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.

https://youtu.be/9ATglD30id0

[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.

https://www.youtube.com/watch?v=M7n8f8sLTDE&t=850s

[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.

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

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

 
 
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