This is the fourth day of testimony in the five-day civil trial in Lee Circuit Court.
POSTED at 10:40 a.m.:
The defense attorney for Naples-based Beasley Broadcast Group Inc. continued her cross-examination of 96-K-Rock shock jock Joe Scott's ex-girlfriend, trying to impeach her by tripping her up with questions she'd previously answered during her deposition.
Attorney Kelley Geraghty Price of Bonita Springs is trying to show jurors that Patti Davis — the plaintiff and deceased DJ's ex — had willingly appeared frequently on his shows and that she knew they were based on his life. She also showed that during Davis' career before she was a Realtor, she was in radio sales and sometimes appeared on-air or on station commercials.
But Davis, who was on the stand for three hours Thursday, maintained they were infrequent appearances, including a holiday greeting staff commercial, or if the station needed a female voice.
The trial comes 4½ years after 46-year-old Scott's death from internal bleeding, complications of years of drug and alcohol abuse. He collapsed in his Cape Coral home eight months after he was fired from the station for the last time for not showing up for work, going to mandated appointments with his Naples psychiatrist, and not showing up for urine tests to monitor his drug use. He'd had an on-and-off 15-year career there and had been fired five times before March 2006.
Under the name "Jane Doe," Davis sued Beasley, alleging she endured daily diatribes in May 2005 by Scott, who cursed at her, called her a prostitute, thief, and other names that harmed her reputation and real estate career. Davis, 50, who lived with Scott in Cape Coral, alleges the Estero-based station refused to stop him after she repeatedly complained and alerted them he was still abusing drugs and not ready to return to the air after a two-week stint in rehab.
Station employees had taken him to The Willough rehab center in Naples after he didn't show up to work and was found surrounded by cocaine and alcohol in his Cape Coral home.
Jurors have heard broadcasts of Scott, who was angered at her meddling, rant about her after their breakup, even after Davis called K-Rock General Manager Brad Beasley and demanded that he stop, then sent a letter from her attorney, asking him to cease and desist and threatening legal action. The couple had a relationship over 20 years and had a daughter, Jessica.
But Davis' attorney, William DeForest Thompson Jr. of Fort Myers, is repeatedly objecting, calling it improper impeachment because Davis has contended Scott's early shows in the 1980s at WMEL were not yet reality based.
When Price begins a line of questioning designed to get old tapes of Davis on-air, willingly joking around with Scott, Thompson angrily objects, prompting yet another sidebar. Jurors were excused an hour into the cross-examination. Lee Circuit Judge Christine Greider, who has presided over a five-day trial and pretrial hearings filled with attorneys accusing each other, ordered a break and walked out of court after giving jurors a break.
The judge then returns to the bench and outlines the rules she and attorneys already have agreed to, ensuring they stick to them. Thompson is arguing that tapes Price is trying to get played are different from the ones he'd played and not from May 2005.
Price is arguing that Thompson has known about these tapes for years, the same argument Thompson used when she successfully prohibited him from playing tapes, which he was able to get heard by jurors after repeated tries. But only a few of the 80 hours of tapes have been heard. However, they do support Davis' case that Scott relentlessly ranted about her, even after she called the station to ask him to stop.
Price contends Davis already had authenticated all these tapes in her depositions years ago. Price is angry that it's Day 5 and she hasn't begun her case. The judge says she's ready to rule, warning, "Increase the professionalism and decrease the emotionalism."
She ruled Davis had already authenticated the old recordings, the legal requirement needed for jurors to hear them. (An attorney must have a witness who is on the recordings and can authenticate their voice on the recordings. Until the second day of testimony, Price had successfully struck plaintiff witnesses, preventing Thompson from bringing in tapes of the May 2005 broadcasts at the heart of the invasion of privacy and negligent hiring and retention lawsuit.)
The judge demands to know if these tapes were provided to Thompson in discovery. "Yes, Ma'am. In 2006," Price told Greider, who allows Price to play them, ruling they have been authenticated before by Davis.
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Price continues to try to tarnish Davis' credibility by showing she was a willing on-air character of Scott's and is now trying to cash in by saying she objected to his on air rants. Price plays a recording to demonstrate Davis' knowledge that Scott knew people thought a radio station had deep pockets.
