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Irony: Ultra-liberal Oberlin College will save millions on Gibson’s Bakery verdicts under Republican Tort Reform

Irony: Ultra-liberal Oberlin College will save millions on Gibson’s Bakery verdicts under Republican Tort Reform

The big post-trial fight will be how much the compensatory verdicts get reduced under the tort reform caps on non-economic damages, and what the ripple effect is on punitive damages. The swing could be enormous.

The massive compensatory and punitive damage jury verdicts in favor of Gibson’s Bakery and its owners Allyn W. Gibson and David Gibson, against Oberlin College and Dean of Students Meredith Raimondo, continue to reverberate. This case is a big shock to the higher educational system and already is giving rise to a rethinking of the role of administrators in participating in student activism.

Yet think of the jury verdict as the end of the beginning. The most legally dangerous territory for the Gibsons is ahead. The facts of the case were so strong for the Gibsons that in some ways the easiest part is behind them. Now they need to protect what they have earned from numerous legal dangers. As discussed below, in addition to other legal challenges, the defense will save millions under Republican tort reform laws, how many millions will be a fight.

That likely is part of why Oberlin College’s president vowed after the punitive verdict to continue fighting and promised alumni:

This is not the final outcome. This is, in fact, just one step along the way of what may turn out to be a lengthy and complex legal process.

Post-Trial Motions

So what comes next? Several things, probably simultaneously in a flurry of post-verdict court motions.

The court will need to assess the amount of legal fees to be awarded the Gibsons, since an award of legal fees was included in the jury verdict on punitive damages. I haven’t researched it yet, so I’m not expressing an opinion, but there should be some argument over whether the Gibsons’ counsel gets straight time, time plus a so-called lodestar multiplier, or the contingency fee they presumably are charging. Among other things, there could be some theatrics if, as often happens, the plaintiffs’ counsel seeks to use the fees charged by the defense counsel as one possible benchmark for “reasonable attorney’s fees.” Legal fees could add millions to the verdict, but it’s up to the judge to decide the amount.

There also will be motions to set aside the verdict. I don’t expect those to succeed since Judge John Miraldi already denied summary judgment, a motion for a directed verdict, and motions for a mistrial and new trial. Judge Miraldi was fairly meticulous in his summary judgment decision allowing certain (but not all) of the libel claims to get to the jury because he found those statements not constitutionally protected opinion. That will be an issue on appeal, but I think Judge Miraldi got it right. I can’t imagine he’ll change his mind now. So too the other claims of intentional interference with business relations and intentional infliction of emotional distress — whatever an appeals court may do in the future, I can’t see why Judge Miraldi would reverse himself now on the legal sufficiency of the evidence.

There is an issue the defense already has complained about, that the jury was not asked to break out damages claim-by-claim, so we don’t know how much of compensatory was for which claim. Unless there is some clear law on that, which I presume Judge Miraldi would have considered, that doesn’t seem like a winning argument. The damages may have been difficult to break down claim-by-claim since the damage was one whole, and had the jury done so, the defense probably would argue there was double counting.

Republican Tort Reform Caps

More problematic for the Gibsons is the compensatory damages awarded in light of the Ohio Tort Reform legislation. We mentioned that statute in an earlier post.

Tort reform legislation has been a corporate Republican objective for decades (I stress corporate Republicanism as opposed to Tea Party or other more legal insurrectionist variants, but that’s a topic for another time).

In 2004, the Republican-led Ohio legislature passed, and in January 2005 the Republican Governor signed, a civil law torts reform bill that greatly favored the state’s businesses. You can read a detailed academic history of tort reform in Ohio here.

The main part of the tort reform was that caps were imposed on damages for non-economic losses. as well as a cap on punitive damages of 2x compensatory damages.

This law firm publication explains how the law works:

Caps On Non-Economic Damages (O.R.C. § 2315.18)

S.B. 80 establishes a limit on noneconomic damages (i.e. pain and suffering, loss of consortium, etc.) only in non-catastrophic injury cases. There is no such cap for catastrophic injury tort cases. Catastrophic injury cases are those involving permanent and substantial physical deformity, loss of use of a limb, loss of a bodily organ system, or other permanent physical injuries.

