UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JOAN CRESCENZ, 

 Plaintiff,

v.

PENGUIN GROUP (USA) INC. and

MICHAEL CAPUZZO,

 Defendants.

CIVIL NO. 11-0493(NLH)(AMD)

OPINION

Appearances:

DANIELLE MYRIAH WEISS

CLIFFORD E. HAINES

HAINES & ASSOCIATES

1835 MARKET STREET

SUITE 2420

PHILADELPHIA, PA 19103 

On behalf of plaintiff

HOWARD J. SCHWARTZ

NANCY ANN DEL PIZZO 

LINDSAY A. SMITH

WOLFF & SAMSON, PC

ONE BOLAND DRIVE

WEST ORANGE, NJ 07052 

On behalf of defendants

HILLMAN, District Judge

This action concerns plaintiff’s claims of defamation and

false light. Presently before the Court is defendants’ motion for

summary judgment. Also pending is plaintiff’s motion for partial

summary judgment on the burden of proof. For the reasons

expressed below, defendants’ motion will be granted, and

plaintiff’s motion will be denied as moot.

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BACKGROUND

Defendant, Michael Capuzzo, wrote a non-fiction book, The

Murder Room: The Heirs of Sherlock Holmes Gather to Solve the

World’s Most Perplexing Cold Cases published by defendant Penguin

Group (USA), Inc. in August 2010. The book concerns the history

of the Vidocq Society, an association of forensic professional and

private citizens from across the United States who gather together

in Philadelphia, Pennsylvania to solve cold crimes using their

collective investigative talents and resources. One founding

member of the Vidocq Society featured in the book is Frank Bender,

a renowned forensic artist internationally acclaimed for creating

sculptures of the faces of crime victims based on molds he created

from their decayed skulls. Bender was also renowned for creating

age progression sculptures of the faces of some of the world’s

most wanted fugitives. Crimes have been solved based upon

Bender’s work.

Plaintiff, Joan Crescenz, met Bender in 1975, and for almost

30 years worked as his artist’s assistant, bookkeeper, and

personal assistant. When Bender became terminally ill, Crescenz

assisted him with his healthcare needs until his death on July 28,

2011. Bender had been married to Jan Bender for almost 30 years

until her death in 2010. They had an “open marriage,” and Bender

was known for his “overt sexuality” and “self-professed sexual

exploits.” (Compl. ¶¶ 17, 18.) Crescenz has been married to

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Peter Crescenz for more than 20 years and has three children.

In her complaint, Crescenz claims that defendants defamed her

in the book by Capuzzo’s references to Crescenz as one of Bender’s

girlfriends with whom he had a sexual relationship. Crescenz

claims that she never had a sexual relationship with Bender, and

that Capuzzo never asked her if she and Bender had a sexual

relationship. Crescenz also claims that Capuzzo never provided

her with an advance copy of the book so that she could verify the

truth of Capuzzo’s twelve references to her in the book; if he

had, Crescenz claims that she would have corrected the false

statements about her. Crescenz claims that Capuzzo, as well as

the publisher, Penguin, were negligent and reckless in publishing

the false statements about her, particularly after she emailed the

book’s publisher, William Shinker, on July 28, 2010, before the

book’s release in August 2010, informing him of the inaccuracies

she discovered when Bender provided her with a galley copy. 

Capuzzo and Penguin have moved for summary judgment in their

favor on Crescenz’s claims of defamation and false light invasion

of privacy. Crescenz has opposed their motion, arguing that a

jury must decide her claims. Crescenz has also filed a motion for

partial summary judgment asking the Court to decide what standard

of proof is required for each of her claims. 

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DISCUSSION

A. Jurisdiction

This Court has jurisdiction over this matter pursuant to 28

U.S.C. § 1332 because there is complete diversity of citizenship

between the parties and the amount in controversy exceeds $75,000.

