L. Elkind, Eric Taylor Gormsen, Anderson, Kill, Olick &
Oshinsky, Washington, DC. For MERCO JOINT VENTURE, plaintiff: Susan E. Potts,
Brown, and Potts, Austin, TX. Robert E. Birne, Olson, Gibbons, Sartain, et al.,
Dallas, TX. Joseph D. Tydings, David L. Elkind, Eric Taylor Gormsen, Lois
Casaleggi Wolf, Anderson, Kill, Olick & Oshinsky, Washington, DC.
For HUGH B. KAUFMAN, defendant: Martha A. Evans, Attorney at Law, Dallas, TX.
Hugh B. Kaufman, [PRO SE], Washington, DC. For TRISTAR TELEVISION, defendant:
Dan Duncan Davison, Fulbright & Jaworski, L.L.P., Dallas, TX.
For PETER SCALAMANDRE & SONS, INC., JOHN P. PICONE, INC., RGM LIQUID WASTE
REMOVAL CORPORATION, MERCO JOINT VENTURE, counter-defendants: Susan E. Potts,
Brown, [**2] and Potts, Austin, TX. Robert E. Birne, Olson, Gibbons,
Sartain, et al., Dallas, TX. Joseph D. Tydings, David L. Elkind, Eric Taylor
Gormsen, Anderson, Kill, Olick & Oshinsky, Washington, DC.
For TRISTAR TELEVISION, counter-plaintiff: Dan Duncan Davison, Fulbright &
Jaworski, L.L.P., Dallas, TX.
JUDGES: HONORABLE LUCIUS D. BUNTON, III, SENIOR U. S. DISTRICT JUDGE
923 F. Supp. 924, *; 1996 U.S. Dist. LEXIS 9926, **2
OPINIONBY: LUCIUS D. BUNTON, III
OPINION: [*925] FIRST ORDER ON MOTIONS FOR SUMMARY JUDGMENT
BEFORE THE COURT, in the above-captioned cause of action, are two separate
motions for summary judgment. The first motion is by Defendant Tri-State
Broadcasting and the second motion is by Defendants TriStar Television, Inc.,
Tri-State Broadcasting, and Roy Sekoff. Also on file and before the Court are
Plaintiff Merco Joint Venture's responses, and various and sundry replies,
letter briefs, and objections from both parties. After due consideration of the
facts and law in this case, the Court makes the following determination:
BACKGROUND
This is an alleged libel and business disparagement action filed by Plaintiff
Merco Joint Venture ("Merco") against a number of Defendants, one of which is
Tri-State Broadcasting ("Tri-State") the [**3] owner of KTSM TV-9 television
station located in El Paso, Texas. Merco was formed for the purpose of
performing a contract with the New York City's Department of Environmental
Protection for receiving, processing, and disposing of New York City wastewater.
After processing the wastewater and forming biosolids or what has been commonly
referred to as "wastewater treatment sludge," Merco then ships the sludge by
923 F. Supp. 924, *925; 1996 U.S. Dist. LEXIS 9926, **3
rail to Sierra Blanca, Texas to a rangeland owned by Merco and referred to as
the "Merco Project." Once the sludge arrives, it is then applied as fertilizer
to the rangeland.
On approximately August 2, 1994, Tri-State, in its capacity as the El Paso
affiliate of the National Broadcasting Company ("NBC") broadcast a summer
replacement show entitled "TV Nation." The particular segment in dispute before
this Court was entitled "Sludge Train," The Sludge Train segment described the
Merco Project and examined the controversy surrounding the project by
interviewing, inter alia, residents of Sierra Blanca and Merco Project
employees. Merco then filed suit against Defendants alleging libel and business
disparagement based upon the treatment Merco received on "TV Nation." Tri-State
presently [**4] [*926] moves for summary judgment pursuant to Texas Civil
Practices and Remedies Code @ 73.004 and Merco's failure to demonstrate that
Tri-State acted with actual malice.