In non-catastrophic injury cases, the cap for non-economic damages is the greater of $250,000 or three times the plaintiff’s economic damages, up to a maximum of $350,000 per plaintiff and $500,000 per occurrence.

Caps And Other Limits On Punitive Damages(O.R.C. § 2315.21)

S.B. 80 establishes a limit on punitive damages for most tort claims. The amount of the cap depends on whether the defendant is a large or small employer. Punitive damages for large employers (defined as having >500 employees in the manufacturing sector or >100 employees in the nonmanufacturing sector) are limited to two times the amount of compensatory damages.

For small employers (defined as having =500 employees in the manufacturing sector or =100 employees in the non-manufacturing sector), the punitive damage limit is the lesser of two times compensatory damages, or 10% of the employer’s net worth, up to a maximum of $350,000.

In cases where punitive damages are sought, a bifurcated jury trial is now mandatory if requested by a party, in order to separate compensatory and punitive trial phases.

S.B. 80 prohibits the imposition of multiple punitive damage awards against a defendant who already paid punitive damages for the same act or course of conduct, under limited circumstances.

Post-Verdict Review of Damage Awards (O.R.C. § 2315.19)

Under S.B. 80, the trial judge must now review evidence supporting an award of non-economic compensatory damages, if a defendant challenges the award as excessive. In reviewing the award, the judge is to consider various factors including whether improper “punitive” arguments were made (such as arguments asking the jury to consider the defendant’s wealth).

The law has been repeatedly upheld by the Ohio Supreme Court in limiting non-economic damages, including in a controversial case involving sexual abuse of a minor:

An Ohio Supreme Court ruling reducing damages a jury awarded to a child raped by her church pastor is a sickening miscarriage of justice: But the fault lies not with the justices, whose job is to determine whether laws are constitutional, not second-guess laws. Instead, this is a case of the Ohio legislature using too broad a brush.

It’s hard to believe that the General Assembly and Gov. Bob Taft intended to protect a predator when they enacted tort reform in 2005. The law aimed to curb frivolous lawsuits and runaway jury awards over things such as defective medications, unsafe cars and slip-and-fall accidents — massive civil damages that Republican lawmakers and the insurance industry said were chasing businesses out of Ohio, hurting the economy….

Despite a jury awarding $3.5 million to the young woman, the tort reform caps mean she can collect just $250,000 in pain-and-suffering damages.

A recent Ohio Supreme Court case held that the tort reform act compensatory caps applied to defamation compensatory damages:

{¶ 22} We hold that under the plain language of R.C. 2315.18(A)(7), defamation is a “civil action for damages for injury or loss to person.” This holding, as explained above, is in accord with prior decisions of this court and several other courts that were interpreting similar language. We see no reason to overturn the well-established precedent that defamation is a “personal injury” according to the plain meaning of the term.

The Gibsons could try to come up with a theory under which the caps as applied in this case are unconstitutional and not covered by prior precedent — it will be interesting to see what arguments they come up with.

This has obvious implications for this case.

In the compensatory verdict, Allyn W. Gibson was awarded $3 million (all of which the jury designated non-economic), David Gibson $5.8 million ($1.8 million economic, $4 million non-economic), and Gibson Bros. $2,274,500 (all economic).

Here’s an example of what the damage page looked like for the individuals (there is no non-economic loss line item on the Gibson Bros form):

So none of the Gibson Bros. compensatory ($2,274,500) and David’s economic loss ($1,800,000 million) should be affected by the cap.

But Allyn’s $3 million and David’s $4 million non-economic damage awards could be subject to the cap, which arguably would reduce each to $350,000, for a total of $700,000. The $500,000 “per occurrence” cap would not seem to apply since there were multiple occurrences, though I expect the defense to argue otherwise. So unless plaintiffs can come up with some other argument, Republican tort reform may slice over $6 million off the $11 million compensatory verdict.

What about punitive damages?

