In the Gibson’s Bakery v. Oberlin College case, the judgment for the plaintiffs amounted to almost $32 million in damages and defendants were required to post a $36 million bond to secure the judgment pending appeal.

Oberlin College will appeal, of course, but before has filed two post-trial motions, a Motion for Judgment Notwithstanding The Verdict (pdf.) and Motion for a New Trial (pdf.). As explained in our post, Oberlin College Seeks New Trial in Gibson’s Bakery Case, most of those motions were uninteresting rehashing of arguments previously litigated and rejected by the trial Judge John Miraldi.

The only interesting part of the motions was the issue of the jury in the compensatory phase of the trial finding no “actual malice,” but in the punitive phase finding a level of culpability and intents/gross negligence warranting punitive damages. The term “actual malice” was not used in the jury questions in the punitive phase, but Oberlin College claimed the jury should not have been allowed to rule twice on the issue.

Since this was a new issue for us (but apparently raised by Oberlin College during the trial), we awaited the Gibsons’ response:

It seems to be key whether the jury was barred as a matter of law from rendering what the defense claims was a second verdict on the issue, or whether the two phases of jury deliberation are considered as one. So I’ll be very interested to read the Gibsons’ response on this.

Update: Two commenters (here and here) make the point that there were two phases of jury deliberations, and arguably the first time “actual malice” was asked it went only to liability. In pretrial rulings, the Court had found the plaintiffs were not general purpose or special purpose public figures, so actual malice was not necessary to finding liability or compensatory damages. Nonetheless, the question was asked, for a reason that might be explained in the Gibsons’ response. But that answer had nothing to do with the punitive damages standard, which would not be considered by the jury in the first phase. The argument would be, I suppose, that the issue of whether the conduct met the standard for punitive damages had never been considered by the jury. We’ll find out soon enough.

We now have the responses from the Gibsons: Opposition to the Motion for Judgment Notwithstanding The Verdict (pdf.), and Opposition to the Motion for a New Trial (pdf.), full copies of which are embedded below.

Much as we ran the bullet points from Oberlin College’s Motions, here is the overview from the Gibson’s Opposition to the motion for a new trial:

Defendants’ Motion is baseless, incorrectly challenges the jury’s verdict, and must be denied for the following reasons:

• First, the Court properly submitted libel actual malice to the jury during the punitive phase. Because Defendants filed a motion to bifurcate the compensatory and punitive phases of trial, libel actual malice was two separate issues that were required to be submitted in both phases of trial. Further, the Court also properly permitted the jury to allocate the compensatory damages to the various claims during the punitive phase, and Defendants failed to identify any prejudice resulting from this procedure;
• Second, the Court’s jury instructions on the libel claims properly stated Ohio law.Further, even if the libel instructions were incorrect (they were not), Defendants either failed to properly object to the instructions or failed to identify any prejudice related to the instructions;
• Third, for nearly all the evidentiary issues raised, Defendants either failed to object to the admission of the evidence or failed to correctly proffer the evidence during trial, which resulted in waiver of those arguments. Further, the Court properly excluded and/or admitted the evidence Defendants identified in their Motion;
• Fourth, Defendants waived their previously denied Motion for Change of Venue by not raising the issue during voir dire. Further, even had the issue been raised, the parties were able to seat an impartial jury of Lorain County citizens and the motion would have been denied;
• Fifth, the damages awarded by the jury were based on Plaintiffs’ proven damages and Defendants’ malice, not the jury’s passion or prejudice; and
• Finally, Defendants are not entitled to remittitur as Plaintiffs’ damages were based on competent credible evidence and Defendants’ malicious conduct. Further, the Court already granted Defendants a de facto remittitur when it reduced Plaintiffs’ combined damages by more than $19 million through application of the caps on noneconomic and punitive damages.

The detailed argument on the “interesting” jury verdict form issue starts at page 57 of the Opposition to the Motion for JNOV:

Defendants seek JNOV, arguing that libel actual malice should not have been submitted in the compensatory and punitive phases. Defendants are wrong for several reasons:

First, in this case, Defendants filed a motion to bifurcate the compensatory and punitive phases of trial pursuant to R. C. § 2315 .21 (B)(l ). As prescribed by the statute, when the Defendants moved for bifurcation, the trial was separated into two phases: the first on compensatory damages and the second on punitive damages. See, R.C. § 2315.21(B)(l)(a)-(b). The bifurcation eliminated Plaintiffs’ ability to present evidence related to punitive damages during the compensatory phase of trial. See, R.C. § 2315.21(B)(l) (a). By bifurcating the trial, Defendants separated libel actual malice into two separate issues. During the compensatory phase, libel actual malice was submitted to the jury for purposes of deciding only presumed damages. Then, during the punitive phase, libel actual malice was submitted to the jury for purposes of deciding punitive damages.

