This opinion has been amended solely to comport with sealing *

orders issued by the district court. The amendments do not in any

way affect the substance of the opinion.

United States Court of Appeals

For the First Circuit

No. 05-1230

MARC E. MANDEL,

Plaintiff, Appellee,

v.

THE BOSTON PHOENIX, INC., ET AL.,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, Senior U.S. District Judge]

Before

 Selya, Circuit Judge,

Cyr, Senior Circuit Judge,

and Lipez, Circuit Judge.

Robert A. Bertsche, with whom Paige A. Scott Reed and Prince,

Lobel, Glovsky & Tye LLP were on brief, for appellant Lombardi.

Daniel J. Gleason, with whom Rebecca L. Shuffain and Nutter,

McClennen & Fish, LLP were on brief, for remaining appellants.

Stephen J. Cullen, with whom Jennifer J. Coyne, Miles &

Stockbridge P.C., and Mary A. Azzarito were on brief, for appellee.

July 11, 2006

AMENDED OPINION*
-2-

SELYA, Circuit Judge. The oenologist's creed teaches

that we should drink no wine before its time. Much the same

principle applies to summary judgment; it is a deliciously helpful

device if properly timed, but one that can leave a sour taste if

brought to bear on an insufficiently fermented record. 

This appeal, which follows on the heels of a substantial

verdict in a defamation suit, is a paradigmatic example of the

point. The briefs before us raise a plethora of First Amendment

issues. At the threshold, however, lies the preliminary question

on which the appeal ultimately hinges: did the district court,

ruling on a pretrial motion, appropriately determine that the

plaintiff, a Maryland assistant state's attorney, was a private

figure and not a public official for libel-law purposes?

Concluding, as we do, that the court's ruling was premature, we

answer that question in the negative. Accordingly, we vacate the

judgment below and remand for a new trial. 

I. THE LEGAL LANDSCAPE

In order to put this appeal into perspective, we think it

is useful to begin by rehearsing a salient aspect of the

substantive law of defamation: the public official/private figure

dichotomy.

It is apodictic that the First Amendment "prohibits a

public official from recovering damages for a defamatory falsehood

relating to his official conduct unless he proves that the
-3-

statement was made with 'actual malice' — that is, with knowledge

that it was false or with reckless disregard of whether it was

false or not." New York Times Co. v. Sullivan, 376 U.S. 254, 279-

80 (1964). The New York Times rule extends not only to public

officials but also to public figures, whether all-purpose or

limited-purpose. See Gertz v. Robert Welch, Inc., 418 U.S. 323,

345 (1974).

The distinction between public figures and public

officials, on the one hand, and purely private figures, on the

other hand, has potentially profound consequences in a defamation

case. Generally speaking, the status that the plaintiff occupies

along the public/private continuum will determine what he must

prove in order to recover damages. Leaving to one side the

imposition of liability without fault (as to which certain

restrictions pertain), states may shape their own standards of

liability when a defamation action involves a private-figure

plaintiff. See id. at 347. Under Massachusetts law, for example,

that standard is negligence. See Stone v. Essex County Newspapers,

Inc., 330 N.E.2d 161, 168 (Mass. 1975). That is far less

demanding, from the plaintiff's standpoint, than the "actual

malice" standard that obtains when the plaintiff is a public

official or public figure. See New York Times, 376 U.S. at 279-80.

A plaintiff's status, therefore, shapes the course of any

defamation litigation. If he is a public official or public
-4-

figure, he must prove actual malice with "convincing clarity." Id.

at 285-86. If, however, he is a purely private figure, it suffices

(at least in Massachusetts) to prove negligence by a preponderance

of evidence. See Stone, 330 N.E.2d at 174-75.

In defamation cases, public-figure status has the same

legal ramifications as public-official status — but the two terms

are not synonymous. See generally Kassel v. Gannett Co., 875 F.2d

935, 941 n.4 (1st Cir. 1989). Public officials, as the term

implies, are those who hold particular kinds of public office.