The case linked above applying the tort reform caps to defamation damages did not decide whether the 2X cap for punitives would be based on the pre- or post-cap compensatory damages. That would be a huge swing. Expect the parties to argue this point.

If based on pre-cap compensatory damages, the punitive damages would be capped at $22.4 million (2X the $11.2 million compensatory). If based on post-cap compensatory damages, the punitives would be reduced for Allyn and David to $700,000 each for non-economic damages, for a total of $1.4 million. The Gibson Bros. $6,973,500 punitive damages likely will be reduced to $4,549,000 based on the 2X cap applied to the economic damages.

[added – here’s a rework of the math – maybe this time I got it right]

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.

The lower worst-case scenario is probably a number the Gibsons would have been happy to get at the start of the trial, but having received the massive verdicts, a roughly $14 million final judgment now would seem disappointing.

Someone please check my math, you know I’m really bad a math.

This is all why I say we are at the end of the beginning. There are big legal battles to come.

What an irony it would be if a college infused at almost every level — student, faculty, administrative — with disgust for corporate capitalism and Republicans were to escape more serious financial damages because of corporate Republicans.

[Featured Image: Meredith Raimondo at trial, Photo credit Bob Perkoski for Legal Insurrection Foundation]

[Note: This post was originally published last night, but was taken private soon after publication because of new information that required a reworking]

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Comments

Perhaps Oberlin will take the time to send out a blast email listing all the stupid things the judge did and that they are going to base their appeal on because the judge is an idiot. And do it before the judge decides whether to cap the punitive damages and how much he is going to assess for legal fees. Also because they lost, they could point out that the judge is a racist too.

Go for it Oberlin! Social justice demands it. Stop the white power racists who are trying to infringe on your good name.

This is a worry – I think that the award for Intentional Infliction of Emotional Distress will be the hardest to defend, since it is so hard to pin a number on a thing like that.

    Wouldn’t the issue be about assessing a penalty that is meaningful to the party that inflicted the ED? If $33m is pocket change to them, it should be more. The jury has already ruled that ED was inflicted. It seems to me that the judge and jury can use their own judgment as to how distressful it was but the only consideration as to the amount should be that it truly punishes the guilty party. Now how does it really work?

      Tom Servo in reply to Pasadena Phil. | June 18, 2019 at 4:06 pm

      What you describe was the general view of the law before the tort reform movement. Unfortunately for the Gibsen verdict, the Tort Reforms described in the article above pushed through some fairly radical limits and what could be assessed as damages.

      I don’t know where the verdict will end up, this is a complex area of the law now. we’ll all just have to wait and see.

    MattMusson in reply to Tom Servo. | June 18, 2019 at 12:51 pm

    I don’t have a problem with limits. But, I do think that caps should be indexed for inflation. Fifteen years ago $250,000 is more than it is now.

How much is one’s reputation worth?

It looks to me like legal fees are about to explode. Maybe that should be a consideration by Oberlin as to how hard they want to pursue this since there is little to no chance that the verdict will be overturned. We should be keeping our eyes open for outside money (Soros?) to keep this going.

Another consideration is the continued deterioration of public support of our “education” system and the people who run it. The longer this case stretches and so long as LI continues to be a persistent fog horn of truth, the taint is going to spread. The potential monetary and public trust damage could be crippling and for a very long time.

Is it worth it Oberlin?

    Silvertree in reply to Pasadena Phil. | June 18, 2019 at 12:03 pm

    Such an appeals process would be widely perceived as a deliberate attempt by Oberlin to subvert our judicial process, and an arrogant disrespect for this jury—along with pure disdain for the way our system is supposed to work. Especially if the awards were greatly slashed, the furor would be immense.

    Particularly in their own town, their own region, they would earn tremendous hatred. It is the people in that county who made up the jury, and that jury will be widely seen as correct in their decision. Subtleties of tort reform law will make little sense to anyone in this instance. The whole thing will seem infuriatingly unfair.