"Because I'm on the radio, people think they can sue me," Scott says in a recording as another on-air personality laughs. "They think they can get a big haul."
The recording prompts Thompson to ask for another sidebar. The judge apologizes to jurors for a very loud fluorescent light that makes it hard to hear due to microphones also not working. "It sounds like a leaf blower from here," Greider tells the jurors, asking attorneys and Davis to speak up.
POSTED at 12:18 p.m.:
Price continues playing tapes to show Davis was often on Scott's shows, participated in sometimes raunchy banter, and did so willingly. Davis maintained this was a period in which Scott was healthy and not abusing drugs or alcohol.
After Price played a tape in which Davis asked Scott how someone was "hung," Price asked, "And you weren't uncomfortable in this studio appearance, were you?"
Davis replied: "There was no one there. It's not like there was an audience."
During direct examination, she had said she didn't like her voice, found being on-air uncomfortable and nerve-racking.
Price played more tapes in which Davis sounds like she's enjoying her on-air banter with Scott. Davis was getting emotional listening to them. Price pointed out she sounded like she liked being on the shows.
"He was healthy," she testified, bursting into tears. "He was a lot of fun to be around."
POSTED at 1 p.m.:
Price continued pointing out Davis, as Scott's girlfriend, liked the limelight and sometimes got passes to concert or shows because of her relationship with Scott. Although Davis now alleges the shows ended in people recognizing her, Price pointed out she said she was not recognized by strangers when questioned during her August 2007 deposition.
But Davis noted the 100,000-watt show reached 100,000 people.
"I'm not sure how many people recognized me," she said, adding that strangers would be uncomfortable and unlikely to come up to her to ask if she really were a prostitute, thief or slut.
She contended her voice-overs were taken out of context and began crying during the cross-examination, which has gone on four hours after two hours of direct questioning Thursday. She sobbed as she said that Scott mentioned her name, children, her address.
"It was so embarrassing to me to broadcast that I was a prostitute, a thief, and a burglar," she said, sobbing.
Price interjected, "but it wasn't embarrassing to you ..." and then cited all the times she'd willingly appeared on Scott's 96 K-Rock radio shows to joke with Scott and use sexual innuendo before the May 2005 broadcasts she sued over.
"I never thought they'd take him out of rehab early," Davis said, adding that her prostitute comment Scott kept playing was taken out of context.
Davis explained that in her original broadcast with Scott, she was telling him she felt sorry for women who had no jobs and had to resort to prostitution, then said there was nothing wrong with prostitution.
"Joe took this clip and he continued to air it over and over in May of 2005, when he was angry and out of control," she testified, contending he did it to make people "think" she was a prostitute.
But Price contended Davis, who had known Scott 20 years, should have realized voice-overs were part of his show.
"You knew he used voice-overs, didn't you?" Price asked loudly.
Davis replied: "I certainly wasn't prepared (and didn't) authorize him to use my voice in May 2005. ... I would have never authorized him to use my voice."
She told Price she thought her call to station General Manager Brad Beasley would have stopped him. "But my call was ignored," she added, so her attorney sent a letter asking him to stop.
Price pounced on that, pointing out the letter never demanded that voice-overs stop.
"I never thought I'd be in the position I am today," Davis replied, referring to her 2005 lawsuit and having to testify.
Trying to knock out some of the allegations in Davis' lawsuit, Price pointed out she didn't lose her job at David Weekley Homes and the broadcasts didn't hurt her career. Price noted that Weekley, her boss, even appeared on the show.
Davis maintained that was because he'd been "sabotaged," but Price said that was only her opinion. Davis explained: "Joe Scott would never in the world have gotten a builder on the show without an underlying, ulterior motive."
The show wasn't about building, information or news, she said, adding that she worried he'd attack her boss.
Price reiterated that she wasn't fired.
"I could not sell with the growth on my face," Davis said. "They knew I was very distraught. They let me take time off."
She began crying and Price politely asked if she needed time to compose herself. But she continued, adding, "Ms. Price. I was not at the top of my game."
