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Oberlin College Seeks New Trial in Gibson’s Bakery Case

Oberlin College Seeks New Trial in Gibson’s Bakery Case

“A new trial is warranted here to address a litany of errors”

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]

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

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

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Comments

Comanche Voter | August 22, 2019 at 9:34 pm

Keep wiggling there Oberlin. Sorta like a fish speared by a scuba diver. There’s nothing wrong with pursuing all your various avenues of appeal. But at the end of the day you’ll still be a loser.

    notamemberofanyorganizedpolicital in reply to Comanche Voter. | August 22, 2019 at 9:51 pm

    They literally must have money to burn.

      Knowing Libs, Oberlin would rather spend all the money on lawyers so it won’t have any to pay the bakery

      Oberlin College has VERY deep pockets. They will just hit up alumnus for more money. However, I have previously read about the college that indicated the 33M was just an inconvenience. Deep pockets indeed!

        MajorWood in reply to Zardoz. | August 24, 2019 at 7:59 pm

        It is a very dangerous game of poker here. The college administration is hoping for either a mirical reversal ( <1% probability) or that the alumni never find out what complete asshats they have been. If the alumni find out and do nothing, then they become complicit. That also has a small percentage possibility of happening, but my prediction is that in the end that the alumni find out and Twillie et al are booted for good. And I hope there is enough leftover stank for it to have a major negative impact on Krislov as well. In 10 short years they completely ruined a fine school with the socialist cancer. Time wounds all heels. Hey Twillie, does the word "Alamo" mean anything to you? In 2020, I see a rallying point of "Remember Gibsons" as the good people unite and crush you parasites out of existence, just sayin.

          MajorWood, You are right that the alumni need to find out what has been going on. They will learn nothing of value from the disingenuous PR whitewash on Oberlin.edu.

          The rats in this matter have been reading the posts on LI religiously, and the more reasoned posts such as yours are giving Oberlin’s rats some sleepless nights. They are running scared, but the scare needs continuous reinforcement. Every post on LI helps, but when posting here you are preaching to the choir. Suggestions are desired from any of LI’s many talented authors on how to best reach those alumni who are not reading LI.

          Many alumni were trained by the civil rights and Vietnam protests, and it looks like it is time to dust off those skills and use them once again. So for starters, how about an alumni protest demonstration and sit-in in Ambar’s office on homecoming weekend?

          Martin Luther King’s civil disobedience tactics were successful against segregationist injustice in the South and will work again today against the college’s elitist and oppressive trustees and administration. The presence of Meridith Raimondo and her bullshit bullhorn would be most welcome at any peaceful, non-violent protest.

          It would be an honor to stand up against the Gibson boycott in the same way that MLK stood up in support of the Montgomery AL bus boycott. Who knows? There might even be some people in Alabama who would be willing to come to Oberlin to join a sit-in supporting the civil rights of the Gibsons. Many Alabamans believe in decency, just as we do.

          /s/ JD Nobody, OC ’61.

      Their high burn rate is just pushing them closer to bankruptcy.

    I did not read Jacobson’s comment at the end as expressing that degree of confidence in the outcome. As he said, let’s see how the Gibson’s team responds.

    beagleEar in reply to Comanche Voter. | August 22, 2019 at 11:22 pm

    Oberlin is an institution with a half-billion dollar endowment. It is a corporation; no individual or family is liable for its actions.
    Gibsons is a small family business whose owner has stage 4 cancer.

      artichoke in reply to beagleEar. | August 23, 2019 at 7:14 am

      The logic one regularly hears from the left-wing is that when such a defendant is a member of one of their “protected” groups, the money is paid out to such a poor *disadvantaged* person regardless of the facts. (I just realized that the word “disadvantage” is not new; it’s been used as I just did for decades; all that’s new is converting it from an adjective to a noun.)

      Here we have massive facts in favor of the Gibsons. But they’re white and the ones we’ve seen prominently are men. Multiple generations of them, so apparently mostly heterosexual.

      So the SJW’s say what? They’re oppressor class and they must not win regardless of the facts.

The Friendly Grizzly | August 22, 2019 at 10:15 pm

Oberlin wants to run out the clock. The elder Gibson hasn’t long, his son has cancer.