    Oberlin, turn back now. You want to take a higher road here, and salvage what is left of your reputation. Have some respect and decency towards your neighbors, these bakers who are innocent of this charge. Turn around! This road you have been going down leads to disaster. Look at the plunging enrollments at Evergreen. You need desperately to avoid the huge negative publicity that would come from prolonging this agony.

    Apologize and call it a day.

      Tom Servo in reply to Silvertree. | June 18, 2019 at 12:20 pm

      President Carmen Twillie Elizondo Mountain Dew Ambar sees your lips moving, but she doesn’t understand the words coming out of your mouth. “Apologize”??? That is something other people do to her, NOT something that she would even for a moment consider doing herself. How could anyone be so rude and disrespectful as to ask her to do something that unwoke?

      JusticeDelivered in reply to Silvertree. | June 18, 2019 at 2:15 pm

      Oberlin College administrators clearly have no common sense.

Oberlin has a #MeToo #SheKnew #SheProgressed problem, exacerbated by a rabid [racial] diversity. Oh, well. This time, it was only redistributive change under social progress. Very Pro-Choice.

Oberlin has now gained “victim” status. This gives them the drive to go as far as it takes to avenge this. I still think this can garner financial support from like minded groups. They can easily rationalize use of any “Repub!ican” laws as using the evil laws against the evil doers.

healthguyfsu | June 18, 2019 at 11:49 am

The gratitude under their breath will be “Thanks and eff you”

Even if the judgement is reduced, Oberlin will still be so poor that they will have to use amateur callers for their biggly-popular square dance classes. Yes, Trump’s biggly is now in the dictionary.

There has been a long-standing campaign to bring courts and juries into disrepute. I’ve seen it mainly in the form of disingenuous press releases from insurance company lawyers.

One of the more egregious examples was the original press release about the McDonald’s Coffee Case, which left out so much information supporting the jury findings that it sparked national outrage, until the Wall Street Journal sent two reporters to review the trial records.

This time, there would have been added motivation in our dishonest mainstream press to play the race card, but for careful, intelligent, detailed reporting from a single source, this blog.

The fundamental problem with “Tort Reform” is that it tips the scales of justice in favor of people who really need an economic lesson.

In the McDonal’s case, there were several hundred prior cases of third degree burns, and yet the company preferred to contractually require superheated coffee, served at a temperature well above that of any other vendor. Now we have warning signs for hot coffee, never mind that the coffee is not overheated.

The infamous “Ford Pinto Memo” was a calculation that a modification to a vehicle worth $11 was uneconomic, assuming damages for a human death was limited to $200,000. The jury decided that Ford needed an economic lesson.

The appellate courts pride themselves with their objectivity, and sometimes their lack of empathy creates a danger to our society.

    Mac45 in reply to Valerie. | June 18, 2019 at 12:52 pm

    The McDonalds hot coffee case, was a ridiculously high award. McDonalds did know that their coffee was hot. Their customers knew that their coffee was hot. They did know that a numerically insignificant number of people had burned themselves with McDonalds coffee. What the jury did was to reward a single person for being careless at the expense of millions of McDonalds customers who purchased 100s of millions of cups of coffee every single year. The coffee was hot for a reason. That reason being that the vast majority of people who bought the coffee did not drink i on site, but transported it to another location for consumption and they did not want to drink room temperature coffee 20 minutes after purchasing it.

    The Ford Pinto was a different matter. Ford had identified three causes for low speed fuel tank ruptures in the Ford Pinto line, prior to the actual introduction of the model. The fixes would have required a relatively significant outlay as existing fuel tanks would have to be scrapped and redesigned and/or the vehicle would have to be redesigned. The company made an economic decision which was criminally ill advised. They compounded that by not recalling and retrofitting existing vehicles and initiating design changes in new vehicles when real world collision fires began to show up. This was a case where the public was not in a position to make an informed decision as to the safety of the vehicles, unlike in the McDonalds case. So, the punitive damages were not out of bounds in that case.

    But, the vast majority, of civil liability cases which led to tort reform, was simply excessive punitive damage awards and awards for “pain and suffering”.

