By Denise Lavoie
AP Legal Affairs Writer
BOSTON - A defamation lawsuit filed by the founder of the rock group Boston against the ex-wife of the band's late lead singer was reinstated Tuesday by the Massachusetts Appeals Court.
The lawsuit was filed by Tom Scholz, who founded the band in the 1970s with lead singer Brad Delp.
Delp committed suicide in 2007, and Scholz claimed that remarks Delp's ex-wife Micki Delp made to the Boston Herald could be construed as blaming Scholz for his death.
A Superior Court judge found that the article was susceptible to a defamatory connotation, but he attributed that to the writers rather than Micki Delp's remarks. In its ruling, the Appeals Court disagreed, finding that Scholz has presented "sufficient evidence to demonstrate a genuine issue of material fact whether Micki is responsible for the defamatory connotation" of the article.
In March, a different judge threw out Scholz's separate defamation lawsuit against the Herald.
Boston was best known for its '70s hits "More Than a Feeling" and "Smokin."
The Herald article said Delp was driven to despair after a friend who was a longtime member of Boston was dropped from a summer tour. It also said Micki Delp recounted that Brad was upset over lingering bad feelings from the breakup of the band more than 20 years earlier. Brad Delp continued to work with Scholz and Boston, but also worked with former members of the band who had a bad falling out with Scholz in the early '80s.
Judge John Cratsley threw out Scholz's lawsuit against Micki Delp in August 2011.
He concluded that Scholz had not shown that Delp acted with malice in her comments to the Herald. The judge said it was "pure speculation" whether she spoke to the Herald in an intentional effort to blame Delp's suicide on Scholz.
Cratsley concluded that only one statement in the article could be reasonably construed to show that Micki spoke falsely or with reckless disregard for the truth and found that ill will between the parties was insufficient to show malice.
Judge Judd Carhart wrote for the Appeals Court wrote that a jury should determine whether a plaintiff has met the burden of demonstrating malice.
"From the record before us, we conclude that the judge's determination that Scholz could not prove the element of malice was error; in our view, such a determination should be left to the fact finder," Carhart wrote.
Scholz's attorney, Nick Carter, said Scholz "is pleased the Appeals Court has confirmed the statements attributed to Micki Delp in the Boston Herald are actionable and should be put before a jury."
"He looks forward to that opportunity," Carter said.
Jeffrey Robbins, the Herald's lawyer, said he believes the Appeals Court ruling will not have any impact on a judge's decision in March to throw out Scholz's lawsuit against the Herald.
Micki Delp's lawyer, Michael Day, said he believes Judge Cratsley was correct in dismissing Scholz's claims against Delp.
"Whether it is upon further appellate review, in the Superior Court or through the jury process, the claims will eventually be dismissed in their entirety," Day said.
By Denise Lavoie