The massive $11 million compensatory and $33 million punitive damage verdicts in favor of Gibson’s Bakery and its owners have been matched by equally massive media condemnation of Oberlin College’s conduct.

In response, Oberlin College has developed a crisis management talking point that this “is a First Amendment case about whether whether an institution can be held liable for the speech of its students.” It’s a narrative of Oberlin College as victim, not the perpetrator the jury found it to be, and it’s being rolled out by Oberlin College with increasing media focus.

Of course, that’s not at all what the case was about. The case was about the conduct and speech of Oberlin administrators, particularly Senior Vice President and Dean of Students Meredith Raimondo, under standard and well settled principles that an employer is responsible for the tortious actions of employees acting within the scope of their employment. There is nothing novel about that legal principle, and in this case it was applied to Raimondo and other administrators, not to students

[Meredith Raimondo at trial][Photo credit Bob Perkoski for Legal Insurrection Foundation]

Aside from the attempt to reshape the public narrative, Oberlin College is trying to lower the damages in light of Ohio’s tort reform law. We discussed that law and possible calculations a week ago in Irony: Ultra-liberal Oberlin College will save millions on Gibson’s Bakery verdicts under Republican Tort Reform.

It was always clear that there would be a large haircut on the damage award, and the total of $44 million would not stand. The only issue was how much of a haircut would be given.

I tried my hand at some math in that post, and came up with a worst-case scenario for the plaintiffs of the total compensatory and punitive awards being reduced to $14,223,500 (with a big caution that I’m bad at math). I cautioned, however, that there could be a huge swing depending upon whether the 2X cap on punitive damages applied to the total compensatory awarded, or the compensatory after the compensatory cap was applied:

So, the Gibson’s run the risk of their compensatory damages being :

Gibson Bros economic damages $2,274,500

David Gibson economic damages $1,800,000

David Gibson non-economic damages (cap) $350,000

Allyn Gibson non-economic damages (cap) $350,000

Total Compensatory: 4,774,500

Plux 2X punitive cap $9,549,000

Total: $14,323,500

If the punitive calculation is based on the full compensatory, not the capped compensatory, then that would add to $12,600,000, for a total of $26,923,3500.

It turns out my math wasn’t that far off for the Gibson’s worst-case scenario.

Oberlin College just filed a Motion (pdf.)(full embed at bottom of post) to reduce damages. It’s a complicated discussion, but ends up just $300,000 shy of where I ended up (emphasis in original):

Defendants request that the Court apply the statutory caps on Plaintiffs’ compensatory and punitive damages awards. Pursuant to R.C. 2315.18(B)(2), Plaintiffs’ noneconomic damages of $7,000,000 must be capped at $600,000, meaning their compensatory damages award must be reduced from $11,074,500 to $4,674,500. Pursuant to R.C. 2315.21(D)(2)(a), Plaintiffs’ punitive damages of $33,233,500 must be capped at $9,349,000. Thus, Plaintiffs’ total compensatory and punitive damages award of $44,308,000 must be capped at $14,023,500.

The plaintiffs filed their own Brief (pdf.)(full embed at bottom of post), and make a nuanced argument based on how the jury detailed damages — something I did not have previously because the signed jury verdict form was not available at the court. Plaintiffs argue that (1) the individual caps on noneconomic damages apply to each claim for which relief was granted, not collectively for the whole case, and (2) the 2X punitive damage cap is based on pre-cap compensatory damages, not compensatory damages after the cap was applied.

Here are the post-cap  compensatory damage charts in the plaintiffs’ brief for the individual plaintiffs:

Here are the post-cap punitive damage charts in the plaintiffs’ brief, including for Gibson Bros.:

I’m not following the Bakery’s (Gibson Bros.) punitive calculation, and why the combined $2,274,500 is not doubled. If someone figures it out, please post in comments.

The bottom line request totals $25,049,000:

Oberlin’s college’s “best case” scenario of just over $14 million is still a whopping judgment.