STANDARD OF REVIEW
Summary judgment, "shall be rendered forthwith 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." FED.
923 F. Supp. 924, *926; 1996 U.S. Dist. LEXIS 9926, **4
R. CIV. P. 56(c); see <=1> Hansen v. Continental Ins. Co., 940 F.2d 971, 975
(5th Cir. 1991); <=2> Hogue v. Royse City, 939 F.2d 1249, 1252 (5th Cir.
1991). "Summary judgment procedure is properly regarded not as a disfavored
procedural shortcut, but rather as an integral pan of the Federal Rules as a
whole, which are designed 'to secure the just, speedy and inexpensive
determination of every action.'" <=3> Celotex Corp. v. Catrett, 477 U.S. 317,
327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting FED. R. CIV. P. 1).
"All facts contained in the pleadings, depositions, admissions, and answers
to interrogatories are reviewed by 'drawing all inferences most favorable to the
party opposing the motion.'" [**5] <=4> James v. Sadler, 909 F.2d 834, 836
(5th Cir. 1990) (quoting <=5> Reid v. State Farm Mut. Auto Ins. Co., 784 F.2d
577, 578 (5th Cir. 1986)); <=6> Waltman v. Int'l Paper Co., 875 F.2d 468, 474
(5th Cir. 1989); <=7> Moore v. Mississippi Valley State Univ., 871 F.2d 545,
549 (5th Cir. 1989); <=8> Degan v. Ford Motor Co., 869 F.2d 889, 892 (5th Cir.
1989). However,
"when a motion for summary judgment is made and supported as provided in this
rule, an adverse party may not rest upon the mere allegations or denials of the
adverse party's pleading, but . . . must set forth specific facts showing that
there is a genuine issue for trial."
923 F. Supp. 924, *926; 1996 U.S. Dist. LEXIS 9926, **5
<=9> Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 190-91 (5th Cir. 1991).
Accordingly, the focus of this Court is upon disputes over material facts;
that is, only facts likely to affect the outcome of the lawsuit under the
governing substantive law will preclude summary judgment. <=10> Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505
(1986); <=11> Phillips Oil Co. v. OKC Corp., 812 F.2d 265, 272 (5th Cir.),
cert. denied, <=12> 484 U.S. 851, 98 L. Ed. 2d 107, 108 S. Ct. 152 (1987). The
Fifth Circuit has stated, [**6] "the standard of review is not merely
whether there is a sufficient factual dispute to permit the case to go forward,
but whether a rational trier of fact could find for the non-moving party based
upon the record evidence before the court." <=13> James, 909 F.2d at 837; see
<=14> Matsushita Elec. Industr. Co. v. Zenith Radio Corp., 475 U.S. 574, 586,
89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); <=15> Boeing Co. v. Shipman, 411
F.2d 365, 374-75 (5th Cir. 1969) (en banc).
Rule 56(c) does not "require[] that an oral hearing be held on a motion for
summary judgment." <=16> McMillian v. City of Rockmart, 653 F.2d 907, 911 (5th
Cir. 1981); see FED. R. CIV. P. 78; Local Court Rule CV-7(h). However, this
Court has demonstrated its willingness to allow a nonmoving party a day in court
in borderline cases where, under the governing law or reasonable extensions of
existing law, the hearing of some testimony would be helpful to understanding
923 F. Supp. 924, *926; 1996 U.S. Dist. LEXIS 9926, **6
the proper application of the law. Such is not the situation in the case at bar.
DISCUSSION
I. TEXAS CIVIL PRACTICES AND REMEDIES CODE @ 73.004
Tri-State Broadcasting argues in its motion for summary judgment that local
television stations, such [**7] as KTSM TV-9, which merely broadcast a
program "feed" from a network source, without knowledge that the information
contained therein is false, cannot be held liable for defamation. Tri-State
argues the applicable statute in the civil remedies code is the following:
@ 73.004. Liability of Broadcaster
(a) A broadcaster is not liable in damages for a defamatory statement published
or uttered in or as a part of a radio or television broadcast by one other than
the broadcaster unless the complaining party proves that the broadcaster failed
to exercise [*927] due care to prevent the publication or utterance of the
statement in the broadcast.
