claims that Dyro was aware of this policy, but subsequent to December 1992, he never returned the Campbell monitor to Aequitron for recertification. Id. PP 15-16. The Campbell monitor was last recertified by Aequitron in 1987. Id.
On June 28, 1996, Aequitron then commenced this action against Dyro claiming trade libel, tortious interference with prospective business advantage and defamation, as well as a claim for punitive damages. Specifically, plaintiff alleges that the May 3, 1995 videotape is false and misleading because (1) it fails to disclose that in the July 23, 1992 test of the same monitor, Dyro found that it was not defective; (2) Dyro had previously testified at his deposition that the audible alarm sounded properly; and (3) it fails to disclose that the monitor was never returned for factory recertification. Plaintiff claims that Dyro circulated the May 3, 1995 videotape in order to secure business as expert witnesses against Aequitron in other potential products liability cases.
I. STANDARDS GOVERNING MOTIONS FOR SUMMARY JUDGMENT
Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Under the law of the Second Circuit, a district court must weigh several considerations in evaluating whether to grant a motion for summary judgment with respect to a particular claim. Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994) (internal case citations omitted). First, the moving party carries the burden to demonstrate that no genuine issue respecting any material fact exists. Id. (citations omitted). Second, all ambiguities and inferences must be resolved in favor of the non-moving party. Id. Third, the moving party may obtain summary judgment by showing that no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight. Id. Finally, the trial court's duty is confined to issue-finding and does not extend to issue-resolution. Id.
In evaluating the above considerations, a court must be mindful of whether the purported factual dispute is material, because "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).
II. PLAINTIFF'S CLAIMS FOR TRADE LIBEL AND DEFAMATION
Plaintiff raises two claims against Dyro concerning the alleged falsity of the statements in the May 3, 1995 videotape: one for trade libel and one for defamation. Under New York law, trade libel is a form of defamation relating to the disparagement of a business's goods and requires a showing of false, defamatory statements published to a third party, malice and special damages. Van-Go Transport Co. v. New York City Board of Educ., 971 F. Supp. 90, 98 (E.D.N.Y. 1997). To the extent the claim alleges an injury to the business's reputation and not the product, it is the libel per se form of defamation and special damages need not be shown. Id.
As to either form of defamation, it is a complete defense that the allegedly false and defamatory statements were protected by absolute privilege. See Boice v. Unisys Corp., 50 F.3d 1145, 1149 (2d Cir. 1995) ("Public policy requires that certain communications, though defamatory, are privileged, and may not serve as the basis for a defamation suit"), Toker v. Pollak, 44 N.Y.2d 211, 218, 376 N.E.2d 163, 166, 405 N.Y.S.2d 1, 4 (1978) (absolute protection is designed to ensure that the speaker's own personal interests, especially fear of a civil action, whether successful otherwise do not have an adverse impact upon their discharge of their function in the judicial proceeding). Whether the absolute privilege attaches to alleged defamatory statements is a question of law for the court. Bensky v. Warden of City Prison, 258 N.Y. 55, 60, 179 N.E. 257, 259 (1932).
Under New York law, "in the context of a legal proceeding, statements by parties and their attorneys are absolutely privileged if, by any view or under any circumstances, they are pertinent to the litigation." O'Brien v. Alexander, 898 F. Supp. 162, 171 (S.D.N.Y. 1995) (citing Grasso v. Mathew, 164 A.D.2d 476, 564 N.Y.S.2d 576, 578 (3d Dep't 1991)), aff'd, 101 F.3d 1479 (2d Cir. 1996). The test of "pertinency" is extremely broad and embraces "anything that may possibly or plausibly be relevant or pertinent with the barest rationality, divorced from any palpable or pragmatic degree of probability." Id. (citing Grasso, 564 N.Y.S.2d at 578). Thus, statements uttered in the course of a judicial or quasi-judicial proceeding are absolutely privileged so long as they are material and pertinent to the questions involved notwithstanding the motive with which they are made. Herzfeld & Stern, Inc. v. Beck, 175 A.D.2d 689, 691, 572 N.Y.S.2d 683, 685 (1st Dep't 1991) (citations omitted); see also Park Knoll Assoc. v. Schmidt, 59 N.Y.2d 205, 206, 451 N.E.2d 182, 183, 464 N.Y.S.2d 424, 426 (1983) (citations omitted).
