A jury can decide whether the author of a best-selling book about the death of Playboy playmate Anna Nicole Smith defamed her lawyer by making allegations that may be too outlandish to be true, including that he pimped her to up to 50 men a year, a judge concluded Wednesday.
U.S. District Judge Denny Chin found plenty of reasons to let a jury hear the facts behind a $60 million libel lawsuit brought by lawyer Howard K. Stern against "Blonde Ambition" author Rita Cosby, a veteran television news anchor and "Inside Edition" correspondent. The lawsuit was filed less than a month after the book was published in September 2007.
The judge said the book's claim that Stern had a sexual relationship with Larry Birkhead, the father of Smith's daughter, was "nothing short of explosive. Perhaps too explosive."
"In other words," he said, "printing a claim that Birkhead and Stern had sex would be a way to make it to the top of the bestseller list, and a reasonable jury could find that Cosby ignored the inherently improbable nature of the statement in her zeal to write a blockbuster book."
Stern and Birkhead have denied any sexual relationship.
The judge said there was "substantial evidence" to let a reasonable jury find Cosby acted with malice in stating in the book that Smith obtained a videotape of Birkhead and Stern having sex and regularly watched it in front of her nannies.
He noted that Cosby traveled to the Bahamas after Stern filed the lawsuit to try to meet with the nannies and in a conversation with one of their representatives proposed paying the nannies to sign an affidavit supporting the statements attributed to them in the book, which was published by Hachette Book Group USA Inc.
The judge, who dropped the publisher as a defendant, called Cosby's actions "extremely troubling" and said they "suggest that she was attempting to obstruct justice by tampering with witnesses."
He said a reasonable jury could conclude that Cosby knew she had fabricated the information about Smith watching the videotape and "was desperate to come up with an after-the-fact verification of one of the more salacious and explosive allegations in the book."
He also said a jury can decide whether there was malice in the book's statements that Smith thought Stern was involved in the death of her son and that many people in Smith's inner circle thought Stern was involved in her death. He tossed out eight of 19 other claims.
Cosby lawyer Elizabeth A. McNamara said she was gratified the judge had dismissed some of the statements at issue in the case and was "fully confident" the jury would dismiss the others once it hears the evidence surrounding Stern's life with Smith.
Stern, who began doing legal work for Smith in 1997, became romantically involved with her in 2000 but kept the relationship secret until 2006, according to evidence in the case.
Stern attorney L. Lin Wood said his client was "very pleased" with the judge's decision to let a jury decide whether Cosby defamed him with claims that Smith thought he was involved in her son's death, that he had pimped her out and that he had engaged in sex with Birkhead.
"Those areas," Wood said, "were the heart and soul of our complaint."
The judge also wrote that there was evidence that Cosby made up quotes. He said a jury could conclude that statements in the book that Smith knowingly acted as a prostitute with Stern as her pimp or that Stern drugged her and pimped her to as many as 50 men a year "are so inherently improbable that Cosby was reckless in including them in the book."
"It will be up to a jury to determine whether this statement is as inherently improbable as it sounds," he said.
Smith, the 1993 Playmate of the Year, had a successful career as a clothing model before landing her own reality TV show, "The Anna Nicole Show." The Texas native was found unconscious in a Florida hotel room in 2007 and was declared dead of an accidental overdose of prescription drugs. She was 39.
Smith's son, Daniel, who was born in 1986, died of an apparent prescription drug overdose in the Bahamas just a few days after Smith gave birth to her daughter, Dannielynn, in 2006.
Cosby, a journalist for more than 20 years, has worked as a correspondent and host for CBS, MSNBC and Fox News. She began covering Smith in 2006.
Hachette, the publisher, offered Cosby an advance of $405,000 plus royalties for "Blonde Ambition: The Untold Story Behind Anna Nicole Smith's Death, which was an instant best-seller.
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