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Walters did not Defame Daughter’s School Pal

(CN) - A woman who alleged Barbara Walters caused her 1983 expulsion from boarding school after she was found in bed with the news anchor's daughter cannot sue Walters for defamation, the 1st Circuit ruled.

Nancy Shay contended while both she and Walter's daughter Jackie were both suspended from Wykeham Rise boarding school in Connecticut for the so-called offense, only she was expelled.

Shay alleged that soon after she spoke to Walters on the phone and Walters told her "Don't say anything about this to anybody. You'll ruin your name. Never mind, you'll ruin my name and my daughter's name."

According to a summary of the Shay's claims offered in the opinion, shortly after she was expelled, "a faculty member told her that her rights had been violated and offered her the services of an attorney who specialized in civil rights."

Walters' 2008 memoir, "Audition," contains a different account of these events, stating that her daughter had a friend named "Nancy" at boarding school "whom the school kicked out midterm for bad behavior."

The book asserted that instead of being found in bed, the duo was reprimanded for being discovered in a bordering town, "high on God-knows-what." Walters concluded that "in the wake of the suspensions, she 'told the school that Jackie was never to be allowed to visit [Nancy] again,'" which Shay said implied Walters used her prominence in the media to push for the girl's expulsion.

Shay stated that the expulsion caused her to spiral into a "'deep depression,' which led to substance abuse and emotional instability" and soon she had "'generally lost her way' as her 'life became a revolving door of rehabilitation centers, jails, and unhappiness.'"

The plaintiff sued for tortuous interference, defamation and emotional distress in Massachusetts in 2011 but District Judge George A. O'Toole, Jr. dismissed the case.

Shay appealed, but a three-judge panel of the 1st Circuit upheld O'Toole's ruling.

"The allegations of the plaintiff's complaint paint a poignant picture," Circuit Judge Bruce M. Selya wrote on behalf of the court, but he nevertheless found that under Massachusetts' statute of limitation her charge of tortuous interference must be dropped.

The state maintains a statute of limitations of three years in tort action and Shay filed her claim 27 years after the alleged wrong. However, in the state, "the doctrine of equitable tolling may postpone this date 'if a plaintiff exercising reasonable diligence could not have discovered information essential to the suit.'"

Shay contended her alcoholism, the release of "Audition," and the Walters' 1983 threat intended to silence her justify tolling.

However, Selya wrote "the plaintiff knew of her injury (that is, her expulsion), and the faculty member's offer put the plaintiff squarely 'on notice that someone may have caused her injury.'"

He continued "a reasonably diligent investigation" at that point would have led her to discover if the defendant was involved in her expulsion. He also writes that Walters' threat bore no legal weight and no facts support Shay's contention that alcoholism prevented her from taking action. "The mitigating circumstances lamented by the plaintiff, while regrettable, do not relieve her from the burden of conducting a reasonable investigation," he writes.

Selya also found the passage in the book referring to the 1983 incident does not meet the criteria for defamation.

"A communication is susceptible to defamatory meaning if it 'would tend to hold the plaintiff up to scorn, hatred, ridicule or contempt, in the minds of any considerable and respectable segment in the community,'" Selya wrote, noting that because the book does not include the plaintiff's surname, she could only be identified by a select group of former students who were at the school at the time.

"The plaintiff acknowledges that these individuals know the truth surrounding her expulsion" and that "accordingly, the statements in "Audition" could not have held the plaintiff up to opprobrium in the minds of this limited group because, as she asserts, these same individuals were 'well aware of the injustice of her expulsion.'"

He added the claim of emotional distress must be dropped along with the charge of defamation because, "The Supreme Court has made it pellucid that a failed defamation claim cannot be recycled as a tort claim for negligent or intentional infliction of emotional distress."

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