See, e.g., Time, Inc. v. Pape, 401 U.S. 279, 284 (1971) (deputy

chief of detectives); New York Times, 376 U.S. at 283 n.23 (elected

city commissioner). Public figures may or may not be public

officials; they are persons who "have assumed roles of especial

prominence in the affairs of society." Gertz, 418 U.S. at 345.

Commonly, "those classified as public figures have thrust

themselves to the forefront of particular public controversies in

order to influence the resolution of the issues involved." Id.

For present purposes, we need not dwell either on the distinction

between public officials and public figures or on the exact

dimensions of public-figure status; the defendants do not contend

that the plaintiff is a public figure — only a public official. 

The public-official classification eludes precise

definition. See Kassel, 875 F.2d at 939. Not every public

employee is a public official for libel-law purposes. See
-5-

Hutchinson v. Proxmire, 443 U.S. 111, 119 n.8 (1979). To the

contrary, only public employees with "substantial responsibility

for or control over the conduct of governmental affairs" should be

deemed public officials for libel-law purposes. Rosenblatt v.

Baer, 383 U.S. 75, 85 (1966). Moving from the general to the

particular is, however, a daunting task; it is difficult to tell

"how far down into the lower ranks of government employees" the

public-official designation extends. New York Times, 376 U.S. at

283 n.23.

II. FACTS AND PROCEEDINGS BELOW

In its January 10-16, 2003 issue, THE BOSTON PHOENIX, a

weekly newspaper, published a "special report" authored by Kristen

Lombardi. Written as an exercise in investigative journalism, the

piece ran for nine pages under the title "Children at Risk." Its

central thesis bemoaned what the reporter had determined to be an

apparent trend in family courts: that when a mother accuses a

father of child abuse in a child custody dispute, those courts,

ill-equipped to handle such charges, often award full custody to

the father. The article reviewed three scientific studies of

custody-dispute outcomes and recounted the personal experiences of

four families enmeshed in the system.

One such case history chronicled a custody clash between

Sarah Fitzpatrick and Marc E. Mandel (who was, at the time, an

assistant state's attorney in Maryland). That case history
-6-

appeared under the subheading "Losing custody to a child molester."

The story recounted the sordid battle waged by the couple over

custody of their two minor children, A.R.M. and J.P.M.

(pseudonymously referred to by Lombardi as "Amy" and "James"), and

dwelt in some detail on Fitzpatrick's allegation that Mandel was a

child molester. For example, it reported Fitzpatrick's suspicions

about Mandel's relationship with J.P.M. and gave prominent play to

a Baltimore County Department of Social Services (DSS)

investigation into allegations that Mandel had abused his daughter

from a previous marriage, A.N.M. In that regard, the article

related that a "report conducted for the Baltimore County DSS

determined that Mandel had assaulted" A.N.M. The article went on

to state that despite the claims of abuse, a Maryland family court

judge awarded Mandel full custody of A.R.M. and J.P.M. and denied

Fitzpatrick any visitation rights, labeling her "a pathological

liar, or a purposeful liar, or both."

After THE PHOENIX published the article in print and on the

internet, Mandel began receiving negative work evaluations. He

later left his post and became self-employed in the private

practice of law.

Invoking diversity jurisdiction, see 28 U.S.C. § 1332(a),

Mandel filed suit for defamation against, inter alia, THE PHOENIX,

its various corporate personas, two of its editorial gurus (Peter

Kadzis and Susan Ryan-Vollmar), and Lombardi (collectively, the
Given the court's pretrial status determination, it is hard 1

to fathom why actual malice was still an issue in the case. As

best we can tell, this ruling appears to have been part of an

-7-

defendants) in the United States District Court for the District of

Massachusetts. Shortly after answering the complaint, the

defendants moved for judgment on the pleadings or, in the

alternative, summary judgment. Mandel cross-moved for partial

summary judgment. The district court denied both motions, ordered

discovery to be completed within three months, and offered to

entertain renewed motions at that juncture. 

