Philadelphia Defamation Law
The following Philadelphia County court opinion demonstrates the complexities in mounting a defamation case. This opinion is very useful for its analysis of the admissibility of expert reports and should certainly be considered in assembling a case on behalf of a plaintiff. Harper J. Dimmerman, Attorney at Law, handles defamation litigation and provides free, initial consultations: (215) 545-0600
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CIVIL TRIAL DIVISION
CARL R. GREENE, :
: SEPTEMBER TERM, 2011
: No. 01223
PHILADELPHIA MEDIA NETWORK, INC. :
PHILADELPHIA MEDIA NETWORK :
NEWSPAPERS, LLC, :
Plaintiff Carl Greene sued Defendants, Philadelphia Media Network, Inc., and
Philadelphia Media Network (Newspapers), LLC, for monetary damages for defamation,
false-light invasion of privacy, and commercial disparagement based on seventeen
articles and editorials concerning Mr. Greene’s tenure as Executive Director at the
Philadelphia Housing Authority, which were published in the Philadelphia Inquirer and
Daily News between November 1, 2010 and August 9, 2011. Defendants filed a motion
for summary judgment asserting that Plaintiff Greene, who is a public figure, did not
show by clear and convincing evidence that the articles were materially false or that
Defendants published them with actual malice, that is “with knowledge that [they were]
false or with reckless disregard of whether [they were] false or not.” N.Y. Times Co. v.
Sullivan, 376 U.S. 254, 279–80 (1964). Defendants argued that the First Amendment
This brief memorandum opinion is drafted without the benefit of the written transcript. If there is an
appeal, this Court may amplify this opinion with citations to the evidentiary hearing and further analysis. 2
protects publishers from liability for defamation for unreasonable interpretations of
articles’ meanings, claimed unfairness in presentation, opinions, immaterial
inaccuracies or truthful articles.2
Movants also argued3
that Plaintiff Greene could not
overcome the fair report privilege, which provides that when “it is in the public interest
that information be made available as to what takes place in public affairs, a newspaper
has the privilege to report the acts of the executive or administrative officials of
government.” Sciandra v. Lynett, 187 A.2d 586, 588 (Pa. 1963). Once Defendants filed
their summary judgment motion, the law required Plaintiff Greene to refute with actual
evidence any facts essential to the cause of action that Defendants asserted were not
disputed. Pa.R.C.P. 1035.3(a)(2). At this stage, the Plaintiff “may not rest upon the
mere allegations or denials of the pleadings” but must respond with more. Pa.R.C.P.
1035.3(a). Plaintiff Greene offered Dr. Timothy Habick as an expert in linguistics to
provide his primary evidence that Defendants published the articles with actual malice.
Defendants challenged Dr. Habick’s proffered expertise and report and requested a
Frye hearing. (Defs.’ Reply in Supp. of Mot. Summ. J. at 11, n.5.)
This Memorandum addresses this Court’s findings and conclusions on the legal
admissibility of Dr. Habick’s testimony under Pennsylvania Rule of Evidence 702 and
accompanying case law following a Frye hearing on July 28, 2014. Plaintiff Carl
See, e.g., Tucker v. Phila. Daily News, 848 A.2d 113, 133 (Pa. 2004) (“[A]n article is not made
defamatory by being unfair . . . .”); Baker v. Lafayette Coll., 532 A.2d 399, 402 (Pa. 1987) (“[O]pinion
without more does not create a cause of action in libel.”); Thomas Merton Ctr. v. Rockwell Int’l Corp., 442
A.2d 213, 216 (Pa. 1981) (“[W]e must consider the full context of the article to determine the effect the
article is fairly calculated to produce, the impression it would naturally engender, in the minds of the
average persons among whom it is intended to circulate.”) (internal quotations omitted); Kilian v.
Doubleday & Co., 79 A.2d 657, 660 (Pa. 1951) (a statement that is “substantially true” cannot be
defamatory); ToDay’s Hous. v. Times Shamrock Commc’ns, Inc., 21 A.3d 1209, 1215 (Pa. Super. Ct.
2011) (finding an absence of material falsity and explaining, “The law does not require perfect truth, so
long as any inaccuracies do not render the substance and ‘gist’ of the statements untrue.”).