    Nothing like putting an even older Gibson and one in the middle of cancer treatment in the courtroom and not getting a sympathetic jury. The College has a choice, pay the Gibson’s or keep running up legal fees. Make them a reasonable offer to settle it and move on to your next trial with the student explusion. Have fun with your expert saying the business is only worth 35k to another jury. Looking at yet another 3 million in legal fees to your side and and 3 million to the Gibson’s legal team.
    They had a weak case and got out lawyered once and it will happen again unless you bring in your top guns each and every day instead of the B team, then it might be an even battle.

      artichoke in reply to buck61. | August 23, 2019 at 6:48 am

      They probably see how they might have argued their case better now and want to re-try it in light of their experience and knowing how the plaintiff’s case will go.

      We do not re-run trials until both sides have perfected their cases conditional on what the opponents have; that is not our system.

    That could happen, but others have said that his estate would inherit the matter and that it would continue.

      slither in reply to jb4. | August 23, 2019 at 4:14 pm

      Well, the suit might continue. But, firstly, at least one of the Gibsons might be dead, which the college might view as a victory. Secondly, the previous jurors saw an old man with a broken neck. If he’s dead by the time a second jury meets, the jury might not be as sympathetic. And thirdly, the bakery is quite likely bleeding money right now and they haven’t received a penny yet. If Oberlin drags things out, the bakery might have to close.

    That could happen, but others have said that his estate would inherit the matter and that it would continue.

    If so wouldn’t the estate be able to continue the suit?

Lol not going to happen

Husband and I are taking a road trip out that way in a few weeks. Think we’ll take a slight diversion and stop at Gibson’s to buy some tasty treats, a couple of tee shirts, and show our support. It amazes me that any of the Oberlin administrators can sleep at night given the level of hate in their hearts.

    fscarn in reply to RNJD. | August 22, 2019 at 11:09 pm

    Apparently you haven’t seen that Meredith Raimondo character.

    She haunts houses as a side business,

    https://i2.wp.com/www.powerlineblog.com/ed-assets/2019/06/Screen-Shot-2019-06-13-at-9.03.27-PM.png?resize=300%2C294&ssl=1

    Go for it. Hope to run into you at Gibson’s.

    It is refreshing to see that you value decency over the self-anointed righteousness of the college’s current officers and its gutlessness trustees.

    Once upon a time, the trustees of Oberlin College placed some value on honor, intellectual integrity, and decency. Today they have reached the level of enlightenment needed to see that such thinking is reactionary and backward.

    /s/ JD Nobody, OC ’61.

    lc in reply to RNJD. | August 23, 2019 at 8:50 am

    I do hope you’ll wear your Gibson T-shirts on a walk around campus. Perhaps a visit to Raimondo’s and the president’s office?
    Safe travels!

      MajorWood in reply to lc. | August 24, 2019 at 12:02 pm

      I now call it “Gibsons Wednesday” wherein I wear my Gibsons T-shirt every Wednesday. It wold be interesting to see this become a movement.

        Great idea! Your idea would help counteract the propaganda blitz the college is paying top dollar to perpetrate.

        Never in the history of the college has the college launched as remotely as slimy-slick a PR propaganda campaign as is currently underway. Nor has the college ever put forth as expensive a PR campaign to whitewash the guilty. Worst of all, never in the college’s history has there been such a pack of feral and intellectually depraved hogs shoving their seemingly insatiable snouts into the college’s trough of money.

        It is a sad commentary on the times that feral hogs have been entrusted with fiduciary duty for managing the college’s assets. The trustees are throwing monetary and reputation assets to the four winds solely to divert attention from their incompetent management using stealthy PR.

        Shame, shame, shame on the trustees for allowing the needless and avoidable Gibson mess to snowball to the size that it has, and with no clear end in sight.

        Let’s keep the heat on; the trustees and administration are running scared when they are willing to ruin the institution in an effort to save their elite posteriors.

        Now all who read this can claim in all honesty that Nobody told them.

        /s/ JD Nobody, OC ’61.

    JusticeDelivered in reply to RNJD. | August 23, 2019 at 3:14 pm

    Oberlin had a proud history, all that is now moot. I have seen their problem in the corporate world, one where an entity gets a critical mass of disreputable people at the top and it destroys the entity. I think that they are a lost cause, that they will squander much of their nest egg, and even if they succeed with what they were trying to do, continue trying to do in Gibsons, that damage to their reputation will cause them to wither and die.