The parties completed discovery and cross-moved for

summary judgment. Following a hearing, the court denied the

defendants' motion and granted Mandel's motion for partial summary

judgment on the public-official issue. Mandel v. Boston Phoenix,

Inc., 322 F. Supp. 2d 39, 44 (D. Mass. 2004). Reasoning that

Mandel was only a low-level prosecutor who "did ordinary legal

work," id. at 42, did not interact with the press, and did not

assume a risk of diminished privacy through his employment, the

court concluded that he was not a public official within the

purview of the libel laws, see id. at 42-43.

The litigation morphed into a ten-day jury trial. Once

Mandel had presented his case in chief, the defendants moved for

judgment as a matter of law. See Fed. R. Civ. P. 50(a). The court

granted that motion in part, concluding that Mandel had not

adequately established actual malice. At the close of all the 1
effort by the court to "scrub" the complaint and narrow the issues

before submitting the case to the jury.

-8-

evidence, the defendants moved again for judgment as a matter of

law. See id. The court denied that motion.

The court submitted the case to the jury, which found for

Mandel and awarded him $950,000 in damages. As indicated on a

special verdict form, it found two statements in the article

actionable: (i) the subheading "Losing custody to a child molester"

and (ii) the comment that "a July 2002 report conducted for the

Baltimore County DSS determined that Mandel had assaulted his 10-

year-old daughter from an earlier marriage. The report states that

Mandel's daughter accused him of seven 'incidents' of fondling . .

. ."

In the aftermath of the trial, the defendants moved to

alter or amend the judgment, see Fed. R. Civ. P. 59(e), on the

ground that evidence adduced at trial and not previously available

demonstrated beyond hope of contradiction that Mandel was a public

official within the purview of the libel laws. The defendants also

moved for judgment as a matter of law, see Fed. R. Civ. P. 50(b),

claiming that Mandel's evidence was insufficient to establish (i)

the falsity of the two statements, (ii) negligence in their

publication, or (iii) any incremental harm. The court denied both

motions. This timeous appeal followed.
Mandel insists that we cannot consider the district court's 2

ruling on the public-official issue because appellate courts lack

authority to review pretrial summary judgment rulings after a full

trial on the merits. See, e.g., Lama v. Borras, 16 F.3d 473, 476

n.5 (1st Cir. 1994). That argument is disingenuous. The principle

that Mandel cites applies to the denial of a summary judgment

motion, not the grant of such a motion. We are perfectly capable

of reviewing a pretrial grant of partial summary judgment after a

full trial on the merits of the remaining issues. See, e.g.,

Voutour v. Vitale, 761 F.2d 812, 817 (1st Cir. 1985) (per curiam).

-9-

III. ANALYSIS 

At the epicenter of this appeal lies the district court's

status determination. We start there. Finding reversible error 2

in the timing of that determination, we abjure review of the vast

majority of the other issues raised by the defendants. The lone

exception is the district court's refusal to grant the motion for

judgment as a matter of law. That decision still must be

scrutinized; after all, if Mandel did not present sufficient

evidence of the elements of a private-figure defamation claim, the

case would be over (as he certainly could not meet the heightened

burdens associated with public-official status). 

A. The Status Determination.

Typically, courts approach the public-official analysis

as if it were a three-legged stool, taking into account: (i) the

extent to which the inherent attributes of a position define it as

one of influence over issues of public importance; (ii) the

position's special access to the media as a means of self-help; and

(iii) the risk of diminished privacy assumed upon taking the
-10-

position. See Kassel, 875 F.2d at 939-40. Here, however, we focus

on a procedural milestone — the district court's pretrial

determination that the record was sufficiently developed to permit

it to decide whether Mandel was — or was not — a public official.

Given the significance of status determinations in libellaw litigation, it is often perfectly reasonable to attempt to

decide whether a plaintiff is a public official or public figure

during pretrial proceedings. See, e.g., Nicholson v. Promotors on

Listings, 159 F.R.D. 343, 343-45 (D. Mass. 1994); see also Miller

v. Transam. Press, Inc., 621 F.2d 721, 724 (5th Cir. 1980)

(advising that the question of public-figure status "be answered as

soon as possible"). But although status determinations normally

are "grist for the court's — not the jury's — mill," Pendleton v.

