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A civil litigant who suggests another may be guilty of a crime can’t be sued for defamation so long as the statement is in pursuance of a legitimate claim or defense, a federal judge ruled last Wednesday. The decision by U.S. District Judge Stephen Orlofsky is a win for Ford Motor Co. in an unusual case. Ford, sued by a Cape May Court House, N.J., dentist who claims his wife was killed by the air bag in their Explorer, is defending the case, in part, by suggesting that the plaintiff, Eric Thomas, may have killed his wife. Ford’s expert said the woman’s death was apparently caused not by the air bag but by strangulation. Ford is asking the Cape May County medical examiner — who concluded there was no foul play in the death — to take another look. That prompted Thomas to try to amend his complaint to add a defamation claim against Ford for promoting the theory that he killed his wife. U.S. Magistrate Judge Joel Rosen permitted the amendment, holding that Ford’s statements to the local authorities were not within the privilege that generally protects litigants from suit over statements that advance their positions. But Orlofsky disagreed and denied Thomas permission to add claims of defamation and intentional infliction of emotional distress. “If whether Thomas caused the death of his wife is part of Ford’s defense,” Ford should have “an unqualified opportunity to explore the truth of that theory without fear of recrimination,” he wrote in Thomas v. Ford Motor Company, No. 99-451. Rosen had reasoned that a “qualified” litigation privilege — not an absolute one — applied to Ford’s statements, and that the plaintiff had the right to try to pierce it. But Orlofsky said that the litigation privilege was an all-or-nothing affair. “Either it applies, and therefore protects absolutely,” wrote Orlofsky, “or it does not apply, and offers no protection.” Orlofsky noted that the privilege applies not just to statements made in a courtroom but to any conversations between an attorney and a prospective witness. The privilege protects such statements, he said, so long as they achieved the object of the litigation and had some logical connection to it. Here, the conversations between Ford and the local authorities related to Ford’s defense that the death may have been caused by strangulation. “Because Ford’s communication with the local authorities was obviously undertaken to achieve this object, it follows that the communication was made to achieve an object of the litigation,” he wrote. But Orlofsky warned Ford that it could be subject to sanctions if its lawyers went too far with the defense. “Ford must be aware that while Thomas’ proposed civil claims may not be appropriate avenues to challenge Ford’s behavior, Ford’s statements regarding Thomas are still subject to the control of this court and the rules of professional conduct governing Ford’s attorneys,” he said. Bennett Wasserman, who teaches attorney malpractice at New York’s Hofstra University School of Law, says lawyers who contact law enforcement officials during a civil case have to be careful not to violate Rule of Professional Conduct 3.5(g). The rule prohibits attorneys from participating in the bringing of criminal charges in order to gain an advantage in a civil matter, says Wasserman. First Amendment lawyer Floyd Abrams, who argued the motion for Ford, says there was no such motivation in Ford’s contact with Cape May County law enforcement. Ford, he says, only wanted the county medical examiner to take a second look at his conclusions, in light of the findings of Ford’s expert. Abrams called the decision a victory for passionate advocacy. “It makes it plain that lawyers are free to represent their clients in a vigorous and zealous fashion,” says Abrams, of New York’s Cahill, Gordon & Reindel. “It’s a significant ruling that allows attorneys to go about their business.” Orlofsky also ruled that the plaintiff couldn’t bring a Section 1985(2) civil rights action alleging that Ford had attempted to intimidate witnesses, affirming Rosen’s ruling that Ford’s alleged conduct didn’t satisfy the statute, which was enacted to prevent conspiracies to intimidate jurors or witnesses. Thomas’ lawyer, Thomas Mellon Jr., of Doylestown, Pa.’s Elliot, Alan & Kolodny, was away from his office Friday and could not be reached for comment. Ford’s lead attorney, William Conroy of Turnersville, N.J.’s Cabaniss, Conroy & McDonald, declines to comment.

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