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Gibson’s Bakery v. Oberlin College – Defense motion for directed verdict DENIED, case going to the jury

Gibson’s Bakery v. Oberlin College – Defense motion for directed verdict DENIED, case going to the jury

The defense starts calling witnesses next week, but it’s now clear that the jury is going to evaluate the social justice warfare visited on the bakery and its owners, and to deliver the justice of the judicial system.

Today was argument on the defense motion for a directed verdict in Gibson Bros. v. Oberlin College. The events giving rise to the lawsuit have been said to represent “the worst of identity politics.”  You can read about some of the background on this case here.

[Student protesters against Gibson’s Bakery][via YouTube]

The defense lawyers for Oberlin College filed a motion for a directed verdict, to keep the jury from considering all or part of plaintiffs’ claims. You can read the Motion for a Directed Verdict (pdf.) and Opposition (pdf.) at the bottom of this post. The motion papers contain extensive excerpts from the trial transcript and evidence each side believed helped its case.

Professor Jacobson explained the nature of a motion for directed verdict in a note to my post yesterday:

The motions to be argued tomorrow are what are called motions for directed verdicts (some courts call them motions to dismiss at the close of the plaintiff’s case). The standard is that all factual inferences based on the evidence presented have to be drawn in favor of the plaintiffs; if after taking the facts and inferences in plaintiff’s favor the court finds that no reasonable jury could rule in plaintiffs’ favor under the applicable law governing the claims, then the claims would be dismissed. It’s not all or nothing, the court could dismiss some claims but not others. It is a legal standard similar to the pre-trial summary judgment standard, so it’s worth looking at the court’s legal rulings on summary judgment, which we covered here: Putting Social Justice Warfare on trial: Gibson’s Bakery lawsuit against Oberlin College heading to trial.

The difference is that while on summary judgment the plaintiff only needs to show that there are disputed issues of material fact, here the court will need to find that sufficient evidence was presented such that under applicable law a reasonable jury could find for plaintiffs….

Lorain County Common Pleas Judge John R. Miraldi heard more than two hours or argument from the attorneys this morning. He issued his ruling this afternoon, denying the motions in their entirety, without explanation.

“On May 23, 2019, Defendants filed a Motion for Directed Verdict in accordance with Ohio Civ. R. 50. On May 24, 2019, Plaintiffs filed a Response in Opposition, and the Court heard oral arguments regarding the parties’ respective briefs. After considering the above, Defendants’ Motion for Directed Verdict is denied.”

Defendants had argued this morning that 1) the plaintiffs’ claims should be thrown out because they didn’t present enough evidence, and/or 2) legal precedent wouldn’t permit them. Judge Miraldi mostly just listened to the arguments, without questions.

Here were the main arguments by the defense team :

  • That Oberlin College’s association with the school’s Student Senate resolution that allegedly defamed Gibson’s as having a “history of racial profiling and discriminatory treatment of students” was just done by a group of students, not by the college itself. The plaintiffs’ attorneys argued that, yes, the school was involved with them, as the student senate consulted with the school in some regards about the Gibson’s student protests on Nov. 10-11, 2016 and the school allowed the resolution to be posted publicly in the student union for about a year. But the defense argued that was not legally significant. The defense argued it was the old argument that if “a tree falls in the forest and nobody hears it, does it really fall.” But the plaintiffs basically answered with, “Huh? Lots saw it fall and lots heard it fall.” The judge apparently agreed that lots of people heard and saw that tree fall.
  • The school did not want to jury to be able to rule on anything about 90-year-old Allyn W. Gibson’s fall after having his home windows’ banged on late at night, at the same time other mysterious acts of car keying and tire-slashing were occurring in the small town. The judge ruled that the elderly Gibson’s triple neck vertebrae breakage could be considered as “duress” that can be considered in judgment by the jury.
  • The school said there was no “malice” involved at all in any of the libel and defamation claims, and that part of the complaints must be thrown out. The plaintiffs reminded the judge there was plenty of malice toward the Gibson’s shown in emails to each other by the Oberlin College administration and the judge appeared to agree with that assessment.
  • The issue of defining libel was also brought up. The school argued that just passing out a flyer with defaming context on it is not enough to have libel considered by the jury. The plaintiffs argued that it was not just the passing out of the flyer alone in consideration; the school’s support of the protesters and their flyer in various ways (such as approving school photocopiers to be used to reproduce the flyer) should be considered. They will be.
  • It was argued by Oberlin College that they should not be considered as a cause in loss of business for Gibson’s food producing arrangement with the school because Oberlin College used a private contractor to run their cafeteria food business. The plaintiffs argued that the private contractor did what the school told them to do in their business arrangement, and in this case they did, and that means the school was directly involved in Gibson’s being removed from their campus cafeteria donut, bagel and pizza dough delivery business. The judge, once again, appears to have agreed with the plaintiffs
  • Business owner David Gibson had been involved in some long-term business plans of apartment acquisition and building of them, and an economics expert had testified that the protests and racial accusations laid against the business killed such plans. He labeled them as “missed opportunity” that they should be considered by the jury in punitive damages if they get to that stage. The defense said such consideration of future earnings were “speculative” and should be taken off the jury’s plate. The judge appeared to rule the jury can consider speculation.

