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WOLF v. RAMSEY
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No. CIV.A.1:00-CV-1187-J.

253 F.Supp.2d 1323 (2003)
Robert Christian WOLF, Plaintiff, v. John Bennet RAMSEY and Patricia Paugh Ramsey, Defendants.
United States District Court, N.D. Georgia, Atlanta Division.
March 31, 2003.

Attorney(s) appearing for the Case
Sean R. Smith, Thomas Maclver Clyde, Dow Lohnes & Albertson, Atlanta, Daniel M. Petrocelli, phv, Charles P. Diamond, phv, O'Melveny & Myers, Los Angeles, CA, Richard Neal Sheinis, Hall Booth Smith & Slover, Atlanta, Andrew R. Macdonald, phv, Boulder County Attorney Office, Boulder, CO, David Lewis Balser, McKenna Long & Aldridge, Joe Dally Whitley, Alston & Bird, Atlanta, GA, for Steve Thomas, Alexander Hunter, Fleet White, Jr., City and County of Boulder, a subdivision of the State of Colorado, Robert E. Cook, movants.
Darnay Hoffman, phv, Law Offices of Darnay Hoffman, New York City, Evan M. Altaian, Office of Evan M. Altaian, Atlanta, GA, for Robert Christian Wolf, plaintiff.
James Clifton Rawls, Eric Schroeder, S. Derek Bauer, Powell Goldstein Frazer & Murphy, L. Lin Wood, Jr., Office of L. Lin Wood, Atlanta, GA, for John Bennett Ramsey, Patricia Paugh Ramsey, defendants.

ORDER
CARNES, District Judge.
This case is presently before the Court on defendants' motion for summary judgment [67]; defendants' motion in limine to exclude the testimony of Cina Wong and Gideon Epstein [68]; and defendants' motion for oral argument [79].1 The Court has reviewed the record and the arguments of the parties and, for the reasons set out below, concludes that defendants' motion for summary judgment [67] should be GRANTED; defendants' motion to exclude the testimony of Cina Wong and Gideon Epstein [68] should be GRANTED as to Ms. Wong and GRANTED in part and DENIED in part as to Mr. Epstein; and defendants' motion for oral argument [79] should be DENIED.
BACKGROUND
This diversity case is one of the many civil suits that arose in the wake of the widely-publicized and unsolved murder of six-year-old JonBenet Ramsey in Boulder, Colorado, on December 26, 1996. Plaintiff Robert Christian Wolf is a Boulder, Colorado, resident who was named by defendent JonBenet's parents, on national television and in their book about their daughter's murder, The Death of Innocence: The Untold Story of JonBenet's Murder and How Its Exploitation Compromised the Pursuit of Truth (hereinafter referred to as the "Book"), as a potential suspect in JonBenet's death. Plaintiff claims that, to the extent defendants expressed an opinion that he might have killed their daughter, defendants knew such a statement to be untrue because defendant Patsy Ramsey killed her daughter and John Ramsey assisted her in covering up the crime.
The Court draws the undisputed facts from "Defendants' Statement of Undisputed Material Facts" ("SMF") [67] and "Plaintiffs Response to Defendants' Statement of Material Facts" ("PSMF"), in which plaintiff does not dispute the overwhelming majority of defendants' factual allegations. When plaintiff has disputed a specific fact and pointed to evidence in the record that supports its version of events, the Court has viewed all evidence and factual inferences in the light most favorable to plaintiff, as required on a defendant's motion for summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); McCabe v. Sharrett, 12 F.3d 1558, 1560 (11th Cir. 1994); Reynolds v. Bridgestone/Firestone, Inc., 989 F.2d 465, 469 (11th Cir.1993). In addition, the Court has reviewed plaintiffs separate statements of disputed material facts [88] ("PSDMF"), which consist, for the most part, of a restatement of theories espoused by former Boulder Police Detective Steven Thomas2, (PSDMF ¶¶ 44-75),
[253 F.Supp.2d 1327]
and of a lengthy recounting of statements previously made by defendants, accompanied by editorial comments suggesting such statements to be untruthful, but without an explanation or evidence for such an assessment. (PSDMF ¶¶ 103-117, 120-249, 250-261.)3 When the Court could discern a material factual dispute from this pleading, the Court has drawn all inferences in a light most favorable to plaintiff. Accordingly, the following facts are either not disputed or are viewed in the light most favorable to plaintiff.
I. The Timeline of the Crime and the Crime Scene
Sometime on the night of December 25 or the early morning of December 26, 1996, JonBenet Ramsey was murdered. (SMF ¶ 2.) JonBenet's body was found in the basement of defendant's home. (SMF 115; PSMF ¶ 5.) Defendants have never been charged, arrested, or indicted for any offense in connection with the murder of JonBenet, and they deny any involvement in her death, although they have been under an "umbrella of suspicion" from almost the beginning of the murder investigation. (SMF ¶¶6-7; PSMF ¶¶ 6-7.)
On the night of December 25, 1996, the Ramsey family attended a Christmas party at the home of their friends Fleet and Priscilla White. (SMF ¶2; PSMF ¶ 12.) Nothing out-of-the-ordinary occurred at the party and the Ramsey family appeared happy. (¶13; PSMF ¶13.) On the drive home from the party, JonBenet and her brother Burke fell asleep in the car. Defendants put the children to bed when they returned home and then went to bed soon there after. (SMF ¶ 13 PSMF ¶ 13.) The family planned to rise early the following morning because they were to fly to Charlevoix, Michigan for a family vacation. (SMF ¶ 13; PSMF ¶ 13.)
JonBenet and Burke's bedrooms were located on the second floor of the Ramsey home. There was also an empty guest bedroom on the second floor, located atop the garage. Defendants' bedroom was located on the third floor of the Ramsey home in a converted attic space. The home also contained a basement. (SMF ¶ 14; PSMF ¶ 14.) There were two stairwells leading from the second floor to the ground floor level. The back stairwell led into the kitchen, where there was a butler door that led into the basement.
Defendants claim they were not awakened during the night. A neighbor who lived across the street from defendants' home, however, reported that she heard a scream during the early morning of December 26, 1996. Experiments have demonstrated that the vent from the basement may have amplified the scream so that it could have been heard outside of the house, but not three stories up, in defendants' bedroom. (SMF ¶48; PSMF ¶ 148.) The following morning, defendants assert they woke around 5:30 a.m. and proceeded to get ready for their trip. While Mr. Ramsey took a shower, Mrs. Ramsey put back on the same outfit she had on the night before and reapplied her
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makeup. (SMF ¶ 15.) Mrs. Ramsey then went down the backstairs towards the second floor, then the spiral stairs to the ground floor, where, on a step near the bottom of the stairs, she discovered a handwritten note on three sheets of paper that indicated JonBenet had been kidnapped (the "Ransom Note"). (SMF ¶ 16.)
Plaintiff, however, contends that Mrs. Ramsey did not go to sleep the night of December 25, but instead killed her daughter and spent the rest of the night covering her crime, as evidenced by the fact she was wearing the same outfit the following morning. (PSMF ¶ 15.) He further posits that Mrs. Ramsey authored the Ransom Note in an attempt to stage a crime scene to make it appear as if an intruder had entered their home. (PSMF ¶16; PSDMF ¶¶ 38-39.) Plaintiff theorizes that, at some point in the night, Jon-Benet awoke after wetting her bed4 and upon learning of the bed-wetting, Mrs. Ramsey grew so angry that an "explosive encounter in the child's bathroom" occurred, during which tirade, Mrs. Ramsey "slammed" JonBenet's head against "a hard surface, such as the edge of the tub, inflicting a mortal head wound." (PSDMF ¶¶ 45, 47.) Plaintiff has provided no evidence for this particular theory.5
Plaintiff further contends, based again solely on Mr. Thomas's speculation, that "Mrs. Ramsey thought JonBenet was dead, but in fact she was unconscious with her heart still beating." (PSDMF ¶ 47.) Mr. Thomas then surmises that "t was that critical moment in which she had to either call for help or find an alternative explanation for her daughter's death." (PSDMF ¶ 48.) Plaintiff then speculates that Mrs. Ramsey chose the latter route and spent the remainder of the night staging an elaborate coverup of the incident.6
Specifically, plaintiff theorizes that, with Mr. Ramsey and Burke still asleep, Mrs. Ramsey moved the body of JonBenet to the basement, returned upstairs to draft the Ransom Note, then returned to the basement where she "could have seen—perhaps by detecting a faint heartbeat or a