3Defendants also argued that Greene did not show evidence that any of the statements caused him injury
to his reputation, emotional distress or economic loss. 3
Greene’s proffered expert, Dr. Timothy Habick, submitted a report stating that, upon
review and analysis of all of the allegedly defamatory articles written by numerous
authors, he concluded that the writing showed that the Defendants “willfully,
maliciously, without substantiation, and with reckless disregard for the truth, defamed”
Plaintiff Carl Greene. (Pl.’s Answer in Opp’n to Defs.’ Mot. Summ. J. Ex. L, at 3.)
Plaintiff’s counsel offered Dr. Habick’s testimony as a linguist for two reasons: (1) to
explain what the articles mean to the average reader, and (2) to show that Defendants
published the articles with actual malice, that is, “with knowledge that [they were] false
or with reckless disregard of whether [they were] false or not.” Sullivan, 376 U.S. at
279–80. In short, Plaintiff has offered a linguist to testify as an expert to what an
average reader thinks, and to what the mental state of the Defendants’ seven authors
and editorial board was when they published allegedly false statements. Defendants
challenged Dr. Habick’s qualifications, the relevance of his testimony, and the reliability
of his methods, claiming that they were not “generally accepted in the relevant field” of
linguistics. Pa.R.Evid. 702; Grady v. Frito-Lay, 839 A.2d 1038, 1047 (Pa. 2003).
Given the considerable clout that the term “expert” imbues to a jury,
Pennsylvania law requires that the judge serve as a gatekeeper before proffered expert
testimony is provided at trial. The judge must screen to ensure that the witness has
demonstrated qualifications in the field offered, the testimony provides information that
an average juror would not already possess, the testimony is relevant and the methods
used are reliable. Pennsylvania Rule of Evidence 702 provides:
“A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge is
beyond that possessed by the average layperson;4
(b) the expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a
fact in issue; and
(c) the expert’s methodology is generally accepted in the relevant
Pa.R.Evid. 702. In examining the admissibility of expert witness testimony, the
Pennsylvania Supreme Court has recently held:
“[T]his Court has recognized the influential nature of expert testimony on
complex subjects, and the potential that distortions have to mislead
laypersons. . . . [W]e conclude that a Frye hearing is warranted when a
trial judge has articulable grounds to believe that an expert witness has
not applied accepted scientific methodology in a conventional fashion in
reaching his or her conclusions.”
Betz v. Pneumo Abex LLC, 44 A.3d 27, 53 (Pa. 2012). Plaintiff’s counsel conceded that
the type of “unique” testimony offered here rendered a Frye hearing appropriate. Trach
v. Fellin, 817 A.2d 1102, 1109 (Pa. Super. Ct. 2003) (“Frye only applies when a party
seeks to introduce novel scientific evidence.”). Plaintiff Greene, as the proponent of the
evidence, bears the burden of establishing “all of the elements for its admission under
Pa.R.E. 702, which includes showing that the Frye rule is satisfied.” Grady v. Frito-Lay,
839 A.2d 1038, 1045 (Pa. 2003).
In explaining the idea of “methodology,” the Pennsylvania Superior Court has
explained that replicability, or reproducibility, lies at the heart of the scientific method:
“[T]he scientific method is a method of research in which a problem is
identified, relevant data are gathered, a hypothesis is formulated from
these data, and the hypothesis is empirically tested. Within the meaning
of the definition of the scientific method, ‘empirical’ means ‘provable or
verifiable by experience or experiment.’ Key aspects of the scientific
method include the ability to test or verify a scientific experiment by a
parallel experiment or other standard of comparison (control) and to
replicate the experiment to expose or reduce error.”5
Trach, 817 A.2d at 1113 (internal citations omitted). “Frye only applies to
determine if the relevant scientific community has generally accepted the
principles and methodology the scientist employs, not the conclusions the
scientist reaches. . . .” Id. at 1112.
An expert must be qualified in the field in which they testify.
This Court found that Dr. Habick was not qualified in the areas for which his
testimony was offered. Dr. Habick was offered as an expert in linguistics and logic to
offer an opinion about (1) how average readers would read the articles and (2) how
linguistic and logical analysis shows that Defendants and their reporters “willfully,
maliciously, without substantiation, and with reckless disregard for the truth, defamed”
Plaintiff Carl Greene. (Pl.’s Answer in Opp’n to Defs.’ Mot. Summ. J. Ex. L, at 3.)