[David Gibson explaining shoplifting incident][via police body cam video]

Oberlin College will begin their presentation of witnesses and evidence to the jury starting Tuesday. Nine witnesses are scheduled to testify for the defense , down substantially from the numbers expected from them during the first week of trial. Scheduled to start thing off are co-defendant Dean of Students Meredith Raimondo, former Oberlin College president (and there during the time of the protests) Marvin Krislov, and Oberlin Police Lt. Michael McCloskey

Have a great Memorial Day weekend.

Daniel McGraw is a freelance writer and author in Lakewood, Ohio. Follow him on Twitter @danmcgraw1

[Featured Image: Plaintiff Allyn W. Gibson – Photo Daniel McGraw for Legal Insurrection Foundation]

WAJ adds: As indicated in yesterday’s post, I expected the key libel and business interference counts to survive, but was less certain about some of the ancillary claims, such as intentional infliction of emotional distress. The summary rejection of the motion for a directed verdict is an indication that the testimony presented was sufficient for the jury to make the decision on issues such as malice, intent, and damages. Again, I’m not predicting an outcome, but I’d rather be the plaintiffs right now than the defendants.


WAJ NOTE: Our trial coverage is a project of the Legal Insurrection Foundation. Your support helps make this type of coverage possible.

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Gibson’s Bakery v. Oberlin College – Defense Motion for Directed Verdict by Legal Insurrection on Scribd


Gibson’s Bakery v. Oberlin College – Plaintiffs’ Opposition to Motion for Directed Verdict by Legal Insurrection on Scribd


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legacyrepublican | May 24, 2019 at 5:27 pm

Excellent. It will be interesting to see what kind of defense they put up.

Bet it is going to go something like this …

We are elites. We didn’t do anything wrong. The students were the ones out of control. They weren’t listening to us anyway. Even if we said they weren’t racists, what difference would it make. Our students are adults and we aren’t responsible for what they believe. Blah, blah, blah, and a snobby self-righteous blah.

    LeftWingLock in reply to legacyrepublican. | May 24, 2019 at 7:30 pm

    How about — “Trump made us do it. If he hadn’t stolen the election from President Hillary, none of this would have happened.”

    Valerie in reply to legacyrepublican. | May 24, 2019 at 9:49 pm

    Oh, I’m just waiting to hear “We were victims of a Dissociative fugue. It wasn’t our fault, Trump won and we were sensitized!!!!!”

So not looking good for Oberlin then.

As Obama and his henchmenfucks were fond of saying, nice school you got there. Be a pity if anything happened to it.

    c0cac0la in reply to mailman. | May 25, 2019 at 4:28 am

    Except the schools were already made. They were willing participants to Obama’s decrees. Notice the Resistance to the rolling back of the Dear Colleague letter.

    Even at my alma mater, Texas A&M, they had rolled out sexual assault allegation procedures that were consistent with the Obama’s letter rather than the higher standards advocated by Devos.

So it sounds like the judge had already anticipated this from the defense, and they presented absolutely no new evidence or arguments to sway him.

Not surprised. The BIG points that make Oberlin liable seem to be:

-Raimondo herself participating in the protest and handing out fliers saying they’re racist
-The college trying to play dumb and act like they have no authority over the official student union defaming Gibson’s.
-Emails showing clear malice against Gibsons and verifying that they were demanding Gibsons stop reporting shoplifting to the police as a CONDITION of reestablishing their business

But the real kill shot, IMO, was when they got into testimony that Oberlin had explicitly told the contractor to end their relationship with Gibsons.

This is not looking good for the arrogant schmucks at Oberlin.

Raimondo is on the stand again first. She and her lawyers should be BEGGING to settle with Gibsons before their suit against her proceeds to trial.

I am not sure that Oberlin’s tactics made much sense. To me they almost wrote part of the Judge’s directions to the jury. The opinion concerning Allyn Gibson I thought was particularly telling. Smart lawyers would be trying to reach a settlement before this mess goes to the jury. I see this judge accepting whatever damages the jury comes up with. Time for Oberlin to eat crow and cut its losses.

    alaskabob in reply to bernie49. | May 24, 2019 at 6:17 pm

    Or Oberlin is wanting to be hit hard to really gain “victimhood” status.. As a member of the community, the college did nothing to intervene positively as their faculty and students went on their rampage. Even one little bitty attempt to intercede would have helped them. Arrogance is not a great defense.

