Middleton v. Sutton CV-92-589-B 03/31/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

William Thomas Middleton

v. No. 92-589-B

Elizabeth Sutton, et al.

O R D E R

The plaintiff, William Middleton, alleges defamation1 by the

defendants. Investigative News Group, Inc. and Tribune

Entertainment, based on a Geraldo television program. The

program was broadcast to a national television audience on

September 20, 1990, and included discussion of Middleton's

alleged sexual abuse of his children and his participation in the

production of child pornography. Pending before me is

defendants' motion for summary judgment alleging that Middleton

has insufficient evidence to support his claim.

1 Although Middleton also alleged a claim for invasion of privacy, he has waived this claim by failing to respond to defendants' challenge to the claim in their motion for summary judgment. See United States v. Zannino,

(1st Cir.), cert, denied,

(1990). FACTS2

Geraldo Rivera and Elizabeth Sutton, Middleton's ex-wife's

sister, made the following allegedly defamatory statements during

the broadcast of a Geraldo program entitled "Protecting America's

Children": (1) Rivera introduced Sutton on the program as "the

aunt of two children whose father ran a child porn and

molestation ring--it is believed the ring operated in 12 states

and four foreign countries." (2) Sutton stated, "One of the

children told us that they had been abused and, of course, we had

a Department of Human Services' investigation, medical evidence,

positive GC3 cultures on both children." When Rivera asked

Sutton for evidence of abuse, she responded, "The positive GC

cultures on both children and two other children living in the

home" and "Then, of course, it's been validated by the State of

Arkansas twice, the State of Georgia once, the medical evidence

with the Arkansas Children's Hospital. All the police

investigators feel that it's true. Everyone feels that they're

2 The following facts are either undisputed or, if disputed, reported in the light most favorable to the plaintiff.

3 "GC" is apparently an abbreviation for "gonorrhea culture."

2 telling the truth." (3) After conversation between Sutton and

Rivera about Middleton's sexual abuse and exploitation of his

children and positive gonorrhea cultures on the children, Rivera

said, "Is there a crime more violent than what this pig did to

his own children? Is there anything that could make us more

infuriated? . . . It's rape, but it's worse than rape. It's re­

rape every time some pervert screens the video starring his own

children, that's what it is." (4) Sutton twice described the

children participating in the production of child pornography:

"The children talk about participating in the production of the

raw film." "According to the children, according to the -- they

would produce their own pornography and that they would use the

children to hold up the symbols for the film credits before they

would show them in front of you." (5) Sutton said, "According to

the arrest reports, he had a whole barrel full of kiddie porn and

probably 400 photographs of children that no one can identify at

this time, that we can't get anyone to identify." (6) Sutton

said that the children are in hiding because "one is marked for

death." Rivera responded, "I don't want to get into the occult

or satanism too deeply, but it would be remiss of me not to ask

you what you meant by 'marked for death,' Elizabeth." Sutton

responded, "Simply, he's been marked for death. That was his

3 role for ever being brought into the world to begin with." When

Rivera commented on the difficulty of proving murder in the

practice of satanism, Sutton interjected, "It is on film. If you

can find the film, it is on the film."

Penny Price investigated and produced "Protecting America's

Children" for the defendants. Price initially relied on another

television program concerning Middleton that was broadcast by an

affiliate station in Little Rock, Arkansas. The producer of that

program, Mel Hanks, also provided Price with additional sources

of information, and through him she contacted Mark Hampton, an

attorney who represented Middleton's ex-wife, and Sutton, who

Hanks said had been actively involved in the case. Sutton had

gathered extensive documentary information relating to the case,

which she provided to Price. Finally, Price interviewed people

who were specialists in the field of child abuse and

exploitation.

Based on her research. Price invited Hanks, Sutton, Hampton,

and two child abuse and exploitation specialists to appear on a

Geraldo program titled "Exposing the Exploiters" where they

discussed Middleton's alleged sexual abuse and exploitation of

his children, including details of ritualistic and satanic

4 activity.4 In preparing "Protecting America's Children," Price

relied on material from the first program, information from the

Arkansas program, interviews with Sutton and the materials she

provided, interviews with Hampton, and interviews with Carol

Pate, an "occult specialist" who had interviewed the Middleton

children.

The transcript of the Arkansas program alleges that the

state court initially awarded custody of the Middleton children

to their maternal grandparents, but later gave custody to

Middleton after he denied abusing his children and passed a lie

detector test. The program challenged the court's decision to

award custody to Middleton based on the following evidence

presented during the proceedings: the hospital's gonorrhea test;

a psychologist's report which said, "[T]he children suffer both

from stress and repeated sexual abuse"; a report from a social

service agency, "SCAN," that said that Middleton had an extensive

pornography collection; and opinion testimony by an employee of a

social service agency that the facts presented in court showed

that the children had been sexually abused by their father.

