Today was Day 13 of witness testimony 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.

Both sides have rested their cases, and there will be no more witnesses.

This Ohio jury has read and heard a multitude of exchanges between Oberlin College administrators. The jurors heard how Oberlin College’s Dean of Students and a co-defendant in the case, Meredith Raimondo, texted to a colleague, “Fuck him, I’d say unleash the students if I wasn’t convinced this needs to be put behind us” when commenting on how to treat Gibson’s Bakery and others who oppose them.  That was in response to her colleague texting her that “all these idiots complain about the college … Fuck-em, they’ve made their own bed now.”

We could go on and on here with more examples. But given that we could fill up this space with higher education verbal invective like that cited above, we’ll leave that to the jury to decide next week. They will likely be getting the the Gibson Bros v. Oberlin College case to contemplate next Wednesday.

Today was the end of witness testimony for both sides in the Lorain County Common Pleas Court. It was almost like both sides were saying to the judge and the jury that they had nothing left — and that seemed fairly positive for the plaintiffs and not so good for the defense.

The case in a nutshell is this: 1) three African-American students were arrested after shoplifting at the Gibson’s store on Nov. 9, 2016 (they later pleaded guilty); 2) a large number of students thought this was racist and decided to protest outside the store and to brand the store and its owners as racist and worthy of boycott, and 3) the jury is going to decide if Oberlin College helped to libel the business and its owners, interfered with their business, and intentionally inflicted emotional distress.

The jury can decide there is nothing here or lots here. If they find Oberlin College is guilty of the libel, and related claims of interference with business and intentional infliction of emotional distress, the jury will then have to decide the monetary damages. Those could be minimal or get into the eight-figure range. The first witness today was the defense damages expert who has tried to argue there were no damages, or minimal damages at worst.

Defense Expert Sean Saari

We covered Saari’s initial direct examination in yesterday’s post, Defense says Bakery worth only $35k, less than one semester at Oberlin College.

The defense lawyers kept Saari on the stand for almost eight hours between the two days, and it was exhausting for many who think that eight hours of assessments of “the time value of time value and risk” and “the degree of penalty of risk and reliability of return” is about eight hours too many.

When cross-examined by plaintiffs’ attorney, Saari was asked if Gibson’s surviving World War I and II, the 1930s Depression and recent recession, as well as all sorts of other American disruptions over 135 years, Saari responded that, “I think that [their history] is irrelevant. I look at this from a financial standpoint and not an emotional standpoint.”

I’ll try to keep this as simple as possible because I am getting tired head even going into it. The detail was excruciating, the jury even learned the names of a few renters in the past few years who were late on their monthly payments at Gibson owned apartments.

Saari has already been paid $50,000 by Oberlin College for his expert economic testimony, and will like get another $15-20,000 before this is all done. The expert for Gibson’s testified their financial damage from the protest in early November of 2016 was $5.8 million on the conservative side. Could go higher.

Saari said there was no damage from the protests, and that the only value that might be lost by Gibson’s was if they tried to sell their business and couldn’t. That loss would be $35,000, his value of the 135-year-old business.

Under cross-examination, Saari said he had never been to the Gibson’s business or went to the apartment buildings owned by the family. Nor looked at the new parcel of property that the family had hoped to invest in for new rental housing. “I didn’t need to,” he told the jury. “There is a lot more to do than just showing up and seeing the properties.”

When asked under cross if he was essentially saying the business was worthless, Saari answered that he wasn’t saying that. “It has a $35,000 value.”

The focus by the defense was once again lowering the loss value on the properties owned by David Gibson. There had been plans to get one or two buildings done on a vacant lot a mile sor so from campus, but the loss of revenue in the store had forced them to postpone such plans.

But Saari thought that was not a true assessment. “The assumption that these properties would have been built if not for the protest, and would have been fully occupied for 30 years, is not realistic,” he said

By the end of this long testimony that basically came down to speculation ad nauseum, the facts were these. From 2016 until 2018, the store revenues dropped from about $828,000 to $525,000. The revenue from the 18 or so apartment units at two buildings they owned dropped in those years from $175,000 to $128,000. The plaintiffs’ financial expert came up with his $5.8million figure when he extended that damage to 30 years.

