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 did not immediately return a call seeking comment.