Defendants taped this program before a live audience but it was not televised. Middleton has not based his claims on any of the statements made during this program.

5 Sutton's knowledge of Middleton's actions came from her

sister, Middleton's ex-wife. Sutton says that she spoke with

Price "on a number of occasions" about the custody dispute

between her sister and Middleton, about Middleton's sexual abuse

of his children, and about his involvement in a child pornography

and molestation ring. She also provided Price with "voluminous

court and medical records" that she said documented Middleton's

sexual abuse of the children. Price cannot now remember

specifically which of these documents she reviewed, but she knows

that they included "records by health care professionals who had

found that the Middleton children had been sexually abused, as

well as records of court proceedings."

Hampton's information concerning Middleton came from his

representation of Middleton's ex-wife. Hampton appeared on the

first Geraldo show and stated that after the Middleton children

received psychiatric counselling and revealed "what their father

had been doing to them," custody of the children was returned to

their mother. He also said on the show that his information was

based on what the children told their mother and their aunt,

Sutton, including tales of murder, sexual abuse, and satanic

rituals.

6 Price interviewed Pate before the second program. Pate

informed Price that she was an occult specialist who has worked

with over 100 police departments and the Federal Bureau of

Investigation on criminal cases involving child sexual abuse and

molestation. She counselled the Middleton children for several

months in 1989 and 1990, and during the counselling sessions, the

children told her that Middleton had sexually abused them and had

made sexually explicit films of them and other children on a

number of occasions. Based on her training and experience as an

occult specialist, Pate concluded that the children described

incidents of satanic and ritualistic practices including that the

boy had been "marked for death" by his father.

Middleton is in prison in Georgia after pleading guilty to

two counts of sexual exploitation of children for possession and

importation of child pornography. When his house was searched

prior to his arrest, officers seized ten magazines, a videotape,

catalogs, brochures and order blanks for sexually explicit

subject matter, including child pornography. Middleton was not

charged with crimes involving child abuse or molestation.

Further, the record contains no other evidence suggesting that

Middleton ever "ran a child porn and molestation ring."

7 STANDARD OF REVIEW

Summary judgment is only appropriate "if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with 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." Fed. R. Civ. P. 56(c).

A "genuine" issue is one "that properly can be resolved only by a

finder of fact because [it] may reasonably be resolved in favor

of either party." Anderson v. Liberty Lobby, Inc.,

(1986). A "material issue" is one that "affect[s] the

outcome of the suit . . . ."Id. at 248. The burden is on the

moving party to aver the lack of a genuine and material factual

issue. Finn v. Consolidated Rail Corp.,

(1st

Cir. 1986). The court must view the record in the light most

favorable to the nonmoving party, according the nonmovant all

beneficial inferences discernable from the evidence. Oliver v.

Digital Equip. Corp.,

(1st Cir. 1988). Despite

the favorable standard for the nonmoving party, the court "need

not credit purely conclusory allegations, indulge in rank

speculation, or draw improbable inferences." National

Amusements, Inc. v. Town of Dedham,

(1st Cir.

1995). When a motion for summary judgment is properly supported. the nonmovant may not rely on the pleadings to avoid summary

judgment but must set forth specific facts to show a genuine

issue for trial. Lucia v. Prospect St. High Income Portfolio,

(1st Cir. 1994). A mere scintilla of evidence is

not enough to forestall summary judgment because "[i]f the

evidence is merely colorable, or is not significantly probative,

summary judgment may be granted." Anderson,

(citations omitted). Therefore, to avoid summary judgment when

the moving party challenges the nonmoving party's proof of an

essential element on which the nonmoving party bears the burden

of proof at trial, the nonmoving party must make a sufficient

showing to establish a genuine issue reguiring resolution at

trial. See Celotex Corp. v. Catrett,

(1986) .

Because neither party reguested a jury trial, this case is

scheduled as a bench trial. The court may grant summary judgment

before a bench trial if the material facts are undisputed and "a

trial or hearing would not enhance its ability to decide the

issue." Posadas de Puerto Rico, Inc. v. Radin,

(1st Cir. 1988).

9 DISCUSSION

The defendants move for summary judgment asserting that

Middleton cannot prove an essential element of his claim--that

they were at fault in the production and broadcast of the Geraldo

program.5 For the reasons that follow, I grant defendants'

motion.

