Statement from Jane Daniel's Lawyer

Comment by Joseph M. Orlando:

The Quest for Justice

"There are some falsehoods that are so emotionally inflammatory that they
impede the jury's ability impartially to evaluate facts and adjudicate a

With these words the Massachusetts Court of Appeals struck down a $22.5
million judgement levied against Mt. Ivy Press and Jane Daniel. Yet,
inexplicably, the Court allowed the judgement for Vera Lee to stand. "Where
a jury is determined to be unable to dispassionately and impartially
evaluate the evidence offered, then any verdict from that jury, for or
against any party, is fatally flawed," stated Mt. Ivy's attorney, Joseph M.
Orlando. On that basis, Orlando & Associates will seek direct Appellate
Review from The Supreme Judicial Court.

From Media Law Blog


Gloucester Publisher May See Reversal of $30M Judgment

When I was writing for Law.com's Legal Blog Watch, I wrote several posts (here is one) about the case of Jane Daniel, a Gloucester, Mass., woman who was hit with a $33 million verdict against her and her small publishing company, Mt. Ivy Press. The 2001 verdict was awarded to Misha Defonseca and her ghostwriter Vera Lee as the result of disputes over copyright and promotion of Defonseca's memoir, Misha: A Memoire of the Holocaust Years. The book told the story of how Defonseca survived the Holocaust on her own as a young girl, in part through her "adoption" by a pack of wolves. The book was a bestseller in Europe and was the basis for a film.

Several years later, through the detective work of Daniel and genealogical researcher Sharon Sergeant, documents were unearthed showing Defonseca's tale to be as tall as it seemed. Based on these new revelations, Daniel and Mt. Ivy filed a new lawsuit in 2008 seeking to set aside the $33 million judgment, alleging that Defonseca and ghostwriter Lee had perpetrated a fraud on the court. The trial court judge dismissed the case, concluding that it alleged no "extraordinary circumstances" that would warrant relief.

Today, the Massachusetts Appeals Court reinstated the case, but only against Defonseca. It concluded that, if Daniel is able to prove her allegations at trial, then they constitute "extraordinary fraud."
"The plaintiffs have alleged an extraordinary fraud that touched every part of Defonseca's case against them and resulted in a huge verdict. It is true, as the defendants point out, that the book's authenticity was not the central issue at trial. Despite this, it is difficult to imagine that this information, had it been known to Daniel and Mt. Ivy, would not have provided a meritorious defense to at least some of the claims, especially those claims based on the contract.
"Defonseca's entire case, and the manner in which she procured the judgment, was buttressed on what is now admitted to be a lie. The pleadings she filed were false and based on false information. The affidavits she submitted were premised on her phony life story. Her testimony at trial reiterated, and reinforced, her sympathetic but ultimately false tale."
These allegations entitle Daniel to seek relief from the judgment, the Appeals Court said. In addition, the allegations, if true, constitute fraud on the court:
"There are some falsehoods that are so emotionally inflammatory that they impede the jury's ability impartially to evaluate facts and adjudicate a case. Falsely claiming to be a victim (and survivor) of the Holocaust is such a one, particularly where--as here--the claim is the foundation of a book that the publication, distribution, and marketing of were the subjects of the suit. Defonseca perpetrated this falsehood, and it lay at the center of the case."
As for Lee, the ghostwriter, the Appeals Court said that there is no indication that she knew or had reason to know that Defonseca's memoir was fraudulent. Because there is no evidence that she did anything wrong, there is no basis to lift the judgment in her favor.

The ruling is not the end of the case. Daniel will still have to prove her case in court. Today's decision sends the case back to the trial court and allows it to move forward.

Here is today's full opinion: Mt. Ivy Press v. Defonseca.

A New Twist in the Misha Defonseca Story

Tall tale takes a new twist in court

Publisher will not have to pay author for sham memoir

By David Abel
Globe Staff / November 25, 2010
When Misha Defonseca admitted that her best-selling memoir about surviving the Holocaust with the help of wolves was a sham, her publisher thought she could avoid paying the author and her ghost writer a disputed $32.5 million for allegedly concealing profits from sales.

Yesterday, after a decade of litigation, a panel of judges in the state Appeals Court ruled that the publisher does not have to pay Defonseca the $22.5 million awarded to her by a jury but still owes $10 million to the ghost writer, who was unaware of the hoax.