Dr. Habick testified that he has spent the bulk of his career developing test
questions for graduate school admissions tests, initially at the Educational Testing
Service (ETS) and then at his business, Reasoning, Inc., which he founded after his
departure from ETS in 2001. He used his linguistic expertise to develop questions that
achieved the “highest level of fairness” for test-takers. Dr. Habick’s venture into the field
of forensic linguistics is a fascinating tale of serendipity.
Dr. Habick testified that he
met Dr. Marilyn Lashner’s daughter in 2009 and later met Dr. Lashner. When Dr.
Lashner died the next year, her children gave Dr. Habick her business, Media Analysis
and Communications Research. Prior to being bequeathed this forensics linguistics
business, Dr. Habick had never worked in the area of forensics linguistics, nor had he
done any linguistic analysis in the area of defamation. Dr. Habick was assisted in this
4 Dr. Habick testified that he met Dr. Lashner when her daughter came by his home in 2009, notified him
that Dr. Lashner had previously lived in his home and asked whether Dr. Lashner could visit her former
home. Thereafter, he developed a relationship with the family. 6
new venture by reviewing Dr. Lashner’s prior reports and analyses after her death.
Though Dr. Habick’s resume lists among his accomplishments that he “[p]rovided
forensic linguistic services in support of Dr. Marilyn Lashner’s case evaluations,
analyses and reports, discovery assistance, and testimony,” he admitted in his
testimony that he had never actually worked with Dr. Lashner but instead had been only
an acquaintance. (See Frye Hr’g Defs.’ Ex. 7, Aff. of Timothy Habick, Schnitt v. Cox
Radio, Inc., et al., Case No. 08-05738 (Fla. Cir. Ct.).)
Dr. Habick testified that he analyzed the logical structures and identified
fallacious arguments in the articles in question. However, he is not a logician. Dr.
Habick claims expertise in this area due to having worked alongside and collaborating
with logicians during his 27 years of writing exam questions. This assertion has faulty
logic: a nurse is not qualified to do surgery just because the nurse has worked
alongside a surgeon for many years and may be familiar with much of what occurs in
the operating room. Dr. Habick has insufficient expertise under the law to give
testimony in the area of logic.
Dr. Habick uses the term defamatory and defamation throughout his report but
his testimony showed that he did not know the correct legal definition of defamation5
public figures. A public figure is not defamed under the law just because embarrassing
facts are publicized and opined about by writers. True statements, even if unflattering,
In Pennsylvania, any person bringing a defamation claim bears the burden of proving:
“(1) The defamatory character of the communication.
(2) Its publication by the defendant.
(3) Its application to the plaintiff.
(4) The understanding by the recipient of its defamatory meaning.
(5) The understanding by the recipient of it as intended to be applied to the plaintiff.
(6) Special harm resulting to the plaintiff from its publication.
(7) Abuse of a conditionally privileged occasion.”
Weaver v. Lancaster Newspapers, Inc., 926 A.2d 899, 903 (Pa. 2007) (citing 42 PA. CONS. STAT. ANN. §
do not constitute defamation. Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 775
(1985); Spain v. Vicente, 461 A.2d 833, 836 (Pa. Super. Ct. 1983). A public-figure
plaintiff such as Carl Greene must show by clear and convincing evidence that the
allegedly defamatory statements were materially false and made with actual malice.
Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974). Dr. Habick is not qualified to
render an opinion concluding that Defendants “defamed” Plaintiff when he does not
know how defamation is defined under the law.
Dr. Habick also misunderstands the application of the actual malice standard in
defamation cases: falsity is a precondition to actual malice. N.Y. Times Co. v. Sullivan,
376 U.S. 254, 279–80 (defining actual malice as publishing statements “with knowledge
that [they were] false or with reckless disregard of whether [they were] false or not”).
“Actual malice under the New York Times standard should not be confused with
common-law malice or the concept of malice as an evil intent or a motive arising from
spite or ill will.” See also Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510
(1991). The actual malice requirement is a subjective, not an objective, standard:
showing that a defendant should have seriously doubted the accuracy of her or his story
is insufficient. Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 688 (1989);
see also Garrison v. Louisiana, 379 U.S. 64, 74 (1964) (a plaintiff cannot prevail without
clear and convincing evidence of a “calculated falsehood”); Am. Future Sys. Inc., v.
