Patterico's Pontifications

At the punitive damages hearing, the Court ruled the Oberlin post-judgment email was not admisdible on malice:

As far as the little bit of legal maneuvering, Judge John R. Miraldi had ruled yesterday that an email written by Donica Thomas Varner, Oberlin College’s Vice President and General Counsel, who has been in court since day one, was inadmissible. The email was sent to thousands of alums an hour or so after the jury came back with their $11.2 million verdict against the college, and was very much against the jury’s decision. The judge wouldn’t admit it because “this was a letter sent by the Oberlin general counsel after the verdict. We are talking about the actions of the defendants that demonstrated malice. What we will use is only what was litigated in court.”

A question for litigators: Could the Plaintiffs sue again for defamation based on this? I suspect they won’t but could they?

DRJ (15874d) — 6/12/2019 @ 8:53 pm

Gotta love a school with a massive endowment pleading poverty. Sounds just like the guy who murdered his parents asking mercy for being an orphan.

NJRob (3b8152) — 6/12/2019 @ 9:07 pm

I don’t know Ohio’s substantive law on libel, and I have not watched this case closely. But I see no statement of objective, verifiable fact about the plaintiffs, false or otherwise, in the blast email that the plaintiffs could claim to have further damaged their reputations. So under Texas law, the answer to DRJ’s would be “no.”

Beldar (fa637a) — 6/12/2019 @ 9:09 pm

DRJ, that’s an interesting question.

Dear Members of the Oberlin Community:

I am writing to update you on the lawsuit that Gibson Bros., Inc. filed against Oberlin College and Vice President and Dean of Students Meredith Raimondo in the Lorain County Court of Common Pleas in November 2017.

Following a trial that spanned almost a full month, the jury found for the plaintiffs earlier today.

We are disappointed with the verdict and regret that the jury did not agree with the clear evidence our team presented.

Neither Oberlin College nor Dean Meredith Raimondo defamed a local business or its owners, and they never endorsed statements made by others. Rather, the College and Dr. Raimondo worked to ensure that students’ freedom of speech was protected and that the student demonstrations were safe and lawful, and they attempted to help the plaintiffs repair any harm caused by the student protests.

As we have stated, colleges cannot be held liable for the independent actions of their students. Institutions of higher education are obligated to protect freedom of speech on their campuses and respect their students’ decision to peacefully exercise their First Amendment rights. Oberlin College acted in accordance with these obligations.

While we are disappointed with the outcome, Oberlin College wishes to thank the members of the jury for their attention and dedication during this lengthy trial. They contributed a great deal of time and effort to this case, and we appreciate their commitment.

Our team will review the jury’s verdict and determine how to move forward.

Donica Thomas Varner
Vice President, General Counsel & Secretary

Here’s the email in question and I’m amazed they sent this, taking no responsibility for something the court already held them responsible for. In my view, it’s tiresome how political activists try to ruin the lives of people they don’t agree with. Suing is one way to provide some safety to express views that run counter to the sort of person who does so destroy.

Dustin (6d7686) — 6/12/2019 @ 9:13 pm

But I see no statement of objective, verifiable fact about the plaintiffs, false or otherwise, in the blast email that the plaintiffs could claim to have further damaged their reputations. So under Texas law, the answer to DRJ’s would be “no.”

Beldar (fa637a) — 6/12/2019 @ 9:09 pm

It’s only indirectly about the plaintiffs, basically just saying their claims in court were wrong. The fact is that the claims were not wrong (as a matter of law) and I’m not sure why they would want to argue their case this way, or at this time.

Dustin (6d7686) — 6/12/2019 @ 9:22 pm

IANAL, but I don’t see anything scandalous about saying you disagree with an unfavorable verdict in a civil case.

You can argue that it was tactically dumb to do so before the penalty phase concluded (although in the event, it appears not to have mattered since the email was inadmissible), but they are under no obligation to accept the plaintiffs’ claims.

