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Masson v. New Yorker Magazine Inc.

filed: June 5, 1996.


Appeal from the United States District Court for the Northern District of California. D.C. No. CV-84-07548-EFL. Eugene F. Lynch, District Judge, Presiding.

Before: Arthur L. Alarcon, Robert R. Beezer, and Pamela Ann Rymer, Circuit Judges. Opinion by Judge Alarcon.

Author: Alarcon

ALARCON, Circuit Judge:

In this libel action, Jeffrey M. Masson ("Masson") appeals from the judgment in favor of The New Yorker Magazine ("The New Yorker") and Janet Malcolm ("Malcolm") following two jury trials arising from the publication of a two-part article written by Malcolm in The New Yorker on December 5, and December 12, 1983, entitled "Annals of Scholarship: Trouble in the Archives" ("the Masson article"). Masson contends that he was defamed by five quotations which were allegedly falsely attributed to him in the article.*fn1 Masson has conceded for the purposes of this litigation that he is a public figure. Accordingly, to establish liability he must meet the actual malice standard of New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964).

Masson contends that the district court erred in instructing the jury both that he was required to establish that Malcolm deliberately or recklessly altered his statements to prove falsity and that Malcolm had no duty to investigate contradictory information regarding the quotations. We conclude that the district court properly instructed the jury. Masson also asserts that he was prejudiced by the district court's refusal to permit the introduction of additional excerpts from The Journalist and the Murderer, a book written by Malcolm after this action was filed. We disagree. We affirm the judgment in favor of The New Yorker because Masson is collaterally estopped from pursuing these claims against the magazine.

The district court had jurisdiction over this state created cause of action because the parties are diverse. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291.


The original complaint in this matter was filed on November 29, 1984. The fourth amended complaint was filed on October 2, 1986. On August 17, 1987, summary judgment was granted in favor of the defendants. We affirmed the judgment on August 4, 1989. Masson v. New Yorker Magazine, Inc., 895 F.2d 1535, 1536 (9th Cir. 1989). The Supreme Court granted certiorari and reversed the grant of summary judgment and remanded on June 20, 1991. Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 525, 115 L. Ed. 2d 447, 111 S. Ct. 2419 (1991). On April 6, 1992, this Court affirmed summary judgment as to Alfred A. Knopf, and remanded the case for trial as to Malcolm and The New Yorker. Masson v. New Yorker Magazine, Inc., 960 F.2d 896, 903 (9th Cir. 1992).

The first trial in this matter commenced on May 10, 1993 (" Masson I "). The case was submitted to the jury on a special verdict. The jury found that The New Yorker was not liable. The jury also found that Malcolm had libelled Masson, but was unable to reach a verdict regarding the damages that should be awarded.

The district court granted judgment in favor of The New Yorker on September 9, 1993. The judgment was stayed "pending final resolution of the case between Jeffrey Masson and Janet Malcolm." Masson v. New Yorker Magazine, Inc., 832 F. Supp. 1350, 1378 (N.D. Cal. 1993). The district court granted Malcolm's motion for a new trial "on all issues." Id.

The second trial commenced on October 3, 1994 ("Masson II"). On November 2, 1994, the jury returned a special verdict in favor of Malcolm with respect to all five quotations. The jury found that Masson had not carried his burden of persuasion that the "Intellectual Gigolo," "Greatest Analyst Who Ever Lived," and "Sex, Women, Fun" quotations were false. It found that the "I Don't Know Why I Put It In" quotation was not defamatory. Additionally, the jury found that Malcolm either did not "know that the ['He Had The Wrong Man'] quotation was false, or she [did not] act with a reckless disregard as to the truth or falsity of [the quotation]." The district court entered a final judgment in favor of Malcolm and The New Yorker on November 4, 1994.


Masson challenges the court's jury instructions with respect to the "Sex, Women, Fun," "Intellectual Gigolo," and "Greatest Analyst Who Ever Lived" quotations. Masson contends that the court erred in instructing the jury that he "must prove both that he did not utter the words attributed to him, and that the quotations represented a deliberate and reckless alteration of words actually spoken by him." Masson argues that this instruction was erroneous with respect to these three quotations because Malcolm claimed that these quotations were made "at a specific time and place, i.e., the New York breakfast meeting in May, 1983." Masson asserts that "if the jury found Masson did not speak those words on that occasion, there was no . . . basis for requiring the jury to also find whether the quotations represented a material alteration of words which Masson never spoke on that or any other occasion." Masson thus argues that "once the jury finds that defamatory statements were completely fabricated," the jury should not have been required to make "further inquiry on the issue of falsity."

"We review challenges to the district court's formulation of the jury instructions for an abuse of discretion by determining whether the instructions, considered as a whole, were inadequate or misleading." Gizoni v. Southwest Marine Inc., 56 F.3d 1138, 1142 n.5 (9th Cir.), cert. denied, 133 L. Ed. 2d 304, 116 S. Ct. 381 (1995). "We review de novo whether the district court misstated the elements to be proved at trial." Id. at 1142. "An error in the jury instructions does not require reversal if it is more probable than not that the error was harmless." Jenkins v. Union Pacific R. Co., 22 F.3d 206, 210 (9th Cir. 1994).

The district court instructed the jury that:

Mr. Masson must prove by a preponderance of the evidence that one or more of the ...

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