Keith and Drew begin the discussion around the 28:00 mark.
Eight new Plaintiffs were added to a lawsuit filed in Jefferson Circuit Court yesterday against Katina Powell, IBJ Publishing, and Dick Cady. The original Complaint, filed by current U of L student Kyle Hornback, in October of this year, was supplemented by three additional students from the University, and five non-students. The non-students were named by Powell as prostitutes in her book, “Breaking Cardinal Rules”.
NEW STUDENT PLAINTIFFS
With respect to the first three new student Plaintiffs, (Jamie Smith, Dillon Hornback, and Rebecca Sommer) their Complaints are in essence the same as that of the original Plaintiff KyleHornback. Namely, the lawsuit claims that the value of the education the four have sought has been diminished due to the negative publicity that this book, and Powell’s admitted criminal activity,have caused to the University of Louisville. All four students are seeking to enforce KRS 446.070 which precludes a criminal from profiting from their illegal activity. There are also claims by each for Tortious Interference With a Contract, and Intentional Infliction of Emotional Distress.
While we have never specifically written about the student Plaintiffs’ likelihood of success in this particular case, it is fair to say that the odds of prevailing are not good. The damages in this case are speculative at best, and the case has little probability of succeeding. In fact, it is highly likely that all four of these Plaintiffs will lose their case in Summary Judgment. (The judge will likely rule that there is no legal case to present to a jury.)
What was interesting about the Amended Complaint filed in court today was the addition of five non-student Plaintiffs to this lawsuit. They are: Jemiah Nash, Marquease Richardson, Precious Burnley, Shinita Martin, and Dolly Bolden. All of these women were pictured in Powell’s book, and were alleged to have provided sex to players, recruits, and their family members in exchange for money. This is a claim that all five women deny. Moreover, the women also claim that not only did they not participate in this activity, but they weren’t even asked about it by Cady or IBJ prior to the release of the book.
The claims brought by these five Plaintiffs include Invasion of the Right of Privacy, Defamation, and Intentional Infliction of Emotional Distress. The most interesting part of this lawsuit is the fact that these five Plaintiffs are all coming forward to assert that the allegations in the book are not true. Namely, that they did not accept money for sex. This claim, will cause the court, and presumably a jury, to rule as to whether or not there is any truth to the allegations Powell has made in her book. A jury will have to evaluate the evidence, consider the testimony, and rule as to whether or not Powell lied when she wrote the book and told her story.
THE DEFAMATION CLAIM
The claim for defamation seems like the strongest case of the entire lawsuit. In it, the five non-student Plaintiffs need not prove actual damages from the publication of the book. Anytime a claim is made that someone has engaged in criminal activity, and that claim is not true, there is a class of defamation referred to as defamation per-se. This distinction eliminates the need to prove damages in the case. For example, if I were to write that Joe Blow has horrible breath, is mean to old people, and cusses out children, that may be a defamatory statement. However, Joe would have to prove what actual damage he incurred as a result of this statement. With defamation per-se, no such damage proof is required. If I said, Joe Blow is a prostitute who uses illegal drugs and possesses child pornography, the damages would be presumed, and hefty.
It is important to note that the defamation claim, which is technically Libel, is strongest against Cady and IBJ. They are the professionals, and they are the ones that have published the book. They had a duty to vet the story from Powell and according to the Amended Complaint, it does not appear that they have. Lastly, IBJ and Cady are the ones who have money to pay for the damages.
THE CIVIL PROCESS
The civil action will allow for the Plaintiff’s attorney to request documentary evidence from the Defendants which has been used to bolster Powell’s earlier claims. (Namely the log book and records of transactions.) The Plaintiff’s attorney will be able to depose Powell, Cady, IBJ Representatives, and others who may be expected to testify at trial in this matter. As an officer of the court, Plaintiff’s counsel will be able to seek a subpoena compelling documentary evidence, or testimony of anyone who may not wish to participate voluntarily.
Now that the Complaint has been filed, the next step is for the Defendants to be served. Once this is accomplished, the Defendants will each have 20 days to file an Answer with the Court. (This is typically a denial of all claims.) Subsequent to the Answer, the parties will engage in written discovery. (This includes interrogatories, and requests for production of documents.) Written discovery is where each side asks questions of the other, and the parties must respond under oath. Each side propounds these requests on the other side and each party, conceptually, has thirty days to respond; although in reality, this process usually takes far longer.
Once written discovery is completed depositions are scheduled. This is the first time attorneys are able to ask questions of the litigants. The testimony is typically taken in a lawyer’s office, it is under oath, and it may be filmed, although it is not required to be. Once depositions of the parties, all the Plaintiffs and all the Defendants, has occurred, a Motion of a Trial Date will be made and the Court will assign a date for trial. This usually takes over six months, and in many cases as long as one year.
WHY AN AMENDED COMPLAINT
The question was posed as to why the five new non-student Plaintiffs filed an Amended Complaint, seeking to join the original lawsuit, instead of their own independent action. This is a good question. The only reason I can think of is due to the fact that the filing of an Amended Complaint is not as costly as filing an Original Complaint. By amending the original Complaint, the attorney in this case has saved a little more than $200 in filing fees, and he may have kept an otherwise “unwinnable” lawsuit still active.
CIVIL PROCESS COMPELLING TESTIMONY
One item that has been discussed is the ability to compel testimony from Powell in the civil case. While it is true that she will be sworn to tell the truth about any question asked of her in trial or discovery, she still retains the ability to plead the fifth when it comes to questions about criminal activity. No one can be compelled to testify about incriminating issues. For example, in the O.J. Simpson wrongful death civil suit, the only reason the Plaintiff’s counsel was able to examine O.J. under oath was due to the fact that he had already been acquitted on the criminal case. Had the criminal charge not already been disposed of, he would not have been compelled to testify.
I gave up predicting what a jury would do a long time ago. One thing is for certain, if you try enough cases you will win some you should lose, and you will lose some you should win. These facts are no different. While I feel fairly confident the student Plaintiffs will lose their suit, I am uncertain when it comes to the five non-student Plaintiffs. The jury will have an opportunity to weigh the evidence, evaluate the veracity of the litigants and determine whether or not a tort has been committed. It will be interesting to see the twists and turns this case takes and how it intertwines with criminal cases and NCAA investigations. One thing is certain, someday, this will be a really good book.
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