      AsuraYakou in reply to Mac45. | June 18, 2019 at 4:32 pm

      Yes…yes, of course, coffee that was so hot it melted the glue of the cup holding it was definitely due to the negligence of the drive thru customer.

        Mac45 in reply to AsuraYakou. | June 18, 2019 at 4:45 pm

        The cup was defective? Naw. The woman was holding the coffee cup between her legs and was pulling on the top of the cup to open it, reportedly to add cream and sugar. When she pulled the top off, the coffee spilled in her lap; either because squeezed her thigh together, or because the cup was not held securely in place by her thighs. Either way, I fail to see how this was McDonald’s fault. If you want a cold drink, or are such a maladroit that you can not safely handle a cup of steaming hot beverage, perhaps you shouldn’t order hot coffee.

          Valerie in reply to Mac45. | June 18, 2019 at 8:14 pm

          You obviously never read the follow-up story in the Wall Street Journal.

          Mac45 in reply to Mac45. | June 18, 2019 at 8:59 pm

          “You obviously never read the follow-up story in the Wall Street Journal.”

          Naw. My account is accurate and can be found in almost every single report on the case, even those sites which support the outcome. All of these people admit that judgement was rendered because the temperature, at which the coffee was dispensed, was 180-190 degrees F. They acknowledge that the plaintiff was holding the cup of coffee between her legs, while attempting to open or remove the top. And, they all acknowledge that some 700 were scalded by the coffee, in a decade which resulted in 3rd degree burns. In only a handful of cases were these spills the result of actions of McDonald’s employees. The cup did not fail. An employee did not spill the beverage on the plaintiff. The plaintiff was handling a beverage which she knew, or should have known, was extremely hot. She was handling it in a manner which was unarguably negligent and dangerous. She violated the integrity of the container. In other words, she was responsible for her injuries. It would be no different if she ran in front of a moving car, thinking he could clear its path before it hit her ans she got hit.

          However, she was injured, She was a sympathetic plaintiff. And so, in an effort to feel-good, the jury ruled against the defendant and, because the defendant had deep pockets, returned a ridiculous award to the plaintiff.

      RandomCrank in reply to Mac45. | June 18, 2019 at 8:43 pm

      I remember the McD’s coffee case, and thought the damages were too high until I read the whole case. I recall being a McD’s customer and thinking at the time that their cups were pretty flimsy for something that hot. I’d always pour some out, and I’d get an extra cup.

      But I’ve rarely been a drive-through guy, so what worked for me wasn’t a great solution for the plaintiff in that lawsuit. All in all, I thought the McD’s case was badly misrepresented at the time, and wound up on the side of the plaintiff.

        Mac45 in reply to RandomCrank. | June 18, 2019 at 9:08 pm

        Flimsy cups? Millions of cups of coffee were served by McDonalds every single day, in the US, and no one ever claimed that their cups were dangerously flimsy. Put a disposable cup of any beverage from any restaurant between your thighs and squeeze your thighs together. Guess what will happen. I suggest that you do not use a hot beverage.

        People, who drink McDonalds coffee, know not to attempt to drink it immediately. In fact, if a person wants to drink their coffee immediately, they usually put a few cubes of ice into it, first. People do ill-advised things all of the time. Things which, in hindsight, they will likely agree were not good ideas. But, what happened in this country was that people adopted the view that no matter how ill-advised, or even stupid, a person’s actions were, somebody else had to pay for it. And, in this case, that somebody was McDonalds.

          Barry in reply to Mac45. | June 19, 2019 at 12:11 pm

          Odd, it didn’t melt the plastic cup…

          Another paid commie shill shows up.

          Not that it’s relevant to the Oberlin case, but anyone that knows coffee realizes that the ideal brew temperature of coffee is between 195°F and 205°F and in a post Starbucks world that radically changes the likelihood of the plaintiff winning. That IS the desired temperature! Whether McDonald’s made that argument, I do not know. They certainly should have raised the issue. But, what does this have to do with the issue at hand?

There is a very good reason for tort reform. That tort reform is a double edged sword is simply life.