    Tom Servo in reply to bernie49. | May 25, 2019 at 9:39 pm

    We should note in passing that MOST judges accept whatever damages the jury comes up with, save for those rare cases where a “runaway jury” comes up with an award that isn’t supported by the evidence presented in the case.

    But usually, if there is even a “scintilla” of evidence supporting the award, it stands.

Let me think. What would be the best possible legal advice for Oberlin? I got it: settle! Offer $1.5m in return for full confidentiality, etc., then pay $3.0 to get it. If the college proceeds towards verdict some very foolish folks are calling the shots.

    MajorWood in reply to Warspite. | May 24, 2019 at 8:18 pm

    It just dawned on me that one of the few people at Oberlin who saw this for what it was literally headed the Drama Department.

      The Friendly Grizzly in reply to MajorWood. | May 24, 2019 at 11:19 pm

      That is a delight! And, I accidentally touched the down-tick button, and it was still trying to mke up its mind when I hit Reply. If you get a downtick, I apologise.

I hope Oberlin college loses and loses big.

counsel4pay | May 24, 2019 at 8:04 pm

1. The Defense Motion was always doomed. A “Prima Facie” case was locked in on Day 3–since then, everything just got better. Gibson’s has served up a completely satisfying FEAST of evidence with all the trimmings. The State of Ohio has invested heavily in this trial–these things aren’t cheap. The jury must and will be heard here. A Post-Defense Case trial Motion for Directed Verdict is also doomed.

2. Beware any Defense request for a SPECIAL VERDICT. Not just “guilty/not guilty” but many questions probing and testing every element of trial. BEWARE. Such devices often produce contradictions and ambiguities–ripe for post trial Motions and Appeals: New Trial; JNOV (judgment notwithstanding verdict); Remittitur (reduction in damages verdict); and that most vile defense ploy “New Trial unless Remittitur Accepted”–all evil tools of a guilty loser. BEWARE BEWARE BEWARE–NO SPECIAL VERDICT [there are tactics for overcoming the perils but its best to avoid the risk].

3. Oberlin WILL NOT SETTLE–Gibson’s counsel has FORESEEN that the warped and ferocious evil of these SJW “children” has removed the reason and perspective of the college whose “adults” are not merely tolerate of vile behavior BUT COMPLICIT in the same. Clear sighted commentators here have correctly analyzed this nest of vipers that is Oberlin.

4. A Higher Power is with Gibson’s and its gladiators at law. Heaven’a very angels whisper reason and clarity to their minds and buoy up their anxious hearts. Kind hearted lovers of freedom, honor, and justice lend their prayers and good wishes on behalf of a noble family and their cause. In a dusty Ohio courtroom, surrounded by Fake News Media SCREAMING lies, threats, and evil against them, Gibson’s fights for all who love liberty and honesty. Gibson’s fights for us. They shall be rewarded here and in the world to come.

Of course there would be a motion for directed verdict at the close of the plaintiff’s case, but the arguments sound weak, to me. I might be prejudiced.

Brave Sir Robbin | May 24, 2019 at 10:13 pm

Remember, punitive damages in Ohio are capped at $350k, unless the tort resulted in catastrophic injury.

I wonder if the injuries to the elder Gibson vacates the punitive damage award cap? If so judged, such a finding could be tenuous and grounds for appeal.

How say the committee here at large?

    alaskabob in reply to Brave Sir Robbin. | May 25, 2019 at 12:22 am

    My guess is that trying to close down a family business would be catastrophic.

      pst314 in reply to alaskabob. | May 25, 2019 at 11:31 am

      “My guess is that trying to close down a family business would be catastrophic.”

      My chief concern with regard to that is that Oberlin College is the 700-pound gorilla in the local economy: The city has a population of about 8 thousand while the college has about 3 thousand students and faculty. (Do any readers of this blog have quick access to comparative economic figures?)

    Terence G. Gain in reply to Brave Sir Robbin. | May 25, 2019 at 3:53 am

    It is non-economic damages (for example pain and suffering) that are capped at $350K. There is no limit on economic damages – loss of income. Punitive damages are capped at 2 times compensatory damages (economic and non- economic damages).

      Brave Sir Robbin in reply to Terence G. Gain. | May 25, 2019 at 9:30 am

      “It is non-economic damages (for example pain and suffering) that are capped at $350K. There is no limit on economic damages – loss of income. Punitive damages are capped at 2 times compensatory damages (economic and non- economic damages)”

      Punitive damages, by Ohio law, are capped at two times compensatory damages up to a cap of $350k. So not matter what the level of compensatory damages, the punitive damages cannot exceed 350k.