Dave (1bb933) — 6/12/2019 @ 9:24 pm

The defendants’ respective financial positions are material, relevant evidence for a jury to consider in determining how big a punishment would be adequate to deter future acts of misconduct. The plaintiffs would surely present evidence of Oberlin’s endowment and other assets and income streams; the defendants would surely attempt to put that evidence into a more favorable context. Plaintiffs, for example, tend to focus on gross income, defendants on net income. There’s nothing unusual about that, and of course, if the defendants’ “po’boy” defense is overplayed or otherwise unpersuasive, the plaintiffs are free to point that out to the jury as further evidence that a big punishment is needed.

Sending the blast email was incredibly stupid, though, as a matter of trial tactics. Many observers (including me) think, for example, that Texaco Inc. — immediately after the jury verdict in the case brought against it by Pennzoil — did itself no favors on appeal by comprehensively maligning Texas and Texans and especially their courts in the national press.

When I helped represent Houston’s electrical utility in the 1980s, the very instant we got the names and addresses of prospective jurors, we had our client immediately check to see which, if any, of those prospective jurors had past or present payment issues with the company. The very last thing we wanted was to have some juror’s power disconnected for nonpayment during the middle of the trial. There’s nothing whatsoever wrong about doing that; in small towns where most folks know each other, local lawyers are likely to know vastly more about jurors and their backgrounds and circumstances than we could tell from a simply payment history on utility bills. Indeed, the vastly larger problem for us and our client was that essentially every prospective juror was likely to have grumbled at having to write those steadily rising monthly checks to our client, leading some to view their jury service as an opportunity for payback.

Beldar (fa637a) — 6/12/2019 @ 9:25 pm

Dave wrote in part (#6):

… (although in the event, it appears not to have mattered since the email was inadmissible) ….

I agree with the ruling that the email was inadmissible. The problem, however, is that unless a jury is comprehensively sequestered during the trial or, as here, during the gap between the liability and punitive damages phases of a bifurcated trial — cut off from all news sources, friends, family, etc., which almost never happens in civil cases — all it takes is for one juror to have heard of the email and taken offense at it. And then (one may reasonably presume), despite the judge’s instruction to based their punitive damages award solely on the basis of evidence admitted during the trial, and the caution against consulting the internet or other resources to learn more about the case, the whole panel is likely to hear of it back in the jury room. Whether that would or wouldn’t constitute jury misconduct that might require the retrial of the whole case is a question that could go either way, depending in large part on how Ohio defines jury misconduct; most states deliberately make jury misconduct claims very hard to win, however.

So yeah, it’s stupid for a litigant to be commenting about the case, other than through counsel in the courtroom, at least until it’s actually over.

Beldar (fa637a) — 6/12/2019 @ 9:36 pm

Further to my #7, when I wrote:

Indeed, the vastly larger problem for us and our client was that essentially every prospective juror was likely to have grumbled at having to write those steadily rising monthly checks to our client, leading some to view their jury service as an opportunity for payback.

Addressing this subject head-on, and extracting a commitment from the prospective jurors that they could and would set their resentment aside in weighing the evidence and reaching their verdict, was of course something we included in every voir dire examination. Typically the way that was handled was to paraphrase from parts of the standard court’s charge that we, our opponents, and the judge knew would be included in this trial’s jury instructions, and then to pick two or three of the most obviously reasonable people on the panel to ask individually, “If the judge instructs you to base your verdict only on the evidence from the witness stand, can you put aside your irritation at having to write that check every month?” Having secured two or three strong “Yes, I can do that” answers, you then ask the entire panel (while nodding to encourage an affirmative answer), “Raise your hand, please, if you can do that, just like Mr. Jones and Ms. Smith here have told us they can.”

Beldar (fa637a) — 6/12/2019 @ 9:42 pm

(We still never took a juror who’d had a disconnection in the past.)

Beldar (fa637a) — 6/12/2019 @ 9:43 pm

Was the other side given access to the complete billing history of all prospective jurors as well?