Price said that wasn't her question, then demanded to know if she'd suffered any adverse employment consequences.
"Did I get fired from my job? No," Davis replied.
Price then pointed out she moved on to use her real estate broker's license in her next job at SellState Realty. Davis said that was because she worked hard at her career to support herself and her children, including Scott's daughter.
Then Price continued to try to strike down the allegations in her lawsuit, which Davis needs to prove. "You didn't suffer any physical ailment other than the cold sore or boil, you described, correct?"
Davis, who described a facial rash that swelled her face and made it difficult to talk, added, "I had loss of hair here." She pointed to her forehead, then said maybe that's the only ailment she knew of then.
"That was from stress?" Price asked.
"That's what the doctor told me, yes," Davis said.
(She'd testified Thursday she had to see a psychiatrist for the first time in her life and was put on anti-depressants.)
Price contended she'd said in her deposition that the stress came from moving to Cape Coral in January 2005 and having to find a job to establish her career.
"I did not tell you that," Davis replied angrily. "You asked me that question ... that perhaps those things could also be part of my stress and I did say, 'Of course, that could be part of my stress.' "
"I had never experienced that type of physical ailment in my face," she added.
The judge excused jurors for the lunch break and Davis will still be on the stand when they return after 1 p.m.
POSTED at 2:51 p.m.:
Price continued cross-examining Davis into a fifth hour, pointing out she wasn't suffering any illnesses due to the broadcast, but Davis said she still suffered from post-traumatic stress disorder and was having problems as a survivor.
"It's always there, but you live your life," Davis explained, adding that the ordeal has made her more compassionate toward drug addicts, alcoholics and domestic violence survivors.
Price pointed out she was now in radio, pointing out it didn't hurt her career there. But Davis said she had to disclose what she was going through. "I'm working for a radio station. Telling them I am suing one is difficult," she said.
Price pointed out she said in her 2007 deposition she wasn't continuing to suffer, and doesn't go to a psychiatrist. She pointed out she couldn't even name the one she said she'd gone to twice.
Davis said he was $150 per session and she couldn't afford to continue. But he was in Fort Myers and she could describe him. Price maintained she wasn't answering her question, noting that no psychiatrist gave her a clinical diagnosis for anything she was suffering from. Davis reiterated she couldn't afford to go to one.
Price reminded her that in her deposition, she even admitted Beasley Broadcasting Group wasn't responsible for Scott's private life. But Davis said they wanted him back on air, 19 days in rehab was too soon if his last 5½ month stint resulted in five years of sobriety, and he was out of control.
"If they had let Joe stay in rehab, he would have gotten the help he needed," she said. "But they were more concerned about their ratings, profits and not his health or personal life."
She said they were more interested in entertainment and that Brad Beasley knew. (On Thursday, when he testified, he admitted he understood Scott's problems because he was a recovering alcoholic.) Davis said he knew it took a long stay in rehab to help Scott.
Price played a broadcast to prove Scott didn't mention her again after she called to complain.
"I was told yesterday everybody is sick of it, everyone in the building is sick of it, like I care what they think," Scott tells another on-air personality, Gentry Odom on May 18, 2005.
Scott then said he'd had a "big argument" with Beasley, who had "pulled rank" by calling his "big brother," Bruce. Odom called him "the heavy artillery."
Price pointed out that showed he was told to stop. However, Davis contended that clip didn't show he abided by Beasley's warning. Price angrily demanded that she list any date to prove that. (Thompson has been limited in what tapes he can play because Price successfully argued that he hadn't authenticated the tapes and they weren't admissible.)
"It didn't stop," Davis said, sobbing. "I know it finally slowed down a little, when Mr. Thompson sent a letter saying to cease and desist."
"Show us where that is," Price angrily demanded, referring to dates of broadcasts.
"My attorney has the tapes," Davis replied.
But Price then pointed out if she couldn't recall those dates, she probably couldn't recall that there were times when Scott said positive things about her. Davis admitted that could be true because he still loved her. "I just know that he wasn't the man he was earlier, when he was sober," she added.