In a decision written by Judge Gabrielle R. Wolohojian, the panel found that Jane Daniel, sole proprietor of Mt. Ivy Press in Gloucester, should not have to pay Defonseca, because the jury’s verdict was based on the false story that she was Jewish, that she survived the Holocaust as a child by roaming through Europe on foot, and that she received protection and food from a pack of wolves.
It was later learned that Defonseca, who now lives in Dudley, is not Jewish, that she was safely attending school in Brussels during the period she said she was a refugee, and that her father reportedly provided Nazis with information about the Belgian resistance movement.
“There are some falsehoods that are so emotionally inflammatory that they impede the jury’s ability impartially to evaluate facts and adjudicate a case,’’ Wolohojian wrote in the ruling. “Falsely claiming to be a victim (and survivor) of the Holocaust is such a one, particularly where — as here — the claim is the foundation of a book.’’
The case has a tortured history that began before Daniel published “Misha: A Memoire of the Holocaust Years,’’ in 1997. The book, eventually translated into 18 languages, became a bestseller in Europe and the basis for a hit French movie. It also received the attention of The Walt Disney Co., which signed an option for a movie, and Oprah Winfrey’s program, which filmed Defonseca with wolves at Wolf Hollow in Ipswich. Both dropped out as tensions among the author, ghost writer, and publisher crested into what became a long court fight.
Defonseca, originally from Brussels, moved to Massachusetts in 1988 and became known for giving talks about her World War II experiences to local Jewish organizations. Based on those talks, Daniel offered Defonseca a book contract and hired Vera Lee, her French-speaking former friend and neighbor, to serve as coauthor.
Lee and Daniel squabbled about the manuscript when Lee said it needed more fact-checking, and Daniel eventually removed Lee’s name from the cover and put it on the copyright page. A year after the book was published — with a blurb from Nobel laureate Elie Wiesel, author of the Holocaust memoir “Night’’ — Lee sued Daniel, arguing that her rights as coauthor had been violated. Defonseca also sued Daniel, asserting that the publisher broke promises to publicize the book and hid profits in offshore corporate accounts.

Daniel denied the allegations, but in 2001 a Middlesex Superior Court jury awarded $7.5 million in damages to Defonseca and $3.3 million to Lee. The judge tripled the damages, to nearly $10 million for Lee and $22.5 million for Defonseca, because of the allegedly egregious conduct. The jury also awarded rights to the book to Defonseca, who sold it to publishers in Europe.

To collect on their awards, Defonseca’s lawyer sought a $425,000 inheritance held by Daniel’s father, who signed it over to Defonseca, and Lee’s lawyer demanded that Daniel pay $2,000 a month. When Daniel said she did not have the money, a judge jailed her for contempt, and she spent a night in MCI-Framingham, until a friend raised the money.
Under threat of being sent back to jail, Daniel signed a settlement with Lee’s lawyer, Frank Frisoli of Cambridge, ultimately allowing him the right to sell her house.
But in 2008, documents emerged in the Belgian press discrediting Defonseca’s account, and she admitted her story was a lie. In her statement at the time, Defonseca admitted she had made up the story of trekking thousands of miles through Europe and blamed Daniel for prodding her to put it in the book.
“There are times when I find it difficult to differentiate between reality and my inner world,’’ she said. “The story in the book is mine. It is not the actual reality; it was my reality, my way of surviving.’’
Soon afterward, Daniel appealed the rulings in Middlesex Superior Court, arguing that the awards against her were the result of perjured testimony, false court pleadings, and fraudulent exhibits, which misled the jury. A Superior Court judge dismissed the appeal, saying it was not filed within the one-year period required.
But yesterday, the state Appeals Court ruled there were “extraordinary circumstances’’ to justify Daniel’s appeal.
“It is true, as the defendants point out, that the book’s authenticity was not the central issue at trial,’’ Wolohojian wrote. “Despite this, it is difficult to imagine that this information, had it been known to Daniel and Mt. Ivy, would not have provided a meritorious defense to at least some of the claims.’’
In sustaining the award for Lee, the judge wrote: “The complaint does not allege that Lee knew, or had reason to know, that Defonseca’s memoir was fraudulent. The complaint’s silence in this regard is consistent with the trial judge’s conclusion that the allegations indicated Lee alerted Daniel to the fact that the book had not been fact-checked, and that many historical facts needed to be verified.’’
Daniel did not return calls yesterday, but Brian McCormick, a Gloucester lawyer representing her, said it was a fair ruling.
“I’m very pleased the court didn’t allow Defonseca to profit from her hoax and use the judicial system as a pawn in the process of obtaining such profit,’’ he said. “As far as Vera Lee goes, we believe you can’t really separate one from the other. We think Defonseca’s conduct tainted the entire trial, but the fact is that when you look at it, Jane Daniel could not have had a fair trial.’’
He said he intends to appeal that portion of the decision to the Supreme Judicial Court.
Reached at home, Defonseca, now 73, said she had long ago written off receiving money from Daniel.
“I never wanted to make this book; Jane Daniel pushed me to do this,’’ she said. “Now, I want my life back. I want peace. This has been very painful.’’

There is a good commentary on this story on Robert J. Ambrogi's Media Law Blog.