Dave (1bb933) — 6/12/2019 @ 9:47 pm

IANAL, but I don’t see anything scandalous about saying you disagree with an unfavorable verdict in a civil case.

I agree. I guess the losing party can refuse to ever agree with a verdict, and I’ve seen that happen. But I wondered if there is a point where questioning a verdict crosses the line and becomes actionable. Maybe saying a verdict was based on lies or perjury?

DRJ (15874d) — 6/12/2019 @ 9:49 pm

My “nonlawyer” opinion is that Beldar is correct. Not defamation of Gibson’s, but it sure as hell drips with contempt for the jury. My fave comment from LI was “they might as well have gone ahead and called the jury a bunch of deplorables while they were at it.”

Russ from Winterset (0e63d4) — 6/12/2019 @ 9:50 pm

@ Dustin, who wrote (#5):

The fact is that the claims were not wrong ….

It’s way too soon to say that. It would be too soon to say that even after the punitive damages phase of the trial was over. Many, many plaintiffs’ verdicts in libel cases end up being set aside, or heavily modified, by the trial judge during motions for new trial even before the appellate process starts. And as a general rule, appellate courts are notoriously hostile to plaintiffs’ verdicts on appeal. Plus, when at least one defendant is a public figure, there will have been federal questions raised that could support a certiorari petition to the SCOTUS even if the plaintiffs manage to hang on to their verdict throughout the state-court appellate process.

There’s no doubt that these plaintiffs have the upper hand as a result of the liability and actual damages verdict, and that it’s likely to be an even stronger hand after the punitives verdict — which in many, many cases leads to a fresh look at settlement prospects. But there are too many unhatched eggs to say yet that these particular claims “were not wrong,” and thus too soon to start counting chickens.

Beldar (fa637a) — 6/12/2019 @ 9:51 pm

@ Dave (#11): Nope. These weren’t public records. They were private records of past contractual dealings between our client and its customers. The adversary system doesn’t require that you tell your opponent something your client already knew about a prospective juror, or each of them, before either of you got to the courthouse.

Every case I’ve tried in a small town, I’ve hired local counsel for the express purpose of helping me pick a jury based on what they knew of the prospective jurors. If the other side wasn’t local, or hadn’t hired similarly knowledgeable local counsel, that was their own mistake.

Now, the plaintiffs in those cases certainly could have asked during voir dire, “Have any of you had your electricity disconnected for nonpayment?” But that would have been stupid. Yes it would have revealed potentially useful information — “Hey, prospective juror #17, Mr. Smith, said his power was turned off in 1972, I’ll bet he’s still holding a grudge, so by no means should we try to get Mr. Smith disqualified or use a strike on him.” But that wouldn’t have been in their interests to ask, because it would have embarrassed Mr. Smith publicly in front of the entire jury venire, which might become a newer, stronger grudge; and if they hadn’t already realized that we were screening for that, certainly identifying such people publicly during voir dire would have told us we needed to get rid of that juror.

Beldar (fa637a) — 6/12/2019 @ 10:01 pm

These days, it’s a poor trial lawyer who doesn’t have an assistant frantically researching each prospective juror on the internet generally (using Google or some other search engine), and perhaps also searching major online public data bases that aren’t connected to the internet (e.g., tax foreclosure records) about every prospective juror in every case. One is no more obligated to share that information with one’s opposing counsel than one’s obligated to share the rest of one’s jury selection strategy.

Beldar (fa637a) — 6/12/2019 @ 10:06 pm

Well, I’m glad that all the countless ways the internet has given people to advertise their biases and other unflattering information about themselves has benefited someone…

🙂

Dave (1bb933) — 6/12/2019 @ 10:16 pm

@ DRJ, who wrote (#12):

… I wondered if there is a point where questioning a verdict crosses the line and becomes actionable. Maybe saying a verdict was based on lies or perjury?

I’m pretty sure that Texas courts would treat any statement regarding what a verdict was “based on” as a statement of opinion, since it requires one to read the minds of multiple people. But other states don’t adhere to the old-school “objective verifiable fact vs. opinion” distinction as aggressively as have the Texas courts. Some other states aren’t nearly so fussy about that; I have no idea where Ohio is on that spectrum.

