A Marion Superior Court Judge on Tuesday dismissed all counts against three of the four defendants in a defamation lawsuit that former IndyCar driver and longtime television racing analyst Derek Daly filed last April against Emmis Communications Corp., the Indianapolis Colts, former Colts game announcer Bob Lamey and Emmis on-air sports personality Joe Staysniak.
Judge Tim Oakes, without explanation, dismissed all counts against Indianapolis-based Emmis, the Colts and Staysniak.
Oakes, however, ordered the dismissal of only one of six counts in the lawsuit against Lamey.
The only count dismissed against Lamey was Count 1, which alleged conspiracy to defraud. Lamey still faces counts related to punitive damages over his testimony in a related case, defamation, tortious interference of business, tortious interference of a business relationship and another count of punitive damages.
The order was granted one day after Oakes heard oral arguments from the defendants on their motions to dismiss.
Daly was fired from his 30-year job as racing analyst at WISH-TV Channel 8 in August 2018 over a racial slur he made in the early 1980s. Daly has not denied making the slur, but contends Lamey was inaccurate in his retelling of the incident. That retelling, which included the slur, also cost Lamey his job with the Colts. He retired, at age 80, within days of making the remark.
The former driver claims that Emmis, Staysniak and Lamey “conspired to conceal true facts of the events of Aug. 14, 2018, and what was said by Lamey and Staysniak about Daly’s comments from some 35 years prior …”
Daly, 67, claimed in the lawsuit that Emmis officials, Lamey and Staysniak lied “to protect Lamey from a defamation lawsuit and to protect Staysniak from damages to his business reputation, which would have been a result of a truthful retelling of the events of some 35 years earlier.”
In the suit, Daly claims Lamey, on Aug. 14, 2018 — while still working as a Colts broadcaster — recounted a story off the air to Staysniak and attributed racially inappropriate comments made in the story to Daly. The story was overheard by Emmis employee Sharlene Birdsong, who complained to Emmis officials.
Daly told IBJ that the story Lamey recounted was not accurate and did not properly put Daley’s use of the n-word in context.
Daly, who was born in Ireland, told IBJ what he said to a broadcaster while he was still a driver more than 35 years ago was part of a common “Irish colloquialism.” In a previous interview with IBJ, Daly said he did not understand at the time that the saying was racially insensitive or offensive in America. He said he quickly learned about the derogatory nature of the word and has not used it since.
“In the early 80s, after I had recently relocated to the United States, I was interviewed by radio reporter Larry Henry and I was asked about my situation with my new American team,” Daly said in an email to IBJ in 2018. “I responded by explaining that I was a foreign driver now in America, driving for an American team, with an American crew, and with an American sponsor — and that if things did not go well, the only ‘n***** in the wood pile’ would be me. At the time, I meant that I, as the new foreigner on the team, would shoulder the blame and I would be the scapegoat. This was not in any way shape or form meant to be a racial slur.”
In February 2019, Daly sued WISH-TV and its then-parent Nexstar Media Group over his firing. He initially sued for $25 million, then later amended the suit to take the amount out.
Daly’s suit says Birdsong contradicted what Lamey and Staysniak said in their depositions in his case against Nexstar. Birdsong testified that Lamey told Staysniak that the phrase Daly used was “there aren’t any [n-words] in this race,” the suit says.
Daly’s lawsuit claims that depositions given by Lamey and Staysniak contradict Birdsong’s deposition. Both men testified that Daly used the phrase, “I’ll be the n***** in the woodpile.”
According to the suit, Birdsong’s attorney said there was now an agreement between Birdsong and Emmis that prevented Birdsong from disclosing certain information and answering certain questions about the events of Aug. 14, 2018, and thereafter.
Daly says in the lawsuit he has a recorded admission of Lamey saying what Birdsong reported Daley said is true, and not what Lamey said in the deposition. That recording, Daly said, was made during a lunch he and Lamey had at Rick’s Boatyard on Dec. 18, 2019.
In their motion to dismiss, Emmis and Staysniak argued that all of Staysniak’s statements were absolutely privileged because they were made in a separate federal case. They also argued that Daly failed to offer any evidence of a conspiracy or that Emmis and Staysniak ever uttered a defamatory statement.
“I am pleased with the judge’s order dismissing the claims against Emmis and Big Joe,” Emmis CEO Jeff Smulyan said Wednesday in a written statement.