Better Bus. Bureau, 923 A.2d 389, 395 n.6 (Pa. 2007) (proving actual malice is difficult
because actual malice “implies at a minimum that the speaker entertained serious
doubts about the truth of his publication, . . . or acted with a high degree of awareness
of . . . probable falsity”); Bartlett v. Bradford Publ’g, Inc., 885 A.2d 562, 564 (Pa. 2005)
(mere departure from journalistic ideals not actual malice).8
Dr. Habick analyzed the Defendants’ articles to assess whether Defendants
published statements intentionally knowing they were false or with recklessness as to
their falsity, even though he had no information as to whether the statements were
actually false. He testified that he talked to Plaintiff’s counsel, read the Complaint, and
relied upon his “common sense”, “common knowledge,” and “verifiable truths.” He
admitted he did no factual research save for some minor internet searches. This
process shows again that he misapprehends the legal definition of actual malice for
public figures. The statements must be proven as false before a publisher can be found
to have actual malice in publishing them. See St. Amant v. Thompson, 390 U.S. 727,
730 (1968) (defamation plaintiff has “the burden of proving that the false statements . . .
were made with actual malice as defined in New York Times Co. v. Sullivan and later
cases” (emphasis added)). Dr. Habick began his analysis with faulty assumptions that
statements were false. Dr. Habick dismissed this concern by testifying that if any of the
allegedly defamatory statements turned out to be true, his opinion should just be
ignored as to those statements and kept intact for the others. Not only is this approach
contrary to sound scientific method but it illustrates a fundamental lack of understanding
of what “actual malice” means in the context of defamation.
Actual malice in the context of public figure defamation is not the same as malice
in common usage. Actual malice does not mean “evil” or “critical.” Masson, 501 U.S. at
510. There is nothing inappropriate about reporters’ publishing unflattering information
that is materially true or they even justifiably think is true. The press must be permitted
to write about public officials like Plaintiff Greene in order to keep the citizenry informed
about the conduct of those serving in their government. Public officials in a democracy
must be open to being evaluated by the press and the public they serve. Muzzling the 9
press from criticizing public officials would threaten good government and ultimately
threaten democracy’s survival.
Dr. Habick also has no training or experience in journalism. He has no
background or experience in empirically testing or scientifically determining the intent of
journalists or any other group of writers to determine whether they have written articles
with malice as defined by defamation law. Though Dr. Habick was being offered for the
purpose of testifying about how an article is read by an average reader, he conceded
that he is unable to read as an average reader himself based on his extensive
experience in linguistics. He also conceded that he has never tested how average
readers interpret journalistic pieces outside the context of high-stakes graduate testing.
Though Dr. Habick has been offered as an expert in prior cases, he has never been
qualified by a court to give his expert opinion in a defamation case.
Thus, Dr. Habick does not have the requisite qualifications to testify as an expert
to what an average reader might think or the subjective intent of Defendants and their
reporters when they published the articles.
An expert’s methodology must be reliable as evidenced by being generally
accepted in the field.
Plaintiff failed to meet his burden of showing that Dr. Habick used methodology
that was generally accepted in the field of linguistics. Plaintiff’s claims of what his
linguistic expert could provide were bold: he claimed that a linguistic expert could use a
scientific method to determine the subjective intent of publishers and reporters when
they wrote and published articles. In short, a linguistic expert could divine by a mere
reading and analysis of articles, and nothing more, whether a publisher and its many
reporters wrote the articles “with knowledge that [they were] false or with reckless 10
disregard of whether [they were] false or not.” N.Y. Times Co. v. Sullivan, 376 U.S. 254,
279–80 (1964). Such a promise, if true, would prove exciting indeed: courts could
reduce the number of trials, police investigations could be shortened, and crimes could
be solved if a linguist could be employed to merely analyze another speaker’s language,
without reference to any facts, and determine the speaker’s mental intent. However, Dr.
Habick’s analysis was not shown to be accepted science to permit its admission in
court. His analysis was not based on factual research, was not replicable, lacked the
requisite degree of certainty, and used methods that were not shown as generally
accepted within the field of linguistics.
Dr. Habick testified that he reached his opinions “solely on the basis of the
examination of the articles” and not on “deposition testimony or other facts contained in
documents that were exchanged by the parties after this case was initiated.” (Pl.’s
Answer in Opp’n to Defs.’ Mot. Summ. J. Ex. L, at 4.) Dr. Habick testified as to what he
did to reach his opinion. He first met with Plaintiff’s counsel, who explained the issues.
