Jury selection starts on Wednesday, May 8, 2019. I will be in the courtroom, and will report daily.
With the lawsuit that decides whether a liberal arts college defamed a more than century-old small business with racist accusations getting officially underway Wednesday with jury selection, there was one major motion that had to be decided.
No, it wasn’t whether Oberlin College has officially subscribed to a Maoist-crypto-neo-anarcho-communist state of education in recent years. It was about how does a court define how a dollar amount is determined if a jury arrives at the conclusion that the defendant did defame the plaintiff.
The Gibson Bros. v. Oberlin College case has gotten a lot of attention here as to how the school may have defamed the little convenience story/bakery in town. What started out as a fairly simple shoplifting exigency involving three bottles of wine the day after Donald Trump was voted into the presidency, soon afterwards turned a big protest, which eventually led to a lawsuit which claims Oberlin College flipped the business from being the abused into being the abuser.
Many expected some settlement on this more than two years later, but no such legal movement has happened as far as has been disclosed. For those who need to catch up, some of the background on this case is here. I call it “Towns and Gowns Dystopia 101.”
But the big question is how does a jury put a monetary amount if it finds the business was defamed? The plaintiffs’ attorneys had wanted the jury to determine two defamation sides of the story and add them together: the amount of business they lost from the allegedly libelous action, and the amount it would take to repair that wrong. What complicates things is that there are three plaintiffs: the business itself, and two of the owners. He ruled what the jury can hear on the business side of the equation, not the individuals.
Judge John R. Miraldi decided that the first measurement made — the amount the business lost — was “calculable,” but the cost to fix the business’s “reputation” was not. He used the wrecked car example as a simple explanation.
“If you are suing because someone wrecked your car, you can get awarded fair market value of a replacement car, or the cost to repair it, but not both,” Judge Miraldi said.
Along those lines, however, he will permit an accounting expert to testify to how much the Gibson’s business lost from the defamation, but not a public relations expert to testify on how much advertising and PR programs it will take to fix the reputation. The accounting expert will testify that Gibson’s will lose “more than $5 million” over a 30 year period because of the school’s involvement in the protest.
This certainly does not simplify things for the jury and leaves so many options for them. They can rule Oberlin College defamed Gibson’s and then add punitive damages. And then figure inflation, and treble the damages as well. Add in the loss the individuals had. Or find that the school did nothing wrong.
Or do what the jury did in the USFL case against the NFL in 1986. The United States Football League (in which Trump owned the New Jersey Generals franchise) filed a lawsuit against the National Football League, and the jury concluded the NFL had violated the antitrust laws. But the jury concluded the damages were only $1, which under antitrust laws, was tripled to $3.
One last point. Various self-described political experts and internet trollers have tried to figure out how the political landscape of Lorain County will affect this case. Trying to be an expert on things you have no expertise in is difficult, especially in this Ohio county. The answer is things look to be pretty much fifty-fifty.
Yes, Lorain County has lots a number of manufacturing jobs, as most of Northeast Ohio has in the past few decades. But this isn’t a dirt poor part of the country, and its household income and poverty levels and age of the population are closer to average nationally than not.
There are three U.S. house districts that run through Lorain County, and incumbent Democrat Marcy Kaptur and incumbent Republican Bob Gibbs both won easily in the 2018 midterms. Republican Jim Jordan’s district slices through the county and includes Oberlin, and he lost the 2018 race in the county (but won his district easily). That also is not unusual.
Democrats also won all six of the statewide races in Lorain County in the 2018 election, including incumbent Sen. Sherrod Brown getting 59% of the vote in this county that has 26 miles of shoreline on Lake Erie.
The only thing different in this county was the most recent presidential race. This county had voted for Democrats in every race since 1984, and did so again in 2016. But this time it was a razor thin victor for the Dems: Hillary Clinton beat Donald Trump, but only by a 66,949 to 66,818 margin.
Is this case too close to call? Sort of. It’s doesn’t seem that the defamation claims will be difficult for the jury to come down on the side of the Gibson’s, based on what I’ve read and heard, but it is the amount of money they might reward is difficult to gauge. Most agree they are going to award damages to get Gibson’s a symbolic new car, but are they also going to get them a new car and fill the gas tank too?
Daniel McGraw is a freelance writer and author in Lakewood, Ohio. Follow him on Twitter @danmcgraw1
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