City of Haverhill, 156 F.3d 57, 67 (1st Cir. 1998), such questions

are inescapably fact-specific, see id. at 70 (describing publicfigure conclusion as "factbound"); Penobscot Indian Nation v. Key

Bank, 112 F.3d 538, 561 (1st Cir. 1997) (acknowledging that "a

finding of public figure status necessitates a detailed factsensitive determination"). 

In other words, a plaintiff's status, though calling for

a legal determination, is heavily dependent on the underlying

factual record. Consequently, there are cases in which "it may not

be possible to resolve the [public-figure] issue until trial."

Miller, 621 F.2d at 724; cf. Pendleton, 156 F.3d at 62, 68
-11-

(upholding district court's ruling, made at the conclusion of the

evidence, that the plaintiff was a limited-purpose public figure).

It is common ground that appellate review of an order

granting summary judgment is confined to the record before the

district court at the time it made the challenged ruling. See

Voutour v. Vitale, 761 F.2d 812, 817 (1st Cir. 1985) (per curiam).

Such review is de novo and engenders consideration of the record as

then constituted "and all reasonable inferences therefrom in the

light most hospitable to the summary judgment loser." Houlton

Citizens' Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st Cir.

1999). When the facts, so marshalled, 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," summary judgment is

generally thought to be appropriate. Fed. R. Civ. P. 56(c); see

DePoutot v. Raffaelly, 424 F.3d 112, 117 (1st Cir. 2005). The

presence of cross-motions for summary judgment neither dilutes nor

distorts this standard of review. See Alliance of Auto. Mfrs. v.

Gwadosky, 430 F.3d 30, 34 (1st Cir. 2005); Blackie v. Maine, 75

F.3d 716, 721 (1st Cir. 1996). 

As noted above, summary judgment requires that the moving

party exhibit an entitlement to a judgment as a matter of law. See

Fed. R. Civ. P. 56(c). That requirement is not a hollow one.

Summary judgment "should be granted only where . . . [further]

inquiry into the facts is not desirable to clarify the application
-12-

of the law." Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394

(4th Cir. 1950). In the case at bar, the factual record, at the

summary judgment stage, was too uncertain to warrant a legal

conclusion either way about Mandel's status. We explain briefly.

To begin, the factual record was disturbingly thin.

Mandel's summary judgment motion relied almost exclusively on facts

derived from three sources: his own affidavit, his deposition

testimony, and the deposition testimony of his supervisor, Kim

Detrick. These materials indicated that, as an assistant state's

attorney, Mandel received only a modest salary, had little

supervisory authority, neither created nor directed policy, and

made no decisions that significantly affected government

operations. He prosecuted only minor crimes in Maryland's lowesttier court and participated in only one jury trial (assisting the

lead attorney). As a matter of practice, he directed all press

inquiries to a supervisor. 

The defendants also made some modest contributions to the

summary judgment record. They culled a few additional facts from

the Mandel and Detrick depositions and supplemented them with

excerpts from the deposition of another supervisor (Sue Schenning),

a letter from a vehicular accident victim whose case Mandel had

handled, and Mandel's employment file. This proffer painted a

different, though not altogether inconsistent, picture: as an

assistant state's attorney, Mandel handled crimes with penalties of
-13-

imprisonment, fourth-degree sexual offenses, and violations of

protective orders. He conducted "pray jury" trials at the state

circuit court level, second-chaired a murder trial (in which he

gave the opening statement and conducted some direct examination),

nolle prossed a vehicular accident case, and represented to a court

that a witness could not testify even though she was present. He

interviewed victims of crimes, discussed cases with other

attorneys, and had access to the media. His employment file

indicated that he was "a prosecutor for [the] State of Maryland"

and "a sworn law enforcement [officer] or person whose principal

responsibilities are unique to the criminal justice system." 

