LOS ANGELES -- A judge dismissed a memorabilia dealer's claims of defamation, false light and intentional infliction of emotional distress against Phil McGraw, saying they violated the television psychologist's free-speech rights.
The plaintiff, Thomas Riccio, was a central witness in O.J. Simpson's armed robbery and kidnapping trial in Las Vegas. His secret audio recording of the confrontation in a Las Vegas hotel room between Simpson and two memorabilia dealers became crucial evidence in the former NFL star's arrest and conviction.
Riccio filed a lawsuit Oct. 21 in Los Angeles Superior Court against McGraw and Stage 29 Media Productions Inc. According to the lawsuit, Riccio made a taped appearance on the "Dr. Phil" show on Oct. 6 that was aired two days later. Between the taping and the airing, Riccio's appearance was promoted in advertisements.
Riccio claimed the promotions contained statements that McGraw and Riccio made, but that were spliced and taken out of context so as to change their meanings.
Lawyers for McGraw and Stage 29 moved for dismissal of the case, citing their First Amendment rights. Judge Malcolm Mackey concurred the statements were protected speech.
"This is what (these) motions are made for," Mackey said. "To knock out defamation where it's not malicious."
Mackey also found that Riccio was a public figure, meaning he would have to have proved by clear and convincing evidence that he had been defamed.
The judge left intact Riccio's claim for fraud and set a trial for that remaining part of the lawsuit for Dec. 21.
Riccio's lawyer, Stanley P. Lieber, said after the hearing that he and his client will consider their options, including an appeal.
"Obviously this was not the result we had hoped for," Lieber said.
Charles L. Babcock, an attorney for McGraw and Stage 29, praised the ruling. He also said he expects the fraud claim to be dismissed because Riccio signed a release promising not to sue when he agreed to appear on the show.
In his court papers, Riccio maintained he was made to "look like a shady character" by editing done in promotional clips for the appearance on McGraw's show.
Riccio had submitted a sworn declaration in support of his lawyers' motion asking that McGraw's motion to dismiss the complaint be denied.
"The result of defendants' editing of my statements was that the promotional spots made me look like a shady character that could not be trusted," Riccio said. "I was at first shocked at what had been done to my statements, which was replaced by feelings of extreme humiliation."
Riccio also said McGraw appeared to hint that the dealer was not the author of his own book, "Busted," citing one particular page to justify some of his suspicions. "Busted" is Riccio's account of his life story and his
involvement in the Simpson case.
"McGraw's comments about the book ... left the impression that I had not written my own book and he did not bother to correct himself," Riccio said.
As a result of the alleged altering of Riccio's statements, sales of "Busted" have been "flatter than would be expected and my income has suffered as a result," according to Riccio.
Riccio also sais being labeled as the "ringleader" of the crime at the hotel was a "blatant defamatory statement."