TEX. CIV. PRAC. REM. CODE ANN. @ 73.004 (Vernon's 1995). Tri-State supports its
argument by citing <=17> Auvil v. CBS "60 Minutes", 800 F. Supp. 928 (E.D.
923 F. Supp. 924, *927; 1996 U.S. Dist. LEXIS 9926, **7
Wash. 1992) a case which stands for the proposition that "one who only delivers
or transmits defamatory material published by a third person is subject to
liability if, but only if, he knows or had reason to know of its defamatory
character." Id. at 631-32 (citing <=18> Dworkin v. Hustler Magazine, Inc., 634
F. Supp. 727, 729 (D. Wyo. 1986)(emphasis supplied)). Though this is a correct
[**8] recitation of the law in the State of Washington, which does not have a
liability of broadcaster statute, the law in Texas does not ascribe to the "knew
or had reason to know standard." On the contrary, Texas has a negligence
standard for showing liability that of ordinary (or due) care.
Although section 73.004 has been on the books for some time, both parties
concede to the Court the absolute dearth of case law interpreting the Statute.
This Court has located statutes in other states which are similar to Texas'
liability of broadcaster statute, yet has been unsuccessful in finding case law
on point interpreting the respective statutes. See KY. REV. STAT. ANN. @
411.062; MICH. STAT. ANN. @ 494.331; OHIO REV. CODE ANN. @ 2739.03; WIS. STAT.
ANN. @ 895.052; WYO. STAT. @ 1-29-101. Nevertheless, this Court is convinced
that the proper application of section 73.004 in the present case mandates the
granting of summary judgment for this particular Defendant. A closer look at
section 73.004 requires that there be a finding of defamation before the defense
n1 of ordinary care afforded by section 73.004 can be used. See TEX. CIV. PRAC.
& REM. CODE ANN. @ 73.004. However, before a finding [**9] of defamation
923 F. Supp. 924, *927; 1996 U.S. Dist. LEXIS 9926, **9
can be made this Court must determine whether Merco is considered a private or
public figure in order to apply the proper summary judgment standard.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 District Courts have found that "the so-called 'defense' is actually a
definition of ordinary care in regard to the use of wire services stories."
<=19> O'Brien v. Williamson Daily News, 735 F. Supp. 218, 220 (E.D. Ky. 1990).
This Court is of the opinion that the wire service defense and the liability of
broadcaster defense are correlative enough to be used interchangeably.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
a. Limited Purpose Public Figure
In Gertz v. Robert Welch, Inc., the Supreme Court outlined three approaches
for determining whether a person or entity can be construed as a public figure
for purposes of applying the proper summary judgment standard:
It may be possible for someone to become a public figure through no purposeful
action of his own, but the instances of truly involuntary public figures must be
exceedingly rare. For the most part those who attain [**10] this status
923 F. Supp. 924, *927; 1996 U.S. Dist. LEXIS 9926, **10
have assumed roles of especial prominence in the affairs of society. . . . More
commonly, those classed as public figures have thrust themselves to the
forefront of particular public controversies in order to influence the
resolution of the issues involved. In either event they invite attention and
comment. Even if the foregoing generalities do not obtain in every instance, the
communications media are entitled to act on the assumption that public officials
and public figures have voluntarily exposed themselves to increased risk of
injury from defamatory falsehood concerning them.