The witness accused of the lies or perjury might conceivably have a claim, though, regardless of whether that was or wasn’t a basis, or the basis, of the jury’s verdict.

Beldar (fa637a) — 6/12/2019 @ 10:19 pm

Thank you for the interesting analysis, Beldar.

Dustin (6d7686) — 6/12/2019 @ 10:19 pm

The defense argued that students would be harmed by a large verdict because the college might have to cut back on grants given to students.

These are the very same students that the college blamed for the libel and other actions that cause the losses to the bakery. Seems like, I dunno, justice?

Kevin M (21ca15) — 6/12/2019 @ 10:24 pm

Maybe the college could try to cut all financial help to the students involved, although that would probably backfire if the students claimed the college encouraged them.

Kevin M (21ca15) — 6/12/2019 @ 10:25 pm

On another topic, my irony meter is pegged.

Kevin M (21ca15) — 6/12/2019 @ 10:27 pm

I echo Dustin. Thank you, Beldar.

DRJ (15874d) — 6/12/2019 @ 10:38 pm

that would make a large punitive award difficult for the college

That’s the point.

I’m not a lawyer but I would be itching to make it “difficult for the college” at this point.

Patricia (3363ec) — 6/12/2019 @ 10:45 pm

Good point, Patricia. That is what punitive damages do.

Also, Dustin, it is nice to read your comments.

DRJ (15874d) — 6/12/2019 @ 10:50 pm

I think this link is to Oberlin student newspaper articles and letters regarding the bakery. Most writers saw the college as not only right but almost victimized by the bakery.

DRJ (15874d) — 6/12/2019 @ 10:59 pm

You’re welcome, DRJ & Dustin. I’m just tickled with DRJ’s “headlines” posts, especially since so many of the things she finds interesting, I do too!

Beldar (fa637a) — 6/12/2019 @ 11:17 pm

Most writers saw the college as not only right but almost victimized by the bakery.

I could not get through to the link. The fact that all the kids at the university are backing the college probably makes the case for the punitive damages much better. As boycott and name and shame becomes a bigger part of the woke community’s toolkit, we will be seeing a lot more of these cases, and maybe, it will start dialing back some of the nonsense.

Appalled (d07ae6) — 6/13/2019 @ 6:14 am

“Gotta love a school with a massive endowment pleading poverty.“

– NJRob

Agreed. It’s funny when the Catholic Church does it, too.

Leviticus (e9f012) — 6/13/2019 @ 6:32 am

Theer was an op-ed article abot this yesterday in the Wall Street Journal yesterday by William A. Jacobson of Legal Insurrection:

https://www.wsj.com/articles/oberlin-pays-for-smearing-the-town-grocer-11560294176

Behind a paywall. But here’s some:

On Nov. 9, 2016, an African-American male Oberlin student attempted to buy wine from Gibson’s Food Mart and Bakery using a fake ID. Allyn D. Gibson, a grandson of the shop’s owner, refused to sell the underage customer alcohol, then noticed the student had two bottles of wine concealed under his shirt.

As Mr. Gibson called the police the student fled, dropping the bottles on the floor. A scuffle ensued when Mr. Gibson pursued him. Two African-American female Oberlin students, apparently accomplices of the suspect, joined in the physical confrontation. When police arrived on the scene, the three were beating Mr. Gibson on the ground.

None of these facts were ever in dispute, even among the three suspects, who all pleaded guilty to an array of charges. The first suspect swore in his plea statement that Mr. Gibson “was within his legal rights” to detain him, and that he did not believe Gibson’s actions were racially motivated.

But this happened the day after Donald Trump was elected Presdent.

Sammy Finkelman (9974e8) — 6/13/2019 @ 6:52 am

From the email:

Rather, the College and Dr. Raimondo worked to ensure that students’ freedom of speech was protected

I think it is more likely that they treated the claim of racial profiling (and false arrest, too?) as true even though they had good reason to believe it was not true.