Moreover, and contrary to plaintiff's position, the absolute privilege attaches not only at the hearing or trial phase, but to every step of the proceeding in question, even if it is preliminary and/or investigatory. Herzfeld, 175 A.D.2d at 691, 572 N.Y.S.2d at 685. As noted in O'Brien, the absolute privilege has been applied not only to statements made in pleadings and in court, but also to statements made in: a letter from an attorney to subpoenaed witnesses; letters between attorneys and parties or communications by attorneys to the court; during offers of settlement by attorneys; during an attorney's examination of records pursuant to an order of discovery; by an attorney in a magazine article quoting from and restating the allegations of the complaint; in an information subpoena mailed to a plaintiff's employer. 898 F. Supp. at 171 (citations omitted).
The absolute privilege does not extend, however, to any communication made during the course of a litigation. For example, in Schulman v. Anderson Russell Kill & Olick, 117 Misc. 2d 162, 458 N.Y.S.2d 448 (Sup. Ct. 1982), a New York court found that absolute privilege did not apply to "an attorney's out-of-court communications to persons unrelated to litigation," where the attorneys made telephone calls and wrote letters to clients of the Plaintiff accountant in a blanket effort to gather information about him. The court noted that the communications were directed to "persons wholly unconnected to the [lawsuit in question] in an alleged effort to elicit information and identify potential witnesses." Id. at 453. The decision in Schulman, however, is inapposite to the case at bar. As the court itself noted, had the firm proceeded to question Schulman's clients through formal depositions, the statements made may have enjoyed absolute privilege as they were relevant to the litigation. Id. at 453. There is no dispute in this case, on the other hand, that Dyro was deposed and retained to testify in the Campbell and Chruscinski litigations and was not "wholly unconnected" to the lawsuits.
The absolute privilege that attaches in judicial proceedings extends not only to judges, parties and their attorneys, but to witnesses as well. Park Knoll, 59 N.Y.2d at 209, 451 N.E.2d at 184, 464 N.Y.S.2d at 426; Andrews v. Gardiner, 224 N.Y. 440, 446, 121 N.E. 341, 343 (1918). The purpose of extending such immunity is not to benefit or protect the speaker, but to benefit the public by promoting the administration of justice. See Park Knoll, 59 N.Y.2d 209, 451 N.E.2d at 184, 464 N.Y.S.2d at 426. It should also be noted that a retained expert is more than just the average witness, but acts as an agent for the attorney whose reports to the attorney based on information from the client can be subject to attorney-client privilege. See United States Postal Service v. Phelps Dodge Refining Corp., 852 F. Supp. 156, 161 (E.D.N.Y. 1994). Although the videotape was later disclosed to Aequitron's counsel and not subject to any attorney-client privilege (Sherrill Aff. P 8), the Court finds that a retained expert's role in trial preparation and the privileges accorded to those experts weighs in favor of providing absolute immunity for statements made in the course of those preparations, so long as the statements are pertinent to the ongoing litigation. In this case, there is no doubt that the statements on the videotape were directly relevant and critical to the plaintiff's claims in both the Campbell and the Chruscinski lawsuits.
In the present case, therefore, there is no dispute that the statements made in the May 3, 1995 videotape were made after the commencement of the Campbell and Chruscinksi lawsuits and that defendants were specifically retained in those actions to provide an expert opinion as to whether the product was defective. It also cannot be disputed that the subject matter of the videotape unequivocally relates to the issues in those litigations as to the experts' opinion regarding the proper functioning of the infant heart monitor. While Dyro's prior testing and deposition testimony would have been excellent fodder for cross-examination in those actions, they do not form the basis of a defamation of trade libel claim under New York law as they are absolutely privileged. The fact that the statements were made during trial preparation rather than in open court is of no moment, as the above-discussed cases clearly indicate. Accordingly, summary judgment on plaintiff's defamation and trade libel claims must be granted to the defendants.
III. PLAINTIFF'S CLAIM FOR TORTIOUS INTERFERENCE WITH PROSPECTIVE BUSINESS ADVANTAGE
In order to state a claim for tortious interference with prospective business advantage, a plaintiff must show: (1) business relations with a third party; (2) defendants' interference with those business relations; (3) that defendants acted with the sole purpose of harming the plaintiff or used dishonest, unfair or improper means; and (4) injury to the relationship. Purgess v. Sharrock, 33 F.3d 134, 141 (2d Cir. 1994) (citations omitted). In the present case, the plaintiff has utterly failed to provide a scintilla of evidence regarding any business relationship with a third party that was harmed as a result of Dyro's May 3, 1995 videotape. Defendants, on the other hand, have provided undisputed testimony that the videotape was sent only to the attorneys for the plaintiffs in the Campbell and Chruscinksi lawsuits. Accordingly, summary judgment is granted in favor of defendants on this claim as well.
For the foregoing reasons, defendants' motion for summary judgment is granted in its entirety. The Clerk of the Court is directed to mark this case as closed.
Joanna Seybert, U.S.D.J.
Dated: Uniondale, New York
March 13, 1998
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