B. Summary Judgment Standard

Summary judgment is appropriate where the Court is satisfied

that the materials in the record, including depositions,

documents, electronically stored information, affidavits or

declarations, stipulations, admissions, or interrogatory answers,

demonstrate 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. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R.

Civ. P. 56(a).

An issue is “genuine” if it is supported by evidence such

that a reasonable jury could return a verdict in the nonmoving

party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A fact is “material” if, under the governing substantive

law, a dispute about the fact might affect the outcome of the

suit. Id. In considering a motion for summary judgment, a

district court may not make credibility determinations or engage

in any weighing of the evidence; instead, the non-moving party's

evidence “is to be believed and all justifiable inferences are to

be drawn in his favor.” Marino v. Industrial Crating Co., 358

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F.3d 241, 247 (3d Cir. 2004)(quoting Anderson, 477 U.S. at 255).

Initially, the moving party has the burden of demonstrating

the absence of a genuine issue of material fact. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met

this burden, the nonmoving party must identify, by affidavits or

otherwise, specific facts showing that there is a genuine issue

for trial. Id. Thus, to withstand a properly supported motion

for summary judgment, the nonmoving party must identify specific

facts and affirmative evidence that contradict those offered by

the moving party. Anderson, 477 U.S. at 256-57. A party opposing

summary judgment must do more than just rest upon mere

allegations, general denials, or vague statements. Saldana v.

Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).

C. Analysis

To enjoy one’s reputation “free from unjustified smears and

aspersions” is a right in this free society, but it must be

weighed against “significant societal benefit in robust and

unrestrained debate on matters of public interest.” G.D. v.

Kenny, 15 A.3d 300, 310 (N.J. 2011) (quoting Senna v. Florimont,

958 A.2d 427 (N.J. 2008)) (other quotations omitted). The law of

defamation attempts to strike “the proper balance between

protecting reputation and protecting free speech.” Id. (citation

omitted).

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A “statement is defamatory if it is false, communicated to a 1

third person, and tends to lower the subject’s reputation in the

estimation of the community or to deter third persons from

associating with him.” W.J.A. v. D.A., 43 A.3d 1148, 1153 (N.J.

2012) (citations omitted). In order to prevail on a defamation

claim, a plaintiff must show that (1) the statement was false, (2)

the defendant communicated it to another person, and (3) when the

defendant communicated that false statement, he acted negligently

or with actual malice. G.D., 15 A.2d at 310 (citations omitted).2

 “The short and simple distinction” between the terms libel 1

and slander “is that libel is defamation by written or printed

words, or by the embodiment of the communication in some tangible

or physical form, while slander consists of the communication of

a defamatory statement by spoken words, or by transitory

gestures.” W.J.A. v. D.A., 43 A.3d 1148, 1153 (N.J. 2012)

(citation and quotation omitted). The distinction between libel

and slander is not “a quaint vestige of old common-law

vocabulary” because the elements of the torts are not identical,

and they most diverge in connection with damages. Id. at 1154

(citation omitted). It is not disputed that Crescenz is seeking

damages for libel.

 The Model Jury Charge for private defamation describes 2

“five elements in addition to damages which plaintiff must prove:

(1) a defamatory statement of fact; (2) concerning the plaintiff;

(3) which was false; (4) which was communicated to a person or

persons other than the plaintiff; and (5) with actual knowledge

by the defendant that the statement was false, or with reckless

disregard by the defendant of the statement's truth or falsity,

or with negligence by the defendant in failing to determine the

falsity of the statement.” Stonehill v. Nesta, 2007 WL 4258328,

*3 (N.J. Super. Ct. App. Div. 2007) (quoting Model Jury Charge

(Civil), 3.11B, “Private Defamation” (2002)). Specific or

compensatory damages do not need to be proven, however, in

private citizen/private concern cases in order to survive summary

judgment and receive nominal damages for the vindication of the

“dignitary and peace-of-mind interest in one’s reputation.” 