[253 F.Supp.2d 1329]

sound or slight movement—that although completely unconscious, JonBenet was not dead." (PSDMF ¶¶ 49-50.) In Mr. Thomas's scenario then, rather than being grateful that her child was alive, Mrs. Ramsey nevertheless decided to finish the job off by fashioning a garrote from one of her paintbrushes, looping the cord around the girl's neck, and then choking JonBenet to death. (PSDMF ¶¶ 51-52.) Plaintiff notes that the fact JonBenet was "choked from behind" is consistent with the murder being committed by someone who knew JonBenet and did not want to look at her face as he or she killed her.
After murdering her child and staging the crime, plaintiff opines that, to cover her tracks, Mrs. Ramsey must have taken the items she used in the staging out of the house, "perhaps dropping them into a nearby storm sewer or among Christmas debris and wrappings in a neighbor's trash can." (¶¶ 53-54.) Indeed, the sources for the duct tape and cord used in the crime were never located, nor sourced,7 to defendants' home. Plaintiff claims that Mrs. Ramsey next placed the Ransom Note in a place "where she would be sure to `find' it." (PSDMF ¶ 53.)
Mrs. Ramsey disputes the above recitation of facts. She claims that, upon waking, she put back on the same clothes she had on the night before and applied her makeup. She then states she went downstairs to prepare for their departure on the family trip. (SMF ¶ 17.) As she descended the back stairwell, she discovered the Ransom Note and read only those few lines stating that JonBenet was kidnapped, but "safe and unharmed," and demanding $118,000 for her return. (SMF ¶ 17; PSMF ¶ 17.) Mrs. Ramsey immediately screamed and proceeded to check JonBenet's room, which was empty. (SMF ¶ 18; PSMF ¶ 8.) After hearing Mrs. Ramsey's scream, Mr. Ramsey ran downstairs and met Mrs. Ramsey in the stairwell. Together, they checked on their son who appeared to be asleep in his room. (SMF ¶ 18; PSMF ¶ 18.) Mr. Ramsey then went downstairs to read the Ransom Note, while Mrs. Ramsey called the police, informing them that her child had been kidnapped. (SMF ¶ 19; PSMF ¶ 19.) In addition to calling the police, defendants called several friends to their house, including Fleet and Priscilla White, who promptly came to the defendants' home. (SMF ¶ 20; PSMF ¶ 20.)8
Plaintiff contends Mr. Ramsey probably first grew suspicious while reading the Ransom Note that morning, which surmise is again based solely on the opinion of Mr. Thomas. (PSDMF ¶56.) Plaintiff speculates that upon examining the Ransom Note, Mr. Ramsey "must have seen his wife's writing mannerisms all over it, everything but her signature." (PSDMF ¶ 56.) Upon determining that his wife was involved in JonBenet's disappearance, plaintiff surmises that Mr. Ramsey chose to protect his wife, rather than to facilitate the capture of his daughter's murderer. (PSDMF ¶57.) Mr. Ramsey asserts, however, that he never once suspected his wife

[253 F.Supp.2d 1330]

to be involved in the crime. (PSDMF ¶¶254-255.)9
A series of events transpired that severely compromised the crime scene. Office Rick French of the Boulder Police arrived at the defendants' home in a marked car a few minutes before six a.m., followed soon after by Detective Linda Arndt. (SMF ¶ 21; PSMF ¶ 21.) Contrary to normal protocol, the police did not seal off the defendants' home, with the sole exception being the interior of JonBenet's bedroom. In other words, any person in the Ramsey house could, and often did, move freely throughout the home. (SMF ¶21; PSMF ¶22.)
The Whites arrived at defendant's home at approximately 6:00 a.m., and Mr. White, alone, searched the basement within fifteen minutes of arrival. (SMF ¶ 23; PSMF ¶ 23.) Mr. White testified that when he began his search, the lights were already on in the basement and the door in the hallway leading to the basement "wine cellar" room10 was opened. (SMF ¶ 25; PSMF ¶ 25; White Dep. at 147, 151-52.) He further testified that a window in the basement playroom was broken. (SMF ¶ 26; PSMF ¶ 26; White Dep. at 28, 152 & 154.) Under the broken window, Mr. White states there was a suitcase, along with a broken shard of glass. (SMF ¶ 27; PSMF ¶ 27; White Dep. at 28-29, 156-59, & 265.) He does not, however, remember whether the window was opened or closed.11 (SMF ¶ 28; PSMF ¶ 28; White Dep. at 153.) Mr. White also opened the door to the wine cellar room, but he could not see anything inside because it was dark and he could not find the light switch. (SMF ¶29; PSMF ¶29; White Dep. at 159-61.)
Later that same morning, at around ten a.m., Mr. Ramsey also searched the basement area alone. He testified he found the broken window partially open. (SMF If 30; PSMF If 30; J. Ramsey Dep. at 30.) Under the broken window, Mr. Ramsey also saw the same suitcase seen earlier by Mr. White. Mr. Ramsey testified that the suitcase belonged to his family, but was normally stored in a different place. (SMF ¶ 31; PSMF ¶31; J. Ramsey Dep. at 17.)