<=20> 418 U.S. 323, 345, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974). In this
Court's opinion, Merco meets the requirements of the Gertz test by virtue of its
public relations campaigns both in Sierra Blanca and West Texas. For example,
the Merco Project funded a 1.5 million dollar independent study by Texas Tech
University regarding the safe application of wastewater treatment sludge on
rangeland to allay any concerns by the public. n2 Furthermore, Merco held press
conferences, sent invitation via the mail to Sierra Blanca residents for an open
house, and free bus tours of the Merco Project site prior to the application of
[**11] the sludge, all in an attempt to spread both information and good
[*928] will among the residents of West Texas. While these gestures are
certainly laudatory, they are not the actions of an entity that wishes to remain
anonymous or private and therefore qualify Merco as a limited purpose public
figure. Since Merco is considered a limited purpose public figure, the
923 F. Supp. 924, *928; 1996 U.S. Dist. LEXIS 9926, **11
standard for defamation, which incidentally is a generic label describing either
libel or slander, is that put forth by the New York Times Rule.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 Although this Court has absolutely no opinion in this regard, it does
recognize that the application of New York City sludge on rangeland in West
Texas has created some public controversy among persons in that geographic
region.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
b. New York Times Rule
In New York Times Co. v. Sullivan, the United States Supreme Court held that
the First Amendment to the United States Constitution precludes public officials
from recovering damages for defamatory statements relating to their official
conduct unless they [**12] can prove that the defendant made the statements
with actual malice. <=21> 376 U.S. 254, 279-80, 11 L. Ed. 2d 686, 84 S. Ct.
710 (1964). The Supreme Court defined actual malice in New York Times as
knowledge that the statement was false or reckless disregard as to whether or
not it was false. <=22> Id. at 280. Moreover, the protection recognized by
923 F. Supp. 924, *928; 1996 U.S. Dist. LEXIS 9926, **12
the Supreme Court in New York Times was extended to cover public figures, as
well as public officials in <=23> Curtis Publishing Co. v. Butts, 388 U.S.
130, 155, 18 L. Ed. 2d 1094, 87 S. Ct. 1975 (1967).
It is with the rule stated above that this Court determines Tri-State's
actions to be without actual malice. In the response filed by Merco on September
21, 1995, Merco argues that Tri-State knew or should have known that the
broadcast was going to be false based on KTSM's periodic news reports dating
from 1992, the year of a civil action involving Merco and tried by this Court.
See <=24> State v. Ferguson, 1992 U.S. Dist. LEXIS 20684, No. P-92-CA-17 (W.D.
Tex. Dec. 7, 1992). The mere investigative reporting of the Merco Project over a
period of years from 1992, which has been an ongoing controversy in West Texas
since its inception, is insufficient evidence to prove that KTSM knew or should
have known [**13] that the TV Nation segment aired on August 2, 1994 would be
false.
Merco further argues that a showing of actual malice on the part of Tri-State
is evident based on a "live at five" telephone interview with producer Michael
Moore conducted by reporter Raymond Mesa on August 2, 1995, the day TV Nation
was to air. Kevin Lovell, the news assignment editor for KTSM, attempted to
contact Michael Moore to interview him based on a TV listing for his show that
evening dealing with "Sierra Blanca's sludge farm." See Letter Brief at A-1
923 F. Supp. 924, *928; 1996 U.S. Dist. LEXIS 9926, **13
(filed Oct. 4, 1995). Mr. Moore was then interviewed by Mr. Mesa who asked:
Mesa: Are you gonna do a hatchet job on this, or what, what is the angle you're
gonna take?
Moore: Uh, well, which, where do you think the hatchet is gonna fall?
Mesa: I don't know, that's what I'd like to find out.
See Exhibit A to the Sybert Declaration. Mr. Mesa did not know what the segment
was going to say and could not have known based on the information KTSM had at
the time. Moreover, the third party paraphrases by Mr. Moore of an EPA
official's opinion that the Merco Project "violated federal standards" was not
sufficient evidence to warrant [**14] Mr. Mesa, or anyone at KTSM, to do an
independent investigation.
