With the compensatory damages verdict of $11.2 million having been rendered last Friday, the parties in Gibson’s Bakery v. Oberlin College are now into the punitive damages phase.

But in a civil trial that has gone on much longer expected, the jury never saw the courtroom today as the judge had to rule on about a half-dozen motions filed by Oberlin College.

The motions sought to restrict the information the jury could hear in the punitive phase, which could add an up to extra $22.4 million to the verdict the jury gave last week against the college and its Dean of Students Meredith Raimondo.

The motions were all filed at the last minute, and Gibson’s attorney Lee Plakas was quite angry with the tactics, calling it “a total disregard for the jury, who gets called into court again to sit it out for another day. There was plenty of time to file these, and decided without having the jury called in, but Oberlin College thinks the jury sitting and waiting is not a problem for them.”

Jury Will Not See Blast Email

In what might be construed as a victory for the defendants, Judge John R. Miraldi ruled that in deciding a punitive amount (if any), the jury cannot be presented with an email blasted out to alums immediately after the verdict last week. Part of the email by Donica Thomas Varner, Oberlin College’s Vice President, General Counsel & Secretary, sent to thousands of alumni in the United States and around the world, said the following:

“We are disappointed with the verdict and regret that the jury did not agree with the clear evidence our team presented.” …

“Neither Oberlin College nor Dean Meredith Raimondo defamed a local business or its owners, and they never endorsed statements made by others. Rather, the College and Dr. Raimondo worked to ensure that students’ freedom of speech was protected and that the student demonstrations were safe and lawful, and they attempted to help the plaintiffs repair any harm caused by the student protests.”

The Gibson lawyers wanted to not only present the jury with the email as evidence of “malice,” but to also bring in Varner to testify via subpoena to the jury in the punitive phase. However, the judge ruled the jury would get neither the email nor the testimony of the general counsel.

Owen Rarric, an attorney for the Gibson’s, argued that the email was valid because the “jury will be deciding based on the deterrence and punishment they will exact on the school,” and that “this [email] is directly relevant to the issue of malice and the jury can determine the amount award to prevent future malicious conduct.”

Lee Plakas added that “Oberlin College just doesn’t get it and doesn’t accept that anyone else’s decisions is right except their own.”

The defense claimed in its court motion that the email was not relevant and would needlessly inflame the jury:

The conduct underlying all of these claims, as set forth at trial, spanned from November 10, 2016 (the first day of the protest) through late January 2017 (when Oberlin College resumed its daily orders from Gibson’s Bakery). The Trial Update is irrelevant to actual malice, which is required for an award of punitive damages, as the Trial Update comes two-and-a-half years after the tortious conduct that formed the basis of the jury’s verdict. In other words, the Trial Update is not relevant because nothing in the Trial Update has “any tendency to make the existence of any fact that is of consequence to the determination of” actual malice “more probable or less probable than it would be without the evidence.” Evid.R. 401.

Put simply, what relevance does an email sent by Oberlin College’s General Counsel, Vice President and Secretary to Oberlin College alumni—two-and-a-half years after the tortious conduct that lead to the jury’s finding of liability—have to actual malice? None. Thus, evidence on the Trial Update should be precluded from trial.

* * *

As discussed, certain news outlets have manipulated the Trial Update to suggest that Defendants have somehow disrespected and rejected the jury’s verdict. As the jury has been instructed not to read news postings and editorials about this case, so too should Plaintiffs be prevented from parroting the themes of those news postings and editorials to incite the jury into believing that it has been belittled in the Trial Update. The only reason Plaintiffs seek to introduce the Trial Update is to inflame the jury’s emotions and maximize a potential punitive damages award. Thus, evidence of the Trial Update should be excluded, as Defendants stand to be unfairly prejudiced by Plaintiffs’ improper use of the document.

Judge John R. Miraldi held that “this was a letter sent by the Oberlin general counsel after the verdict. We are talking about the actions of the defendants that demonstrated malice. What we will use is only what was litigated in court.”

Motion for Mistrial Denied

In addition to his ruling that the email could not be admitted, the judge ruled favorably for the Gibson team in most of the other mostly procedural matters. The Oberlin College lawyers claimed the court had not separated the “compensatory” damages in the verdict between the Gibson family members and their business, and thus, in their argument, the jury could not figure out the punishment phase with such wrongful jury instructions from the court.

Oberlin College attorney Ronald D. Holman called the lack of a proper “breakdown of damages per claimant by claim” was for Oberlin College, an “incurable legal quagmire.” That line drew some giggles from the packed courtroom, especially from friends of the Gibson family who have been in this Ohio courtroom since early May.

The judge ruled against the motion for a “mistrial”:

Attorney Fees Could Be In Play

The Court also ruled that the jury could designate whether the court could award attorney’s fees. As we understand the procedure, the jury will get to determine whether to give the judge the power to award the Gibsons attorney’s fees. If the jury so authorizes, the amount will be up to the judge. It’s unclear to us whether the judge could award the amount of the contingent fee (which presumably is the basis on which the plaintiffs’ lawyers took the case), because if so, that could add many millions to the ultimate judgment. Even at an hourly rate, it still would be substantial.

What’s Next

The evidence presented tomorrow will be by the plaintiffs about how Oberlin College acted with malice. The attorneys would not tip their hand as to what the evidence of malice might be, but did indicate they would focus on evidence already presented to the jury in the trial.

One would suspect the jury might see the email again tomorrow from Oberlin College Dean of Students Meredith Raimondo, where she wrote to colleagues, in relation to criticism of the college’s handling of the matter, ““Fuck him … I’d say unleash the students if I wasn’t convinced this needs to be put behind us.”

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

WAJ Adds: We will be on Verdict Watch as soon as the jury gets the punitive damages case. As soon as there is a verdict, Dan will contact me and I will post it. As with the compensatory verdict, you will be the first to know, other than people in the courtroom.

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