Saari said the 30 years was not right. The math of the revenue losses wasn’t right either, he told the jury. And the total loss, if there was one at all, was $35,000.

Gibson attorney Owen Rarric moved the cross-examination along quickly and tried to keep thing simple. Rarric told Saari that family businesses were important, because “they focus on the next generation and not the next quarter.” Saari responded that, “some do, some don’t.” Rarric then said it was very odd for a 135-year old business to go under after being around so long, and Saari responded that Sears and J.C. Penney were around along time and having troubles now.

Rarric then asked, “If your analysis is right, and they have to close up shop and tear down their sign, who do you think will own it next?” Saari said “I have no idea.” He said yesterday that David Gibson, 64, could get a better job if he just sold the store and applied for a job elsewhere.

One thing was certain in Saari’s testimony, though. In the last four hours or so he was one the stand today, the jury had put their pens and notebooks down and some were staring at the ceiling. Judge John R. Miraldi several times called the lawyers to the sidebar to move things along, and the jury laughed when he joked about using his gavel as a sign that the attorney had asked the same question again and again.

Oberlin College President Carmen Twillie Ambar

Today’s last witness was one who had not much to say. Carmen Twillie Ambar is the current president of the school, and formally took the helm of the school in September of 2017. She is known as one with a very well-regarded pedigree, with administrative posts at Princeton and Rutgers universities, and nine years as the president of Cedar Crest College in Allentown, Pennsylvania. A lawyer as well.

But it was only about seven weeks into her new job as president of Oberlin College that Gibson’s filed suit against the school. She then decided, with the advice of the school’s board of trustees, that the school should no longer do food business with Gibson’s.

Her testimony under direct examination was really nothing more than giving her history and how she has lots of different responsibilities, including the business side of the school. “The rationale was that the decision of a vendor to sue you is a decision that alters that relationship,” she told the jury. “We do not do business with a business that is suing the school.”

Cross examination was also very short. Ambar said that the school is very much pro-business in the local area, and said that “Yes, [Gibson’s Bakery & Market] has built something that is good and lasting.”

It was difficult for those of us in the public seating pews – and most likely in the minds of the jury as well – as to why the current school president was in court at all over this matter. She wasn’t at the school when most of this occurred, has inherited a mess she had nothing to do with, and is probably thinking to herself, “how did all this happen?”

But then again, she was only on the stand less than one hour. When Judge John R. Miraldi laughed and stated, “I think you’re probably the shortest witness in a month.” Amber responded, “Maybe we should all stand up and applaud.”

What Comes Next At Trial

With the testimony done, here is the upcoming schedule and the hopeful finality of this case for next week. Judge Miraldi has his criminal court on Mondays, so that day is a off day. The attorneys and the court will meet on Tuesday to hammer out some motions and discussions of the judge’s instructions to the jury. Closing arguments will be held on Wednesday of next week and then it goes to the jury.

A few things to keep in mind, and I will likely be writing about these between now and the closing arguments. The first is that this case of libel and defamation is odd for a number of reasons. Most such cases are public figures suing a media organization, and this is neither. The judge already ruled that plaintiffs were not public figures or even special purpose public figures. Social media and emails always are at play, but this one has a lot. Also, the judge has cited a case in a few of his rulings on evidence admissibility that libel and defamation are not just from the producers of the material that libels another, but from the aiding and abetting from a third party.

In this case, those alleged aiders and abettors would be Oberlin College and Meredith Raimondo. So the jury may be instructed to not just consider the flyer and the senate resolution as damning by themselves, but also how the defendants did to spread them directly and indirectly. Again, not an ordinary civil libel case in that respect.

The second important part of this case is the perceived “bubble” that Oberlin College seems to live in. The plaintiffs’ closing argument may sway into a “they’re not like us” message, which is a political and cultural divide that can have both pluses and minuses for a jury hearing that. It sounds like a good thing to do when putting out anonymous comments or tweets claiming the current higher education community is out of step with the rest of America — but it is a different thing to do in courtroom and to a jury.

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

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