Everyone is waiting for the appeal in the Gibson’s Bakery v. Oberlin College case that has captured the attention of the nation. The judgment is for almost $32 million in damages and defendants were required to post a $36 million bond to secure the judgment pending appeal.

The appeal phase, as I’ve previously indicated, is the most perilous for the Gibsons. Their case was so strong on the facts, and the trial defense so tone deaf, that a jury verdict in their favor was likely. But on appeal, there are legal landmines the defense will try to raise that could torpedo the jury verdict. I’m not predicting that, but in any lengthy trial there are a myriad of issues a losing party could raise on appeal.

But before we get to appeals, there are post-trial motions.

Under the Court Order setting post-trial motion deadlines, defendants had until August 19 to file post-trial motions, plantiffs had 14 days to respond to the motions, no replies were permitted, and the Court will decide the motions by September 9.

On August 14, defendants filed two motions, a Motion for Judgment Notwithstanding The Verdict (pdf.) and Motion for a New Trial (pdf.), copies of which are embedded at the bottom of this post. So the Gibsons have until August 28 to file their objections.

If you want to know what the appeal will look like, read the motions, which largely mirror each other. The defendants challenge a large number of the pre-trial and trial legal and evidentiary rulings. In that respect, it’s a re-litigation that defendants are required to attempt, or they can’t raise the issues on appeal. It’s kitchen sink time in that regard.

The motions are so long and deal with so many distinct issues, it’s hard to summarize them. So here’s the summary from the Motion for a New Trial:

[note – it’s going to take some time to clean up the text from the motions, which didn’t copy very well from the pdfs.]:

Defendants’ companion motion for judgment notwithstanding the verdict and brief in support explains why they are entitled to judgment as a matter of law. If that relief is not granted in whole or in part, however, the Court should order a new trial on all issues not resolved in Defendants ‘ favor as a matter of law. A new trial is warranted here to address a litany of errors that allowed some issues to be tried twice (or out of order), sent the libel claims to jurors under the wrong standards, allowed jurors to hear only half the evidence proffered on Defendants’ fault (and the irrelevant half at that), and placed before jurors an array of claimed injuries and damages not relevant to any claim they were to decide, all of which resulted in wildly excessive verdicts influenced by passion and prejudice:

• Irregularities in the proceedings forced jurors to consider (and reconsider) issues at the punitive damages phase of trial (including constitutional malice and allocation of compensatory damages) that were or should have been finally resolved at the liability phase of trial;
• Erroneous libel jury instructions that asked jurors to resolve the claim on a basis, “aiding and abetting” liability, not recognized under Ohio law;
• Erroneously excluded evidence about the incident that sparked the protests and differing experiences with Plaintiffs left the jury with only one side of the story and inadequate evidence to evaluate Defendants’ alleged fault;
• At the same time, the admiss ion of irrelevant and highly inflammatory evidence of postprotest texts and e-mails, on the other hand, encouraged jurors to find fault on legally insufficient grounds;
• Beyond this, Defendants were prejudiced by improper evidence on several categories of damages that were unrecoverable (illusory lost business chances and rental income) and/or not at issue (speculative harms from an unrelated May 2017 fall one Plaintiff experienced, and irrelevant property damage not at issue);
• Additionally, the proceedings showed Defendants could not (and did not) receive a fair trial in Lorain County, confirming the motion to transfer venue to Cuyahoga County should have been granted; and
• The grossly excessive damages awards were given under the influence of passion and prejudice.

At the very least, the excessive verdicts – which are unprecedented in Ohio – should be subjected to a remittitur, including the proper application of the damages caps under R.C. 2315.18(B)(2) and R.C. 2315.2l(D)(2)(a) and further reduction of excessive economic and noneconomic awards to amounts supported by the evidence of record .

As is obvious, there is a heavy focus on the jury instructions and interrogatories. One issue in particular is interesting:

Start with the errors in the jury interrogatories. The Court improperly had jurors consider constitutional actual malice twice in violation of Defendants’ right to trial by jury, giving Plaintiffs an impermissible second-bite-at-the-apple on punitive damages for libel after jurors had found Defendants did not act with the fault necessary to allow a punitive damages award. The Court also improperly allowed jurors to allocate compensatory damages while awarding punitive damages, even though an Ohio statute requires strict separation between the compensatory and punitive damages phases of trial. Since these errors affect both phases of trial, a new trial of both phases is necessary to address them….

Allowing the jury to consider- for a second time-whether Defendants acted with constitutional actual malice (i.e., the malice as to truth or falsity that must be proven for punitive damages to be allowable under the First Amendment in defamation claims involving a matter of public concern) is legal error and an irregularity in the proceedings that requires a new trial. 1 Defendants objected to this Court’s error immediately during trial….

Here are the jury interrogatory answers from the Motion JNOV:

Not included in the motion were the punitive damage interrogatories. The jury answered “Yes” to a series of questions, upon which the libel punitive award was based, both as to Oberlin College and defendant Raimondo:

A. You found that Oberlin College libeled Gibson Bros., Inc. In relation to that claim, do you find by clear and convincing evidence that Oberlin College’s actions demonstrated:
1. a state of mind characterized by hatred, ill will, or a spirit of revenge; or
2. a conscious disregard for the rights and safety of another person that had a great probability of causing substantial harm.

B. You have found that Oberlin College libeled Gibson Bros., Inc. Do you find by clear and convincing evidence that when Oberlin College libeled Gibson Bros., Inc. it acted with:
1. knowledge of the falsity of the statement;
2. reckless disregard as to the falsity of the statement.

I assume this issue was argued at the trial. I don’t know the counter-arguments from the Gibsons’ counsel or the judge’s reasoning in allowing these questions in the punitive damage phase.

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.

[Featured Image Photo Credit Legal Insurrection Foundation]


Gibson’s Bakery v. Oberlin College – Defense Motion for Judgment Nothwithstanding the Verdict by Legal Insurrection on Scribd


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


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