Next he read the Complaint but not the Answer. Dr. Habick then applied his linguistic
analysis to the seventeen articles. His linguistic analysis involved looking at the
linguistic structures, including argumentation, logical fallacies, and assumptions. Dr.
Habick testified that he used his “common sense,” “common knowledge,” and “verifiable
reality” to reach his conclusions as to the truth of statements made. Dr. Habick
admitted he did no fact checking, other than some unspecified internet research, to
determine whether statements were true or not. He provided the ultimate disclaimer: if
any statements made by Defendants were found to be false, his conclusions that they
were defamatory and made with malice should be ignored. 11
Dr. Habick also contributed another proviso that compromised the admissibility of
his testimony: he testified he was making the claim only that there was a “likelihood”
that the published statements were defamatory and made with malice, but that he could
not speak with certainty. The law generally requires that experts testify to more than a
mere “likelihood” of the substance of expert testimony to make it admissible as having
any value to a jury. Dr. Habick’s opinion lacked the requisite certainty for expert
testimony. See Hoffman v. Brandywine Hosp., 661 A.2d 397, 402 (Pa. Super. Ct. 1995)
(an expert’s opinion lacks a reasonable degree of certainty if it is based merely upon a
“likelihood” that something “may” have occurred). See also Com. v. Spotz, 756 A.2d
1139, 1160 (Pa. 2000) (experts are not required to use “magic words,” but rather the
Court “must look to the substance of [the expert’s] testimony to determine whether his
opinions were based on a reasonable degree of medical certainty rather than upon
mere speculation”). In addition, Dr. Habick’s conditioning his opinion as finding there
was a mere “likelihood” of actual malice itself compromised Plaintiff’s success in this
case. The law requires that Plaintiff must show by clear and convincing evidence, not
mere likelihood, that Defendants knew the statements were false or published with
reckless disregard of whether they were false to defeat summary judgment. Sullivan,
376 U.S. at 279–80.
Dr. Habick testified that he had no hypothesis for his analysis. He did not retain
or provide any of the underlying notes or data he used for his analysis. He conducted
no surveys or questionnaires of readers as to their interpretations of the articles to
support his opinion as to what “average readers” might conclude upon reading the
articles. With respect to his opinion about the intent of the authors, Dr. Habick testified
that what the authors said about their intent in writing the article was not relevant to his 12
analysis of their subjective intent in terms of actual malice. No validity or replicability
studies were performed or attempted.
When Dr. Habick was pressed to describe how his process of analysis fit within
the methodology used in the field of linguistics, he evaded responding with precision.
He simply insisted that this is what linguists do: they analyze structures. This
vagueness makes it impossible to validate or test his analysis and has been frowned
upon by the Supreme Court when assessing the admissibility of scientific methodology:
“[T]he breadth and character of an expert’s extrapolations are relevant to
the scientific acceptance of his methodology. The alternative is to permit
experts to evade a reasoned Frye inquiry merely by making references to
accepted methods in the abstract.”
Betz v. Pneumo Abex LLC, 44 A.3d 27, 58 (Pa. 2012).
Strikingly, Dr. Habick failed to employ the methods used in linguistics within the
context of test examination questions, for which he has experience to verify or replicate
his results. He conducted no interannotater studies or any other validity studies to verify
his conclusions, as is done in the test-taking field. Not only did he fail to articulate a
clear replicable methodology he employed that could be replicated by others in his field,
he made no attempt to have other linguists verify or evaluate his methods. Plaintiff
failed to provide any evidence that Dr. Habick’s linguistic analysis of a reporter’s articles
to determine if they had satisfactory argumentation, logic, or assumptions could even
reveal an author’s intent or recklessness in writing an article. Even if he could show that
articles have fallacies, he showed no link between poor logic and a writer’s subjective
intent about whether the statements are true or not. Moreover, Dr. Habick’s conclusion
about whether a statement in the article was false seemed to rest not on any proven 13
facts but rather on his personal “common sense,” “common knowledge,” and “verifiable
Dr. Habick conceded that he knew of no peer-reviewed articles endorsing his
method. No defamation cases were presented where a linguist had been qualified as
an expert under Frye standards for using the Dr. Habick’s process of analysis to
establish whether a publisher had actual malice or to educate the jury as to how an
average reader would interpret articles. Indeed, no evidence was provided that linguists
generally accept Dr. Habick’s assertion that a linguist need simply read articles and
apply common sense and knowledge without any factual research or verification to
assess whether an author knowingly wrote a false article or wrote one with reckless
disregard for its truthfulness. Thus, the magical promise of crystal-ball-like insight into
another’s mental state through analysis of a person’s writing failed to be backed by any
generally accepted science.
