upset her. The Court has no reason to question Ms. Gallon's veracity.
In connection with this lawsuit, the plaintiff was examined by two
psychiatrists, Dr. Thomas Falci, retained by the plaintiffs, and Dr.
Geoffrey M. Margo, retained by the defendant. Dr. Falci diagnosed the
plaintiff as suffering from an "adjustment disorder" as described in the
Diagnostic and Statistical Manual of Mental Disorders (hereinafter "DMS
III"). He found that this adjustment disorder was precipitated by and due
to the stress caused to the plaintiff by the publication of her
photograph in Hustler Magazine. As a result of this publication he found
that she suffered a major loss of self-esteem, withdrew from contact with
others, felt she had little control over her life, and essentially felt
like an ant among giants. It was his opinion that her condition could be
improved by use of psychotherapy, although the length of treatment
required was unascertainable.
Dr. Margo also examined the plaintiff and found that she was suffering
from a DMS III mild chronic "post-traumatic stress disorder". He further
opinioned that the Plaintiff was suffering from a long standing feeling of
worthlessness, related to her strict upbringing that created a lot of
shame and guilt which she dealt with by the psychological defense
mechanisms of denial and repression. Dr. Margo agreed that the
publication of the photo in Hustler Magazine might have been one of the
causes of the Plaintiff's psychological problems. He also agreed that her
condition could be treated with psychotherapy.
Both experts agreed that Ms. Gallon was disturbed and in need of
medical treatment, i.e. psychotherapy. Each agreed that the publication
of the photo was a traumatic event in her life, and that she was
psychologically harmed by its publication. Although Dr. Margo seemed to
place a greater emphasis on the past events in Plaintiff's life, he agreed
that the publication of the photograph in the October, 1983 edition of
Hustler Magazine was a cause of the psychological and emotional damages
that she was suffering from. Therefore, the only real difference between
the two expert's testimony was not on causation, but rather on the degree
of damage attributable to the publication of her nude photograph in
Conclusions of Law
An act, omission or violation of a statute is a proximate cause of an
injury if it was a substantial factor in bringing about the injury, that
is, if it had such an effect in producing an injury that reasonable men
would regard it as a cause of the injury. Plaintiff need not show
causation with absolute certainty nor exclude every other possible
cause. Spett v. President Monroe Bldg. Corp., 19 N.Y.2d 203,
278 N.Y.S.2d 826, 225 N.E.2d 527 (1967); Wragge v. Lizza Asphalt,
17 N.Y.2d 313, 270 N.Y.S.2d 616, 217 N.E.2d 666 (1966). It is sufficient
that facts and circumstances are shown from which causation may be
reasonably inferred. Bolte v. City of New York, 22 N.Y.2d 817,
292 N.Y.S.2d 912, 239 N.E.2d 653 (1968). In fact, there may be more than
a single proximate cause. When two parties by separate illegal acts cause
injury and it is not possible to determine in what proportion each
contributed, either party is responsible for the whole injury.
The defendant clearly violated § 51 of the Civil Rights Law, which
provides, in pertinent part:
Any person whose name, portrait or picture is used
within this state for advertising or the purposes of
trade without the written consent first obtained . . .
may maintain an equitable action . . . and may also
sue and recover damages.
The defendant clearly is in violation of section 51 of the Civil Rights
Law, and such violation proximately caused emotional harm to the
plaintiff which now requires psychotherapy as treatment.