This factual record, on which the district court based

its status determination, contains several gaps, and what facts

there are give rise to conflicting inferences. Perhaps most

notably, neither side seems to have focused on the question of

whether Mandel's experience as an assistant state's attorney was a

reflection of the attributes inherent in the position or,

alternatively, whether he simply was given less responsibility

because of his particular proclivities. This is a crucial

distinction in the public-official calculus. See Kassel, 875 F.2d

at 930 (recognizing that "[t]he inherent attributes of the

position, not the occurrence of random events, must signify the

line of demarcation" between public-official and private-figure

status). Moreover, the record, as it stood, cried out for a
At that point, the district judge interrupted Mandel's lawyer 3

to inquire: "So, you're not asking me . . . to determine whether

[Mandel] is or is not a public official?" Counsel replied: "No, I

am — I have to do that." The court proceeded to make that

determination.

-14-

special sort of judgment call: which job characterizations —

Mandel's, given in anticipation of litigation, or those contained

in his employment file — more accurately depicted the inherent

attributes of the position. That judgment call could not be made

under the constraints of Rule 56. See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986) (explaining that "[c]redibility

determinations, the weighing of the evidence, and the drawing of

legitimate inferences from the facts" are not functions to be

performed by a judge on summary judgment). At trial, however, the

district court, as the arbiter of Mandel's status, could have

resolved those uncertainties. Cf. Pendleton, 156 F.3d at 62, 68;

Miller, 621 F.2d at 724.

Finally, better evidence was readily obtainable. There

was a high likelihood that a full-dress trial (or, perhaps, even

more pointed discovery) would lead to materially improved

development of the record and, thus, clarify the application of the

law to the facts. Indeed, at the motion hearing Mandel's counsel

candidly admitted that the question was "so fact-specific" that the

status determination could only be made after the court and the

jury had "all the evidence." 

3
-15-

The testimony actually adduced at trial confirms the

accuracy of this prediction. For instance, Mandel testified that

his reputation was important to him professionally because he was

"dealing with the public on a daily basis . . . prosecuting

criminal cases." Similarly, Schenning offered insights not

apparent from her deposition, especially her trial testimony that

assistant state's attorneys "are the face of [the] State's

Attorney," with "tremendous power, even at a very early point in

their career[,] . . . making decisions whether to [nolle prosse] a

case, dismiss a case, . . . go forward with a case, [and] what kind

of sentence to ask for." The fact that this testimony came to

light even though the status determination had been made prior to

trial is telling; with the issue on the table, it seems evident

that even greater clarification of an assistant state's attorney's

role would have emerged.

It is also significant in our situation that neither this

court nor the Massachusetts appellate courts have addressed the

question of whether an assistant state's attorney (or someone in a

comparable position) is a public official for First Amendment

purposes. What little case law there is suggests that such a

person might be a public official, see, e.g., Henry v. Collins, 380

U.S. 356, 356-57 (1965) (per curiam) (treating a "county attorney"

as a public official, albeit without discussion of the status

determination); Murray v. Bailey, 613 F. Supp. 1276, 1280 (N.D.
-16-

Cal. 1985) (treating a San Francisco assistant district attorney as

a public official without discussion of the status determination),

but in any event, the inquiry is too fact-dependent to rely

exclusively on labels. Further factual development would have

allowed for a more precise, more nuanced application of the law. 

We recognize that a showing of inadequate factual support

for a claim or defense sometimes may be enough to warrant summary

judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986);

In re Varrasso, 37 F.3d 760, 763 n.1 (1st Cir. 1994). That

doctrine is inapplicable here: the parties failed sufficiently to

develop the record, and the evidence that they managed to adduce

was inherently imprecise. Still, that evidence, though thin,

pointed in different directions; that is, it tended to support

conflicting inferences. Summary judgment cannot be predicated on

so vacillatory a record. See Varrasso, 37 F.3d at 764 (concluding

that when a court must choose between competing plausible

inferences, "[that] choice cannot be made under the banner of

summary judgment"). 

To be sure, the public-official question is ultimately a

question of law. We have no doubt that, with sufficient evidence

before it, a court — especially a court freed from the constraints

attendant to summary judgment — will be capable of making the

public-official/private-figure determination. See Pendleton, 156

F.3d at 67. This determination, however, is necessarily a
-17-

factbound one, see id. at 70, and the district court in this case

made its ruling under the strictures of the summary judgment

standard. Given those impediments, we think that the district

court's resolution of the status question was premature. 