An expert’s knowledge must be beyond that possessed by the average
layperson and be relevant to a question the jury must answer.
Experts must contribute knowledge that the jurors don’t already have. Pa. R.
Evid. 702(a) (expert’s testimony is admissible only if it provides “scientific, technical, or
other specialized knowledge” that “is beyond that possessed by the average
layperson”). The law does not permit a party to package a witness as an expert to talk
in confusing, technical, or Latin language to tell a juror something that is already within
the realm of common sense and general knowledge. “Expert testimony is permitted
only as an aid to the jury when the subject matter is distinctly related to a science, skill,
or occupation beyond the knowledge or experience of the average layman. Where the
issue involves a matter of common knowledge, expert testimony is inadmissible.” Com. 14
v. O’Searo, 352 A.2d 30, 32 (Pa. 1976) (internal citations omitted). Dr. Habick’s
proffered testimony does not meet these requirements because average jurors are
inherently qualified to read the articles as average readers without the aid of an expert,
and because logical and linguistic structures are irrelevant to the question of whether
false statements are knowingly or recklessly published as truth.
The Superior Court has recently held:
“Admissible expert testimony that reflects the application of expertise
requires more than simply having an expert offer a lay opinion.
‘Testimony does not become scientific knowledge merely because it was
proffered by a scientist.’ Likewise, expert testimony must be ‘based on
more than mere personal belief,’ and ‘must be supported by reference to
facts, testimony or empirical data.’
. . .
The exercise of scientific expertise requires inclusion of scientific authority
and application of the authority to the specific facts at hand. Thus, the
minimal threshold that expert testimony must meet to qualify as an expert
opinion rather than merely an opinion expressed by an expert, is this: the
proffered expert testimony must point to, rely on or cite some scientific
authority—whether facts, empirical studies, or the expert’s own research—
that the expert has applied to the facts at hand and which supports the
expert’s ultimate conclusion. When an expert opinion fails to include such
authority, the trial court has no choice but to conclude that the expert
opinion reflects nothing more than mere personal belief.”
Snizavich v. Rohm & Haas Co., 83 A.3d 191, 195 (Pa. Super. Ct. 2013) (internal
citations omitted), allocatur denied July 29, 2014 (88 EAL 2014). Dr. Habick’s testimony
reflects his personal beliefs and, by his own admission, his common sense and
knowledge. It does not provide specialized knowledge beyond what the average jury
First, Dr. Habick’s testimony was offered to provide insight as to what an average
reader would conclude. A jury provides a perfect sampling of average readers. Dr.
Habick’s allegedly expert testimony provides nothing that the average jury does not 15
have. Indeed, Dr. Habick testified that based on his extensive experience in linguistics,
he lacks the ability to even read an article as an average reader would. Jurors are
already endowed with the ability to read newspaper articles and need no expert
assistance, especially from an expert like Dr. Habick who confesses that he can no
longer read articles through the lens of an as average reader and that he rarely even
reads the newspaper.
Second, Dr. Habick claims to use his linguistic analysis coupled with his
“common sense,” “common knowledge,” and “verifiable reality” to tell the jury what the
many reporters and the collective editorial board must have thought when they wrote
and published the articles he assumes to be false. Dr. Habick claims that he can
determine in a scientific way that the Defendants subjectively must have known or been
reckless in not knowing that the articles they wrote were false. He claims to know this
based on analyzing Defendants’ reporters’ articles and their allegedly faulty
argumentation, logic, and assumptions, coupled with his “common sense,” “common
knowledge” and “verifiable reality” that the articles are false. Jurors are known and
valued for their “common sense” and “common knowledge”; having a so-called expert
tell them what is common sense and common knowledge would be invading their
province by purporting to provide them information that the average layperson already
possesses. Average jurors also can assess the validity of arguments, logic, and
assumptions without an expert, even though they may not be able to assign the proper
Latin terminology to each type with quite the same practiced ease of a linguist like Dr.
Dr. Habick offers extensive critical commentary about the logical and linguistic
structure of the articles in this case. However, there is no element of a defamation case 16
that calls for a linguist’s or logician’s stamp of approval of the writing style. Dr. Habick’s
career has focused on trying to make test questions clear and unambiguous to
prospective graduate student test takers, which is a noble and important task.