The responsibility of a local affiliate such as KTSM to do independent
research on a program "feed" from a network source is a difficult question for
this Court, and although inapplicable for purposes of section 73.004, the case
of Auvil v. CBS "60 Minutes" mentioned above is nonetheless insightful for
determining the amount of responsibility KTSM had in the hours prior to airing
TV Nation.
923 F. Supp. 924, *928; 1996 U.S. Dist. LEXIS 9926, **14
Auvil v. CBS "60 Minutes"
On February 26, 1989, the CBS news program "60 Minutes" aired a segment in
which correspondent Ed Bradley investigated a growth regulator commonly known as
Alar. When applied on apple trees, Alar maintained the fruit on the tree longer,
improved both the size and cosmetic appearance of the fruit, reduced fruit
disorders, and increased the storage life of the fruit. The segment, however,
concentrated on the Natural Resources Defense Council's efforts to brand Alar as
carcinogenic to humans. The report was supported by an interview with the acting
director of the Environmental Protection [*929] Agency who confirmed that
Alar was a health hazard.
Subsequently, 4,700 Washington State apple growers filed a [**15] class
action law suit against CBS, "60 Minutes," and three local CBS affiliates
located in Washington. The District Court found that there was a three hour time
zone difference between the East Coast where "60 Minutes" was broadcast and the
West Coast where the local affiliates republished the network feed. The District
Court also found that the local affiliates were provided with a telexed
communique setting out the subject matter of the segment for that evening's
broadcast. Finally, the District Court found the local affiliates had a three
hour hiatus in which to access the segment for content, and the contractual
right to censor the segment. Nevertheless, the Court stated:
923 F. Supp. 924, *929; 1996 U.S. Dist. LEXIS 9926, **15
With the possible exception of re-run movies, the content of which is already
widely known and/or catalogued, plaintiffs' construction would force the
creation of full time editorial boards at local stations throughout the country
which possess sufficient knowledge, legal acumen and access to experts to
continually monitor incoming transmissions and exercise on-the-spot
discretionary calls or face $ 75 million dollar lawsuits at every turn. That is
not realistic.
<=25> 800 F. Supp. at 931. The District [**16] Court went on to state the
threshold inquiry in such cases is "whether a local broadcaster who serves as a
mere conduit 'republishes' by relaying an unedited feed." id., and held the
three local affiliates did not have knowledge sufficient enough for liability.
In concluding its analysis, the District Court stated:
More than merely unrealistic in economic terms, it is difficult to imagine a
scenario more chilling on the media's right of expression and the public's right
to know. . . . Persons injured by defamatory material are not impaired by
limiting conduit liability to those situations where culpability is established.
The generating source, which in a national broadcast will generally be the
deepest of pockets, may still be called upon to defend.
923 F. Supp. 924, *929; 1996 U.S. Dist. LEXIS 9926, **16
<=26> Id. at 932. And so it is with the case at bar, the economic feasibility
for a local TV station to monitor an unedited feed from a network source that
has already been reviewed for content by the network's in-house legal department
is impractical. Furthermore, to attribute responsibility "down the line" to a
local TV station when the issue is better left to those responsible for the
segment's actual content is overreaching [**17] in this Court's opinion. This
Court must come to the conclusion that the evidence put forth by Merco is
insufficient to overcome the standard of a clear and convincing demonstration of
actual malice by Tri-State. <=27> Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 254, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)("When determining if a
genuine factual issue as to actual malice exists in a libel suit brought by a
public figure, a trial judge must bear in mind the actual quantum and quality of
proof necessary to support liability under New York Times. For example, there is
no genuine issue if the evidence presented in the opposing affidavits is of
insufficient caliber or quantity to allow a rational trier of fact to find
actual malice by clear and convincing evidence."). Therefore, the evidence
rebutting Tri-State's motion for summary judgment does not convince this Court
by clear and convincing evidence that the actions or non-actions of KTSM in the
time leading up to and including the republication of the TV Nation "feed"
contained actual malice such that a jury would return a verdict for Merco.