W.J.A. v. D.A., 43 A.3d 1148, 1160 (N.J. 2012).

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Whether a plaintiff has to prove that the defendant acted

negligently or with actual malice depends on whether the plaintiff

is a private or public figure, and whether the statement is of

public or private concern. The New Jersey Supreme Court recently

explained the rules governing when to apply the actual-malice

standard for liability purposes in defamation cases:

The actual-malice standard will apply when the alleged

defamatory statement concerns a public figure or a

public official or involves a matter of public concern. 

When published by a media or media-related defendant, a

news story concerning public health and safety, a highly

regulated industry, or allegations of criminal or

consumer fraud or a substantial regulatory violation

will, by definition, involve a matter of public interest

or concern. In all other media and non-media cases, to

determine whether speech involves a matter of public

concern or interest that will trigger the actual-malice

standard, a court should consider the content, form, and

context of the speech. Content requires that we look at

the nature and importance of the speech. For instance,

does the speech in question promote self-government or

advance the public's vital interests, or does it

predominantly relate to the economic interests of the

speaker? Context requires that we look at the identity

of the speaker, his ability to exercise due care, and

the identity of the targeted audience.

This much we can say for certain. Discourse on

political subjects and critiques of the government will

always fall within the category of protected speech that

implicates the actual-malice standard. Public policy

and common sense also suggest that the same protections

be given to speech concerning significant risks to

public health and safety. On the other hand, there is

no great societal benefit or higher free speech value in

providing heightened protection for the defamatory and

false statements uttered by one business competitor

against another. That form of commercial speech,

generally, will call for the application of the

negligence standard.

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W.J.A., 43 A.3d at 1157 (quoting Senna v. Florimont, 196 N.J. 469,

958 A.2d 427, 443-44 (N.J. 2008)) (internal citations omitted).

In this case, the parties dispute which standard should apply

to Crescenz’s defamation claim. Defendants argue that Crescenz 3

is a limited-purpose public figure, the statements are a matter of

public concern, and, therefore, the “recklessness,” or “actualmalice” standard applies. In contrast, Crescenz contends that she

is a private figure and the matter is of private concern, and,

accordingly, the negligence standard applies.

The Court does not need to decide the issue, however, because

even if the statements in the book about Crescenz fall into the

private-figure/private-concern category, Crescenz cannot meet her

burden to demonstrate that defendants were negligent in making

their statements. Accepting as true that Crescenz did not have a

sexual relationship with Bender, and in his book Capuzzo falsely 4

 Crescenz also advances a claim for false light, which 3

applies a “recklessness” standard. See Durando v. Nutley Sun, 37

A.3d 449, 458 (N.J. 2012) (explaining that to prove the tort of

false light, a plaintiff must satisfy two elements: she must show

(1) that the false light in which she was placed would be highly

offensive to a reasonable person, and (2) that the defendant had

knowledge of or acted in reckless disregard as to the falsity of

the publicized matter and the false light in which the plaintiff

would be placed (citations omitted)). Because the Court finds

that plaintiff cannot sustain her burden of proof on the lesser

negligence standard, the Court finds that she therefore cannot

prove defendants’ recklessness to support her false light claim. 

 Defendants argue that based on the evidence in the record, 4

Crescenz cannot prove the falsity of the statement that she had a

sexual relationship with Bender. Crescenz, however, testified in

her deposition that she did not have a sexual relationship with

Bender. If Crescenz had been able to defeat defendants’ motion

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stated that she did, Crescenz cannot meet her burden of showing

evidence such that a reasonable jury could return a verdict in her

favor. 

Prior to the August 2010 publication of the book, the

following undisputed facts regarding Bender and Crescenz’s

relationship existed:

1. Bender had an open marriage.

2. Bender was very sexual.

3. Bender walked around his studio naked in front of

Crescenz.