However, defamation law is not about whether articles fall into this balanced style where
rigorous rules are applied to ensure clear and uniform understanding. People may
prefer that reporters write with clear logic and structure. However, reporters who may
be perceived by some as not having that gift are not subject to legal liability for
defamation. Moreover, opinions on what constitutes good, clear writing vary as much
as tastes in cuisine. Defamation law requires only that publishers and authors, whether
logical or not, do not knowingly or recklessly publish false statements about public
figures. Latin nomenclature, logical structure and linguistic style are irrelevant to a jury’s
ability to reach a conclusion on that straightforward issue.
Dr. Habick’s testimony would be unfairly prejudicial, confusing and
misleading to the jury.
Dr. Habick’s proffered testimony does not meet minimal legal requirements for its
admissibility. However, even if Dr. Habick’s testimony did meet those standards, this
Court finds that his testimony would be excluded under Pa. R. Evid. 403 as “its
probative value is outweighed by a danger of . . . unfair prejudice, confusing the issues,
[or] misleading the jury.” See, e.g., Betz v. Pneumo Abex LLC, 44 A.3d 27, 52 (Pa.
2012) (affirming that R. 403 gives the trial court a role in screening proffered experts to
exclude unfair prejudice, confusion, and misleading evidence). Dr. Habick’s testimony
reaches into areas that the jury need not decide—(1) that of a so-called sophisticated
linguistic analysis rather than an average juror’s reading, and (2) that of a linguist
speculating about his view as to the likelihood, based on no actual proven facts outside 17
of the articles’ written words, that the articles were written with knowledge of their
alleged falsity or with reckless disregard of their alleged falsity. However, he confuses
the definitions of defamation and actual malice. He uses overly technical vocabulary to
discuss basic concepts. He makes assumptions that statements are false, which is a
jury’s task, and jumps to assessing whether the statements were published intentionally
or recklessly as to whether they are false. Dr. Habick’s testimony, if permitted and
given the imprimatur of being “expert” by the court, would unfairly prejudice, confuse
and mislead the jury. By contrast, the jury will have far more information when they
make their decision than Dr. Habick did in rendering his opinion that statements were
defamatory. In addition to reading the articles, the jury will hear evidence including
testimony from Plaintiff, Defendants, reporters and others who can provide evidence as
to the true facts and the Defendants’ subjective intent. The jury will not be determining
the publishers’ subjective intent based on whether the articles are logical or include
false assumptions. Jurors will be guided by whether there is evidence of actual malice.
This Court finds that Dr. Habick’s testimony and report do not meet legal
requirements under Pa. R. Evid. 702 and caselaw. Dr. Habick is not qualified in the
areas he was offered for—namely, (1) to explain what the articles mean to the average
reader, and (2) to show that Defendants knowingly published false statements or did so
with reckless disregard of their falsity. Sullivan, 376 U.S. 254, 279–80 (1964). Plaintiff
failed to show that Dr. Habick was qualified to testify in these areas, that his
methodology was reliable or scientific and generally accepted within the field of
linguistics, and that his testimony was relevant to the issues the jury would need to 18
decide. Pa.R.Evid. 702.
Further, this Court finds that Dr. Habick’s testimony is not
admissible because it would be unfairly prejudicial, confusing and misleading.
Pa.R.Evid. 403. For the foregoing reasons, Dr. Habick’s testimony and report are not
admissible and may not be used as evidence in support of Plaintiff’s response to the
summary judgment motion nor at trial.
BY THE COURT:
Lisa M. Rau, J.
Date: August 1, 2014
See also Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); Betz v. Pneumo Abex LLC, 44 A.3d 27,
53, 58 (Pa. 2012) (clarifying Court’s gatekeeping role and explaining relevance of the breadth and
character of an expert’s extrapolations); Summers v. Certainteed Corp., 997 A.2d 1152, 1161 (Pa. 2010)
(summary judgment is improper where an expert’s conclusions are sufficiently supported); Grady v. FritoLay,
839 A.2d 1038 (Pa. 2003) (affirming that party proffering expert evidence must show that scientists
in the field generally accept the expert’s methodology for arriving at the expert’s conclusion); Trach v.
Fellin, 817 A.2d 1102, 1113 (Pa. Super. Ct. 2003) (explaining meaning of “methodology”).