Price played a tape in which Scott discusses his love for Davis with a caller. "It's too bad. I loved her more than anything in the world. ... She's a little messed up right now. ... She's the sweetest, nicest thing in the world and I've never loved anyone in the world like her."
But he said she stopped taking her medication. Davis, who has maintained she had never been on antidepressants until the May 2005 shows stressed her, began crying. She put her head in her hands and looked down at the witness stand.
"Do you need a moment, Ms. Davis?" Judge Greider asked.
She sobbed. The judge gave jurors a 10-minute break.
After the break, Price played a May 11, 2005, show in which Scott said he'd discuss his life, but wouldn't mention any names. He described being told he now had to take drug tests, but maintained he'd never been a regular drug user and only used them when it got to a certain point, then he'd turn to drugs.
After five hours, Price's cross-examination ended and Thompson began his redirect. He asked Davis whether any of the tapes Price played to show Scott adhered to the warning came on the same dates of tapes he'd played to show he ignored the warning. They were.
Then he asked if the May 18 date Price contends was the date she called was consistent with her recollection she'd called the first week in May, as soon as Scott returned to the air.
That prompted an objection by Price, who argued there was no proof. They had a lengthy sidebar.
POSTED at 4:47 p.m.:
Thompson then continued, asking her about a fax she'd sent to George Beasley, showing jurors she not only called, and had him send a letter, but had faxed her demand.
"Did Joe Scott stop talking about you on-air?" Thompson asked.
"No, It actually got worse," she said.
Thompson started asking questions about Beasley Broadcast Group Inc., which Price maintains is not the station's owner. He wants to know about awards banquets she went to involving station employees. The invitations were from Beasley Broadcast Group. The questions prompt yet another sidebar, then Price accusing him of ignoring the judge's ruling and asking her to tell jurors to ignore it.
Thompson showed Brad Beasley called Davis, citing concern that Scott's demeanor and condition were changing.
Thompson quickly finishes his questioning by having her summarize that Scott continued ranting about her after she called to complain, sent a fax, and he sent a letter, and it got worse after that.
Jurors then were asked to submit questions. But a quick sidebar with the judge doesn't end in them being asked, as it has with the other witnesses. The jury is excused.
Some questions don't follow the rules lawyers are required to follow during trial, so they are stricken, while lawyers objected or requested others.
One asked what was the date Davis was on-air with Scott with no one else in the studio. Davis didn't know, noted Price hadn't mentioned it. But Davis believed it was 2004.
Another wanted to know how much time passed between when she was hired by David Weekley Homes and began work. She was interviewed over a six-week period and hired in late March or April, then began selling homes in August.
A juror wanted to know what month Brad Beasley called her, concerned about Scott's health. She said the first call was in March 2005.
She was asked if she had medical records about her rash, but she didn't.
A juror wanted to know who was in Scott's home when he allegedly assaulted their teenage daughter in March 2005. Two sons and two daughters.
She was asked what the month of the prostitution sting was that prompted the talk about prostitution, but she didn't know.
Price then asked to make a follow-up question and pointed out she would have been living with her husband, Mark, on Merritt Island in 2004 and wouldn't have been live on Scott's show.
She also asked how she could so clearly recall the date of Brad Beasley's call if she's unclear on other dates. But Davis said she remembered being in her backyard on Merritt Island and Beasley cited concern over Scott taking over for Howard Stern, whose show was ending then.
She asked if they discussed a relapse by Scott "in this call that you claim to have had." She said they had and they'd both cited concern over a possible relapse. Then Price pounced, asking if they'd discussed her using drugs with Scott during this relapse, but that prompted an objection by Thompson. She then asked if they discussed her and Scott smoking marijuana, but Thompson objected again and the judge sustained it, telling jurors to ignore it.
Thompson rested his case at 3:30 p.m. after six witnesses. Ten minutes later, the judge released jurors, warning them not to discuss the case with anyone, read about it on the Internet or newspapers, accept messages, emails, texts, Tweets or read or discuss it on any form of social media.
The jury is down to five women and one man after losing a second juror Thursday. He couldn't return due to a flight over the holiday weekend. The rest will return Tuesday, when the defense is set to begin its case.