And never, ever, contradicted the claims that were being made in public, and never tried to stop the protests by educating people as to the true facts.

They also took retaliatory actions against the store, when the store refused to arrange for the charges to be dropped against the students who had assaulted a store employee, and to make a (secret?) committment NEVER to report any alleged crimes by students to the police, but only to the school.

Now they probably did that because they didn’t want the college administration to be themselves the target of protests and worse – and what did they care about fairness to the store, when their won ability to function was at stake?

They only wanted peace.

Sammy Finkelman (9974e8) — 6/13/2019 @ 6:58 am

20.

These are the very same students that the college blamed for the libel

Well, actually the next cohort of students.

Sammy Finkelman (9974e8) — 6/13/2019 @ 7:00 am

From the blast email

Neither Oberlin College nor Dean Meredith Raimondo defamed a local business or its owners, and they never endorsed statements made by others.

This a legal defense. What that means is they never put the college’s name to any lies.

They did indeed help others lie – including by giving time off for protests based on lies. They didn’t forthrightly try to correct the record, but joined in the slanders to some degree. Just by not contradicting them they were attaching themselves to slanders which they knew to be slanders.

Now, they were probably trying to moderate them. Perhaps when they “guided student-government leaders in promoting a resolution to condemn the bakery and Gibson family” (William A. Jacobson) , they were actually working to tone it down. But they were not working to publicize the truth, when that was the right, albeit courageous, thing to do.

They did all this because they were afraid of the students, and because they didn’t want controversy, and to be boycotted themselves, and individually fired, etc.

Institutions of higher education are obligated to protect freedom of speech on their campuses < Institutions of higher education are obligated to protect freedom of speech on their campuses

Are they also obligated not to fight hatred and slanders, if the slanders are going uncontradicted?

Sammy Finkelman (9974e8) — 6/13/2019 @ 7:32 am

When you think Hillary’s gonna win:

“WE’RE PART OF THE GREAT TIDE OF SOCIAL HISTORY, THE VANGUARD OF THE STRUGGLE FOR SOCIAL JUSTICE, WE HAVE RICH SUPPORTERS FROM ACROSS THE COUNTRY, WE WILL BURY YOUR REGRESSIVE IDEOLOGY WITH THE FULL SUPPORT OF ORGANIZED LEFTISTS FROM ACROSS THE COUNTRY, WE’RE SO INTERSECTIONAL WE CAN DO WHATEVER WE WANT AND NO ONE’S GOING TO STOP US”

When Trump wins:

“We’re just a simple cash poor country collitch and big punitive awards to Gibson’s Bakery will hurt the poor, poor minority students we’ve been struggling to protect from the Big Bad Bakery”

But seriously, if you can’t carve a measly 11 million out of administration salaries and couch cushions then why do you even have an accounting department?

Antoid (c6cbe0) — 6/13/2019 @ 7:36 am

That link worked for me and the amount of cluelessness in the editorials is rather alarming:

“Oberlin remains America’s most luminous beacon for a more just, peaceful, and humane world.”
_

“This lawsuit is not a sporting event; its outcome has the potential to be earth-shattering.”
_

“News of the lawsuit — which is meant to bully and intimidate College students, faculty, and staff, and can be read in full on the Review’s website — was relayed to the College community almost exactly one year after students initiated a protest…..”
_

“In the wake of the election there have been a chilling number of reports of white supremacist and misogynistic intimidation, harassment and even physical violence by emboldened Trump supporters. Oberlin students, via the Gibson’s boycott and protest, have come into direct contact with people on the other side of the political spectrum who seem similarly emboldened.
Take, for example, the creepy and abusive “Gibson’s Bakery Support Page” on Facebook, which was created in opposition to the protest and actively attempted to identify participating students. Gibson’s online supporters also echoed Trump’s authoritarian rhetoric when they referred to the student boycott as “libel and defamation”…”
_

harkin (470cbb) — 6/13/2019 @ 7:37 am

My hope would be that 12 jurors would see fit to take the post-verdict email into consideration regardless of the judge’s orders or the legality of it. I look forward to auditing classes at the soon-to-be Oberlin College /Gibson School of Whoop Ass.

skwilli (a0813f) — 6/13/2019 @ 8:21 am

Thank you, Beldar. As Patterico would tell you, issues related to this topic are of great interest to me. Thank you for taking the time to carefully and politely lay out your analysis.