We hold, therefore, that the district court should not

have essayed a definitive status determination on the exiguous

information available to it at summary judgment but, rather, should

have demanded more detailed factual development (even if that meant

deferring the status determination to the time of trial). Cf.

Askew v. Hargrave, 401 U.S. 476, 478-79 (1971) (per curiam)

(observing that pleadings and an affidavit provided an inadequate

basis for deciding an equal protection claim because they did "not

sufficiently present the facts").

We have pondered whether we should attempt to decide, on

the full record (that is, the record including the trial testimony)

whether Mandel is a public official or a private figure for First

Amendment purposes. On reflection, that is not a satisfactory

alternative. Because of the premature summary judgment ruling, the

parties had no incentive to offer further evidence at trial on the

status question. That some new insights made their way into the

trial transcript is more a harbinger of tales yet to be told than

a completion of the evidentiary presentation. 

Nor is there any other basis on which we can deem the

error harmless. The premature summary judgment ruling determined
-18-

a question of enormous importance and cast a wide shadow over the

entirety of the litigation. Thus, we have no real choice but to

vacate the jury verdict and order a new trial in which the facts

bearing upon Mandel's status can be fully and fairly aired.

B. Sufficiency of the Evidence.

In their Rule 50(b) motion, the defendants challenged the

sufficiency of the evidence to support jury findings that: (i) the

two statements were false; (ii) the defendants were negligent in

publishing them; and (iii) the false statements caused incremental

harm (i.e., harm apart from that caused by similar non-actionable

statements). 

Ordinarily, we review the disposition of a motion for a

judgment as a matter of law de novo. See Gibson v. City of

Cranston, 37 F.3d 731, 735 (1st Cir. 1994). In so doing, "we

scrutiniz[e] the proof and the inferences reasonably to be drawn

therefrom in the light most hospitable to the nonmovant, refraining

entirely from differential factfinding," and "may not consider the

credibility of witnesses, resolve conflicts in testimony, or

evaluate the weight of the evidence." Cook v. R.I. Dep't of MHRH,

10 F.3d 17, 21 (1st Cir. 1993) (alteration in original) (citations

and internal quotation marks omitted). We "can overturn a jury's

verdict and grant judgment in favor of the verdict loser only if

the evidence, so viewed, is such that reasonable minds could not

help but reach an outcome at odds with the verdict." Id.
-19-

This case, however, is out of the ordinary. Appellate

deference to the jury is muted when a case implicates First

Amendment principles. See Veilleux v. Nat'l Broad. Co., 206 F.3d

92, 106 (1st Cir. 2000). In such an instance, we must undertake

independent review of the evidence insofar as it bears on the

constitutional issues. See Bose Corp. v. Consumers Union of U.S.,

Inc., 466 U.S. 485, 508 (1984).

Independent review is not a limitless ransacking of the

record as a whole. See Veilleux, 206 F.3d at 107; see also Bose,

466 U.S. at 514 n.31 (recognizing that independent review is not

equivalent to de novo review of the judgment itself). It does not

extend "to all determinations concerning a particular legal claim,

but only to those that specifically involve the application of

First Amendment law to specific facts." Veilleux, 206 F.3d at 107.

Purely factual determinations (such as credibility calls) remain

subject to the usual degree of deference. See id.; see also

Eastwood v. Nat'l Enquirer, Inc., 123 F.3d 1249, 1252 (9th Cir.

1997) (recognizing that appellate courts undertaking independent

review defer "on questions of credibility, which the jury is

uniquely qualified to answer"). 

In this case, we must independently review whether Mandel

satisfied his constitutionally imposed burden of showing the

falsity of each of the disputed statements and establishing that

the defendants, at the very least, failed to exercise due care in
For purposes of this conclusion, we assume, without deciding, 4

that the challenges to the admissibility of evidence raised by the

defendants in their appellate briefs would be resolved in their

favor.