    I do hope that Gibsons win this, and hope that the Oberlin community finds a way to mitigate their economic dependence on the the college.

      The situation is bad to be sure, but I hope it is not as bad as you imply. Nevertheless, there can be little doubt that a few rats in key positions can destroy an otherwise good organization.

      GE is all but dead at this point due to its rats, and Boeing has been severely damaged by its board shoving aside competent aeronautical engineers and replacing them with glib financial engineers. Sad.

It seems simple whether the wrong law was applied:

“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….”

See this, from the Ohio Supreme Court:

(Feb. 15, 2012) The Supreme Court of Ohio today upheld as constitutional a 2005 tort reform provision that requires state courts hearing tort (civil) lawsuits to grant requests for “bifurcation” of trials into two separate stages where claims for compensatory and punitive damages have been asserted.”
https://www.supremecourt.ohio.gov/PIO/summaries/2012/0215/102148.asp

If the defense motioned to bifurcate compensatory and punitive damages and this did not occur, this is a problem – unless the defense somehow waived this right, even after requesting it.

    Didn’t bifurcation actually happen? There was the compensatory phase, then the punitive phase. And if so, it appears by the language that you cite that the defense asked for it.

    And furthermore, since they were two separate trials, related questions could be asked in each.

“Ah, this hole isn’t deep enough. Lets keep digging.”

As a hyper-cynical non-lawyer, this is the stage where I expect a Federal judge to ride to Oberlin’s rescue if they are defeated in their attempts to get a new trial (using the all-purpose excuse of “fairness”).

It is no use to say Federal courts have nothing to do with this case. A disturbing number of Federal judges have already shown an unhealthy itch to stick their noses in where they don’t belong. The so-called “Muslim travel ban” and DACA are just two examples where Federal judges put the Constitution through a shredder in order to poke Trump in the eye.

    Publius_2020 in reply to Recovering Lutheran. | August 23, 2019 at 2:37 am

    It doesn’t work like that. There’s no federal jurisdiction here, at least until it after it reaches the Ohio Supreme Court, and then the only remedy is a cert petition to SCOTUS.

      Ulysses in reply to Publius_2020. | August 23, 2019 at 6:43 am

      They may be no legal basis for Federal Jurisdiction. However, there is Federal Jurisdiction as soon as some radical implant District Court Judge decides to take the case, using some Constitutional trope as an excuse.

      You are telling me what the law says and how the courts are supposed to work. I am saying none of that matters to a Federal judge determined to have his/her way.

      All it will take is one Federal judge – just one! – to bail out Oberlin and overturn the jury’s verdict. Recent history has proven the Federal judiciary is chock full of judges who hate the Constitution. What was the legal basis for the Federal courts blocking the Trump administration from ending the Obama administration’s executive order on “Dreamers”? Or back in the 60s and 70s Federal judges acting like Soviet commissars and ramming all sorts of idiocy down our throats in the Holy Name of busing? Or the Federal courts overturning state laws, thousands of years of history, and plain common sense to invent a “right” for homosexuals to marry?

    Constitution? What the hell is that?

This looks like you need a lawyer’s eye to determine the merits of this argument. I am not even sure what role the interrogatories play in the final verdict and if apparent contradictions in the responses are sufficient to nullify the verdict.

    artichoke in reply to bernie49. | August 23, 2019 at 7:02 am

    I believe these “interrogatories” are after the verdict, where essentially the loser gets to ask the jurors separately whether they agreed to each part of what the jury was said to agree to. If the interrogatories produce results that contradict the overall jury verdicts, then there’s a problem. That did not happen here.

    But it seems they’re now comparing one interrogatory of Juror A from the compensatory phase against another interrogatory of Juror B from the punitive phase. This seems rather novel, but that’s why they pay their lawyers the big bucks.

Yeah, new trials until the desired outcome is arrived at, or everyone else drops off due to old age.

The legal significance of the “actual malice” interrogatory is subtle, and would not be apparent unless you read all the pretrial motions.

In general, if the Gibsons are held to be “private” persons, actual malice is irrelevant — the legal standard for libel of a private person can be mere negligence. (See Gertz). Only if the Gibsons are “public figures” does actual malice come into play. (See Times v. Sullivan). Because the interrogatories found no actual malice, yet the judge entered judgment for the Gibsons, we can reasonably conclude that there is a pretrial finding that they are no public figures. However, it is possible that the court gave the jury an actual malice interrogatory as an insurance policy in case a court of appeal disagreed with him on the public figure issue. (Otherwise, a reversal on public figure would require a retrial.) There will be a pretrial ruling on this issue somewhere in the record.

