Today was Day 6 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.

In what has become a case that is extending far beyond the usual one-week civil torts law trial, the Gibson Bros. v. Oberlin College defamation and libel trial had no witnesses before the Ohio jury today, and the jurors were sent home before lunch.

Part of the reason for that is Lorain County Common Pleas Judge John R. Miraldi held a long, private meeting this morning in his chambers with attorneys from both sides regarding some new evidence the Oberlin College defense attorneys want to bring to the case. It involves estimating the economic value of Gibson’s Bakery & Market if it were up for sale.

The judge had previously allowed an economist commissioned by the plaintiffs to estimate what the loss in revenue might be in the present and the future for the company because of it being branded as racist by student protesters in November of 2016. That economic report has not been introduced into evidence yet, but the judge approved it, and sources have said the economic expert places the lost revenue long-term for Gibson’s at “more than” $5 million.

That number is vague in some respects, but includes the estimated value of future earnings, which is always hard to figure with great certainty. National, regional and local trends can move the earnings needle in different directions during different time periods, and economists often do not set in stone the future earnings to account for that.

But it does put the amount — and potential jury damages — in seven-figure country

According to several sources, the Oberlin College side wants to present their own economic report on the small business, and their expert will supposedly testify the business is worth $35,000 if it was up for sale. According to the sources, the judge had indicated that such evidence can be presented, even though it has been brought into play in the middle of the trial.

The small value estimation, according to several sources, is based on the fact that Gibson’s had a few years of slight economic downturn in the years before the 2016 shoplifting case that started this trial. It would have been the time between 2012 and 2016 when the Rust Belt was still in the “Great Recession” economic woes.

A note of caution: the judge did not rule publicly in court on Friday on the defendant’s motion to include the Gibson’s for-sale estimate, and neither Judge Miraldi’s staff nor the clerk’s office of the Lorain County Common Pleas Court office had the defendant’s motion and the plaintiff’s response available to the Legal Insurrection. But expect very differing economic reports from both the plaintiff and defendant sides next week on what the value of the business really.

This huge difference from the economic reports of what Gibson’s might be worth plays a huge role in this case. In order for the jury to figure on monetary damages, they first must determine whether Oberlin College defamed Gibson’s or not. If they find that Oberlin College did so, then the jury must assess the monetary amount Oberlin College must pay for the damage they caused.

There are three major buckets the jury could load up with money for the bakery if they find Oberlin College guilty of defamation. The first is compensatory damages, which would be straight-up economic losses. The second are non-economic damages, which would be figured on such as pain and suffering, mental anguish, and other intangibles, such as damaged reputation.

But the third is the key; what are known as “punitive damages” that are sometimes awarded if the defendant’s behavior is found to be especially malicious. Ohio caps punitive damages at two times the amount of compensatory damages. The purpose of punitive damages is not to compensate the plaintiff, but rather to punish the defendant for their actions and to deter others from committing a similar offense.

And that is why the ruling to allow evidence from both sides — that the jury hears the business might only be worth $35,000 or have “more than” $5 million in losses —  is so important in this case and why Gibson’s fought introduction of the lower amount. It is basic math: doubling $35,000 is probably something Oberlin College surely could live with; doubling an amount north of $5 million would be a substantial hit and might actually deter future conduct.

The fight next week might not be so much as to whether Oberlin College supported its students in an unlawful way, but how much that support in terms of the punitive penalty might be worth.

Police Records of Shoplifting History at Gibson’s Admissible

The defendants also sought to keep out a City of Oberlin police report that listed the shoplifting cases at Gibson’s from 2011 through 2016. Oberlin College did not want the record to be admissible because the racial makeup of the shoplifter was included. But the Oberlin records coordinator, Sara Gentile, testified this data was public police records that anyone could have access to, and they just responded to a request Gibson’s made immediately after the protests started. Judge Miraldi ruled the police record sorted by crime and date and ethnicity of the perpetrator would be admissible.

The police data is important for the plaintiffs because it does not in any way show that Gibson’s had any propensity for chasing down black thieves more than whites. In fact, whites were far more likely to be arrested for shoplifting than blacks at this century old store on Oberlin town square.

The police report finds there were 40 arrested for shoplifting at Gibson’s in that 2011-2016 time period, and 33 of those were college students. Of the 40 arrested, 32 were white (80%), six were African-American (15%), and two were Asian (5%).

According to the 2010 U.S. Census numbers, those arrest numbers were not much different from the Oberlin’s overall racial makeup: the city was 73.0% white, 14.8% African-American, and 4.0% Asian.

A key data point from that police report, however, is the large percentage of shoplifting arrests that were Oberlin College students (82.5%). “The Grape,” a student-written monthly school magazine, explored the student shoplifting dilemma in Oberlin called “The Culture of Theft” in the December 2017 issue. They found that shoplifting was down significantly in the summer months at businesses in Oberlin because the students were mostly gone. The magazine has not been listed as evidence, and is merely included here because of it seems to have hit the mark pretty well.

One student, anonymously quoted in the story,  described stealing pasta noodles from Gibson’s twice. “It wasn’t expensive and I felt like it … I just preferred not paying for it but I could have.”

Krista Long, owner of a Ben Franklin’s store (books and other student needs) on the town square near Gibson’s, told the writer of the story that she was losing about $10,000 a year in shoplifting theft each year.

“While it may be tempting to think that the owners of local stores are pocketing tons of wealth, this simply isn’t true. Every day presents challenges … Theft is demoralizing to us, making us feel that we should suspect the very customers we want to serve.”

And if you want to know how bad the shoplifting issue is in Oberlin, just read what the student author, Jake Bernstein, wrote in his closing paragraph about the Oberlin student theft problem: “I myself have stolen from the very people I interviewed for this story.”

The case resumes Monday in Lorain County Common Pleas Court. The defense will continue calling their witnesses.

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

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