      If the jury/judge awards an unreasonable amount of compensatory damages, then the case is opened up for appeal. It is not in the interest of the Gibsons to set up a potential appeal they are likely to not win unless they are going for raw publicity.

        Terence G. Gain in reply to Brave Sir Robbin. | May 25, 2019 at 9:48 am

        Here is an excerpt from a Mar 1, 2018 article by Ohio law firm Spangenberg, Shibley and Liber.

        “Punitive Damages – Another tort reform measure passed by the Ohio legislature places a cap on punitive damages awarded in civil lawsuits. Punitive damages are not compensatory like economic and non-economic damages. They are designed to punish wrongdoers for egregious acts of negligence, and are not awarded in every case. However, when they are awarded, Ohio state law caps punitive damages at twice the value of compensatory damages. If the defendant is an individual or a small employer, however, that cap is limited to 10% of their net worth, up to a maximum of $350,000.”

        Oberlin does not qualify as an indivual or small employer, so it is not protected by the $350K cap.

          Brave Sir Robbin in reply to Terence G. Gain. | May 25, 2019 at 9:42 pm

          So, I was relying upon information from an earlier post. This is what Ohio law actually states:

          (1) In a tort action, the trier of fact shall determine the liability of any defendant for punitive or exemplary damages and the amount of those damages.
          (2) Except as provided in division (D)(6) of this section, all of the following apply regarding any award of punitive or exemplary damages in a tort action:
          (a) The court shall not enter judgment for punitive or exemplary damages in excess of two times the amount of the compensatory damages awarded to the plaintiff from that defendant, as determined pursuant to division (B)(2) or (3) of this section.
          (b) If the defendant is a small employer or individual, the court shall not enter judgment for punitive or exemplary damages in excess of the lesser of two times the amount of the compensatory damages awarded to the plaintiff from the defendant or ten percent of the employer’s or individual’s net worth when the tort was committed up to a maximum of three hundred fifty thousand dollars, as determined pursuant to division (B)(2) or (3) of this section.”

          So, there is no $350k cap for Oberlin, but rather a cap of 2 x compensatory damages. However, section (D)(6) is also interesting. See 2901.22 “Degrees of culpability attached to mental states.”

          Tom Servo in reply to Terence G. Gain. | May 25, 2019 at 9:43 pm

          Nice Find, Mr. Gain! If Gibson’s is granted the damages they asked for (maybe, maybe not, that’s the big question for the jury) and they can potentially get twice that in punitive, then we’re looking at a theoretical jury award of about $15 mil. Not enough to seriously hurt Oberlin, but it will be a very comfortable award for the Gibson family, if they get it.

        MajorWood in reply to Brave Sir Robbin. | May 25, 2019 at 10:33 am

        Not a lawyer (brother assigned that role in the family), but in the case of an appeal, is there a possibility of the defendant getting an even higher amount assessed against them, or is the maximum assigned in the first trial, so that the maximum risk of an appeal is simply the additional legal costs?

Confucius say: “School who claims 100-year-old bakery worth $35,000, is school who pay $35,000,000 to bakery.”

He has another one: “School who enable thieves, has toilet paper for diploma.”

And finally: “By three methods we may learn wisdom: First, by reflection, which is noblest; Second, by imitation, which is easiest; and third by experience, which is the bitterest. But bonus method #4: Four, by enabling common thieves and slandering 100-year-old bakery – and boy, is #4 the really hard way.”

Brave Sir Robbin | May 24, 2019 at 10:45 pm

I love finding wisdom as much as the next guy, but that $350k punitive damages cap sucks for Gibson’s, and is real nice for Oberlin. To me, the cap would seem to entice mal-behavior by larger entities. The only way around it is if there are catastrophic injuries associated with the tort, or so it seems to me. So, are the injuries sustained as a result of the elder Gibson’s fall sufficient to grant an exception to the punitive damage limitation?

I don’t see how jury is going to find in favor of the college. The bummer is, the amount discussed seems less than enough to send the right message.

    Terence G. Gain in reply to Andy. | May 25, 2019 at 9:51 pm

    Yes, unfortunately the Jury does not have the authority to fire or imprison the vile Ms Raimondo.

I know nothing about the firms involved in this case, but I’m truly impressed by the Gibsons’ attorneys–they appear to have anticipated and answered many of the points that Oberlin will bring up. I have no idea what the defense firm is thinking–to suggest that the bakery is only worth $35,000 is just ridiculous and I hope that the jury sees it for what it is–the hubris of a bunch a people who cannot admit that they were wrong.

And I agree, it’s too bad that the jury cannot address the disgusting behavior of Ms. Raimondo–she was the gas that was poured on the fire.