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FOURTH DIVISION

January 24, 2002

No. 1-00-0599

JUSTICE THEIS delivered the opinion of the court:

Plaintiff, Christopher M. Edwards, filed an action againstdefendants, Paddock Publications, Inc., the publisher of the DailyHerald, and several of its reporters and editors, alleging defamationand false light arising from certain newspaper articles thatmisidentified plaintiff as having been arrested in conjunction with adrug "bust" in the northwest suburbs. Defendants' theory of the casewas that they received the misidentified information from the policeand were therefore entitled to a fair report privilege. The trialcourt entered a directed verdict for defendants on plaintiff'snegligence count and directed a verdict for three editor defendants onall other counts. After the jury answered "no" to a specialinterrogatory asking whether the police were the source of themisidentified information, the jury returned a verdict in favor of theremaining defendants on the remaining counts of the complaint.

Plaintiff contends that the trial court erred (1) in directing averdict on the negligence count where plaintiff presented sufficientevidence for the jury to determine whether defendants failed toexercise reasonable care; (2) in allowing defendants to present thefair report privilege to the jury; (3) in submitting defendants'reckless disregard instruction to the jury; (4) in allowing certaindocuments bearing a photograph of plaintiff to be admitted intoevidence; (5) in dismissing the editor defendants where plaintiffpresented sufficient evidence that they acted with reckless disregard;(6) in allowing the introduction of undisclosed opinion testimony; (7)in denying plaintiff's motion to amend the complaint to seek punitivedamages under its theory of false light; and (8) in failing to granthim a new trial where the jury's answer to the special interrogatorywas inconsistent with the general verdict. For the following reasons,we reverse the judgment of the circuit court and remand for a newtrial.

BACKGROUND

In 1990, the Illinois State Police entered into a jointundercover operation with the Hoffman Estates and Schaumburg policedepartments to combat the growing gang problem in the northwestsuburbs. The operation was dubbed "Operation Erinnyes" (Operation)after the three crime-avenging sisters in Greek mythology, also knownas the Furies. Defendant Anne Gasior was a features reporter for theDaily Herald newspaper (the Herald) who, upon learning of theinvestigation, gained approval for herself and other staff reportersto participate in the operation and accompany police on undercoverassignments. She proposed to her editors, defendants Jean Rudolph andJohn Lampinen, to write a number of articles on the operation,focusing on the arrests and the growing gang problem. Defendant JohnCarpenter, a reporter in the news department, was also assigned tocover the project.

As the operation progressed, Gasior and Carpenter received anumber of oral briefings and interviewed participating officersregarding the suspects, including Christopher Edwards. On occasion,they would accompany the police on surveillance during undercover drugpurchases. However, it was understood that none of the informationacquired would be published until after the suspects were arrested. At some point early in the investigation, Carpenter found a photographof a Christopher Edwards in the Hoffman Estates High School yearbookand showed it to Gasior. It was the only Christopher Edwards depictedin the yearbook. The book also included information about him as astar football player and member of the homecoming king's court. Gasior and Carpenter never asked the police officers involved in theOperation to verify that the yearbook photograph was of the correctsuspect. It was that photograph of plaintiff that was ultimatelypublished in the Herald in connection with the arrest of ChristopherA. Edwards on felony drug charges.

As the impending arrest date approached, the police wereassembling documents needed to assist the arresting officers. Elizabeth Calhane, an intelligence analyst for the Illinois StatePolice, testified that it was her responsibility to prepare anintelligence data sheet on each criminal suspect as the Operationunfolded. In addition to information regarding the suspect's name,address, and other vital statistics, the data sheet included a spacefor a photograph. These data sheets were not public records. Included at the bottom of the sheet was a disclaimer, "-NOT FORDISSEMINATION-."

Calhane testified that on March 25, 1991, in anticipation of a briefing to be held the following day, she prepared the intelligencedata sheets for all 32 suspects, including a data sheet forChristopher A. Edwards which contained his photograph. She thencompiled a packet of information concerning each suspect, referred toat trial as an arrest packet. Additionally, she may have compiled apacket of data sheets for all 32 suspects, referred to as aninformational packet, but did not recall doing it. While Calhanetestified that she did not prepare a data sheet with plaintiff'sphotograph on it, and that nothing left her office with plaintiff'sphotograph on it, she did not know what happened to the documents sheprepared after she gave them to her supervisor, Captain Robert Johnsonof the Illinois State Police.

