CNN is set to ring in the New Year in a Panama City, Florida courtroom (on January 6) as they try to defend themselves from a $1 billion defamation lawsuit. But before they even got there the network got hit with a set back in the form of getting witness testimony partially axed by the judge. Judge William Scott Henry of Florida’s 14th Circuit Court ordered that CNN’s expert witness on alleged damages to U.S. Navy veteran and Plaintiff Zachary Young was “too speculative” and not qualified to claim CNN’s reporting didn’t harm Young’s income.
In an order exclusively obtained by NewsBusters, Judge Henry noted that CNN retained the services of Brian Buss “to opine regarding Young’s lost income/profits and mitigation of damages, and as a rebuttal witness to Plaintiffs’ expert.”
Judge Henry’s summary of Buss’s written testimony thus far asserts that, among other things, Young did not experience any loss of income as a result of CNN’s allegedly defamatory reporting:
In formulating his opinions, Mr. Buss reviewed documentation produced by Plaintiffs regarding past income, including tax returns, employment contracts, bank statements and other financial reports and records, along with deposition testimony. After analyzing these items, Mr. Buss opined:
- Plaintiffs did not experience a decline in personal income or business profits as a result of Defendant’s publications
- Any loss of income was the result of an employment contract ending and Plaintiffs not bseeking additional employment
- Plaintiffs did not invest in new business activities after the publications
- Any financial losses experienced by Plaintiffs are likely the result of factors other than the publications
The filing does say that much like one of Young’s economic damages witness, “Mr. Buss laid out to prepare an opinion regarding lost income/profits is a standard recognized method – review pre-incident income and compare such to post-incident income.”
Adding: “Based on his education, training and experience, the Court is satisfied that Mr. Buss is reasonably qualified to render such a calculation and opinion.”
But further, Judge Henry said Buss “goes too far in ultimately opining that Defendant’s publications had no effect on Plaintiffs’ income.”
According to Judge Henry’s explanation, Buss goes too far in trying to attribute a cause to the decline in Young’s income, essentially suggesting that he (Buss) does trust Young’s claims that others in the security contracting world wouldn’t talk to him, and that determining trust is outside his qualifications:
While he could certainly talk about the expiring contract and lack on [sic] recurring revenue, his ultimate conclusion was essentially “Plaintiffs did not provide proof that no one would talk to him or hire him because of the publications, and therefore he lost no income because of the publications.” If he was performing forensic consulting work or acting as a certified financial analyst for a business in a private setting, this type of conclusion may be appropriate. However, for purposes of rendering such opinion, which in essence was that “I do not believe Plaintiffs that no one would talk to them because they have shown me that people wouldn’t,” that does not pass evidentiary muster. For this purpose, he would be acting as the arbiter of truthfulness and credibility, which is the jury’s job and not something for which Mr. Buss is qualified.
In finalizing his order on what Buss could attest to, Judge Henry says he would be permitted to discuss “what the documentation demonstrated in terms of pre-publication income and prospects of ongoing revenues, what items of revenue were not recurring or future expected income, and what Plaintiffs did or did not do to obtain income after the date of the publications.”
As for what couldn’t be discussed, “concluding that Plaintiffs suffered zero lost income/profits as a result of the publications is too speculative and beyond Mr. Buss’ qualifications for the reasons discussed above.”
In response to the ruling, Young’s lead counsel Vel Freedman (Freedman Normand Friedland LLP) told NewsBusters, “We are pleased with the Court’s ruling, but our attention remains with getting the case ready for trial.”
As NewsBusters previously reported, CNN had already suffered numerous defeats ahead of the trial. CNN’s comments about the Fox News settlement with Dominion Voting Systems were looking like they could come back to bite them. We’re also still waiting to hear Judge Henry’s opinion on accusations against CNN that they misled the court on producing key financial documents needed for a possible punitive damages reward.