[253 F.Supp.2d 1331]

Mr. Ramsey then returned upstairs. Plaintiff theorizes that Mr. Ramsey actually found JonBenet's body at this time. (PSDMF ¶ 57.)
Later that afternoon, Mr. Ramsey and Mr. White together returned to the basement at the suggestion of the Boulder Police. (SMF ¶ 32; PSMF ¶ 32; White Dep. at 212-217; J. Ramsey Dep. at 17-20.) During this joint search of the basement, the men first examined the playroom and observed the broken window. (SMF ¶ 33; PSMF ¶ 33.) The men next searched a shower stall located in the basement. (SMF ¶ 34; PSMF ¶ 34.) Mr. Ramsey then noticed a heavy fireplace grate propped in front of a closet and Mr. White moved the grate so the closet could be searched. (SMF ¶ 35; PSMF ¶ 35.) Upon finding nothing unusual in the closet, the men proceeded to the wine cellar room. Mr. Ramsey entered the room first, turned on the light and, upon discovery of JonBenet's dead body, he exclaimed "Oh my God, my baby." (SMF ¶ 36, 37; PSMF ¶ 36, 37; White Dep. at 162-63, 193-93.)
JonBenet had black duct tape covering her mouth, a cord around her neck that was attached to a wooden garrote, and her hands were bound over her head in front of her; she was covered by a light-colored blanket. (SMF ¶ 138; PSMF ¶ 138.) A "Barbie" nightgown belonging to JonBenet was also found in the wine cellar near her body. (SMF ¶ 149; PSMF ¶ 149.) [i]Jon-Benet's
blood was found only on her body and the Barbie nightgown. (SMF ¶ 150; PSMF ¶ 150.) Mr. Ramsey ripped the duct tape off JonBenet's mouth and attempted to untie her hands. (SMF ¶ 39; PSMF 139.) He then carried her body upstairs. (SMF ¶ 39; PSMF ¶ 39.) It was only upon the discovery of JonBenet's body that the Boulder police began to secure properly the home as the crime scene. (SMF ¶ 53; PSMF ¶ 53.)
JonBenet's body was bound with complicated rope slipknots and a garrotte attached to her body. (Defs.' Br. In Supp. Of Summ. J. [67] at 19; SMF ¶ 163; PSMF ¶ 163.) The slipknots and the garrote are both sophisticated bondage devices designed to give control to the user. (SMF ¶ 161, 164; PSMF ¶ 161, 164.) Evidence from these devices suggests they were made by someone with expertise using rope and cords, which cords could not be found or "sourced" within defendants' home. (SMF ¶ 169; PSMF ¶ 169.) The garrote consisted of a wooden handle fashioned from the middle of a paintbrush, found in the paint tray in the boiler room. The end of a nylon cord was tied to this wooden handle and, on the other end, was a loop with a slipknot, with JonBenet's neck within the loop. (SMF ¶¶ 157-158; PSMF ¶¶ 157-158.) The end portion of the paintbrush used to construct the garrote was never found. (SMF ¶59; PSMF ¶ 159.) No evidence exists that either defendant knew how to tie such knots. (SMF ¶ 162; PSMF ¶ 162.) Further, fibers consistent with those of the cord used to make the slip knots and garrote were found on JonBenet's bed. (SMF ¶ 168; PSMF ¶ 168.) Although plaintiff agrees the garrote is the instrument used to murder JonBenet, he argues that the cord with which the wrists were tied would not have bound a live child and is evidence of a staging. (PSDMF ¶ 51.)
The black duct tape used on JonBenet's mouth has also not been sourced to defendants. (SMF ¶ 170; PSMF ¶ 170.) Both ends of the duct tape found on her were torn, indicating that it came from a roll of tape that had been used before. (SMF ¶ 171; PSMF ¶ 171.) No similar duct tape was found in the house, nor is there evidence that defendants ever used or owned such duct tape. (SMF ¶ 172; PSMF ¶ 172.) Plaintiff also notes that the strip of duct tape found on JonBenet's mouth[/i]
[253 F.Supp.2d 1332]

had a bloody mucous on it and a "perfect set of child's lip prints, which did not indicate a tongue impression or resistance." (PSDMF ¶ 53.) Animal hair, alleged to be from a beaver, was found on the duct tape. (SMF ¶ 183; PSMF ¶ 183.) Nothing in defendants' home matches the hair. (SMF ¶ 183; PSMF ¶ 183.) Dark animal hairs were found on JonBenet's hands that also have not been matched to anything in defendants' home. (SMF ¶ 184; PSMF ¶ 184.)
Several recently-made unidentified shoeprints were found in the basement, imprinted in mold growing on the basement floor. (SMF ¶ 151; PSMF ¶ 151.) In particular, a shoeprint of a "HI-TEC" brand mark on the sole of a shoe was found. (SMF ¶ 152; PSMF ¶ 152.) Defendants do not own any "HI-TEC" brand shoes, and none of the shoes found in their home match the shoeprint marks. (SMF ¶ 153; PSMF ¶ 153.) Another partial shoeprint was found near where JonBenet's body was found. (SMF ¶ 155; PSMF ¶ 155.) This shoeprint left only a partial logo. The owner of the "HI-TEC" shoe that made the shoeprints at the murder scene has never been identified. (SMF ¶ 154, 155; PSMF ¶ 154, 155.) In addition, on the wine-cellar door, there is a palmprint that does not match either of defendants' palmprints. (SMF ¶ 156; PSMF ¶ 156.) The individual to whom it belongs had not yet been identified. (SMF ¶156; PSMF ¶ 156.)
Finally, items were left behind that defendants assert they did not own. (Defs.' Br. In Supp. Of Summ. J. [67] at 18-19.) A baseball bat not owned by the Ramseys found on the north side of the house has fibers consistent with fibers found in the carpet in the basement where JonBenet's body was found. (SMF ¶ 185; PSMF ¶ 185.) A rope was found inside a brown paper sack in the guest bedroom of defendants' home, neither of which belonged to defendants. (SMF ¶ 181; PSMF ¶ 181.) Small pieces of the brown sack material were found in the "vacuuming" of JonBenet's bed and in the body bag that was used to transport her body. (SMF ¶ 181; PSMF ¶ 181.) Brown cotton fibers on JonBenet's body, the paintbrush, the duct tape and on the ligature were not sourced and do not match anything in the Ramsey home. (SMF ¶ 181; PSMF ¶ 181.)
The autopsy of JonBenet's body was conducted on December 27, 1996 by the Boulder County Coroner's Office. (SMF ¶ 40; PSMF ¶ 40.) The cause of JonBenet's death was asphyxia by strangulation associated with craniocerebral trauma. (SMF ¶ 41; PSMF 41.) The autopsy report supports the conclusion that she was alive before she was asphyxiated by strangulation and that she fought her attacker in some manner. (SMF ¶ 42-43, 46, 48; PSMF ¶ 42-43, 46, 48.) Evidence gathered during the autopsy is consistent with the inference that she struggled to remove the garrote from her neck. (SMF ¶44; PSMF ¶ 44.) Moreover, both parties agree the autopsy report reveals injury to JonBenet's genitalia consistent with a sexual assault shortly before her death. (SMF ¶ 48; PSMF ¶ 48.)12 Although no head injury was visible when she was first discovered, the autopsy revealed that she received a severe blow to her head shortly before or around the time of the murder. (SMF ¶ 51; PSMF ¶ 51. [i]See also
Report of Michael Doberson, M.D., Ph.D. at 6© attach, as Ex. 3 to Defs.' Ex. Vol. I, Part A[/i]
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(stating the "presence of hemorrhage does indicated that the victim was alive when she sustained the head injury, however the relative small amount of subdural hemorrhage indicates that the injury occurred in the perimortem (close to death)13 period.").)
The coroner took nail clippings from JonBenet. [i]Male
DNA was found under JonBenet's right hand fingernail that does not match that of any Ramsey. (SMF ¶ 174; PSMF ¶ 174.) Defendants also assert that male DNA was found under Jon-Benet's left hand fingernail, which also does not match that of any Ramsey. (SMF ¶ 173.) In addition, male DNA was found in JonBenet's underwear that does not match that of any Ramsey and has not yet been sourced. (SMF ¶¶ 175, 178; PSMF ¶¶ 75, 178.) The Boulder Police Department has yet to identify the male whose DNA was found at the crime scene. (SMF ¶77; PSMF ¶77.) Finally, a Caucasian "pubic or auxiliary" hair was found on the blanket covering JonBenet's body. (SMF ¶79; PSMF ¶79.) The hair does not match that of any Ramsey and has not been sourced. (SMF ¶ 80; PSMF ¶ 180.)
Finally, the coroner's report notes injuries on the right side of JonBenet's face and left lower back. While defendants assert that these injuries are consistent with the use of a stun gun, plaintiff notes that the coroner's report does not expressly state the injuries were the result of such an instrument. (SMF ¶ 47; PSMF 47.) Dr. Michael Doberson, a forensic pathologist retained by defendants who examined the Boulder Coroner's autopsy report and autopsy photos, concludes the injuries to "the right side of the face as well as on the lower left back are patterned injuries most consistent with the application of a stun gun." (Report of Michael Doberson, M.D., Ph.D. at 5(A), attach, as Ex. 3 to Defs.' Ex. Vol. I, Part A.)
II. The Ransom Note
The Ransom Note is believed by all parties to have been written by the killer or an accomplice of the killer and remains an extremely important clue in the murder investigation. (PSDMF ¶ 4.) Plaintiff claims that the single best piece of evidence that ties Mrs. Ramsey to the crime is the Ransom Note. (Id.) Mrs. Ramsey, however, flatly denies that she had anything to do with the note's creation. (SMF II189; PSMF ¶ 89.) Due to the pivotal role the Ransom Note plays in plaintiffs' allegation that Mrs. Ramsey was the murderer of her child, the facts surrounding the Ransom Note will be discussed in detail.
The Ransom Note was quite long, and in fact is one of the longest ransom notes in the history of kidnapping cases. (PSDMF ¶ 7.) This fact is important because the longer a document is, the harder it becomes to disguise one's handwriting. (PSDMF ¶ 9.) The Ransom Note is addressed to Mr. Ramsey alone and purports to be written by a group of individuals who "represent a small foreign faction" that have kidnapped defendants' daughter and seek $118,000 for her safe return. The Ransom Note was signed "S.B.T.C.", after the salutation "Victory!". (Ransom Note at 3.) The author of the Ransom Note instructs Mr. Ramsey to "[u]se that good southern [sic] common sense," an obviously inaccurate reference as Mr. Ramsey was originally from Michigan, whereas Mrs. Ramsey was originally from West Virginia. (Id.)[/i]
[253 F.Supp.2d 1334]

