12/07/2009

Melinda Duckett Family Wrongful Death Lawsuit Against Nancy Grace and CNN -- It May Be a Dog that Will Hunt

Here in Texas, and I suppose most of the South, lawyers will talk about a weak argument as being a "dog that won't hunt."  And there was a time after the 2006 filing of a wrongful death action against CNN and Nancy Grace by the family of Melinda Duckett where that was exactly what I was thinking:  it's a dog that won't hunt.  Things may have changed ....

Backstory - What's the Basis for the Lawsuit?

On September 7, 2006, Nancy Grace interviewed Melinda Duckett over the telephone as part of her continuing television coverage of the search for Melinda Duckett's missing child, 2 year old Trenton.  (A transcript of the interview, as it was aired on September 8, 2006, by CNN is still available online.


Between the time of the interview and the airing of the Nancy Grace show, and with her child missing less than two weeks, Melinda Duckett wrote a suicide note and then shot herself with her father's gun at his home.  (Her suicide note has been published online.)  CNN aired the interview with a notice posted on the screen that Duckett's body had been found at the home of Bill and Bethann Eubank, her adoptive parents. 

The Lawsuit

By November 2006, the Eubanks together with the personal representative for Melinda Duckett's estate had filed suit in state district court in Lake County, Florida, for wrongful death.  In their petition, the Eubanks sue as parents of Melinda, grandparents and next friend of Trenton, and parents and next friend of Melinda's minor sister.  Defendants are CNN, Nancy Grace personally and as an employee/agent of CNN, and Joshua Duckett. 

How to prove the "but for"

Reading over the pleadings, it appears key that the Plaintiffs must be able to prove causation in order to win.  In other words, they have to provide admissible evidence that proves by a preponderance of the evidence (that's less than beyond a reasonable doubt but more that 50%) that but for Nancy Grace's interview, Melinda Duckett would not have committed suicide.  Considering that the suicide occurred before the airing of the interview, actual public response to the interview would not be a consideration -- although if it could be proven, Melinda Duckett's state of mind and perception of the results of that public interview being aired on CNN might well be. 

That's a big fact pattern to be able to support with solid evidence.  Big, big, big.  I didn't see how it could be done, but my hat was off to the Florida attorney who filed the case.  Kara Skorupa was reportedly doing this case for the Eubanks pro bono - for free.  Good for her. 

Why I think the Case against Nancy Grace got stronger ....

In 2007, the case was moved from a Florida state court into a federal district court based upon a jurisdictional issue:  the parties were from different states, and Florida's state jurisdiction couldn't hold here.  Of course, the federal court will nevertheless be required to apply Florida law.  Whether or not Florida's wrongful death statute has been violated is still the key issue. 

And federal district judge William Hodges subsequently denied the inevitable motion to dismiss the case under Federal Rule of Civil Procedure 12(b)(6)  filed by Nancy Grace and CNN - although Joshua Duckett was dismissed from the suit. 

Reading this, I'm thinking that the bucket is holding water so far.  Now they are going to have to fight some discovery fights.  Kara's case is surviving.  Don't know that it's winnable, but it's held its own in federal court.

Now it's 2009.  And obviously discovery has been happening because we have new media reports:  a Harvard professor has formally opined that Nancy Grace is responsible for the death of Melinda Duckett.  And in doing so, the 'but for" / causation prong of the Plantiffs' case has suddenly found support.

The report of Dr. Harold J. Burslajn has been filed in the case's federal court record in Ocala, Florida. So far, I haven't been able to find the complete report published online. 

I did find this link to Dr. Bruslajn, however, http://www.forensicpsych.com/, which makes me think that the prosecutor is going to tee up a challenge to Dr. Bruslajn at some point.  Testifying experts are subject to their own standard of review before their opinions are brought before the factfinder and I'm wondering if the state attorney will win a fight that Dr. B fails under scrutiny.  If the psychiatrist succeeds, which I'm going to assume that he will (he's from Harvard, after all), then I think we're gonna see Nancy Grace and CNN either settle or face a jury. 

Because now I think this case is a dog that will hunt, that it can survive a summary judgment challenge at this juncture, and we're talking settlement or jury verdict here. 

Nancy's a prosecutor.  Wonder if she'll trust a jury?  Jenny Jones did -- and she was faced a $25 million judgment based upon a negligence cause of action (the jury's verdict was overturned on appeal). 

The Jenny Jones Analogy

Sure, you can draw distinctions between Jenny Jones' case and Nancy Grace's situation.  Different causes of action (negligence vs. wrongful death/intentional infliction of emotional distress), different crimes (murder vs. suicide), different time lines (two days vs. a few hours), actual airing of the event on national television prior to the death (televised show vs. nothing shown). 

And, yes, Jenny Jones won her case -- albeit on appeal when the state supreme court refused to reconsider the appellate court's overturning of the jury's determination.  Still.  You gotta wonder -- where is Jenny Jones now?

3 comments:

Anonymous said...

Hello Ms. Kennedy,

I have been reading some of your blog, and I find it interesting reading. You put a lot of effort into your writing.

I could not avoid commenting on this lawsuit against Nancy Grace. I wonder how much CNN and Ms. Grace factor in possible harm to her program's ratings, besides the possible monetary damages. My understanding is that her show is the most popular evening program on HLN. Going to trial might hurt her reputation as smart and down to earth woman, if she loses the trial. Television ratings are pretty fragile measurements that go down quickly, I think.

I also think that there is a segment of the public who thinks that Nancy Grace and some other programs are very selective about which crime victims are profiled. You may have seen a "Law and Order" where a Nancy Grace-like character is confronted by one African-American mother who wonders what took the TV show so long to report on her daughter's disappearance.

A side note: I live in Washington, D.C., and I have seen John Walsh tape a segment of "America's Most Wanted" outdoors. When he finished taping I was struck how many people of different races were shaking his hand. I think part of his appeal is that his programs report crimes against people of various ethnicites and social class. It helps that several suspects have been arrested after stories have appeared on "America's Most Wanted". Plus, John Walsh has solid support from various law enforcement agencies. That may not be the case with Nancy Grace's program.

You are probably aware of the controversy of the Dateline program doing programs about alleged pedophiles being confronted on television. A man in Texas committed suicide after being confronted by the TV program. I believe that his family has filed a lawsuit similar to Melinda Duckett's family.

Moreover, The New York Times did a story about an organization that works on several pedophilia cases, and apparently they are paid consultants for NBC. So, there are questions about NBC and this organization profiting from these sting operations, which I assume that law enforcement agencies often do without television cameras.

I assume that it is to Ms. Grace's and CNN's advantage that the trial is schedule in federal court, where cameras generally are not present.

Thanks much.--Bill

Reba Kennedy said...

Bill,
Thanks for writing - found what you wrote to be very interesting, particularly your bird's eye view of John Walsh's dealings with the public.

I'll write more later, but for now thought I'd respond promptly ... and I'm wondering, have you read the new book out by Mark Fuhrmann on trial by media?

It's not a long read, and I think there's a lot more to cover on the subject. But he's got a perspective that's unique, and he's got a point. One that is directly correlated to your discussion here today.

Thanks again for writing, Bill,
Reba

Anonymous said...

No, I have not. Thanks for the tip.