Simon Jester (9a28af) — 6/13/2019 @ 9:53 am

# 1

The judge’s ruling on the post-verdict email is interesting. Not sure I agree with it. One of the purposes of punitive damages is to deter the defendant and others from repeating the act. The email basically says, we did nothing wrong and the jury is full of it. Not sure why that would not be admissible on the need for deterrence.

Bored Lawyer (998177) — 6/13/2019 @ 10:06 am

The only way the blast email harmed the Gibsons is by mischaraccterizing the case. It did not actually say they were not slandered, but it didn’t inform anyone who didn’t already know what the case was all about. If you didn’t know, it wouldn’t even be clear what the email was saying.

Dustin (6d7686) — 6/12/2019 @ 9:22 pm

The fact is that the claims were not wrong (as a matter of law) and I’m not sure why they would want to argue their case this way,

Fundraising. They didn’t want alumni to stop contributing, or helping the university in other ways, like admissions.

or at this time.

They didn’t even want gift hesitation.

And also this was the time to strike: before impressions had hardened. And the alumni would expect a response. So they said the verdict was wrong, and a bad precedent and tried to hint they might appeal.

It was addressed only to the alumni, and not the general public: Sort of like a corporation that lost a case sending a message to its stockholders.

Sammy Finkelman (9974e8) — 6/13/2019 @ 10:07 am

@ Bored Lawyer (#38): You make a clear and cogent case for the email’s admissibility.

I certainly agree that post-incident conduct in general, including evidence of the defendants’ lack of remorse, generally ought to be admissible. If, for instance, the college president, on the day after the liability and actual damages verdict, had called a press conference and had repeated the claim of racial profiling, or made new defamatory statements about the plaintiffs, that would have been fair grist for the mill.

That instead this email came from the company’s general counsel, was sent to less than the entire public (even though it was a pretty wide “blast”), and addressed almost exclusively the litigation process rather than the underlying merits (even the “clear evidence” comment went to the litigation process), was just enough to tickle the judge’s discretion in the other direction, toward excluding the email. It’s fair to punish the defendants for being repentant as to the original torts, but not simply for publicly expressing disagreement with the verdict or for publicly commenting on their further litigation alternatives. If the general counsel’s email had simply said, “We thank the jury for its service, even though we’re disappointed in its verdict,” that would have been no different from the speech I’ve given to departing jurors in every case I’ve ever lost. As written, the email pushes the edges of that envelope pretty hard, but I don’t think it breaks through to the other side. I think that’s what the judge’s in-court explanation of his ruling was trying to convey.

Of course, any appellate review of evidentiary rulings like this one would likely be on an “abuse of discretion” standard, which is very hard to meet.

Beldar (fa637a) — 6/13/2019 @ 1:08 pm

In #40 above, I meant to write “It’s fair to punish the defendants for being unrepentant as to the original torts ….”

Apologies for the likely confusion caused by that editing error.

Beldar (fa637a) — 6/13/2019 @ 1:13 pm

@ Simon Jester (#37): You’re welcome. The comments on this post are all quite good, and it’s an interesting fact pattern.

Beldar (fa637a) — 6/13/2019 @ 1:17 pm

The jury reached a verdict on punitive damages.

DRJ (15874d) — 6/13/2019 @ 1:35 pm

6/12/2019

Follow Up: Bakery vs Oberlin Punitive Damages Hearing

43 Responses to “Follow Up: Bakery vs Oberlin Punitive Damages Hearing”

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