In addition, the Ransom Note was drafted on paper taken from the middle of a pad of paper located at defendants' home and with a pen found at defendants' home. Additional sheets were missing from the pad and were never located at defendants' home. The pen used to write the Ransom Note was sourced to defendants' home and found placed back in its normal place by the phone. Finally, there was another page in the pad that had written on it "Mr. and Mrs. I," which many believe to have been an early "false start" of the Ransom Note. (PSDMF ¶ 51.)
Both parties agree that the Ransom Note is not an ideal specimen for handwriting analysis, primarily due to the type of writing instrument, a broad fiber-tip pen, used to draft the note. This type of pen distorts and masks fine details to an extent not achievable by other types of pen, as for example a ball point pen. (SMF ¶ 243; PSMF ¶ 243.) In addition, the stroke direction used to construct certain letters and subtle handprinting features, such as hesitations and pen lifts, are difficult to ascertain because of the pen used in the Ransom Note. (SMF ¶ 244; PSMF ¶ 244.) Finally, the handwriting in the original Ransom Note showed consistency throughout the entire writing. (SMF ¶ 246; PSMF ¶ 246.) One of the most common means to disguise one's handwriting is to attempt to make the script erratic throughout the text. In sum, for the above reasons, the Ransom Note is not an ideal specimen for handwriting analysis. Nevertheless, the writer does not appear to have been trying to disguise his or her handwriting.
During the investigation, the Boulder Police Department and Boulder County District Attorney's Office consulted at least six handwriting experts. (SMF ¶ 191; PSMF ¶ 191.) All of these experts consulted the original Ransom Note and original handwriting exemplars from Mrs. Ramsey. (SMF ¶ 205; PSMF ¶ 205.) Four of these experts were hired by the police and two were hired by defendants. (SMF ¶ 191; PSMF ¶ 191.) All six experts agreed that Mr. Ramsey could be eliminated as the author of the Ransom Note. (SMF ¶ 194; PSMF ¶ 194.) None of the six consulted experts identified Mrs. Ramsey as the author of the Ransom Note. (SMF ¶ 195; PSMF ¶ 195.) Rather, the experts' consensus was that she "probably did not" write the Ransom Note. (SMF ¶ 196; PSMF ¶196.)14 On a scale of one to five, with five being elimination as the author of the Ransom Note, the experts placed Mrs. Ramsey at a 4.5 or a 4.0. (SMF ¶ 203; PSMF ¶ 203.) The experts

[253 F.Supp.2d 1335]

described the chance of Mrs. Ramsey being the author of the Ransom Note as "very low." (SMF ¶ 204; PSMF ¶ 204.) The two experts hired by defendants both assert that this evidence strongly suggests that Mrs. Ramsey did not write the Note. (SMF ¶ 254.)
Plaintiff, however, asserts that his retained experts believe Mrs. Ramsey to be the author of the Ransom Note. Indeed, Gideon Epstein and Cina Wong, the handwriting experts proffered by plaintiff, opine that they are "100 percent certain" Mrs. Ramsey wrote the Ransom Note. (SMF ¶ 256; PSMF ¶ 256; PSDMF ¶¶ 1-2.) In contrast to the experts relied upon by defendants and by the Boulder Police Department, however, neither of these experts have ever seen or examined the original Ransom Note. (SMF ¶ 256; PSMF ¶ 256.) In fact, Mr. Epstein and Ms. Wong do not know what "generation" copy of the Ransom Note they examined. (SMF ¶ 257; PSMF ¶ 257.) Ms. Wong received her copy of the Ransom Note and certain writings alleged to be historical writings of Mrs. Ramsey from the tabloid, [i]The National Enquirer.
(SMF ¶ 258; PSMF ¶ 258.) Although it is widely considered "very important" to consult the original versions of writings when engaging in handwriting analysis, plaintiff asserts it was impossible for his experts to consult such materials because defendants failed to provide him with original exemplars.15 (PSMF ¶¶ 259-260.) Mr. Epstein, however, consulted with some of his peers, who concur with his analysis.16 Defendants' experts base their conclusion that Mrs. Ramsey is not the author of the Ransom Note on the "numerous significant dissimilarities" between the individual characteristics of Mrs. Ramsey's handprinting and of that used in the Ransom Note. (SMF f 247.) For example, defendants asserts Mrs. Ramsey's written letter "u" consistently differs from the way the same letter is written throughout the Ransom Note. (SMF ¶ 248.) Plaintiffs experts responds that this variation may be due to a conscious effort by Mrs. Ramsey to change her handwriting or to her heightened stress level. (PSMF ¶ 248.) In support of their conclusion that Mrs. Ramsey authored the Ransom Note, plaintiffs experts assert that there are similarities between letters found in the Ransom Note and exemplars and that the note contains proofreader marks 17 of the kind often used by newspaper reporters and journalists. (PSDMF ¶ ¶ 41.) Plaintiff also notes that Mrs. Ramsey was a journalism major in college. (PSDMF ¶ 42.)[/i]
[253 F.Supp.2d 1336]