During the compensatory phase, the jury determined that Defendants did not act with libel actual malice but instead found that Defendants acted with negligence. This, in essence, eliminated only Plaintiffs’ ability to recover presumed damages. However, because Plaintiffs submitted substantial evidence of actual damages (See, testimony of Plaintiffs’ expert Frank Monaco, May 20, 2019 Tr. Trans., pp. 6-65), the jury awarded Plaintiffs economic and noneconomic damages during the compensatory phase of trial. Then, because it was an issue for punitive damages, libel actual malice was submitted to the jury in the punitive phase, where Plaintiffs submitted substantial additional evidence. Ultimately, during the punitive phase, the jury found that Defendants acted with libel actual malice and awarded Plaintiffs’ punitive damages. 27

Defendants invited the submission of libel actual malice to the jury in both phases by filing the motion to bifurcate. If Defendants did not want two phases of trial, they should not have filed the motion.

Second, Defendants erroneously claim that Section 5, Article I, of the Ohio Constitution, the right to trial by jury, precludes the submission of libel actual malice in both phases of trial, but Defendants are wrong. The text of the provision certainly does not preclude such action as it merely states that “[t]he right of trial by jury shall be inviolate.” Defendants did not cite (and Plaintiffs are not aware of) even one Ohio authority stating that the Ohio right to trial by jury prevents the submission of overlapping issues in a bifurcated trial in both phases.28 This makes sense, as the right preserved by the constitution ”was the right to trial by jury as it was recognized by the common law; and within the right thus secured is the right of either party, in an action for the recovery of money only, to demand that the issues of fact therein be tried by a jury.” Dunn v. Kanmacher, 26 Ohio St. 497, 502-03 (1875). The right as defined contains no limitation based on bifurcated issues at trial.

Third, Defendants’ reliance on one federal case, Greenhaw v. Lubbock Cty. Beverage Assn., 721 F.2d 1019, i025 (5th Cir. 1983),29 to support their claim that libel actual malice should not have been submitted during both phases of trial, is misplaced:

• Greenhaw is a federal case discussing the Seventh Amendment to the United States Constitution. As Defendants’ counsel are no doubt aware, the Seventh Amendment has not been incorporated to the states and has no application to this case. See, Walker v. Sauvinet, 92 U.S. 90, 92 (1875) (“A trial by jury in suits at common law pending in the State courts is not a privilege or immunity of national citizenship which the States are forbidden by the Fourteenth Amendment … to abridge.”).30

• Further, even if cases interpreting the Seventh Amendment are persuasive authority for Ohio courts (they are not),3 1 the Greenhaw court is relying on the Reexamination Clause of the Seventh Amendment, which states that “no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.” Seventh Amendment to the U.S. Constitution. The Ohio right to trial by jury contains no such clause. See, Section 5, Article I, Ohio Constitution. Thus, federal cases interpreting the Reexamination Clause are not persuasive authority for Ohio courts.

• In any event, federal interpretations of the Seventh Amendment must give way to Ohio statutory provisions requiring bifurcation  of specific issues. See, Edelstein v. Kidwell, 139 Ohio St. 595, 41 N.E.2d 564 (1942) (distinguishing Gasoline Products based on Ohio statutory authority). Because Defendants moved for bifurcation, libel actual malice became two separate issues that  were required to be submitted to the jury in both the compensatory and punitive phases of trial. Thus, the submission of libel actual malice during the punitive phase of trial was not error and therefore Defendants’ JNOV Motion must be denied.

There you have it: The argument is that defendants, by insisting on a bifurcated trial, necessarily required that “actual malice” for compensatory presumed damages be treated separately from actual malice for punitive damages. Indeed, the Gibsons were prohibited from presenting evidence relevant to punitive “actual malice” during the compensatory phase. Also, the claim that the Ohio constitution forbids a jury considering an issue twice is not the law.

The Judge in a prior Order said he would rule by September 9.

[Featured Image: David Gibson and Allyn W. Gibson at trial, photo credit Bob Perkoski for Legal Insurrection Foundation]


Gibson’s Bakery v. Oberlin College – Plaintiffs’ Opposition to Motion for Judgment Notwithstanding the Verd… by Legal Insurrection on Scribd


Gibson’s Bakery v. Oberlin College – Plaintiffs’ Opposition to Motion for a New Trial by Legal Insurrection on Scribd


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