4. Bender lived and worked in his studio which contained

many nude paintings, phallic symbols, at least one

sculpture of the genitalia of one of his girlfriends,

and a separate room accessed through an opening in the

middle of the studio floor which had a full bar, a

nearby bed, and was used for drinking, parties and

sexual encounters.

5. In an April 1, 2004 Esquire magazine article about

Bender, the author described Crescenz as Bender’s

for summary judgment on the negligence issue, the issue of

whether Capuzzo’s statement is false would have been one for the

jury. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986) (in considering a motion for summary judgment, a district

court may not make credibility determinations or engage in any

weighing of the evidence).

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assistant and “second wife.”5

6. Capuzzo was told pre-publication by Bender and others6

that Bender had a long-term sexual relationship with

Crescenz.7

 Crescenz testified that she believed that Bender probably 5

implied to the author that he was having sex with Crescenz (as

well as with two other girlfriends), but she did not believe that

the text of the article made it appear that she was having sex

with Bender.

 It is undisputed that the other two members of the Vidocq 6

Society, William Fleisher and Richard Walter, both told Capuzzo

that based on their observations of the two and Bender’s

statements that they believed that Bender and the Plaintiff had a

sexual relationship. Fleisher was a retired FBI agent and

experienced polygraph examiner and interrogator. Walter was an

experienced forensic psychologist and criminal profiler. Capuzzo

would have been justified in attributing substantial weight to

their opinions. Although plaintiff asserts that Capuzzo knew

Crescenz had a different view pre-publication, failed to ask her

directly, and viewed Bender himself as a “psychopath,” none of

these facts undermine the reasonableness of Capuzzo’s reliance on

the contrary evidence. It is not negligence simply because some

evidence contrary to a believed fact exists. Very few things are

that black and white. The issue is whether sufficient facts

would justify a jury verdict that Capuzzo was negligent. To hold

otherwise is to conflate the issue of truth/falsity with

negligence. In light of the substantial evidence supporting the

challenged statement, a jury would not be justified in viewing

the statement as negligently made even if ultimately proved

false. 

 Capuzzo states in his affidavit that Bender, as well as 7

numerous other people, told him that Bender and Crescenz had a

sexual relationship. Despite the opportunity in discovery to

develop contrary evidence, Crescenz does not dispute these

statements are made. Although hearsay if offered to prove the

relationship, that is not the relevance of those statements. 

Rather, they are relevant and admissible to show Capuzzo’s state

of mind regardless of whether the statements were true (i.e.,

whether he had a reasonable basis to conclude they had a sexual

relationship and was therefore not negligent in saying so). See

Fed. R. Evid., Fed. R. Evid. 801(c)(defining hearsay as out of

court statements offered for the truth).

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7. Capuzzo observed Bender and Crescenz, together and

individually, over the course of seven years, during

interviews, formal black-tie events, and dinner with

Capuzzo and his wife.

8. Crescenz often stayed overnight at Bender’s house.

9. Bender and Crescenz traveled together more than 10 times

and took vacations together, including to the New Jersey

shore, San Francisco, New York, and the Inn of the Dove,

and they stayed in the same room.

10. When Bender and Crescenz visited Capuzzo at his home in

Wellsboro, Pennsylvania, they stayed overnight at a

hotel in the same room with one bed.

11. Handwritten notes, written by Bender and his wife Jan

and given to Capuzzo, state that Bender and Crescenz

would indulge in all night dancing and drinking. 

12. The other two members of the Vidocq Society, William

Fleisher and Richard Walter, whom the book is also

about, did not make any changes to the galley copy of

the book with regard to Bender’s sexual relationship

with Crescenz.

13. When the Benders’ daughter reviewed the galley copy of

the book, she did not make any changes with regard to

Bender’s sexual relationship with Crescenz.

14. When Bender reviewed a galley copy of the book, he did

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not make any changes with regard to his sexual

relationship with Crescenz.

