Entertainment Law Litigation

Say What You Want About Lenny Dykstra . . . . I Mean It, NY Ct. Rules You Can’t Defame Him.

The arc of Lenny “Nails” Dykstra’s life is like a roller coaster. Well at least that first part of the rollercoaster where you go up a huge hill, reach the top, and then speedily plummet to the bottom. Lenny’s hit so rock-bottom that recently a NY Judge ruled he is “libel-proof.” That is, his public reputation is so low that it can’t be made lower no matter what you say about him basically. Even if that includes that he repeatedly hurled, horrible, racist slurs at Boston Red Sox pitcher Oil Can Boyd during the 1986 World Series.

At least, that’s what former NY Met pitching star Ron Darling said. In 2019, Darling and a ghostwriter published a book entitled “108 Stitches: Loose Threads, Ripping Yarns, and the Darndest Characters from My Time in the Game (the “book”).” The book contains a story regarding an alleged interaction between Dykstra and Boston Red Sox pitcher Dennis “Oil Can” Boyd (“Boyd”) during Game 3 of the 1986 World Series (the “Series”). Darling claims that while on the on-deck circle Dykstra began shouting racist slurs and comments at Boyd. Darling says he is ashamed he didn’t say anything at the time because the incident was one of the lowest points of his life. He even refused to print the actual words in his book but said he was sure it was even worse than what Jackie Robinson endured his first time around the league.

Dykstra filed suit alleging defamation and infliction of emotional distress. The claim was dead on arrival – (A) Dykstra is a public figure so one would have to prove that Darling and his publisher St. Martin’s Press maliciously lied about him; (B) If Darling insisted it was true, and that he heard it himself, it would be a “He said-He said” situation and without any audio or video of the conversation between Dykstra and Boyd, how could Dykstra prove that Darling was lying? (C) Darling published a book in 2017 where he basically said the exact same thing and Dykstra did nothing about it and apparently suffered no harm from it; and (D) How could Dykstra prove he was financially damaged from this one paragraph in a book about an incident that happened 30 years ago when he was already publicly reviled?

It was this last argument that the defendant’s pounced on. Relying on the legal doctrine called “the libel-proof plaintiff,” they moved to dismiss the case, saying that Dykstra’s reputation could not get more tarnished and that he could not suffer damages because he was already at bottom of the reputational barrel.

This picture of Dykstra is by Suzanne Russell and it perfectly captures how beaten up Lenny has gotten by life. The picture is haunting and truly says a thousand words.
Kudos to Ms. Russell for capturing the moment.

The “libel-proof plaintiff doctrine” was first created in 1981 in a series of Federal Court decisions. Rarely used, it bars relief in a defamation action, as a matter of law to a plaintiff whose “reputation with respect to a specific subject may be so badly tarnished that he cannot be further injured by allegedly false statements on that subject.” (Guccione v Hustler
Mag., Inc., 800 F2d 298, 303 [2d Cir 1986] cert. denied, 479 U.S. 1091 [1987] [reversing a district court verdict and finding that the plaintiff was “libel-proof” as to adultery because widely published articles were probative of the plaintiff’s notoriety for adultery].)

Dykstra’s lawyers argued that they needed to engage in discovery to see if they could find proof that his reputation had been damaged or that he lost revenue as a result of the book’s passage.

Judge Robert Kalish was not having it. I worked under Bob Kalish for several years at the Office of the Corporation Counsel (the City of New York’s lawyers) He was the chief of the Special Litigation Unit and I was one of the City’s Senior Trial Attorneys. Kalish was a huge Mets fan and probably loved both Dykstra and Darling. He had a sharp legal mind and was good at evaluating what arguments would work in front of a jury. Though my firm has cases in his courtroom, I have not personally appeared in front of him since he went onto the bench, but I am sure he is a deliberate and fair jurist – its just who he is as a person. Being a judge is something he always wanted. Here’s a shot of my old boss on the bench:

Last year, he dismissed a defamation suit brought against Fox News and one of its high-profile anchors, Jeannine Pirro by Black Lives Matter activist DeRay McKesson on the grounds that Pirro’s show is so notoriously “loud” and “caustic” that nothing on it could be construed as defamation. McKesson, who is also a noted speaker and podcast host, argued that Pirro had claimed on-air that he had “directed” violence against a Baton Rouge police officer. McKesson said that wasn’t true. Pirro argued that she was merely expressing the opinion that the injured officer could sue McKesson, arguing he is liable for the officer’s injuries. Judge Kalish agreed that Pirro had the right to express such an opinion, and noted that Pirro’s own lawyer had described her persona as “loud, caustic and hard hitting.” “Pirro’s lack of temperament, and caustic commentary is what she is known, celebrated and frequently criticized for,” Kalish wrote. He did temper his decision by acknowledging that there was a clear racial element in Pirro’s attack on McKesson, saying that “This Court is not blind to the undertones in this segment.” Nonetheless, Kalish found that Pirro’s words were protected speech.

Well, he minced no words in nailing Nails’ case into the coffin:

Based on the papers submitted on this motion, prior to the publication of the book, Dykstra was infamous for being, among other things, racist, misogynist, and anti-gay, as well as a sexual predator, a drug-abuser, a thief, and an embezzler. Further, Dykstra had a reputation— largely due to his autobiography—of being willing to do anything to benefit himself and his
team, including using steroids and blackmailing umpires. . . .

Moreover, in a 2013 book, Dykstra’s former magazine editor for the Players Club Christopher Frankie (“Frankie”) detailed his account of working with Dykstra and asserted that Dykstra described Willie Mays as “his field n—-r,” Venus and Serena Williams as “baboons,” and Celtics coach Doc Rivers as a “spear-chucker.” In his book, Frankie tells the story of how Dykstra allegedly said that the staff at the Carlyle Hotel “had been offended when [Dysktra] loudly used the word ‘n—-r’ in the lobby and had booted him out.” In another instance, Frankie tells the story about how Dykstra allegedly “refused to put ugly [b—–s], usually female Asian golfers in the magazine” saying “No one wants to see that[.]”

The judge goes onto list several other similar incidents and list the various crimes Dykstra was charged with and convicted of including drug charges,fraud, lewd conduct, embezzlement, tax evasion and assault. He then dismissed the lawsuit stating:

Given the aforesaid litany of stories concerning Dykstra’s poor and mean-spirited behavior particularly toward various groups including racial minorities, women, and the LGBTQ community—this Court finds that, as a matter of law, the reference cannot “induce an evil opinion of [Dykstra] in the minds of right-thinking persons” or “deprive him of their friendly
intercourse in society,” as that “evil opinion” has long existed.

As for Dykstra’s lawyers’ request to not decide the motion until they had more time time to complete discovery, the judge reminded them that there are real and more pressing issues the court has to deal with:

As such, this Court sees no legal basis for why it should use its very limited time and resources litigating whether Dykstra engaged in yet another example of bigoted behavior over thirty-years ago in a court of law. There are sports commentators, bloggers and legions of baseball fans to litigate this issue in a public space. This Court, however, has cases involving lost
livelihoods, damaged and lost lives, as well as plaintiffs that have suffered very real reputational injuries.

Lenny’s lawyers have 30 days to appeal. They seem like a competent experienced bunch; I hope they didn’t take this case on a contingency basis. Maybe they felt that celebrity clients (even a Lenny Dykstra) are hard to come by and that handling the case might help their own reputation.

You got to hand it Lenny though.. Building up such a reputation as an all-out asshat that you can’t even be legally defamed. That can’t have been easy.

To see the full decision go here:

Follow me on Twitter @oscarmichelen

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