<=28> Id. at 249.
923 F. Supp. 924, *929; 1996 U.S. Dist. LEXIS 9926, **17
As mentioned in Part I above, section 73.004 requires that there be [**18]
a finding of defamation before the defense of ordinary care afforded by section
73.004 can be used. Because this Court has found no showing of defamation
according to the New York Times Rule, there is no need to address the defense of
ordinary care within the Liability of Broadcaster statute. n3 Therefore,
Tri-State, although precluded from applying section 73.004 successfully in its
first motion for [*930] summary judgment, is nevertheless granted summary
judgment based on its second motion for summary judgment addressing actual
malice. n4
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 Which, incidentally, is a question for the trier of fact. <=29> Evans v.
City of Marlin, Texas, 986 F.2d 104, 109 (5th Cir. 1993).
n4 See infra, Part III entitled "Post-Mortem."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
II. ACTUAL MALICE OF REMAINING DEFENDANTS
923 F. Supp. 924, *930; 1996 U.S. Dist. LEXIS 9926, **18
The next determination for this Court is whether the remaining Defendants
which also filed the second motion for summary judgment warrant dismissal
pursuant to Rule 56 as well. Since this Court has already established in part I
(a) and (b) above [**19] that Merco is a limited purpose public figure and
that the New York Times Rule applies for purposes of the burden of proof
standard, the only inquiry left is whether TriStar and/or Roy Sekoff acted with
actual malice.
a. Roy Sekoff
Merco argues that Roy Sekoff and TriStar knew from the outset that the
broadcast segment would be a "hatchet job." Merco offers an internal memorandum
from Randy Cohen, a writer and executive producer of TV Nation, outlining the
characteristics the Sludge Train segment should take on. In the internal
memorandum are various derogatory references to Merco's application of New York
sludge to "the Texas prairie or plains of [sic] buttes or mesas or what ever
[sic] perverse geologic features they have out there." Memorandum of Randy
Cohen, at 1 (April 1, 1994). Sekoff followed these instructions almost verbatim
during his report.
Furthermore, during an interview with one of Merco's employees, Julie Porter,
TriStar and/or Sekoff seem to have augmented a statement she made on camera
923 F. Supp. 924, *930; 1996 U.S. Dist. LEXIS 9926, **19
describing a reference to her husband's business as a statement about the Merco
Project:
Q. Now, you were saying -- we were just finishing up. I was asking [**20] you
what fragrance you wore. A. I don't. I'm -- I'm allergic to -- colognes and
perfumes, Q. But the residue from the biosolids don't - - doesn't bother you? A.
No. I -- in fact, we -- don't catch smell from it. As long as it dries out,
there is -- no odor to it. If -- if it does happen to get wet, there may be a --
a smell to it. Q. So it would be "Chanel No Way Sludge 5?" A. Well, like my
husband says, he -- he is into the cattle [business], and whatever you get
around a feed yard or -- or something and you say, oh, it smells. He says, ah,
that's the smell of money. It's okay. Q. So are we catching a little bit of the
"ode to money" here now? Let me see. A. No, there's no odor. Q. No odor. A. No.
Q. No smell of money? A. There's -- there's very seldom an odor. Q. But money?
A. No, no smell of money either, really.
Video Outtake, "TV Nation/Sludge Train" (June 1994). The only portion of the
interview of Porter was the quote "that's the smell of money. It's okay,"
indicating that Porter was speaking of the Merco Project.