Even though defendants have proffered deposition testimony,

certifications, and other evidence to further support their lack

of negligence in publishing a book that describes Bender and

Crescenz’s relationship as a sexual one, these are the undisputed

facts as they existed prior to the publication of the book, and

they are facts that do not require the assessment of credibility

by a jury. Thus, the question to be answered is whether in light

of this evidence it could be said that Capuzzo and Penguin acted

“negligently in failing to ascertain the truth or falsity of the

statement before communicating it.” Feggans v. Billington, 677

A.2d 771, 775 (N.J. Super. App. Div. 1996). 

Crescenz says “yes,” and presents other facts she argues

should make the question one for a jury. Prior to the publication

of the book:

1. Keith Hall, a detective who worked on a cold case Bender

help solve, sent an email to Penguin indicating that

Capuzzo did not accurately describe how the case was

solved.8

 Crescenz characterizes that this error is about “how the 8

case was solved,” but the content of Hall’s email, Pl. Ex. I,

states that Hall objected to Capuzzo’s mention of Hall at Richard

Walter’s house and Hall’s comment on a cookie recipe. Hall

states that he was not at that meeting, and requests a prepublication copy of the entire manuscript. The Court accepts the

characterization of Hall’s email to be a demonstration of a prepublication error.

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2. During the editing process, someone noted that Capuzzo’s

reference to Japanese foot-binding was an error--it

should have been Chinese foot-binding.

3. Crescenz emailed the publisher, William Shinker, on July

28, 2010, expressing her concern of Capuzzo’s “very

degrading characterization” of her, and listing the

“problems” with the references to her in the book.

4. Penguin did not independently fact-check the book prior

to, or after, Crescenz raised her concerns.

5. Capuzzo never asked Crescenz directly if she had a

sexual relationship with Bender.

6. Jan Bender never told Capuzzo that Bender had a sexual

relationship with Crescenz.

In addition to accepting as true that Crescenz did not have a

sexual relationship with Bender and that the depiction of her in

the book was false, Crescenz argues that these facts, which also

must be accepted as true, demonstrate to a jury that Capuzzo and

Penguin did not act reasonably in publishing the book.

In order to determine whether Crescenz has provided enough

evidence to support a claim that defendants were negligent in

printing a false statement about her, the Restatement is helpful:

Negligence is conduct that creates an unreasonable risk

of harm. The standard of conduct is that of a

reasonable person under like circumstances. Insofar as

the truth or falsity of the defamatory statement is

concerned, the question of negligence has sometimes been

expressed in terms of the defendant's state of mind by

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asking whether he had reasonable grounds for believing

that the communication was true. Putting the question

in terms of conduct is to ask whether the defendant

acted reasonably in checking on the truth or falsity or

defamatory character of the communication before

publishing it.

Restatement (Second) of Torts § 580B (1977) (defamation of private

person), cited in Feggans, 677 A.2d at 775. With regard to a book

publisher and professional writer, they are “held to the skill and

experience normally possessed by members of that profession.” Id. 

“Customs and practices within the profession are relevant in

applying the negligence standard, which is, to a substantial

degree, set by the profession itself, though a custom is not

controlling.” Id. (explaining that evidence of custom within the

profession would normally come from an expert who has been shown

to be qualified on the subject, but in the absence of expert

testimony, a “court should be cautious in permitting the doctrine

of res ipsa loquitur to take the case to the jury and permit the

jury, on the basis of its own lay inferences, to decide that the

defendant must have been negligent because it published a false

and defamatory communication”; “[t]his could produce a form of

strict liability de facto and thus circumvent the constitutional

requirement of fault”).