To prove defamation under the New Hampshire standard,6 a

private individual plaintiff must show that "a defendant failed

to exercise reasonable care in publishing, without a valid

privilege, a false and defamatory statement of fact about the

plaintiff to a third party."7 Independent Mechanical Contractors

5 The defendants also argue that two of Rivera's statements during the program, which Middleton alleges were defamatory, were merely non-actionable opinions rather than statements of fact. See Milkovich v. Lorain Journal Co.,

(1990); see also Phantom Touring, Inc. v. Affiliated Publications,

(1st Cir.), cert, denied, 112 S. C t . 2942 (1992). Because I grant defendants' motion on other grounds, I need not address this issue.

6 I previously held that New Hampshire defamation law would be used in this case.

7 Although the Constitution may reguire additional protection in other circumstances, a standard of culpability greater than negligence is not constitutionally mandated in cases such as this where the plaintiff is a private individual and "the substance of the defamatory statement 'makes substantial danger to reputation apparent.'" Gertz v. Robert Welch, Inc.,

(1974) (guoting Curtis Publishing Co. v. Butts,

v. Gordon T. Burke & Sons,

(1993); accord

Duchesnave v. Monroe Enters.,

(1984) . Expert

testimony on the standard of care is not required under New

Hampshire law to prove negligence in a defamation case. Kassel

v . Gannett C o .,

(1st Cir. 1989). Instead,

defendants' conduct is measured by that of a reasonable person

under all the circumstances rather than by a particular

professional standard. Id.; Duchesnave,

.

Construing Middleton's position generously, he contends that

he will prove that defendants acted negligently by demonstrating

that: (1) defendants knew when they published the statements that

Middleton had passed a lie detector test in which he denied

sexually assaulting his children; (2) defendants knew or should

have known when they published the statements that much of the

information supporting the statements was unreliable because it

came from witnesses who were closely associated with his ex-wife;

and (3) defendants failed to investigate certain leads that, had

they been considered, would have caused them not to publish the

statements. After carefully considering these claims and the

evidence supporting them in the light most favorable to

130, 155 (1967))

11 Middleton, I grant defendants' motion because I conclude that,

even if Middleton's allegations were true, defendants did not act

unreasonably.

Before taping, "Protecting America's Children," Price

conducted a thorough investigation and discovered substantial

evidence that Middleton had sexually abused his children and had

involved them in the production of child pornography. She

learned from several sources that the children claimed that their

father had abused them and had used them in the production of

child pornography. She learned that the children had tested

positive for gonorrhea, and she discovered that Middleton had

been convicted of possessing child pornography. Finally, she

learned that gualified persons, such as the children's social

workers and Pate, had concluded, after interviewing the children,

that Middleton had sexually abused them. In light of this

evidence, it was not unreasonable for the defendants to publish

the allegedly defamatory statements even though defendants knew

both that Middleton had passed a lie detector test in which he

denied abusing his children and that some of the allegations

against Middleton were being made by persons such as Sutton and

Hampton, who arguably were biased against Middleton. Moreover,

while it is always possible to say with the benefit of hindsight

12 that Price could have conducted a more thorough investigation,

Middleton cannot establish that the investigation was negligently

conducted merely by demonstrating that Price failed to learn that

he had tested negative for gonorrhea and that an investigator

working for the state of Georgia had concluded that Middleton had

not abused his children.8

In order to avoid summary judgment, Middleton must produce

more than a scintilla of evidence of defendants' negligence. See

Anderson,

. "Brash conjecture, coupled with

earnest hope that something concrete will eventually materialize,

is insufficient to block summary judgment." Dow v. United Bhd.

of Carpenters & Joiners,

(1st Cir. 1993). Although

Middleton has raised a guestion concerning the truth of the

statements about him on the program, he does not dispute what the

defendants did to investigate the story nor has he seriously

challenged the defendants' reliance on their research and

investigation to broadcast the program. Despite Middleton's

opinions, denials, and unsupported assertions of fact, he has not

countered the vast weight of the evidence indicating that a

Middleton has not offered any evidence to support these contentions. However, in analyzing his claims, I assume that he could prove his claims at trial.

13 reasonable person in the position of the defendants could have

relied on the information produced by their investigation. Thus,

even when the evidence is considered in the light most favorable

to Middleton, I would not find that he has proved that defendants

"failed to exercise reasonable care for the accuracy of the

statements." Duchesnave,

. Under these

circumstances, it is unnecessary to hold a hearing to resolve

plaintiff's defamation claim. See generally Posadas,

.

____________________________ CONCLUSION

For the foregoing reasons defendants' motion for summary

judgment (document 39) is granted.

SO ORDERED.

Paul Barbadoro United States District Judge

March 31, 1995

cc: William Chapman, Esg. Marcia Shein, Esg. John Vanacore, Esg.

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