Other experts believe the Ransom Note may have been authored by other people. In addition to Mrs. Ramsey, there were other individuals "under suspicion" who had their handwriting analyzed and who were not eliminated as the possible author of the Ransom Note. (SMF ¶ 205; PSMF ¶ 205.) For example, forensic document examiner Lloyd Cunningham cannot eliminate plaintiff as the author of the Ransom Note. (SMF ¶ 279; PSMF ¶ 279.) Plaintiffs exgirlfriend has also testified that she was "struck by how the handwriting in the note resembled [plaintiffs] own handwriting" and believes that he is the note's author. (J. Brungardt Aff. ¶ 43.) Further, to the extent that the use of a single editing mark might suggest to plaintiffs experts that Mrs. Ramsey was the author, given her bachelor's degree in journalism, one should also note that plaintiff, himself, has a Masters' degree in journalism. ([i]Id.
¶ 13.)
III. The Investigation of the Murder
At the time of JonBenet's murder, the Boulder Police Department had limited experience in conducting a murder investigation. (SMF ¶ 70; PSMF ¶ 70.) Commander Jon Eller was primarily responsible for the investigation, which was his first murder investigation. (SMF ¶ 67; PSMF ¶ 67.) One lead detective assigned to the case, Steven Thomas, had no prior experience with a murder investigation and had previously served as an undercover narcotics officer. (SMF ¶ 68; PSMF ¶ 68.) Finally, the officer who took charge of the investigation in October 1997, Mark Beckner, also had limited homicide experience. (SMF ¶ 69; PSMF ¶ 69.)
Many mistakes were made during the course of the investigation. For example, a series of events compromised the crime scene, as discussed supra. Moreover, the police did not request to interview defendants separately on the day that JonBenet's body was found. (SMF ¶ 57; PSMF ¶ 57.) They did, however, question defendants jointly at various times on December 26, 27 and 28, and, soon thereafter, began to focus the investigation on defendants as the main subjects. (SMF ¶¶ 54, 71-72; PSMF ¶ 54, 71-72.) Pursuant to the FBI's suggestion that the Boulder Police publicly name defendants as subjects and apply intense media pressure to them so that they would confess to the crime, the police released many statements that implied defendants were guilty and were not cooperating with police. (SMF ¶¶ 74-75; PSMF ¶¶ 74-75.) In addition to official police releases, many individual officers also released information about the investigation without official authorization, some of which disclosures were highly confidential and potentially undermined the investigation.
During the course of the investigation, defendants signed over one hundred releases for information requested by the police, and provided all evidence and information requested by the police. (SMF ¶ 61; PSMF 61.) Upon request, within days after the murder and in the months that followed, defendants provided the police with historical handwriting samples and supervised written exemplars. (SMF ¶ 55; PSMF ¶ 55.) Defendants also gave hair, including pubic hair, and DNA samples to the police. (SMF ¶ 56, 60; PSMF ¶ 56, 60.) Despite widespread criticism that defendants failed to cooperate in the murder investigation, defendants note that they agreed, on at least three occasions, to be interviewed separately by representatives of the police or the Boulder County District Attorney's Office. (SMF ¶ 62; PSMF ¶ 62.)
In March 1997, Andrew Louis Smit was hired by the Boulder District Attorney's Office due to his extensive experience as a homicide investigator for thirty years. (SMF ¶ 94; PSMF ¶ 94.) Detective Smit[/i]
[253 F.Supp.2d 1337]

is widely considered to be an expert investigator who has successfully cracked other child murder investigations. ([i]See, e.g.,
SMF ¶ 94; PSMF ¶ 94; Hunter Dep. at 46-47; Steven Thomas, JonBenet: Inside the Ramsey Murder Investigation 167-169 (2001).) During the course of his tenure with the police department, Detective Smit became familiar with all aspects of the murder investigation. (SMF ¶¶ 95-96; PSMF ¶¶ 95-96.) He resigned from the investigation at some point in September 1998, however, because he felt that the Boulder Police Department refused to investigate leads that pointed to an intruder as the murderer of JonBenet, and instead insisted on focusing only on defendants as the culprits. (SMF ¶¶ 97, 101; PSMF ¶ 97, 101.) Two other men, Detective Steve Ainsworth and Assistant District Attorney Trip DeMuth, who also believed the evidence pointed toward an intruder as the killer, were soon thereafter removed from the investigation. (SMF ¶¶ 98-100; 102; PSMF ¶ 99-100; 102.)
In June 1998, the Boulder police presented their evidence to the Boulder County District Attorney. (SMF 84; PSMF ¶ 84.) At some point in the summer of 1998, then-District Attorney Alex Hunter decided to convene a grand jury to investigate the murder of JonBenet and possibly bring charges. (SMF ¶ 86; PSMF ¶ 86.) On October 13, 1999, the grand jury was discharged by District Attorney Hunter with no indictment issued. (SMF ¶ 91; PSMF ¶ 91.) The District Attorney, and all other prosecutors involved in the proceedings, believed at that time that there was insufficient evidence to bring charges against any person, including defendants, in connection with the murder. (SMF ¶¶ 91-92; PSMF ¶¶ 91-92.)
IV. Publicity Surrounding the Crime
Beginning on the morning of December 26, 1996, there has been and continues to be considerable public interest and media attention devoted to JonBenet's murder and the subsequent investigation into the crime. As discussed supra, the Boulder Police Department utilized the press, in an attempt to "smoke out" JonBenet's killer. In addition to this intentional use of the press, a number of leaks of confidential information, at various stages of the murder investigation, served to hamper the ability of the Boulder Police Department to conduct an effective investigation into crime. Finally, many people have attempted to capitalize on and profit from the widespread interest in JonBenet's murder. Indeed, plaintiff has attempted to gain a book deal and the chief theorist behind plaintiffs claims, former Detective Steve Thomas, also wrote a book. Likewise, the defendants have written a book about the murder, entitled The Death of Innocence: The Untold Story of JonBenet's Murder and How Its Exploitation Compromised the Pursuit of Truth. (SMF ¶ 8.)
Defendants assert that they wrote their book in response to media speculation that they were involved in their child's murder and to correct inaccurate media reports. Plaintiff, in contrast, asserts that defendants' Book was authored in an attempt to "escape prosecution for the murder of Jon-Benet." (PSMF ¶ 8.) The Book sets forth defendants' account of the investigation of their daughter's murder and their view that the police did not adequately investigate several leads. (SMF ¶ 9; PSMF ¶ 9.) In the Book, defendants promote the theory that an unknown intruder entered their home and murdered their daughter. (SMF ¶ 2, 11) Defendants state they believed when writing the Book, and believe now, that the statements contained in the Book represent either truthful fact or sincere opinion. (SMF ¶ 9.)
Defendants' Book names five people, including plaintiff, whom defendants contend[/i]
[253 F.Supp.2d 1338]

