Wednesday, November 24, 2010

Gloucester Publisher May See Reversal of $30M Judgment

When I was writing for's Legal Blog Watch, I wrote several posts (here is one) about the case of Jane Daniel, a Gloucester, Mass., woman who was hit with a $33 million verdict against her and her small publishing company, Mt. Ivy Press. The 2001 verdict was awarded to Misha Defonseca and her ghostwriter Vera Lee as the result of disputes over copyright and promotion of Defonseca's memoir, Misha: A Memoire of the Holocaust Years. The book told the story of how Defonseca survived the Holocaust on her own as a young girl, in part through her "adoption" by a pack of wolves. The book was a bestseller in Europe and was the basis for a film.

Several years later, through the detective work of Daniel and genealogical researcher Sharon Sergeant, documents were unearthed showing Defonseca's tale to be as tall as it seemed. Based on these new revelations, Daniel and Mt. Ivy filed a new lawsuit in 2008 seeking to set aside the $33 million judgment, alleging that Defonseca and ghostwriter Lee had perpetrated a fraud on the court. The trial court judge dismissed the case, concluding that it alleged no "extraordinary circumstances" that would warrant relief.

Today, the Massachusetts Appeals Court reinstated the case, but only against Defonseca. It concluded that, if Daniel is able to prove her allegations at trial, then they constitute "extraordinary fraud."
"The plaintiffs have alleged an extraordinary fraud that touched every part of Defonseca's case against them and resulted in a huge verdict. It is true, as the defendants point out, that the book's authenticity was not the central issue at trial. Despite this, it is difficult to imagine that this information, had it been known to Daniel and Mt. Ivy, would not have provided a meritorious defense to at least some of the claims, especially those claims based on the contract.
"Defonseca's entire case, and the manner in which she procured the judgment, was buttressed on what is now admitted to be a lie. The pleadings she filed were false and based on false information. The affidavits she submitted were premised on her phony life story. Her testimony at trial reiterated, and reinforced, her sympathetic but ultimately false tale."
These allegations entitle Daniel to seek relief from the judgment, the Appeals Court said. In addition, the allegations, if true, constitute fraud on the court:
"There are some falsehoods that are so emotionally inflammatory that they impede the jury's ability impartially to evaluate facts and adjudicate a case. Falsely claiming to be a victim (and survivor) of the Holocaust is such a one, particularly where--as here--the claim is the foundation of a book that the publication, distribution, and marketing of were the subjects of the suit. Defonseca perpetrated this falsehood, and it lay at the center of the case."
As for Lee, the ghostwriter, the Appeals Court said that there is no indication that she knew or had reason to know that Defonseca's memoir was fraudulent. Because there is no evidence that she did anything wrong, there is no basis to lift the judgment in her favor.

The ruling is not the end of the case. Daniel will still have to prove her case in court. Today's decision sends the case back to the trial court and allows it to move forward.

Here is today's full opinion: Mt. Ivy Press v. Defonseca


AncestralManor said...

A priori lost?

Robert, help me understand process in this case.

While the Mass. SJC opinion "gets" that Defonseca did perpetrate fraud upon the court, her cohort Lee can claim credit for 80 percent of the fraudulent story, but not be culpable in the fraud, negligence as a writer, interpreter and researcher or riding on the coat tails of Defonseca's fraud?

Can Lee, the college professor and of the Jewish faith, claim such ignorance and entitlement at the same time?

Apparently, the Mass. SJC says yes.

Yet, the Mass. SJC also cannot get even basic material facts in the case straight, eg. the original trial date or the length of the trial, but most importantly what is actually in the original trial transcripts and evidence.

Buried under the myriad of other case citations in each set of judges' "opinion" of the case (2001, 2005, 2008, 2010) are mistakes of material fact.

Is there only recourse against Defonseca's fraud (behind the IRS) or does Lee's culpability finally come to the forefront?

Time lines and fact checking from the original sources found in the 2001 trial transcripts and evidence bind Lee's activities with Defonseca's.

Does the process allow for going back to the original swamp and alligators problem?

Sharon Sergeant

Jane Daniel said...

Thank you, Robert Ambrogi, for your continued interest in my case. Here is a comment by my lawyer, Joseph M. Orlando, on the latest twist.

"There are some falsehoods that are so emotionally inflammatory that they impede the jury's ability impartially to evaluate facts and adjudicate a case."

With these words the Massachusetts Court of Appeals struck down a $22.5 million judgement levied against Mt. Ivy Press and Jane Daniel. Yet, inexplicably, the Court allowed the judgement for Vera Lee to stand.

Where a jury is determined to be unable to dispassionately and impartially evaluate the evidence offered, then any verdict from that jury, for or against any party, is fatally flawed.

On that basis, Orlando & Associates will seek direct Appellate Review from The Supreme Judicial Court. - J.M.O.

To read the Request for Appellate Review we just filed with the SJC, please see my blog: