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Liability for tossing a naked, willing porn star from a roof into a pool? Tom Goldstein thinks not

Posted May 19, 2014 6:15 AM CDT
By Debra Cassens Weiss

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ABA Journal file photo of Tom Goldstein.

Here’s proof that Supreme Court litigators aren’t always mired in highfalutin constitutional cases.

Tom Goldstein, the poker-playing lawyer who founded SCOTUSblog, is representing millionaire poker player Dan Bilzerian in an apparent effort to head off a lawsuit by porn star Janice Griffith, report Total Frat Move, Josh Blackman’s Blog and Above the Law.

Bilzerian threw a naked Griffith off a building into a pool below (it was chronicled on videotape), and Griffith broke her foot, resulting in the threat to sue for $85,000. Goldstein declined to comment when contacted by the ABA Journal, but his May 12 letter has the circumstances, as he sees them.

“I am genuinely sorry that your client was hurt,” Goldstein writes to lawyer Shoham Solouki. “No one wants to see anyone injured. But the suggestion that Mr. Bilzerian is responsible for the injury is embarrassing. I’m sorry she made you suggest it in writing.

“The whole tragi-comedy is of course on tape. Given that you agreed to send Mr. Bilzerian a threat to sue, I can only assume you must not have seen it.

“It shows facts your client always omits: She was under contract to Hustler and agreed with Hustler’s request that she be photographed while being thrown off the roof. I always thought that this kind of thing was Photoshopped instead. Perhaps Hustler’s editorial standards would not permit it. Perhaps she insists on doing all her own stunts. I really do not know.

“In all events, she agreed. Very few people I know would make that choice. But there it is. And chronologically, she’s an adult competent to make it. Hustler and your client asked Mr. Bilzerian to be the thrower, and we can all agree that was the better end of the deal.

“Like your client, the facts of the claim won’t, quite, fly. The tape shows the two carefully practicing this flight of fancy under Hustler’s direction, and your client expressly agreed to go ahead. In legal limbo, she assumed the risk.

“But maybe I’m not creative enough. Maybe your client’s legal theory is that Mr. Bilzerian negligently violated the established standard of reasonable care for one who throws a porn actor off a roof into a pool during a photo shoot for an adult magazine. I’ll let that one sink in for a moment.

“But there’s more. The tape shows that she did the one thing that she had been explicitly told in advance would stop her from making it to the pool: she grabbed Mr. Bilzerian’s shirt. Now I’m no physicist. And it won’t surprise you that I don’t have any relevant experience. So I don’t know the precise amount of thrust it takes to heave someone across to a pool a floor below. But I’m also not blind. And it is apparent that Mr. Bilzerian’s shirt did not reach out and grab her.”

The letter goes on to say that Griffith “will obviously lose” if she sues Bilzerian, who will not agree to settle. And the complaint, Goldstein claims, will be “sanctionably frivolous. Your client should just box up almost every last bit of her property (please exclude all videos and photographs, as well as the seemingly inevitable small yappy dog) and drop it off with you in safekeeping for Mr. Bilzerian.”

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