should be further investigated. (SMF ¶ 328; PSMF ¶ 328.) For example, one lead mentioned is Michael Helgoth, a man who committed suicide two months after the murder and one day after District Attorney Hunter issued a statement that the authorities were narrowing their search for the murderer of JonBenet Ramsey. (SMF ¶ 281; PSMF ¶ 281.) Indeed, a stun gun was found near Mr. Helgoth's body, as well as boots with a HI-TEC logo like that left on the basement floor of defendants' home. (SMF ¶ 281; PSMF ¶ 281.) [i]See
discussion supra at 1332, 1333.
Another lead mentioned is Gary Oliva, a transient with a history of child molestation, who was seen in the Boulder area in December 1996, picked up his mail one block from the Ramsey home, and was present at a memorial service for JonBenet. (SMF ¶ 282; PSMF ¶ 282.)
Another purported lead was Bill McReynolds, who portrayed Santa Claus at a Christmas Party at defendants' home in December 1996, whose wife had written a play about a young girl held captive in a basement, whose daughter had been kidnapped and sexually assaulted twenty-two years to the day before JonBenet's death, and who had written a card to JonBenet that was found in her trash can after the murder. (SMF ¶ 283; PSMF ¶ 283.)
Finally, another lead identified by Detective Smit was plaintiff, who in his estimation presented too many "unanswered questions." (SMF ¶ 284; PSMF ¶ 284.) Defendants identified all of these men, and others, in their book as possible suspects. (SMF ¶ 328; PSMF ¶ 328; The Book at 165-168, 199-201, 215-216, & 310-312.) In addition, the Book discusses, but does not name, eight other leads. (SMF ¶ 328; PSMF ¶ 328.) In Chapter 33 of the Book, defendants present a detailed profile of the smurderer. The profile offered is that of a male ex-convict, aged 25-35, who is familiar with and owns a stun gun. (SMF ¶ 329; PSMF ¶ 329.) The passage at issue from the Ramsey book, that is the heart of the present libel claim, criticizes the Boulder Police Department for failing to investigate these possible leads in the murder investigation. (SMF ¶ 180; PSMF ¶ 180.)
In addition to authoring the Book, defendants have appeared on various news programs. (PSDMF ¶¶ 105-118.) On March 24, 2000, defendants appeared on NBC's "Today Show," a television broadcast, in a segment taped in February 2000 with Katie Couric. (SMF ¶ 330; PSMF ¶ 330.) It is from this broadcast that plaintiffs slander claim arises. Defendants did not have any influence or control over the visuals displayed when they spoke, were not told that a photograph of plaintiff would be displayed during their appearance on the show, and were not told before taping what specific questions would be posed to them during the taping. (SMF ¶ 331; PSMF ¶ 331.) In other words, defendants had no editorial control over how the interview was edited or presented. (SMF ¶ 332; PSMF ¶ 332.) During the interview, Mr. Ramsey stated that:
I can tell you when when we first started looking at—at one particular lead early on—my reaction was This is it. This is the killer. And our investigator said `Whoa, whoa, whoa.' He'd say, `Don't do a Boulder Police on me. Don't rush to conclusions'—
(Transcript of Interview attach, as Tab 38 to Defs.' Ex., Vol. 1; J. Ramsey Aff. ¶ 19.) He claims that these statements were not in relation to plaintiff, but rather to Michael Helgoth,18 although plaintiffs photograph was being superimposed on the[/i]
[253 F.Supp.2d 1339]

telecast by NBC. (SMF ¶¶ 335; 338.) Plaintiff contends that the above statement, however, was intended by defendants to relate to him. (PSMF ¶¶ 335, 338.)
For his part, plaintiff too has appeared before the media and profited from discussing and critiquing the murder investigation. (SMF ¶ 292; PSMF ¶ 292.) In 1997, plaintiff voluntarily gave an interview to [i]Hard Copy,
a syndicated television program, in which he claimed to be a suspect in the murder of JonBenet and for which he received $5,000 compensation. (SMF ¶ 293; PSMF ¶ 293.) In addition, plaintiff discussed his status as a suspect with the news tabloid, The National Enquirer, and received $250 for that interview. (SMF ¶ 294; PSMF ¶ 294.) In addition, plaintiff provided information to Lawrence Schiller for use in his 1998 book about the murder, entitled Perfect Murder, Perfect Town. In several passages, attributed to plaintiff, the latter discusses his arrest and interrogation by the Boulder Police Department. (SMF ¶¶ 295-296; PSMF ¶¶ 295-296.)19
Plaintiff also attempted to capitalize on his association with the murder investigation through a book deal. On plaintiffs computer was a letter dated March 2, 1999, addressed to David Granger of Esquire magazine, discussing his status as a suspect in the murder and his related media and print appearances. (SMF ¶ 298; PSMF ¶ 298.) The letter requests a "generous fee" in return for plaintiff authoring a book about JonBenet's murder. (SMF ¶ 298; PSMF ¶ 298.)
Plaintiffs counsel Darnay Hoffman also became interested in the case early in the murder investigation and has contributed to the continued media interest through the filing of various lawsuits. In March 1997, Mr. Hoffman sent a letter to the Boulder County District Attorney Alex Hunter suggesting that Charles Lindbergh had killed his child in a hoax kidnapping and that one of the defendants had killed JonBenet in a similar type hoax. (SMF ¶ 339; PSMF ¶ 339.) In May 1997, Mr. Hoffman sent Mr. Hunter a second letter in which Mr. Hoffman theorized that Mrs. Ramsey killed her daughter, through a blow to the head, in a fit of rage caused by unhappiness, depression and marital problems. (SMF ¶ 340; PSMF ¶ 340.) The Boulder authorities did not take Mr. Hoffman's unsubstantiated theories seriously and considered much of his submissions to be "off the wall." (SMF ¶ 341; PSMF ¶ 341.)
In the fall of 1997 Mr. Hoffman began to solicit the involvement of various handwriting experts, claiming that, although prior expert reports given to the Colorado Bureau of Investigation showed Mrs. Ramsey to be at the "very lowest end of the spectrum, i.e. there is little or no basis for a match," it would be a "career move" for an expert to submit an affidavit for use by Mr. Hoffman. (SMF ¶ 343; PSMF ¶ 343.) Indeed, forensic document examiners were eager to jump into the high-profile investigation. In July 1997, Ms. Wong, now plaintiffs expert, had originally contacted defendants' attorneys and offered to analyze the Ransom Note and point out weaknesses in analysis by "Government handwriting experts." (SMF ¶ 342; PSMF ¶ 342.) Defendants declined such an offer.[/i]
[253 F.Supp.2d 1340]