In assembling information, Officer Michael Hish of the HoffmanEstates police department testified that on March 11, 1991, he took aphotograph of Christopher A. Edwards when he came to the station tofile a battery complaint. Hish sent that photograph to the IllinoisState Police. While Hish had previously stated under oath thatsomeone from the Hoffman Estates police department had also sent theState Police a yearbook photograph of plaintiff, he had no independentrecollection of that at trial.

In the early morning hours of March 26, 1991, a prearrest meetingwas held at the Schaumburg police department where the leaders ofOperation Erinnyes briefed the teams of field officers who would bemaking arrests later in the day. Much of the testimony at trialrevolved around determining who was present at that briefing, whatinformation was disseminated there, and to whom it was disseminated. The testimony was conflicting and involved the admission into evidenceof several documents, most of which were not provided to this court inthe record on appeal.

Gasior testified that she was present at that briefing andreceived an informational packet from one of four officers: RobertJohnson, Clifford Johnson, Robert Stachnik or Michael Hish. Accordingto Gasior, the packet she received included a data sheet forChristopher A. Edwards which mistakenly included plaintiff's yearbookphotograph. She denied receiving a data sheet with a photograph ofChristopher A. Edwards. John Carpenter testified that he was alsopresent at the prearrest briefing and was handed an informationalpacket from one of three officers, Michael Callahan, Robert Stachnikor Michael Hish. Gasior and Carpenter testified that, as they perusedthe packet, they both recognized the photograph on Christopher A.Edwards' data sheet as the one Carpenter had previously found in theHoffman Estates High School yearbook which listed a ChristopherEdwards with no middle initial. They assumed that the informationprovided to them from the police was accurate.

No other witness could corroborate their testimony that theyreceived a data sheet with plaintiff's photograph on it. Severalother reporters testified that they had a one-time assignment to coverthe arrests on March 26, 1991, and attended the briefing with Gasiorand Carpenter. While they all denied receiving a data sheet with aphotograph of plaintiff on it, Danielle Kapolnek stated that she sawGasior with data sheets of the suspects.

Captain Robert Johnson testified that he was aware that reportersfrom the Herald were involved in the operation, but he did not knowwhether the reporters were at the briefing or whether they got anydocuments at the meeting. He further testified that he did notauthorize the distribution of the data sheets to the reporters and, tothe best of his recollection, the informational packages did notcontain a photograph of plaintiff. Officer Michale Callahan, theprimary undercover investigator for the Operation, testified that hewas present at the prearrest briefing and did not review the packets,did not disseminate any materials at the meeting, and did not knowwhether they were handed out to the reporters. After being shown adata sheet with a photograph of Christopher A. Edwards on it at trial,he stated that, while he had no personal knowledge of the origin ofthat photograph, he believed the photograph was provided by DetectiveMichael Hish from the Hoffman Estates police department. Hish hadtold him that he had finally gotten a photograph of ChristopherEdwards when he came into the police station to file a batterycomplaint.

Captain Clifford Johnson of the Schaumburg police departmenttestified that he was also present at the briefing and that thereporters from the Herald were invited to participate in thatbriefing. He recalled that informational packets were handed out tothe reporters. While Johnson acknowledged that the primary authorityfor the operation rested with the Illinois State Police, he statedthat he authorized the reporters to use the material in the reportingof their story. While he did not personally disseminate the packetsand did not recall who did disseminate them, he believed that he sawGasior get a copy of an informational packet. However, he could notidentify particular documents that were included in the materials thatwere handed out and did not know whether the data sheet withplaintiff's photograph was one of the documents available at thebriefing. Detective Robert Stachnik testified that he was present atthe briefing. He did not know whether the reporters were at thebriefing or if they received materials.