Price is now asking for a directed verdict in the defense's favor, arguing Thompson didn't prove the plaintiff's case.
POSTED at 5 p.m.:
In asking Judge Christine Greider for a directed verdict in favor of Beasley Broadcast Group Inc. and its affiliates on the invasion of privacy count, defense attorney Kelley Geraghty Price contended tapes she played showed Scott stopped mentioning his ex-girlfriend, the plaintiff, by name.
"There may have been innuendos or indirect references," Price added.
Price argued that shows Davis voluntarily appeared on were far more damaging to her reputation and disclosed even more private facts about her and her family. She noted that when Davis served Scott with notice that she was seeking a domestic violence restraining order against him, she knew everyone at the station would talk about it and it would be a subject on his show.
"Joe Scott had every right to talk about it," Price said.
Citing case law, she argued that it was actually the domestic violence restraining order application that made her private life public because she detailed it and included emails and a transcript of a May 2005 broadcast.
Price told the judge the tapes showed Scott repeatedly talked on the air about how he couldn't talk about her or mention her name and private life and he never mentioned her name. However, she said Davis had become an integral part of his show because she'd willingly gone on air many times before the May 2005 broadcasts she sued over.
"She waived any right to privacy," Price said.
"The b-word was used once and, guess what? The b-word is permissible under FCC's indecency standard," Price said, adding that the FCC's invasion of privacy standard also follows Florida case law.
And, she added, "There has not been one scintilla of evidence ... against Beasley Broadcast Group Inc."
POSTED at 5:25 p.m.:
Thompson contended Davis was mentioned by Scott "every week, every day, every hour" and the recordings in evidence prove that. Scott repeatedly told listeners she was sleeping with all his friends and was being "nailed" by his friends.
"She was infected, she had STDs, she was spreading the clap," Thompson said, repeating what Scott said about Davis, his ex-girlfriend and mother of his daughter.
Thompson argued he told listeners she was on anti-depressants and was a "stinking b—. He noted that the disclosures about Davis violated the station's own policy about not discussing people who weren't public figures or celebrities.
"There is not one scintilla of evidence that my client, Patti Davis, is a public figure," Thompson said mimicking Price's argument and spitting out the word "scintilla.
He also scoffed at her contention that Davis' application seeking a restraining order against Scott made her a public figure. He maintained that bringing Scott back on the air made Scott "spiral out of control." He even told listeners that he was pushed to return to the air. Thompson said the Beasleys knew he was a drug addict because he'd been hired and fired four or five times.
"She just poked a beehive. It got worse," Thompson said of Davis asking Beasley to stop Scott from mentioning her name, which only made him do it more.
"It all built up to this two-hour show with Michael Hornung, criminal attorney, noted criminal defense genius," Thompson said sarcastically, referring to Scott using Hornung, who had been on his shows many times, to threaten Davis.
"Let's let a jury decide," he told the judge.
The attorneys then argued negligent hiring and retention. Price contended that the Beasleys would not have considered Davis to be in a "zone of danger" -- which she needs to prove -- because she'd been on the show willingly numerous times before. Price also maintained that much of what Davis alleges was done on Scott's private time, not at work.
By returning to his Cape Coral home and moving in with him, she argued, "She exposed herself to that."
She also noted that Scott had been written up for using one of the seven words forbidden by the FCC on air.
Thompson argued the Beasleys knew Scott's history as a drug addict and alcoholic because they'd hired and rehired him five times over 15 years, until terminating him in March 2006 after he relapsed, didn't show up for work or drug tests.
Thompson maintained they should have known that by taking him out of rehab too soon, he needed to be monitored because he could go out of control. He reminded the judge of his pretrial arguments and said he'd shown jurors the evidence to prove it through testimony and the tapes.
The judge reserved a ruling on both counts. Lawyers were excused at 5:25 p.m. They will return at 9 a.m. Tuesday, when Price will begin the defense case for Beasley Broadcast Group Inc., Beasley FM Acquisition Group and Beasley Broadcasting of Southwest Florida Inc.
Closing arguments also are expected by the end of the day.