There was a reason why the Gibson’s attorneys estimated recurring monetary damages over decades, rather than simply stressing the monetary damages which had already occurred. What hurts their case is the jury. Juries are the bane of jurisprudence. In past cases, they have returned feel-good damage judgements which were unbelievably high. They also ran away with wholly excessive punitive damages. And, judges did little to reign them in. This led to tort reform. In this case, they returned compensatory damage verdicts which were both low, for actual damages when projected over three decades, and a large part of the award was for non-economic damages.

So, the awards will likely be severely reduced. And Oberlin College and the SJW community will claim victory.

In true form, the Forbes contributor (Oberlin Alumnus) just doubled down on his first off-base article. Jeeesh!

https://www.forbes.com/sites/evangerstmann/2019/06/17/race-the-jury-and-the-harsh-verdict-against-oberlin-college/#601419105828

    And that is why LI (and hopefully others) will continue to cover this. There is no hope for Oberlin to salvage its reputation locally. But nationally, it’s all about media coverage. For now, it’s LI taking on the world alone but with a growing audience. Where is everybody else?

    That is how we “conservatives” lose. We allow elections and verdicts to be overturned after the main event. Elections and verdicts settle nothing these days. We need to make them stick.

      JusticeDelivered in reply to Pasadena Phil. | June 18, 2019 at 5:02 pm

      If lots of people start giving Oberlin College the kind of reviews they deserve, that alone will give them a small dose of what they were dishing out. There is no way in hell I would allow my children or grandchildren to go there.

    Tel in reply to MajorWood. | June 18, 2019 at 2:49 pm

    Gerstmann is either deluded, disingenuous or outright lying. He doesn’t mention the police investigation which demonstrated that there was no disparity in the way Gibson’s treated blacks. He does not mention that the case was not merely “petty theft” but criminal assault on a company employee. Gerstmann also does not mention the active support given to students by the administration to destroy the bakery’s business and reputation, hence the damages.

    In fact Gerstmann mentions no facts at all, just a lot of feelings. What a pity that academics has come down to a fight between whose feelings are more legitimate, while facts are utterly ignored.

    rochf in reply to MajorWood. | June 18, 2019 at 9:17 pm

    I’m not sure what his point is–there were black witnesses who testified on behalf of Gibson’s as to what happened, and the fact that the Gibson family was not racist. Is he arguing that if there were no blacks in the jury pool, that the court should have gone out and found some? Is he saying that black jurors would have ignored the evidence, or tempered the verdict amount, or what? I guess what he’s really saying that if there was one black juror, that would have lent credence to the verdict?

Three fine articles today:

Oberlin Case is Victory for Justice — Though Not for Black Youths Portrayed as Victims
The Hill
https://thehill.com/opinion/civil-rights/449001-oberlin-case-is-victory-for-justice-though-not-for-black-youths

Oberlin College Lawsuit: College Forced to Check Its Woke Privilege
National Review
https://www.nationalreview.com/2019/06/oberlin-college-lawsuit-woke-privilege/

Oberlin Has Graduated from Self-caricature to Disgrace
Index Journal
http://www.indexjournal.com/zz_print_only/columns/oberlin-has-graduated-from-self-caricature-to-disgrace/article_6de74b6a-645f-5544-8818-120928b8f248.html

notamemberofanyorganizedpolicital | June 18, 2019 at 3:32 pm

The picture on this post needs a title.

I recommend:

Portrait of a Dunce.

Perhaps Oberlin could take some of its “damages relief money” to pay shoplifting reparations to all the small businesses in their town each year.

The little Ben Franklin dime store there, for instance, estimated $10,000 in shoplifting losses per year, the vast majority from Oberlin College students. (During summer break the local shoplifting losses go way way down.)

Some businesses, one local commented, even tried instituting a “two students at a time” policy, so the idealistic young people (“changing the world one person at a time”) could be watched like hawks.

Guess that slogan should be amended to “Changing the world two people at a time”.

Since Oberlin College core values apparently include, “Shoplifting is fine with us,” and “No honor code necessary”, the least they could do is help subsidize the fun & games for their darling students downtown.