It’s a lot more than Oberlin College was willing to pay to settle the case, according to a press call given by Oberlin College’s president, Carmen Twillie Ambar, to local media (we were not invited), as Morning Journal reports:

In response to questions, Ambar said that the last, highest [sic] settlement amount the Gibsons had sought was between $15 million and $20 million while the college’s last offer was less than $5 million.

“Honestly, not because we believe this case should be valued at that level, but we thought in the interest of trying to resolve it that that was worth that level of offer,” she said.

In that call, Ambar repeated the ludicrous talking point about being held responsible for student speech:

Ambar claimed in the conference call that the college didn’t defame or libel anyone, which stands in stark contrast with the jury’s ruling that both the institution and Vice President and Dean of Students Meredith Raimondo did defame the Gibsons.

She echoed many of the same talking points the college’s attorneys had brought up during the month-long trial including that Raimondo was present at the protests in order to keep both the students and the public safe, that Raimondo had only used a bullhorn at the demonstration to keep the students off the public rights of way and highlighting the fact no property was damaged and none of the protesters were arrested…

Ambar disputed testimony given in the trial about how the college attempted to mitigate the conflict with the bakery and blamed the “media” for disseminating bad information….

She says the case was really about free speech….

Ambar said the college has been held “vicariously liable for the students’ speech because of its efforts to de-escalate the protest,” and that this ruling “would have a profound chilling effect on free speech.”

“It would require colleges and universities and other institutions similarly situated to censor people who are connected to it to ensure that the publication of those items or that language was perfectly correct and accurate,” she said. “It would put a burden on institutions that would be unsustainable and would not create what for 50 years of caselaw has been the notion of breathing space.”

According to Ambar, this case should be concerning to both progressives and conservatives.

I smell crisis management consultants here. The media rollout trying to create a narrative that Oberlin College was held liable for student speech is too focused and too repetitive.

The jury didn’t buy it. Whether Oberlin College can sell it to donors and prospective students remains to be seen.

UPDATE 6-28-2019

Plaintiffs have filed their opposition to the motion to reduce the verdict, Plaintiff’s Opposition to Post-Trial Motion to Cap Damages (pdf.)(full embed at bottom of post).The Brief focuses on statutory construction, and argues that under the plain terms of the statute, the “compensatory damages” that are subject to doubling are the pre-cap compensatory damages (strikethrough in original):

In their Motion, Defendants completely ignore the primary rule of statutory construction (i.e. apply the words as written) and instead plow headlong into legislative materials discussing the passage of the noneconomic and punitive damages caps. However, these materials have no bearing on this case because the statute is clear and unambiguous and must be applied as written. See, Jacobson at 1 8. See also, R.C. 1.49 [ emphasis added] (“If a statute is ambiguous, the court, in determining the intention of the legislature, may consider among other matters: … (C) The legislative history”).

And make no mistake – Defendants are asking the Court to rewrite R.C. 2315.21(D)(2)(a) to say: “The court shall not enter judgment for punitive or exemplary damages in excess of two times the amount of the compensatory damages awarded to the plaintiff from that defendant, as determined pursuant to division (B)(2) or (3) of this section RC. 2315.18.” The Ohio Legislature chose to calculate the punitive damages cap based upon the jury award, not the amount after the Court applies the noneconomic caps. If they had wanted to calculate the punitive damages caps based on the damage award after the Court applies the noneconomic caps, they could have made reference to that separate statute and the Court’s post-cap award. The General Assembly chose not to do so and as a result, Defendants’ arguments must be rejected.

[Featured Image: Four generations of Gibsons after Jury Verdict, Photo Credit Legal Insurrection Foundation]

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Gibson’s Bakery v. Oberlin College – Defense Post-Trial Motion to Cap Compensatory and Punitive Damages by Legal Insurrection on Scribd

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Gibson’s Bakery v. Oberlin College – Plaintiffs’ Post-Trial Bench Brief Re Damages Caps – Redacted by Legal Insurrection on Scribd

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Gibson's Bakery v. Oberlin College – Plaintiff's Opposition to Post-Trial Motion to Cap Damages by Legal Insurrection on Scribd

 
 
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