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Jury selection begins today in a “defamation by implication” libel suit against The New York Times brought by Franklin Prescriptions Inc., a Philadelphia company that says the newspaper harmed its reputation by using an image from Franklin Prescriptions’ Web site to illustrate an article about illicit online drug sales. In the suit, Franklin Prescriptions claims that use of its Internet site as a graphic to illustrate the article, headlined “A Web Bazaar Turns Into a Pharmaceutical Free for All,” implied that it was guilty of illicit conduct. The company says it never sells drugs online, but that the illustration implied that it does — even though the company’s name was never mentioned in the article. But the Times insists in court papers that the article isn’t even capable of defamatory meaning and that Franklin Prescriptions has yet to muster any evidence that it suffered any damages in the form of lost sales or profits. Two high-powered lawyers will be squaring off in the anticipated week-long trial — George Bochetto of Bochetto & Lentz for the plaintiff and Elizabeth K. Ainslie of Schnader Harrison Segal & Lewis for The New York Times. Both sides scored significant victories last week when U.S. District Judge Cynthia M. Rufe handed down a batch of orders on in limine motions. Rufe ruled against the Times on its motion that Franklin Prescriptions should be barred from presenting any evidence of damages since it has not yet produced any damages calculation or expert report. Ainslie, along with Schnader attorneys Carl A. Solano and Jennifer DuFault James, argued that when the plaintiff in a defamation suit is a corporation, its recovery is limited to “quantifiable harm” and therefore must show that it suffered an “actual injury” in the form of lost profits or sales. But Bochetto and his associate, David P. Heim, argued that, under Pennsylvania law, a corporate defamation plaintiff is not required to prove “special damages,” but instead needs only to show general harm to its reputation. Bochetto insisted that he has “ample” evidence of harm to Franklin Prescriptions’ reputation because “hits” on its Internet site dropped after the article, and patients from outside the Delaware Valley stopped placing orders. But on another in limine motion, the Times won a ruling that Bochetto cannot mention Jayson Blair, the Times reporter who resigned in May 2003 when his editors discovered that his reports were rife with plagiarism and outright fabrications. (Blair was back in the news last week when his book, “Burning Down My Masters’ House,” was published.) In the motion, the Times argued that the Blair scandal had nothing to do with the article that used Franklin Prescriptions’ Internet site as a graphic, and that Bochetto was trying to use the scandal to “smear the Times” at trial. In response, Bochetto argued that the Blair scandal was relevant because it illustrated the larger problems at the Times involving poor communication between editors and writers. “Just like the Blair scandal, the Times‘ journalists and editors in this case failed to communicate during the research and editing process,” Bochetto wrote. But Rufe sided with the Times, saying in her order that Bochetto is barred from calling Blair as a witness, and cannot elicit any testimony from others about Blair’s misconduct. In their pretrial memoranda, the plaintiff’s and defense lawyers offered starkly different accounts of the case. Bochetto said the Times and its journalists “severely and recklessly defamed” Franklin Prescriptions by using its Internet site as a graphic for an article that “described, in great detail, ‘unscrupulous’ and ‘cloak and dagger’ Web sites which take e-mail orders for controlled pharmaceuticals — infertility drugs, in particular — without the necessity of a doctor’s prescription. By using only Franklin Prescriptions as an illustration, Bochetto argued that his client was used “as an example of such ‘unscrupulous’ Web sites.” In reality, Bochetto said, Franklin Prescriptions “is a small, solely owned ‘brick and mortar’ pharmacy located in Center City Philadelphia that has been in business for approximately 30 years, and until publication of the article, had an outstanding national reputation in its field of specialty.” Bochetto said Franklin Prescriptions has “never accepted orders for pharmaceuticals without a prescription,” and that its Internet site “clearly states that all orders must be accompanied with a prescription by a licensed physician within the United States.” However, Bochetto said, that portion of the site was “deliberately not included in the article.” Defense lawyers offered a preview of their trial strategy in a pretrial memorandum that said no reader could have inferred any defamatory meaning from the paper’s use of Franklin Prescriptions’ site as an illustration. The article, which was published on Oct. 25, 2000, appeared on page 20 of a special “E-Commerce” section — Section H in that day’s newspaper, the memo says. As the defense lawyers describe it, the article “surveyed various issues relating to use of the Internet in connection with prescription drug transactions. Among other things, it discussed private drug exchanges among patients that were facilitated through ads or postings on newsgroups, procurement of expensive medications by fertility patients, comparative price shopping, various business models of pharmacies (including traditional, legitimate pharmacies) found on the Internet, dangers of online drug purchases and advice for safe drug purchases using the Web, and government and pharmacy industry regulatory challenges.” Franklin Prescriptions “was not mentioned in the text of the article,” the defense memo says, but instead was included only by use of a “screen shot” of one of its Internet pages — a picture of the portion of the page visible on a computer screen. According to the memo, the screen shot included the name “Franklin Drug Center” at the top, said that Franklin was “Established in 1969,” and included the headlines: “Specializing In Infertility Medication For More Than 30 Years”; “Most Competitive Pricing in the United States”; and “FREE OVERNIGHT SHIPPING for orders of $600.00 or more to all areas of the United States.” The memo says the picture of the site was published without a separate caption. As for Bochetto’s claim that the Times deliberately failed to show a portion of the site that stated that customers could receive drugs only by faxing a prescription, the defense lawyers insist that it was not included because it was “located below the bottom edge of the computer screen from which the screen shot was made and therefore [was] not (and could not be) included in the picture.” But the defense team argued in the memo that the illustration nonetheless conveyed the same message. “In fact, even without the material at the bottom of Franklin’s Web page, the published screen shot demonstrated to readers of the article that Franklin was a brick-and-mortar pharmacy that required a doctor’s prescription before selling infertility drugs, and no reasonable reading of the article implied that Franklin is an ‘unscrupulous’ or ‘cloak-and-dagger’ online pharmacy,” they wrote. “The publication thus had no meaning that was defamatory of Franklin, and … no one understood the article to be defamatory of Franklin,” they wrote.

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