After the briefing, Gasior accompanied the police to the arrestof Christopher A. Edwards. As she sat in the back or front seat of acar, she saw the arrest team bring Edwards out of a house. He wasplaced in the car in front of her, but she testified that she couldnot see him closely enough to identify him. Police arrested 25 of the32 suspects. After the arrests, the reporters returned to theiroffices to complete their articles, which were to be published thenext day. While they had prewritten much of the information, as wascommon practice, once the arrests were made, they eliminatedreferences that did not comport with what had actually occurred. According to the reporters, references to those that had not beenactually arrested were deleted.

On that same day, a photographer from the Herald took an arrestphotograph of Christopher A. Edwards. Neither Gasior nor Carpenterrecalled seeing the arrest photograph and Thomas Grieger, the directorof photography, testified that the reporters and editors would not beinvolved in the initial photographic selection process.

The next day, the Herald published a number of articlesconcerning the arrests made in connection with Operation Erinnyes. Aspart of the series of articles, they published a photograph ofplaintiff, taken from his high school yearbook. The heading aboveplaintiff's photograph read "Targets of Operation Erinnyes," and thecaption alongside the photograph indicated that "Chris Edwards" was"[a] former Hoffman Estates High School football star" and that he wascharged with "[f]our counts of delivery of a controlled substance -all Class X felonies with mandatory 6- to 30-year jail terms, ifconvicted." The caption further stated that "[u]ndercover policedealt regularly with Edwards and his associates." The body of thearticle reports that "Edwards was a star high school football player,captain of the team and a member of the homecoming king's court," andfurther reports that he was "doing business with the Black GangsterDisciples."

Gasior and Carpenter testified that they learned of the error onthe morning of the publication. Gasior stated, "We got an importantfact wrong because we couldn't have checked it prior to that time andwe relied on the information given us from the police just as we doevery day." Carpenter acknowledged that there was nothing thatprevented him from getting additional background information on thesuspects after the arrest other than the demands on his time. Afterthe misprint, they testified that they confirmed with Lampinen thatthe picture of plaintiff appeared on the data sheet they had receivedat the briefing. Gasior did not present her copy of the data sheet attrial.

After being notified of the misidentification, Robert Johnsonreviewed the files of the Illinois State Police and never saw aphotograph of plaintiff in the file. Clifford Johnson testified that,after being notified by Gasior that the wrong photograph had beenpublished in the paper, he asked Investigator Stachnik to investigatethe matter. While he previously stated under oath that he did notrecall specifically learning that an incorrect photograph was attachedto an intelligence data sheet prior to March 28, 1991, he testified attrial that the day after the briefing he was shown a data sheet forChristopher A. Edwards with a photograph of plaintiff. Stachniktestified that he became aware of the misidentification the day afterthe arrests. He did not recall if he examined the Schaumburg files todetermine if plaintiff's photograph appeared in the informationalpacket. After being shown a data sheet for Christopher A. Edwards attrial with writing indicating "wrong photo," Stachnik acknowledgedthat it was his handwriting and that he placed the writing on thedocument sometime after the mistake had been discovered. He did notrecall when he did that or where he found the document that he marked. He did not recall whether the document was from his files or from "oneof the extras laying [sic] around" or from Clifford Johnson. Heacknowledged that he had no recollection of seeing plaintiff'sphotograph on a data sheet at any time prior to or during theprearrest briefing.

On March 28, 1991, the Herald printed a front-page retraction ofthe story advising readers of the incorrect identification in theprevious day's paper. The article explained that plaintiff attendedSouthern Illinois University, was on the dean's list and the footballteam, and was not associated in any way with the arrest of ChristopherA. Edwards, another former Hoffman Estates High School student withthe same name.

Thereafter, in 1992, plaintiff filed his complaint againstdefendants asserting claims of negligence, defamation based uponactual malice, and false light. He sought compensatory and punitivedamages in connection with the defamation claim. At the close ofplaintiff's case and after an initial defense witness testified, thetrial court directed a verdict for all defendants on the negligencecount for failure to introduce evidence that defendants deviated fromjournalistic practices, which the court found to be "outside the kenof the normal juror." The court also granted a directed verdict onall counts as to the editor defendants because plaintiff failed tointroduce evidence of actual malice. In answering a specialinterrogatory, the jury rejected defendants' contention that Gasiorand Carpenter received misinformation from the police. The juryreturned a general verdict for the remaining defendants on theremaining counts.

