By Dick Goehler, Frost Brown Todd, LLC

On August 2, 2010, U.S. District Judge Mary McLaughlin held that the discovery rule would not toll the statute of limitations in a mass-media defamation case.  Wolk vs. Olson, No. 09-4001, U.S. Dst. Ct., E.D. Pa.

The case arose in Pennsylvania from the following facts.  The plaintiff Arthur Wolk was a very well known and prominent aviation attorney.  One of the defendants, Overlawyered.com, was a public website that attracted more than 9,000 unique daily visitors, including tens of thousands of lawyers and other professionals.

In 2002, a trial judge in a case in which Wolk was representing one of the parties issued a pretrial order critical of Wolk’s conduct, but Wolk was not personally involved in any of the asserted conduct.  The trial judge later vacated that pretrial order and sealed it from publication and the parties settled the case.

Several years later, on April 8, 2007, Theodore Frank wrote a blog article for Overlawyered.com critical of the events in the 2002 case involving Wolk.

In April 2009, Wolk discovered the blog article written by Frank.  He immediately contacted Frank and demanded that the article be removed from the Overlawyered.com website.  Frank and others at Overlawyered.com refused to remove the article from the website.  Wolk then filed a defamation complaint on May 12, 2009 against Frank and Overlawyered.com.

Pennsylvania has a one-year statute of limitation for defamation claims which begins to run from the time of publication.  Frank published his article about Wolk on April 8, 2007 and, as a result, the statute of limitations would have run on April 8, 2008.  Wolk’s complaint, therefore, was time-barred by the statute of limitations when he filed it on May 12, 2009, unless Wolk could establish that some tolling principle had tolled the one-year statute.

In this case, Wok argued that the “discovery rule” applied – a rule which tolls the statute of limitations because of the plaintiff’s inability . . . despite the exercise of reasonable diligence, to know that he is injured and by what cause.  U.S. District Judge McLaughlin, however, disagreed.

In dismissing Wolk’s complaint as time-barred by the one-year statute of limitations, Judge McLaughlin found that the “discovery rule” was intended for hard to discern injuries which would be at odds with a cause of action based upon a defamatory statement disseminated through a mass medium, like a website, and received by tens of thousands of readers. 

Judge McLaughlin further indicated that she was not aware of any case in which the discovery rule had been applied to postpone the accrual of a cause of action based upon the publication of a defamatory statement contained in a book or newspaper or other mass medium and therefore found that the discovery rule should not apply in a defamation case, like this one, based upon a blog article posted on a website.