Saturday, February 28, 2015

Eric Lindros Lawsuit: The Problem With Paul Stewart's Defence

Earlier this week, I addressed the Eric Lindros defamation lawsuit against Paul Stewart in my TSN article "Legal Look: Lindros sues for defamation".

The real focal point of Lindros' claim is the denial he tore up Stewart's posters destined for a charitable auction. There are also denials that Lindros swore on the ice, but ultimately those allegations don't really matter too much. Lindros has been heavily engaged in charity work, and I expect the claim that he would undermine a charity in any way was the impetus for the lawsuit.

In response to Lindros' lawsuit, Stewart told NJ Advance Media that the "truth is always your shield." 

He's right - the truth is a complete defence to a claim for defamation. If Stewart can show that Lindros indeed tore up the posters and was told he did, Lindros' lawsuit will fail.

Remember Lindros only needs to show that Stewart's comments were capable of defaming him (which they clearly were); the onus then shifts to Stewart to show the comments were true. So defamation is a funny tort as its strict liability as the defendant (and not the plaintiff) needs to prove the key component of the case.

According to Stewart's own article, he never saw Lindros tear the posters. Rather, he was told by Flyers equipment manager Jim Evers that Lindros tore the posters. 

So here's the problem for Stewart: Evers is saying the whole thing isn't true. This is what Evers said on the Preston and Steve Morning show on WMMR: 
“I’ve been friends with Eric since the day he came to Philadelphia, and he would never do something like this. I’ve only ever seen him [Lindros] go out of his way to sign autographs for people. He’s not that kind of man.”
“I’ve known Stewie (Paul Stewart) for a while, he’s a UPenn grad, and you have to be pretty smart to go there. Maybe he had too many concussions over his career cause he wasn’t a very good hockey player, but I don’t know what would make him say something like that about Eric.” 
 “To my recollection, this never happened. I’ve known Eric for a very long time and he’s not the kind of guy who would do this."
So Stewart will need to establish that Evers is lying or bring in another witness to corroborate Stewart's version of events. 

This raises another problem for Stewart: who on earth would want to get involved in this mess? For example, I'm pretty sure Marc Recchi will want to stay as far away as possible. Note, however, that a witness who does not want to testify can be forced to do so by being served with a summons to witness.If they don't show up to testify, a warrant for their arrest is issued and they can brought to court to testify. So it's not totally a lost cause for Stewart but at the outset at least, things don't look great. Still, however, the case will turn on the evidence so we need to wait for Stewart's formal court defence (i.e., Statement of Defence).

Still the issue he faces is a substantial one. Since he did not witness the alleged destruction of the posters he will need to find someone who did. That is not going to be easy. Alternatively, he will need to establish that someone told him Lindros tore the posters. Again, tough one.

This raises the issue of the wisdom of writing an article attacking someone of doing something when you never saw it yourself. Relying on hearsay to defame someone is a risky proposition. Whether it's true or not, you may be inviting litigation.

As for Lindros, many have asked me why he's suing since his legal fees may well offset any damage award against Stewart. It's possible that Lindros is looking to change the narrative concerning his reputation. For some people at least, Lindros perhaps does not have the most positive reputation and reflecting back on things, he may want to correct the way he's perceived. Note, though, he's already done some tremendous charity work. For example, he's donated  $5 million to London Health Sciences Centre

So it's possible that's not at all the case. It may be as simple as Lindros just got fed up with people mentioning the article seven months after it was published.