And how about some sensitivity training for local business owners? The College could provide free workshops for the owners and their staff, so they can learn how not to hurt the students’ precious feelings (what kinds of admonitions might be triggering), which colors of students are privileged to shoplift, how to arrange the display cases for maximum shoplifting advantage, etc.

Isn’t there an “intentional” and “malice” exception to the 2x punitive damage limit? If so, then the jury could award >2x since, IIRC, malice was part of the juries decision. Also, IIRC, from LI trial reporting, the judge gave detailed instructions about punitive award limits. IMO, the jury made an informed decision to award $33 million precisely because Oberlin’s conduct was intentional and malicious and it he award is consistent with the tort reform law ( or I’m FOS)

    Publius_2020 in reply to SHV. | June 18, 2019 at 9:39 pm

    The exception to the punies cap is complicated because of the language in the statute. The triggers are “knowingly” and “purposely.” (“Malice” is the prerequisite for any punies award in Ohio, and it is defined to include some non-intentional conduct; i.e., reckless indifference.)

    The statute is usually understood to grant an exception only in cases where there is a criminal conviction of the defendant for a crime that includes the knowing or purposely elements. But the statute is somewhat ambiguous. Given the amount at stake, I expect that Gibson’s lawyers will argue that the exception should apply here.

Comanche Voter | June 18, 2019 at 7:06 pm

I read Gerstmann’s argument. He’s basically pulling the old “One man’s terrorist is another man’s freedom fighter” argument–i.e. racism is in the eye of the beholder. So even though the Gibson jury (along with the police department and the black employee of the Gibsons) thought that the Gibson’s weren’t racist–well they were!

He also cuts Oberlin some slack because they didn’t write the defamatory flyers, the administration simply passed them out (and had more copies made). Well Bunkie you can “publish” a defamation by simply repeating or distributing something that someone else wrote or said.

He’s an Oberlin grad and, surprisingly is also a lawyer. He has a JD from Michigan, and practiced law for five years. In 1991 he went to University of Wisconsin where he earned a Masters and a PhD in Polical Science. Since 1999 he’s taught political science at Loyola Marymount in Los Angeles.

He actually seems to be a thoughtful guy–but the trifecta of Oberlin College, Ann Arbor Michigan and Madison Wisconsin does tend to bend one’s mind a bit.

    Tom Servo in reply to Comanche Voter. | June 18, 2019 at 7:42 pm

    Good observations – the other tricks he tries to pull are a) he keeps claiming that the case was all about the initial protest, when in fact the case was centered on the ongoing actions of the Oberlin administration AFTER the protests ended, and B) because he ignores everything after the initial protest, he ignores the entire issue of Tortuous Contract Interference, which is where the Malice was on display quite openly.

    And I would go further and say, since he has the education and the background to clearly know better, that those errors and omissions of his or not simply accidental or evidence of his inability to do basic research, but rather are strong evidence of quite a bit of malice toward the Gibson’s on Gerstmann’s part as well.

    healthguyfsu in reply to Comanche Voter. | June 18, 2019 at 9:01 pm

    If he was really that concerned, he could have worked their case pro bono. He knew it was a lost cause and is trying to find a congregation rather than a jury to preach to.

Contrary to Oberlin’s hapless assertions, money is not the issue. Oberlin is a school for the ultra-wealthy with a near $1B endowment, and you can bet leftists from across the nation will chip in to cover the judgement. Thirty-three mil is chump change to the rich communists who run the majority of media, academia and bigcorporations.

The real problem (from Oberlin’s point of view) is that the jury’s verdict is an affront to the satanic egos of a sizable percentage of the school’s administrators, faculty and students. How dare those…. those…Deplorables look down on their betters?!?! Don’t those infidels and blasphemers know their places?!?!

I have done a couple of jury trials in the neighboring county of Cuyahoga where the verdicts included legal fees.