In September 1998, Ms. Wong wrote District Attorney Hunter, Assistant District Attorney Michael Kane, and Judge Roxanne Bailin, asking to testify before the Grand Jury. (SMF ¶ 347; PSMF ¶ 347.) By letter dated January 20, 1999, Mr. Hunter rejected the request, informing Ms. Wong that it was his opinion that she did not use scientifically reliable methods, her testimony would be inadmissible, and that she lacked credibility. (SMF ¶ 348; PSMF ¶ 348.) In addition, Mr. Epstein, defendants' other handwriting expert, also wrote to Mr. Hunter, at sometime before the end of 2000, to offer his assistance in examining the Ransom Note. (SMF ¶ 349; PSMF ¶ 349.) Mr. Hunter did not take Mr. Epstein up on his offer, either. (SMF ¶ 349; PSMF ¶349.)
On November 14, 1997, Mr. Hoffman filed a Complaint in the District Court for Boulder County, Colorado, on his own behalf as a plaintiff, asking that Mr. Hunter be forced to explain why he had not filed murder charges against Mrs. Ramsey. (SMF ¶ 344; PSMF ¶ 344.) Attached to the Complaint was the affidavit of Ms. Wong who, notwithstanding her earlier overture to the Ramseys, now claimed that Mrs. Ramsey had written the Ransom Note. (SMF ¶ 345; PSMF ¶ 345.) Mr. Hoffman's complaint was dismissed on January 20, 1998. (SMF ¶ 346; PSMF ¶ 346.)
In March 2000, Mr. Hoffman again filed suit, again on his own behalf as plaintiff, against defendants in the Supreme Court of New York, County of New York, for $25,000,000 in damages based on the allegation that he was defamed by certain passages in the defendants' Book. (SMF ¶ 353; PSMF ¶ 353.) On April 21, 2000, Mr. Hoffman dismissed this complaint. (SMF ¶ 354; PSMF ¶ 354.)
In addition, Mr. Hoffman has served as a long time source to news tabloids for information about the investigation. (See, [i]e.g.,
John Latta, "JonBenet's Dad Was Framedby Mom, say insiders,") NATIONAL EXAMINER, June 24, 1997 (insider referred to is Mr. Hoffman); Art Dworkin, "Jon-Benet's Dad Lied Under Oath to Hide Death Fight," NATIONAL EXAMINER dated March 7, 2000 (quoting Mr. Hoffman's comments about Mr. Ramsey's deposition testimony); Art Dworkin, "Five Years Later JonBenet Parents Are Doing Little To Find Killer," NATIONAL EXAMINER, December 11, 2001 (quoting Mr. Hoffman as stating, among other things, that defendants "JUST DON'T CARE" about their daughter's murder investigation.)20
V. History of This Case
Plaintiff filed suit on May 11, 2000, alleging intentional infliction of emotional distress. He amended his Complaint on June 15, 2000 to add claims for libel and slander stemming from the Book and from comments by Mr. Ramsey on NBC's "Today" show, respectively. Mr. Wolf has stipulated that he is a limited public figure. (See Stipulation [8].) On February 9, 2001, the Court denied defendants' motion to dismiss. (See Order dated February 12, 2002[15].)
After discovery ended, plaintiff withdrew his claim for intentional infliction of emotional distress. (See Stipulation of Dismissal [64].) The libel and slander claims still remain. On August 30, 2002, defendants filed the present motion for summary judgment [67].[/i]
[253 F.Supp.2d 1341]

There are also other motions currently pending before the Court. On August 28, 2002, defendants filed a motion in limine to exclude the testimony of Cina Wong and Gideon Epstein as plaintiffs experts [68]. On the same day, defendants also moved for oral argument on defendants' motion for summary judgment as to the remaining claims [79].
[i]DISCUSSION

I. Motion in Limine to Exclude Testimony
Defendants have filed a motion in limine to exclude the expert testimony of Cina Wong and Gideon Epstein [68], two witnesses proffered by plaintiff as "forensic document examiners." For the reasons discussed below, the Court concludes that defendants' motion should be GRANTED as to Ms. Wong and GRANTED in part and DENIED in part as to Mr. Epstein.
A. Daubert Principle
Federal Rule of Evidence 702 is quite liberal in the scope of evidence it deems properly admissible. The Rule states in relevant part that:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed.R.Evid. 702. The trial court must, however, act as a gatekeeper and determine, at the outset, whether the purported expert is qualified to express a reliable opinion based on sufficient facts or data and the application of accepted methodologies. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). See also Daubert v. Merrell Dow Pharm., 509 U.S. 579, 592-93, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).21
In performing this gate-keeping responsibility, the Supreme Court has articulated four factors the court may consider:
(1) Whether a theory or technique can be or has been tested; (2) Whether it has been subjected to peer review and publication; (3) Whether, in respect to a particular technique, there is a high known or potential rate of error and whether there are standards controlling the technique's operation; and (4) Whether the theory or technique enjoys general acceptance within a relevant scientific community.
Kumho Tire, 526 U.S. at 149-50, 119 S.Ct. 1167 (citing Daubert, 509 U.S. at 592-94, 113 S.Ct. 2786) (internal quotations marks and alterations omitted). These various factors are not an exhaustive list of all possible ways to assess reliability, nor must all of the factors be applied in every case. Id. at 150, 119 S.Ct. 1167. Dependdent[/i]
[253 F.Supp.2d 1342]

ing on the facts of the case and the type of testimony being challenged, it may very well be unreasonable to apply all of these factors. [i]Id.
at 151, 119 S.Ct. 1167. Accordingly, the trial judge is given discretion in determining how and in what manner to make reliability determinations pursuant to Daubert, "The burden of laying the proper foundation for the admission of expert testimony is on the party offering the expert, and admissibility must be shown by a preponderance of the evidence." Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999). Accord U.S. v. Gilliard, 133 F.3d 809, 815 (11th Cir.1998)(stating that expert testimony is admissible only if its proponent demonstrates the underlying methodology is reliable and relevant).
B. Background on Handwriting Analysis
Defendants argue that the opinions of plaintiffs' expert should not be admitted because the field of forensic document examination is not sufficiently reliable. In their Brief in Support of the Motion in Limine, defendants argue that the "science" of handwriting analysis does not meet the reliability standards of Rule 702: as the theoretical bases underlying this science have never been tested; error rates are neither known nor measured; and the field lacks both controlling standards and meaningful peer review. (Br. In Supp. Of Mot. In Limine [68] at 2.)
In examining defendants' contention, the Court notes that both parties agree that the field of forensic document examination is premised on the assumption that no two persons' handwriting is exactly alike; instead, each person has a unique handwriting pattern that allows the person to be identified through a comparison of proper handwriting specimens.22 (SMF ¶ 209; PSMF ¶ 209.) Forensic document examination involves the subjective analysis and assessment of writing characteristics found in a persons's handwriting or handprinting style, by examination of subtle and minute qualities of movement such as pen lifts, shading, pressure and letter forms. (SMF ¶ 210; PSMF ¶ 210.) Handwriting identification is an inexact endeavor that "cannot boast absolute certainty in all cases." (SMF ¶ 212; PSMF ¶ 212.) Two or more handwriting experts can reach different conclusions of authorship, even when examining the same questioned document and handwriting exemplars. (SMF ¶ 213; PSMF It 213.)
Forensic document examiners are generally trained through a "guild-type" apprenticeship process, in which supervised trainees study methods of document examination described by the field's leading texts. (Defs.' Mot. In Limine [68] at 3; Epstein Dep. at 40-41.) The only recognized organization for accrediting forensic document examiners is the American Board of Forensic Document Examiners ("ABFDE"). (Defs.' Mot. In Limine [68]; Epstein Dep. At 36.) There are common terms used within the field. For example, the unidentified writing is generally referred to as the "questioned document." (SMF ¶ 214; PSMF ¶ 214.) Writings prepared by a person in the past in the normal course of business are referred to in the field as "historical writings" or "course-of-business" writings. (SMF ¶ 215; PSMF ¶ 215.) In contrast, writings prepared on request for the purpose of comparison are referred to as "request exemplars." (SMF ¶ 216; PSMF ¶ 216.) Ideally, a handwriting expert should consult the original unidentified writing, not a[/i]
[253 F.Supp.2d 1343]

