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Gibson’s Bakery: Oberlin College’s request for a new trial is “baseless”

Gibson’s Bakery: Oberlin College’s request for a new trial is “baseless”

“Defendants’ challenge to the libel verdicts consists mostly of regurgitated arguments that this Court already decided during summary judgment briefing and that can be dismissed out of hand.”

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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The audacity is stunning- and sickening.

I’m not sure if it is relevant but it does seem like the Defense wants it ways – In the punitive phase, The Gibson’s wanted to bring up the letters sent to Oberlin alumnus stating how the jury got it wrong. The judge disallowed it because both phases had to be decided based on the same evidence. Even if a decided fact is not brought up in the same manor the second time around, malice, it’s still assumed to be in evidence. Shame on Oberlin for not making the rejection of malice a thing. My guess is that they didn’t want to bring it up because they were still hoping the punitive phase would come back at a dollar judgement.

Bottom line is that Oberlin was outlawyered.

DouglasJBender | August 29, 2019 at 2:17 pm

Here is my verdict on the matter —

Dear Oberlin: Pay up, and shut up.

The bottom line here is that both parties are watching either optimistically (Oberlin) or cautiously (Gibson’s) for a bench activism judge that will ignore the wrongdoings and pat Obie on the back for their good deeds in the name of social justice.

They certainly aren’t going to get it from this judge.

College: How dare you split the compensatory and punitive phases of the trial!
Gibsons: Dude, you *demanded* it.
College: Yeah, but you listened to us! Don’t you know we’re idiots?
Gibsons: (sigh)

The one thing that Oberlin did not want was a fair trial.

So, is anyone thinking that September 9th will now be known in Oberlin as “Check Day” ? Remember kids, each day you hem and haw is $4300, or roughly all of your salaries combined. The next double down might very well be a reduction of the latter as well.

I predict that the next phase, after the check is written, is that all of the Oberlin administrative staff that brought this on themselves will go on a MMAASSSSIIVVEE PR campaign about how they were ALL just victims of these evil straight white christian conservative males.

I suggest the movie “Ticket to Heaven” which is a semi-fictional story about cults in the early 80’s. At one time I proposed that the Oberlin administration were acting just like the drug addicts that I deal with every day, but I am now leaning towards them having achieved cult-level denial/ behavioral maladjustment. Daniel, have you observed them humming a mantra during the court proceedings so as to block out any information contrary to their world views?

The sad part is that this whole event is completely opposite to how they try to portray themselves to the world. Like most leftists, they are open to everything, except anything that they disagree with.

    MajorWood, The massive PR campaign you allude to has been underway for at least a month. Historically, Oberlin College has always had 10 thumbs when it comes to PR, but this time around they have brought in a small army of outside big $$ PR people. The resulting slimy-slick PR campaign is impressive to see, in a sick kind of way.

    The current situation has its origin in the dystopian idealism of the current Board of Trustees. These folks have become dystopian addicts with no clue that they are addicted. Pres. Ambar has in effect inherited the addictions that were encouraged by her predecessor. It is not clear if she is now just playing the role of the alcoholic’s duped wife or is also drunk on the dystopian addictions of her trustee husbands. Both conditions probably apply because it is hard to tell the enablers from the addicts.

    The cost of destroying perhaps 1000 $35,000 scholarships for needy students is lost on the trustees. The trustees are clueless that the dollars they are killing are pieces of the lives of benefactors. Each dollar that the benefactors gave to endow the college was a piece of the fruits of his/her life that the benefactor chose to give up to benefit others. Those sacrifices are being betrayed by the elitist, dystopian jerks who are now calling the shots.

    Using one’s fiduciary duty to disrespect the fruits of a benefactor’s life is disrespect for not just the benefactor but disrespect for decency itself. Throwing the pieces of other people’s lives into an ever-deepening rat hole is a breach of fiduciary duty that only happens in a disconnected and dystopian world.

    Now anyybody can say Nobody told me.

    /s/ JD Nobody, OC ’61.

    MajorWood, on second thought I think you are right that the college is showing much more than addictive behavior. It is indeed cult-level denial/ behavioral maladjustment. The college leadership has become the personification of the physics concept of an object’s third derivative of space with respect to time.

    First derivative: the object’s speed.
    Second derivative: the object’s acceleration.
    Third derivative: the objects jerkiness.

    I will rest on what I learned in physics lab and spare you a Jungian psychoanalysis of OC’s current leaders. Even Jung would find OC’s “leaders” to be a challenge.

    /s/ JD Nobody.

I can’t decide if Oberlin is serious or if these were filed in an effort to try to settle for less than the full verdict. Given their monumentally stupid behavior and how they litigated this case, I guess I’m going to assume that Oberlin is serious, and pushing a nuclear level of stupidity.

They should frankly be thankful that it wasn’t more, regardless of what their president thinks.

I’m now wondering what ridiculous claim the students will take up this semester–perhaps they’ll claim that fusion cuisine is culturally misappropriating and all take to their beds with the vapors, or something.

    txvet2 in reply to rochf. | August 29, 2019 at 7:46 pm

    I’m now wondering what ridiculous claim the students will take up this semester–

    I’m wondering how much they’re going to raise tuition to cover this judgement.

    JusticeDelivered in reply to rochf. | August 30, 2019 at 10:34 am

    This is similar to their $35,000 valuation for Gibson’s business, pure stupidity.

We should probably have some kind of pool about the next stupid claim to come out of Oberlin–I think the ideas would be interesting as well as entertaining.

    Valerie in reply to rochf. | August 29, 2019 at 6:14 pm

    Lawyers sometimes sound stupid when they try to present a weak case seriously. Oberlin has a weak case.

Shorter Oberlin: “The rules are only supposed to apply to us when they work in our favor!”

rochf, you miss the point entirely. The management of the institution is a pack of addicts, and the inmates are now soberer than their captors. If you knew anything about Oberlin, you would understand that its student body could never match the looniness of its current leaders.

/s/ JD Nobody

OC’s PR people have just blitzed the alumni with an email announcing college President Ambar’s planned grand tour of the hinterlands. She will no doubt make a glib and biased presentation on how great things are and dodge any questions about the Gibson matter as best she can.

Will all the queen’s horses
And all the queen’s men
Be able to put
OC together again?

You can pay for grand tours easily when you have a siphon into somebody else’s money to cover the tab. I doubt that Ambar will choose a format for her tour that will allow meaningful cross-examination.

In order to correct this discrepancy, I hereby challenge Carmen Twillie Ambar, president of Oberlin College, to a one-on-one public debate on the Gibson’s matter and on the trustees’ dereliction of duty. We can do it on Homecoming weekend in Finney Chapel. I seriously doubt she has the guts to accept my offer even though she has nothing to lose since each person in attendance will be able to say in all honesty “Nobody told me!”

/s/ JD Nobody, OC’61.

BTW, the name “Gibson’s Bakery” is misleading, as are the photos of the front of the store. Gibson’s is actually a 21st-century general store and convenience store set in the atmosphere of its 19th-century building. This business model has successfully competed with a giant Walmart 2 miles away. There is a lot more to the Gibsons than donuts and icecream.

Am I understanding this right? Oberlin’s attorneys are arguing for a mistrial based on their own blunders?

i thought lawyers had a duty to advise clients when not to take legal action that they knew or should have known they would lose in court.

    dunce1239, Had Oberlin’s counsel advised the client in the manner suggested it is unlikely that the client would have listened. Oberlin apparently sees the matter with the Gibsons as a morality issue rather than a legal issue, so listening to a lawyer is not relevant.

    /s/ JD Nobody