-20-

publishing them. See Veilleux, 206 F.3d at 108 & n.7. But because

the question of whether Mandel proved that the statements

incrementally harmed him does not implicate the First Amendment,

that question remains subject to the conventional standard of

review applicable to orders granting or denying Rule 50(b) motions.

See Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 523 (1991)

(rejecting "any suggestion that the incremental harm doctrine is

compelled as a matter of First Amendment protection for speech");

cf. Fiori v. Truck Drivers, Local 170, 354 F.3d 84, 89 (1st Cir.

2004) (recognizing that "[w]hether a libel was the but-for cause of

subsequent economic loss does not directly implicate the First

Amendment, as long as it is clear that the finding was not a hidden

award of punitive damages").

We have undertaken a painstaking perusal of the evidence

and find that the verdict passes muster. A step-by-step excursion 4

through the record would serve no useful purpose; instead, we forgo

such a journey in favor of a synopsis of our conclusions. Cf.

DiMillo v. Sheepscot Pilots, Inc., 870 F.2d 746, 750 (1st Cir.

1989) (noting that "[t]here is no rule which requires an appellate

court to string together facts solely because [litigants] choose[]

to challenge factbound determinations").
-21-

We begin with the question of falsity. The district

court charged the jury (and we assume, for purposes of this

analysis) that Mandel was a purely private figure. The

Constitution requires that, "at least where a newspaper publishes

speech of public concern, a private-figure plaintiff cannot recover

damages without also showing that the statements at issue are

false." Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 768-69

(1986). Mandel cleared this constitutional hurdle with ease,

presenting strong evidence that the two statements in question were

false (i.e., that he was not "a child molester" and that no "report

conducted for the Baltimore County DSS" in July of 2002 had

"determined that [he] had assaulted" his daughter by his first

marriage).

As to the first statement, Mandel's proof included

medical records, a Massachusetts DSS investigation that failed to

uncover any conclusive evidence of abuse as to J.P.M., a specific

finding by the Maryland family court judge that Mandel was not a

child molester, a Virginia DSS investigation concluding that

allegations concerning A.N.M. were unfounded, and Mandel's trial

testimony that he had never inappropriately touched any of his

children. As to the second statement, the proof included testimony

from a Baltimore County DSS official that the Baltimore County DSS

did not retain Dr. Eliana Gil (the author of the July 2002 report)
-22-

to investigate on its behalf, as well as testimony that the report

contained no definitive conclusion that Mandel had molested A.N.M.

In the course of independent review, we are bound by the

jury's credibility determinations. See Eastwood, 123 F.3d at 1252.

Given that the jury must have accepted the main thrust of Mandel's

testimony on these points, we conclude that his testimony and the

other evidence, in cumulation, established falsity as to both

statements.

Private figures also must adduce "proof of negligent

publication of a defamatory falsehood." Stone, 330 N.E.2d at 168;

see Veilleux, 206 F.3d at 108 (recognizing a constitutional

requirement that "private individuals must prove fault amounting at

least to negligence on the part of a media defendant, at least as

to matters of public concern"). Put another way, a private-figure

plaintiff must show that a media defendant failed "to act

reasonably in checking on the truth or falsity . . . of the

communication before publishing it." Appleby v. Daily Hampshire

Gazette, 478 N.E.2d 721, 724 (Mass. 1985) (alteration in original)

(citations and internal quotation marks omitted). The question of

fault engenders independent review. See Veilleux, 206 F.3d at 108.

We need not tarry. It suffices to say that the reporter,

Lombardi, neither read pertinent documents available to her (even

though some of them were referenced by others) nor contacted

several individuals who might have provided opposing views. She
Dr. Gil, the report's author, met with A.N.M. on referral 5

from the Virginia DSS for a developmental assessment. Dr. Gil

shared some of her findings with the Baltimore County DSS in a

conversation that took place in April of 2002. Gil's July 2002

report, erroneously referred to in Lombardi's article as a

Baltimore County DSS report, was added to the Baltimore County DSS

file in August 2002. This was roughly three months after the

agency's finding had been issued.