In those cases, the Judge authorized a straight line on fees with no bump. In the one case that I was on the winning side, we provided copies of our latest bills leading up to the trial and then provided a summary for legal fees during the trial and the court approved that number without much of an argument from the losing side. I seem to recall that was nearly 7 figures.

I think the Gibsons will be getting in the pre-trial and trial bills in pretty quickly to the court so they can start the post-trial bills and appellate work to add in in case they continue to prevail in the upper courts. But, the Ninth District Court of Appeals doesn’t always see the same things as the lower court does.

Who is the morbidly obese man with the double chin, glasses and stubby fingers sitting in the front chair?

In this thread, we have an example of the kind of damage dishonest attorneys can do to our system. Lying by omission is a lie, and it has been used to bring our jurors and system into disrepute. This is the core story about tort reform.

In the McDonald’s Coffee Case, the attorneys for McDonald’s issued a press release that was the foundation for an avalance of stories and commentary. It was dishonest because it left out all the information that would make an ordinary person understand why a jury would decide to award punitive damages. I read the original “news” story, and because I have seen this dreck before, I wondered what had been left out.

I couldn’t imagine why the jury made the award. Unlike many others, including many lawyers, I know that jurors are meticulous about their duties. I assumed there was more to the story.

The reaction was fascinating. In the abscense of information, people would speculate to fill in the gaps, and then argue about their speculation, instead of the facts of the case. The whole country assumed that the lawyers for McDonald’s had not left anything pertinent out, and they were outraged at the jurors and at the system, thereby achieving the objective of those dishonest lawyers and the “tort reform” supporters.

So, the Wall Street Journal dispatched a couple of reporters to go over the record of the case. They published a detailed take-down of the entire case, which completely changed the assessment of the case by their readers.

It started with McDonald’s contractual requirement for its franchisees to serve coffee far hotter than that of any other vendor, hot enough to cause third degree burns. By the time this case was filed, there were hundreds of cases of third degree burns cause by that coffee. McDonald’s knew they had liability, plaintiff’s attorney was only asking for medical damages, and McDonald’s insurance company decided to fight the case in the same manner as the attorneys in the Gibson’s case. That is, by overreaching.

The woman had to have reconstructive surgery on her lap area, because she had third degree burns. The coffee was that hot because McDonald’s used the worst beans in the industry (the cheapest). The difference in the temperature is the difference between an ordinary spill of coffee and serious injury. She had ordered coffee with creamer, and she was handed the coffe in a cup with a few packets of creamer on top. So, she had to open the coffee in the parking lot to put the creamer in, and that is when it spilled on her lap.

McDonald’s insurance lawyers decided to delay trial as long as possible, because the lady was old, badly injuried, and might die. They argued that the accident was her fault because she spilled the coffee. They argued that the severity of her injuries was her fault, because she was old and frail. They argued that she should have mitigated her injuries by getting out of the car and taking off her clothes.

Between the ugly facts and the behavior of the insurance attorneys, plaintiff’s attorneys had plenty to work with. Some of it made me wonder if somehow the reporters had confused trial testimony with arguments over motions in limine.

Plaintiff’s attorneys asked for 2 1/2 days of coffee profits, to get McDonald’s attention, with the objective to get them to change their contracts. McDonald’s did change their contracts. The award was reduced on appeal.

So now, we have warning signs about hot coffee that is nothing like the coffee that burned all of those people. We also have people who don’t know the whole story, that think the jury was crazy.

And we have tort reform, that is rooted in attorney misconduct and the resulting contempt for our jurors and our system.

Having read this thread, I am happy to see some thoughtful people here. I do wonder whether or not the school is aware of the negative PR effect this has on their school? I would not consider applying, let alone sending my daughter there based on this case alone. What they did to this family is appalling. The longer this lingers in the news, the longer this has a negative effect on admissions. Maybe they don’t care? I used to think more of higher education.

Barnestormer | June 19, 2019 at 4:00 pm

According to the below-linked report, Oberlin College has over 1,000 employees. How is it not a “large employer,” unprotected by the lower damage limitations described in Prof. Jacobson’s post?

https://www.univstats.com/salary/oberlin-college/

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