ANALYSIS

Plaintiff initially contends that the trial court erred indirecting a verdict for defendants on the negligence count. After theclose of plaintiff's case, the trial court found that plaintiff hadfailed to present evidence concerning the duty of care of a journalistand that the duty of a journalist was "outside the ken of the normaljuror or an everyday citizen." Defendants maintain that the trialcourt's ruling was proper because plaintiff was required to presentevidence, expert or otherwise, of recognized journalistic standards orpractices. We review the trial court's ruling on a motion for adirected verdict de novo. Gathings v. Muscadin, 318 Ill. App. 3d1091, 1093, 743 N.E.2d 659, 660 (2001).

The supreme court long ago determined that, in defamation casesinvolving a private individual against a media defendant, the conductof the media defendant is to be measured under an ordinary negligencestandard. Troman v. Wood, 62 Ill. 2d 184, 198, 340 N.E.2d 292, 299(1975). Under such a standard, plaintiff need only establish thatdefendant failed to act as a reasonably careful person would act underthe same or similar circumstances. In making its determination, theTroman court unequivocally rejected a "journalistic malpractice"standard under which negligence would be determined by a departurefrom the prevailing newspaper standards or custom and practice in acommunity. 62 Ill. 2d at 197-98, 340 N.E.2d at 298-99. To do sowould risk the progressive depreciation of the standard of care. Troman, 62 Ill. 2d at 198, 340 N.E.2d at 299.

Additionally, whether defendants exercised due care in gatheringthe factual information for their newspaper article is not a technicalmatter outside the ken of a lay juror that would require experttestimony. While defendants are not precluded from introducing experttestimony regarding the customs and practices or standards of thejournalism profession (see Demos v. Ferris-Shell Oil Co., 317 Ill.App. 3d 41, 54, 740 N.E.2d 9, 19 (2000)), plaintiff is not required topresent expert opinion testimony to establish that a media defendantbreached the duty of ordinary care. See Troman, 62 Ill. 2d at 197-99,340 N.E.2d at 298-99. Accord Gannett Co., v. Kanaga, 750 A.2d 1174(Del. 2000); Kohn v. West Hawaii Today, Inc., 65 Haw. 584, 656 P.2d 79(1982); Schrottman v. Barnicle, 386 Mass. 627, 437 N.E.2d 205 (1982);Greenberg v. CBS Inc., 69 A.D.2d 693, 419 N.Y.S.2d 988 (1979).

Thus, we must determine if the directed verdict was improperunder an ordinary negligence standard. A directed verdict should notbe rendered where "there is any evidence, together with reasonableinferences to be drawn therefrom, demonstrating a substantial factualdispute, or where the assessment of credibility of the witnesses orthe determination regarding conflicting evidence is decisive to theoutcome." Maple v. Gustafson, 151 Ill. 2d 445, 454, 603 N.E.2d 508,512 (1992). Viewing the evidence in the light most favorable to theplaintiff, we find that he presented a question for the jury as towhether defendants breached the standard of ordinary care in printingthe false information. Plaintiff introduced testimony that defendantsfailed to investigate that the photograph they obtained from theyearbook was in fact a photograph of the correct suspect. There werealso several credibility determinations to be made by the jury,including Gasior's ability to observe the correct suspect prior to thepublication of the article and whether the reporters received themisidentified information from the police. If the jury chose tobelieve that the police were not the source of the misidentifiedinformation, there was sufficient evidence to support a finding ofnegligence. Accordingly, we must reverse the trial court's ruling onthe negligence count and remand for a new trial on that issue.

Next, plaintiff contends that the trial court erred in allowingdefendants to present a fair report privilege to the jury because theprivilege is not applicable under the facts presented. The evidenceadmitted at trial was that, in preparing their newspaper account ofthe arrests, the reporters relied upon the misinformation contained inan Illinois State Police intelligence data sheet for Christopher A.Edwards which included a photograph of plaintiff. Section 611 of theRestatement (Second) of Torts defines the fair report privilege asfollows:

"The publication of defamatory matter concerninganother in a report of an official action orproceeding *** is privileged if the report isaccurate and complete or a fair abridgement of theoccurrence reported." Restatement (Second) ofTorts