Finally, Sekoff's statement that the New York sludge contained "high levels"
of lead, mercury and PCBs seems to be contradicted by the evidence offered
923 F. Supp. 924, *930; 1996 U.S. Dist. LEXIS 9926, **20
[**21] in letter by the EPA to Merco, which stated that the sludge is tested
at the generating treatment plant, again before it is loaded on to railcars
destined for Texas, and again upon arrival in Texas. If at any point the sludge
tests for high levels of pollutants, it is designated for land fill and not for
surface application. Letter from Buck Wayne, Regional Administrator, EPA, at 2
(Oct. 2, 1992). Sekoff responds that he was basing the statement on Hugh
Kaufman's actual knowledge and investigation, yet he was told by a Merco
employee, on camera, that the levels of heavy metals were low enough to be
considered safe as trace minerals for plants for up to 39 years according to the
EPA. Video Outtake, "TV Nation/Sludge Train" (June 1994).
Whether Sekoff's actions and statements prove that he knew they were based on
false [*931] information, or whether he recklessly disregarded such, is a
genuine issue of material fact for the jury. This Court is of the opinion, based
on clear and convincing evidence, that Sekoff may have actually had malicious
intent in shooting the footage, augmenting the statements of Porter, and stating
that there were high levels of pollutants in the sludge, such [**22] that a
jury could return a verdict for Merco. The motion for summary judgment pursuant
to Rule 56 is therefore denied as to Sekoff.
b. TriStar Television
923 F. Supp. 924, *931; 1996 U.S. Dist. LEXIS 9926, **22
The potential liability of TriStar is demonstrated through the actions of
Frances Alswang, producer of the Sludge Train segment. Alswang admitted that she
had done substantial investigation of the Merco Project and Sludge application
projects throughout the nation. For example, Alswang telephoned farmers in other
states who had successfully applied sludge on their own properties and asked
them questions regarding the sludge. In every case, the farmers whom she
contacted in Colorado and Arizona were positive about the surface application of
sludge. Additionally, Alswang admitted to reading this Court's opinion in State
v. Ferguson, reports, and articles on the beneficial and legal application of
sludge.
Alswang also held herself out to Merco as being affiliated with NBC News, a
statement strongly denied by the Law Department for NBC. In a letter sent by a
Senior General Attorney for NBC in May of 1994 to Sandra Stern. Executive Vice
President of Business Affairs for TriStar, NBC stated:
Please confirm immediately [**23] that you [TriStar], Remote Broadcasting Co.
and Michael Moore will cease and desist from holding yourselves out as employees
or agents of NBC or NBC News, directly or indirectly. You may not use NBC, the
NBC peacock or other insighia to suggest that you are representing NBC or NBC
News. NBC will, of course, look to you for complete indemnification for any
damages which might arise as a result of any such conduct.
923 F. Supp. 924, *931; 1996 U.S. Dist. LEXIS 9926, **23
Letter from Roberta Brackman, at 2 (May 4, 1994). This Court is of the opinion,
based on clear and convincing evidence, that Alswang conducted substantial
research on the Merco Project and on the application of sludge, and that she may
have actually had malicious intent while investigating and producing the footage
for the Sludge Train segment such that a jury could return a verdict for Merco.
The motion for summary judgment is therefore denied as to TriStar.
III. POST-MORTEM
After the writing of this Order but before the actual filing, Plaintiff
timely filed a motion for voluntary dismissal of Defendant Tri-State. The
analysis set out above regarding TEX. CIV. PRAC. REM. CODE ANN. @ 73.004 remains
nevertheless valid, although the Court's conclusion [**24] with regard to
Tri-State is no longer viable. Accordingly,
IT IS ORDERED Defendant Tri-State's motion for summary judgment pursuant to
FED. R. CIV. P. 56 is hereby denied as MOOT in light of Plaintiff's voluntary
dismissal of its claim against Tri-State.
IT IS FURTHER ORDERED Defendants Roy Sekoff's and TriStar's motions for
summary judgment pursuant to FED. R. CIV. P. 56 is hereby DENIED.
923 F. Supp. 924, *931; 1996 U.S. Dist. LEXIS 9926, **24
SIGNED this 15th day of February, 1996.
HONORABLE LUCIUS D. BUNTON, III
SENIOR U.S. DISTRICT JUDGE