copy, to increase the reliability of his or her assessment. (SMF ¶¶ 218-219; PSMF ¶¶ 218-219.) The most reliable method of forensic document examination occurs when an examiner compares both historical writings and request exemplars to the questioned document. (SMF ¶ 217; PSMF ¶ 217.)
The recognized method for forensic document analysis occurs in several important steps. First, the expert determines whether a questioned document contains a sufficient amount of writing and enough individual characteristics to permit identification. After determining that the questioned document is identifiable, the expert examines the submitted handwriting specimens in the same manner. If both the questioned document and the specimens contain sufficient identifiable characteristics, then the expert compares those characteristics often through the use of a chart. (SMF ¶¶ 230-232; PSMF ¶¶ 230-232.) For example, the slant of the writing, the shapes of the letters, the letter connections, the height of the letters, the spacing between letters, the spacing between words, the "I" dots and "t" crosses are aspects of handwriting that can be used for comparison. Next, the expert weighs the evidence, considering both the similarities and the differences of handwriting, and determines whether or not there is a match. (SMF ¶ 232; PSMF ¶ 232.) Ignoring differences between characteristics is a frequent cause of error in handwriting identification. (SMF ¶ 233; PSMF ¶ 233.) Similarly, dismissing differences as merely the product of intentional disguise is another common mistake made in the analysis. (SMF ¶ 235; PSMF ¶ 235.) In addition, an examiner should not know the identity of the comparators and should consult more than one comparator to increase the reliability of his or her analysis. (SMF ¶¶ 256-57 & 268-72; PSMF ¶ 256-57 & 268-72.)
In addition to a recognized methodology, there are some accepted standards that should be employed when engaging in handwriting analysis. One standard is that the genuineness of the historical writing or request exemplar must be verified; that is, the forensic document examiner should ensure the purported author is the true and historical writing is indeed the author. (SMF ¶ 223; PSMF ¶ 223.) In addition, any differences between the questioned document and the comparison writings are generally considered to be more significant than are similarities, when attempting to determine whether someone is the author of a questioned document. (SMF ¶ 224; PSMF ¶ 224.) The reason that similarity, by itself, is not dispositive is because most people are taught handwriting as children from the same or similar "notebook styles" and, therefore, many people will share common handwriting characteristics called "class characteristics." (Defs.' Mot. In Limine [68] at 4; Albert S. Osborn, QUESTIONED DOCUMENTS 226 (2nd Ed. Patterson Smith, 1973), attach, to Defs.' Evid. In Supp., Vol. I, at Tab 16.) The existence of even one consistent fundamental difference between writings, however, has historically been viewed as a legitimate basis for concluding that two writings were not produced by the same person.23 (SMF ¶ 225; PSMF ¶ 225.) Finally, it is generally accepted that consistent characteristics present over the course of a long writing should be viewed as genuine characteristics of the author's handwriting, and not the product of an attempt to disguise. (SMF ¶ 237; PSMF ¶ 237.)

[253 F.Supp.2d 1344]

Based on the above undisputed information, the Court concludes, as a general proposition, that forensic document examiners, who are equipped with the proper background qualification and who employ the accepted methodology in their analysis, can serve to assist the trier of fact, in some regards, through providing reliable testimony about similarities or differences, or both, between a questioned writing and comparative exemplars.24 Such a holding is consistent with the precedent established by the Eleventh Circuit in [i]U.S. v. Paul,
175 F.3d 906 (11th Cir.1999). In Paul, the Eleventh Circuit held that a forensic handwriting expert can, in some instances, assist the "jury or trier of fact to understand the evidence or to determine a fact in issue." Id. at 911. In Paul, the expert was deemed qualified to provide reliable testimony based on his thirty years of experience in the field and application of widely accepted methods of analysis. Likewise, this Court concludes that when a forensic handwriting expert possesses the proper qualifications and when he or she employs reliable methodology, the testimony can qualify as "specialized knowledge" that can be admitted pursuant to Federal Rule of Evidence 702. See also United States v. Jolivet, 224 F.3d 902, 906 (8th Cir.2000) (affirming the district court's admission of forensic document expert testimony and finding such opinion reliable because the expert was well-qualified in handwriting analysis and his testimony "may be properly characterized as offering the jury knowledge beyond their own and enhancing their understanding of the evidence before them."). Accord United States v. Jones, 107 F.3d 1147, 1160-61 (6th Cir.), cert, denied 521 U.S. 1127, 117 S.Ct. 2527,138 L.Ed.2d 1027 (1997).
C. Background and Qualifications of Plaintiffs Experts
Although the Court has concluded that a proper expert may assist a jury in a comparison of handwriting between a known and an unknown piece of writing, that conclusion does not mean that a person can be deemed as an expert in forensic document examination merely by announcing himself as such. Indeed, defendants assert that plaintiffs experts, in particular Ms. Wong, lack the necessary credentials to qualify as experts. (Defs.' Br. In Supp. Of Mot. In Limine [68] at 5-7; Reply Br. In Supp. Of Mot. In Limine [90] at 2.) For the reasons discussed below, the Court agrees with defendants that Wong is not qualified to provide expert testimony. The Court, however, finds that Epstein is qualified to present certain expert testimony in this case.
Mr. Epstein is a forensic document examiner who served as the past president of the American Society of Questioned Document Examiners, is a registered member of the ABFDE, and has authored several authoritative texts in the field. (PSDMF [88] ¶ 1; Epstein Aff. ¶¶ 12-15.) He has a Bachelor of Science in Criminal Justice from the University of Nebraska, a Masters of Forensic Science from Antioch School of Law, successfully completed a two-year resident training program in the forensic science of Questioned Document Examination at the U.S. Army Crime Laboratory[/i]
[253 F.Supp.2d 1345]

in Fort Gordon, Georgia, and has trained with the Post Office Identification Laboratory. ([i]Id.
12.) Plaintiff notes that Mr. Epstein has "appeared in 200 cases over a thirty year period, having examined thousands of documents ... [, has] established questioned document laboratories for not only the U.S. government, but for those of Eastern Europe and the Philippines as well, while teaching hundreds of government document examiners their professions." (Pl's Br. In Opp. To Defs.' Mot. In Limine [87] at 8.) In addition, Epstein has taught Forensic Document Examination at the George Washington Graduate School of Forensic Sciences, the Federal Law Enforcement Training Center, and in programs offered to the United States Army Criminal Investigators. (Epstein Aff. ¶¶ 6-7.) The Court concludes that Mr. Epstein's background constitutes sufficient qualifications to allow him to testify in the field of forensic documents' examination. See, e.g., United States v. Paul, 175 F.3d at 911 (finding handwriting expert with fourteen years of experience should be admissible); United States v. Velasquez, 64 F.3d 844, 846 (3rd Cir. 1995) (finding same); Unites States v. Gricco, 2002 WL 746037, *2 (E.D.Pa. April 26, 2002) (finding forensic document analyst with similar extensive qualifications to be qualified as an expert).
In stark contrast to Epstein, Wong has never taken a certification exam
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#2
This is almost as good as reading a good book about the case. Well written and lays it out clearly. Go Judge Carnes!
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