Today starting at 10 a.m. is the oral argument in (1) the appeal byOberlin College and Dean of Students Meredith Raimando seeking to overturn the compensatory and punitive damage awards totalling, after reduction under Ohio tort reform law, $25 million, plus over $6 million in attorney’s fees, bringing the judgment to over $32 million, and (2) the cross-appeal by Gibson’s Bakery and two members of the Gibson family (including the widow of the late David Gibson) seeking to restore the full $33 million punitive damages award, arguing the tort reform reduction was unconstitutional, which would add back about $15 million to the judgment.

For more detailed background see our PRIOR POST about the oral argument, which has my pre-argument analysis, and explains the procedural posture and has links to the trial court proceedings and the appeals court briefs.

According to Ballotpedia, Judges on this court run for election every six years in non-partisan elections. The Judges today, according to the court calendar, are Donna Carr, Jennifer Hensal, and Julie Schafer. According to their Ballotpedia links, they are all Republicans. I know nothing else about them.

http://www.ninth.courts.state.oh.us/index.htm

The Court is supposed to have a livestream on its YouTube Channel. We will embed that livestream when it appears, and provide quick reaction once it is over.

An important caveat. While oral argument sometimes can give insight into how the judges will rule, that’s not necessarily the case. Sometimes judges play devil’s advocate, or simply want to test the arguments.

QUICK POST-ARGUMENT REACTION

The oral argument just concluded. Judge Donna Carr took the lead for the judges, and was the only one to ask questions. There were several issues that were the focus —

Bifurcation — I flagged this long ago as the key issue. At the compensatory stage, the jury found no ‘actual malice’ but at the punitive phase found actual malice. This seems to provide a contradiction, but as the Gibson’s attorney Lee Plakas pointed out, it was the result of a strategic decision by Oberlin to separate the two, and there was additinal evidence provided in the punitive phase. Plakas kept coming back to the fact that Oberlin “got what it asked for” and has to live with the consequences of that strategic decision. None of the judges asked about this, but Oberlin attorney Ben Sassé focused on the inconsistency and Plakas addressed it.

Opinion versus facts — If the statements by Oberlin were opinion, they were constitutionally protected. The trial court found that the allegations that the Gibson’s had a “long account of racial profiling” was a verifiable statement of fact. Judge Carr, responding to Oberlin’s argument that it was opinion, asked about whether it depends on the context in which it was stated, which seemed to suggest she viewed it as a statement of fact.

Publication of defamation — Oberlin argued there was no publication of the flyer by the Dean of Students because she only handed it to one reporter. I’m shocked he said this, since there was testimony, which Plakas pointed out, that she directed the passing out of stacks of the flyers. Even Judge Carr made reference to testimony that the Dean handed out flyers. The publication of the student resolution with the same language, by leaving it up in an Oberlin building, could be more problematic for the Gibsons, but if the court finds no publication of the resolution, it would be harmless error because of the testimony about the Dean passing out stacks of flyers.

First Amendment –– As we have flagged for a long time, Oberlin tried to paint this as an issue of protecting student free speech. This mischaracterizes the case. Plakas pointed out that it was a tort case based on the conduct of the college officials, and that not a single student was named as a defendent, submitted an affidavit, or testified at trial.

Aiding and Abetting — There was a jury instruction, and the trial court ruled on summary judgment, that the college could be liable for “aiding and abetting” the publication of defamation. Each side has briefed whether this is a correct standard. Judge Carr stated that it was “important to me” that even if this was an incorrect jury instruction, there was evidence of the Dean distributing the flyer herself so there would be liability even without aiding and abetting. With the caveat about oral argument, when a Judge says some issue is important to her, we should take it as important to her. This may reflect that Judge Carr is willing to overlook what is referred to as ‘harmless error’ to uphold the verdicts. This is necessary on appeals because every long trial has error, the question for appeal is whether the error requires reversal. If there is an independent ground that is not error (e.g., handing out the flyers) then the error is not a basis to reverse.

Punitive Damage cap – Judge Carr stated, correctly, that the caps have been upheld as constitutional by the Ohio Supreme Court. The Gibson’s counsel (not Plakas, Jacqueline Bollas Caldwell), argued that “as applied” to this case the caps were unconstitutional. I’d be surprised if the Gibsons won on this point, if that decision will be made, it’s probably going to have to be by the Ohio Supreme Court.

Who Will Win The Appeal – Don’t even think of asking me this question. Regardless, this seems headed eventually to the Ohio Supreme Court.

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[Featured Image: Gibson Family and legal team after punitive damages verdict][Photo credit Bob Perkoski for Legal Insurrection Foundation]

 

 
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