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Posted May 28, 2013 | Leave a comment
Judge explains reasons for new trial in kennel defamation case
By Joe Beck
A federal judge issued an opinion Thursday finding "clear and convincing evidence" that a Frederick County kennel owner had engaged in misconduct during a jury trial last year in which he was awarded $30,000 in a libel lawsuit.
U.S. District Judge James C. Cacheris said he was ordering the jury's verdict in favor of Russell Ebersole be nullified and granted a new trial to the defendant, Bridget Kline-Perry of Purcellville.
Cacheris cited what he described as Ebersole's "concealment of highly relevant negative videos and of plaintiff's trial misrepresentation given the videos' content and this misconduct and misrepresentation's significant impact on (Kline-Perry's) ability to fully present her case at trial" as the principal reasons for his decision.
Cacheris' opinion came a few days after he scheduled a new trial for Sept. 10.
Kline-Perry's attorney, Steven W. Bancroft of Fairfax, praised Cacheris on Friday for spelling out "very clearly and in a very articulate fashion how he reached his opinion."
Bancroft added: "I've been doing this for 34 years, and I would agree with Judge Cacheris. Judges do not vacate jury verdicts unless there is strong evidence for doing that."
Cacheris' opinion cited the same three videos Bancroft identified in a motion seeking a new trial. The videos show dogs being mistreated at Aberdeen Acres Pet Care Center in Stephenson, according to court records. Ebersole owns the business and focused his lawsuit on harm inflicted on Aberdeen Acres through online comments made by Kline-Perry. Ebersole called the statements false and defamatory.
Cacheris wrote that one of the videos shows Ebersole training a medium-sized dog on a collar and leash.
"Multiple times during the video, (Ebersole) yanks on the leash using his hands or foot with sufficient pain to cause the dog to yelp in pain," Cacheris wrote. "Near the end of the video, (Ebersole) commands the dog to remain lying down and when the dog stands up, (Ebersole) walks toward the dog and proceeds to kick it in the throat or chest area, causing it to yelp loudly and retreat from (Ebersole.)"
Bancroft obtained the tapes after Frederick County authorities filed 13 counts of animal cruelty against Ebersole as a result of an investigation into complaints about Aberdeen Acres.
Cacheris said the Frederick County Sheriff's Office did not provide Kline-Perry with the videos at the time of the jury trial, despite receiving a subpoena asking for records of the investigation into Aberdeen Acres.
Cacheris said Ebersole was not in possession of the videos at the time Bancroft initially sought them "due to seizure by local government" during the investigation.
"While (Ebersole) may not have had physical possession of the videos during discovery, he was the creator and legal owner of the videos and laptop on which they were stored," Cacheris wrote.
Ebersole's failure to turn over the videos to Bancroft "or at least disclose these negative videos' existence and any difficulties in accessing them at the time, constitutes clear and convincing evidence of misconduct," Cacheris said.
Phone calls seeking comment from Ebersole and his attorney, Andrew T. Bodoh, of Richmond, were not returned.
Contact staff writer Joe Beck at 540-465-5137 ext. 142, or firstname.lastname@example.org
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