Crescenz’s evidence cannot support her burden. First, with

regard to Penguin’s lack of a fact-checking process, Crescenz has

not produced any evidence, from an expert or otherwise, to

demonstrate that a book publisher must independently check every

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fact in a non-fiction book. To the contrary, defendants have

submitted declarations from William Shinker, the president of The

Murder Room’s publisher, Gotham Books (which is an imprint of

defendant Penguin) who has 40 years of experience in the book

selling and trade publishing, and Alexander Gigante, Senior Vice

President/Legal Affairs for Penguin, who has 30 years experience

in the publishing field, both of whom certify that the custom and

practice in the publishing industry is for book publishers to rely

on their authors to warrant and stand for the truth of the words

they write, which warranty is memorialized in a signed agreement

with the authors. Publishers do, however, have most of their 9

non-fiction books vetted prior to publication by outside counsel

experienced in publishing matters, and The Murder Room was so

vetted prior to publication. There is insufficient evidence that

the fact-checking process at issue here was negligent. 

Second, Crescenz’s email to the publisher days before the

book’s release does not establish that Penguin acted negligently

in releasing it. Crescenz was disgruntled about several passages

in the book about her, but she never explicitly stated in her

email that she did not have a sexual relationship with Bender. 

 The publisher here states that it reasonably relied upon 9

Capuzzo’s education, extensive writing and reporting experience,

reputation and accolades, which include nominations for the

Pulitzer Prize for two non-fiction books. Crescenz has not

provided any evidence to show that Penguin’s reliance on

Capuzzo’s author warranty was negligent. As related herein,

pointing out two minor errors in a 440-page book is not

sufficient. 

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Even if her email could be read to mean that she refuted having a

sexual relationship with Bender, Crescenz’s email does not provide

any proof, other than her personal concerns, to discredit the

other resources upon which Capuzzo based his reporting. Moreover,

Crescenz has not produced evidence to refute defendants’

certifications that it is not industry custom or practice to have

every subject in a non-fiction book read and approve an advance

copy prior to it being published.10

Third, Capuzzo’s failure to directly ask Crescenz if she had

a sexual relationship with Bender is insufficient either alone or

 Indeed, although the galley of the book was reviewed by 10

the three main subjects - Bender, William Fleisher, and Richard

Walter - as well as Bender’s daughter, Crescenz has not produced

evidence that all changes requested by these subjects were

incorporated into the book. As defendants point out, many

subjects are not totally pleased with how they are portrayed in a

non-fiction book. Even Bender, in his February 24, 2011

affidavit prepared “in contemplation of the probability of my

impending death,” states that “I have my issues with Michael

Capuzzo and some of his generalizations in the book and I feel he

sensationalized my story in a somewhat degrading way . . . .” 

(Def. Ex. L.) Presumably Bender expressed concern over these

issue to Capuzzo prior to the book’s publication, but Capuzzo did

not make all the changes Bender requested. 

Bender’s affidavit details his sexual relationship with

Crescenz, and states that after reading her complaint in this

case, “I could not believe that Crescenz . . . would blatantly

lie about us never having sex together. . . . [T]his claim by

Crescenz is bogus.” (Def. Ex. L.) Although there is reason to

conclude that Bender’s affidavit might be admissible to rebut

plaintiff’s claim that the book’s recitation of a relationship is

false, see Fed. R. Evid. 804(6) (addressing admissibility of

trustworthy statements by deceased declarants in civil cases), we

need not consider or rely on it here. Neither the affidavit or

Bender’s deposition, both taken post-publication, are relevant to

Capuzzo’s state of mind, and Penquin’s knowlege, pre-publication. 

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in conjunction with other evidence to demonstrate that Capuzzo

acted unreasonably in evaluating the truth or falsity of that

statement before publishing it. Capuzzo reported in his book

about Bender and Crescenz’s relationship based upon his

observations of Bender and Crescenz over the course of seven

years, and from what others had told him. Even if Capuzzo had

directly asked Crescenz whether she had a sexual relationship with

Bender, and she denied that she did, it would have been 11

reasonable for Capuzzo to conclude that she was not being truthful

based on other information he had gathered.