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also incorrectly characterized the July 2002 report,

misrepresenting its findings and the identity of the party for whom

it was prepared. Lombardi further admitted that she did not have 5

access to the full Baltimore County DSS file and guessed at its

contents. Considering these facts and the strong evidence of

falsity at the time the article went to press, an unconditional

branding of Mandel as "a child molester" may well have been

negligent. This is especially so given our obligation, on

independent review, to respect the jury's credibility

determinations. See id. at 107; Eastwood, 123 F.3d at 1252. 

The defendants' last point — incremental harm — is a nonstarter. The district court charged the jury, at the defendants'

behest, about the need to show incremental harm. No party

challenges that instruction and it is not patently wrong;

therefore, we treat it as the law of the case. See Milone v.

Moceri Family, Inc., 847 F.2d 35, 38-39 (1st Cir. 1988). 

We owe substantial deference to the jury's ensuing

finding. On this record, there is no sound reason to disavow that

deference. For example, the jury rationally may have found the
Our conclusion that Mandel presented adequate evidence to 6

support a finding of incremental harm makes it unnecessary for us

to address the (apparently open) question of whether the

incremental harm doctrine is part and parcel of Massachusetts law.

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statements that unflinchingly branded Mandel as a child molester

especially harmful. Or, alternatively, the jury rationally may

have found other, non-actionable statements simply unharmful.

Either way, we are bound to conclude that Mandel presented adequate

evidence to support the finding of incremental harm.6

IV. CONCLUSION

To recapitulate, we hold that the district court did not

err in denying the defendants' motion for judgment as a matter of

law. We nonetheless vacate the judgment due to the court's

premature pretrial decision on the linchpin public-official issue.

Summary judgment is proper only when it is appropriately timed —

and, given the lack of factual development in the summary judgment

record, the timing here was inauspicious. There was no principled

way for the district court to hold, at that juncture, that either

side was entitled to judgment as a matter of law on the status

question.

That leaves the scope of the remand. We recognize that

we have wide discretion to remand for a new trial on all, or only

some, of the issues in the case. See Dopp v. HTP Corp., 947 F.2d

506, 518 (1st Cir. 1991). The touchstone is that a new trial

should not "be limited to fewer than all the issues unless it
The district court's directed verdict on the issue of actual 7

malice does not operate to narrow the scope of our remand. Due to

the premature status determination, Mandel had no incentive to

adduce evidence of actual malice at trial; after all, the district

court set negligence as the standard for liability, and

Massachusetts does not permit punitive damages in defamation

actions. See Mass. Gen. Laws ch. 231, § 93.

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clearly appears that the issues to be retried are so distinct and

separable from the other issues that a trial of those issues alone

may be had without injustice." La Plante v. Am. Honda Motor Co.,

27 F.3d 731, 738 (1st Cir. 1994). In the final analysis, then, the

scope of a remand is normally a judgment call for the appellate

court. See Wilson v. Mar. Overseas Corp., 150 F.3d 1, 13 (1st Cir.

1998).

In this case, there are arguably three categories of

issues that are eligible for retrial: liability as to the

statements that the jury found actionable, liability as to the

statements that the jury found not to be actionable, and damages.7

We are confident that retrial is necessary as to the first and

third sets of issues. The status determination is intimately

intertwined with the question of liability as to the two actionable

statements, and the question of damages is dependent on the

liability conclusion. 

The second category presents a closer call. Arguably,

the error that tainted this litigation never influenced the jury's

findings that two statements were not actionable. Yet this case is

complex, and it is difficult to determine how the specter of those
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two statements may have affected other aspects of the trial. In

any event, retrial as to these statements will require the parties

and the district court to muster only marginally greater resources

than otherwise would be the case. We therefore decree that the

retrial encompass all the issues. 

We need go no further. We caution, however, that a new

trial will generate a new record and a new set of credibility

determinations. For that reason, our assessment of the evidence

adduced at the first trial will not be binding on the lower court

or the jury when the case is retried. 

Vacated and remanded.