The standard for punitive damages in Ohio is different, although the language contains some similarities. So the finding of punitive damages is not necessarily inconsistent as a matter of law.

Paul In Sweden | August 23, 2019 at 6:37 am

So… on September 9th, the court can deny the Oberlin motions and appeal and order the $36 million bond dispersed to the Gibsons?

The story of Raimondo’s behavior is even worse than most people realize. Before filing the lawsuit, the Gibsons had worked out a settlement with the college that fell apart over whether or not the Gibsons would agree to turn over future shoplifters to Raimondo rather than turn them over to the police and the legal system.

In other words, Raimondo wanted the Gibsons to conspire to bypass the legal system so that she could have vigilante power to deal with future shoplifting in whatever way she saw fit.

I will leave it to the great legal minds posting on this blog to opine on whether or not her seeking vigilante power could be actionable in a separate legal process from the shoplifting matter. If nothing else, her seeking vigilante power shows a disdain for the rule of law. It does seem to Nobody that circumventing the legal system is a more overarching issue than are the many procedural errors that may have occurred in the trial.

Now you can say that Nobody told you.

/s/ JD Nobody, OC ’61

    Paul In Sweden in reply to J.D.Nobody. | August 23, 2019 at 9:26 am

    It was just that bypassing of law enforcement and the courts demanded by the Obama DOJ that led to the “bypassing” of law enforcement for Trayvon Martin and the Parkland shooter. The consequences are still not being faced by the left.

    Tom Servo in reply to J.D.Nobody. | August 23, 2019 at 10:49 am

    The only reason that what Raimondo did in those negotiations isn’t actionable is that it’s not illegal to try and talk other people into doing really, really stupid things, even though we often wish it would be.

    I would argue that what she did is no worse than someone who tries to talk you into voting for Bernie Sanders or the Green New Deal.

    Gerald86 in reply to J.D.Nobody. | August 24, 2019 at 9:46 am

    Vigilante power is exactly right. Would this also apply to colleges that expel men on rape charges w/o due process?

      In many cases, student rights do not exist. Private colleges often don’t need a reason to expel someone. If public funding is involved it would be a bit harder to declare someone guilty until proven innocent. In short, the best lawyer wins.

My God, these people are a plague upon humanity. And they won’t stop. The whole leftard movement thinks it’s going to win, and with the lame response from our RINO-squish leaders (not counting Trump) I can see why they feel that way.

    You would not know it from all the stupidity that is going on, but there is still much excellence and decency left in Oberlin College.

    The problem is how to kill the rats without causing a lot of collateral damage to the innocent and the decent. The breach of fiduciary duty by trustees and officers of the college must be brought to an end safely. Those clowns have needlessly wrought massive economic and reputational damage to the college for which they must be called into account.

      artichoke in reply to J.D.Nobody. | August 23, 2019 at 10:15 am

      That student body rushed to a bad consensus and acted on it, a few of them violently, many others beyond the bounds of civility and decency. I wouldn’t trust the place until four years after there’s a housecleaning in Admissions.

      Zardoz in reply to J.D.Nobody. | August 23, 2019 at 10:22 am

      Cutting off “A” head of the Medusa that is Oberlin College does no good at all. I am willing to bet that there might be 1 in ten professors (or less) that lean to the right politically. Oberlin is just another college that is part of the cesspool being “hatched” right now.

If I can guess what he meant, these two motions have both been filed with the Trial Court. Judge Miraldi was very careful at all stages of this trial, and it is very doubtful that at this late date he will now say “oh yes, I was completely wrong the whole time, let’s throw it out!” BUT as Prof. Jacobson says, these motions are instructive because in them we can see the issues that Oberlin will base it’s appeal on, which of course has not happened yet.

So yes, these will fail, but they are a template for what comes next.

The definition of chutzpah

If this is retried, I hope Gibson breaks it off in Oberlin’s disgusting rear. Double up on their evil ass.

    redc1c4 in reply to gourdhead. | August 24, 2019 at 2:39 am

    using a tanker’s bar, wrapped in 3 coils of rusty concertina, and with 2 WP grenades pushed in previously, pins pulled.

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