Even less convincing is evidence of an error regarding the

 Indeed, just as we assume that the alleged defamatory 11

statement was false, we also assume that if asked Crescenz would

have denied the relationship. The issue in this case is whether

the defendants would have been negligent in publishing the

contrary statement even in the face of the denial. We hold that

even if Crescenz had been asked and given the presumed answer,

the defendants would not have been negligent in the light of the

undisputed facts known to them in asserting the opposite. 

Another way of looking at this issue is to assess the effect a

mere denial would have on the free exchange of ideas and opinion. 

Defamation law must be viewed through this lens. We assume that

when accused of a scandalous act a person falsely accused would

deny the claim. The issue here is not whether the denial is true

(we assume it is); rather, the issue is whether the author acted

negligently in asserting the opposite despite the denial. If

that were not the rule, a person accused of a scandalous act

could insure a jury trial on the issue of the truth or falsity of

defamatory statement by merely issuing a simple denial. Many

reasonable authors and publishers would shy away for publishing

such statements when a denial had been made, was forthcoming, or

was even likely. It is of little comfort to one falsely accused,

but it is well to remember that the tort of defamation is not

designed to provide a remedy for every false statement. For a

private citizen, it provides a remedy for only those false

statements negligently made.

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misstatement of Japanese foot binding instead of Chinese foot

binding, and a purported error regarding a detective’s different

recollection of a meeting. These mistakes do not cast a net of

unreasonableness over the undisputed facts upon which Capuzzo

based his depiction of Bender’s relationship with Crescenz. 

Capuzzo is an experienced, Pulitzer Prize nominated nonfiction writer who spent seven years observing, interviewing, and

interacting with Bender, his close associates, his family, and

Crescenz. Penguin is an established publishing company that, when

it chose to publish the book, followed industry custom in relying

upon the author’s warranty of the veracity of the non-fiction

work, as well as the vetting of the book by an seasoned attorney. 

Accepting as true that Crescenz did not have a sexual relationship

with Bender and Capuzzo’s depiction of their relationship as

sexual was false, based on the undisputed facts as they existed in

August 2010 when the book was released, Crescenz has not presented

sufficient evidence to show that Penguin or Capuzzo did not act

reasonably in checking on the falsity or defamatory character of

Crescenz and Bender’s relationship before publishing it. 

In the milieu of the Vidocq Society this matter might be

called the classic “He said, she said.” Ordinarily such cases

call upon a jury to decide which version is true. However, that

description in this case would be misleading. This case need not

turn on the resolution of whether Frank Bender or Joan Crescenz

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told the truth about their relationship. Indeed, the issue of the

true nature of the relationship between the two is unlikely to

ever be resolved. The two primary participants in these tangled

relationships are both deceased, and there is reason to doubt both

versions. 

Regardless, however, of each party’s personal point of view

on the nature of Crescenz and Bender’s relationship, or even the

actual truth, the evidence in the record does not support a

finding that either Capuzzo or Penguin were negligent in writing

about or publishing one version of that story - a depiction of

Bender and Crescenz having a sexual relationship. Unless 12

plaintiff has sufficient evidence as to both falsity and

negligence, her claim of defamation fails. Plaintiff having

failed to proffer sufficient evidence on negligence, an essential

element of the tort of defamation, defendants are entitled to

judgment as a matter of law. 

CONCLUSION

For the reasons expressed above, defendants’ motion for

summary judgment in their favor on all of plaintiff’s claims

against them must be granted, and plaintiff’s motion for partial

 Crescenz’s remedy, however imperfect, is to marshal her 12

evidence, issue a denial, and let whoever may be interested in

the topic reach their own conclusion. We note also that

Crescenz’s name has been changed in the paperback and the

subsequent printings. 

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summary judgment on the burden of proof must be denied as moot. 

An appropriate Order will be entered.

Date: December 31, 2012 s/ Noel L. Hillman 

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

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